Parrish v. . Hewitt

SoheNCK, J. Tbe sole question posed by tbis appeal is: Does tbe complaint state facts sufficient to constitute a cause of action for malicious prosecution? Tbe pertinent allegations of tbe complaint are “(5). Tbat on or about tbe 29th day of November, 1938, tbe defendant swore out before L. H. Phelps, a Justice of tbe Peace in Brunswick County, a warrant, charging tbis plaintiff as follows: ‘that at and in tbe said County of Brunswick, Lockwood Folly Township, on or about tbe 29th day of September, 1938, Jarrot K. Parrish, did unlawfully, willfully and feloniously endorse a check made to him without bis knowledge or consent and receive tbe money for said check and failed to account to him for tbe funds received for tbe check, contrary to tbe form of tbe statute and against tbe peace and dignity of tbe State’ ”; tbat thereupon tbe defendant caused said warrant to be delivered to him, who in turn caused it to be delivered to tbe sheriff of Bladen County, and tbe plaintiff was brought to trial before tbe justice of tbe peace and bound to tbe Superior Court and imprisoned thereupon; tbat subsequently a bill of indictment based upon said warrant was returned by tbe grand jury “not a true bill”; and tbe plaintiff was released. Tbe warrant alleged to bave been procured for tbe arrest and imprisonment of tbe plaintiff by tbe defendant falls far short of charging forgery wbicb tbe appellant suggests in bis brief it charged or sought to charge. Forgery in criminal law is “Tbe falsely making or materially altering, with intent to defraud, any writing which, if genuine, might apparently be of legal efficacy or tbe foundation of a legal liability.” 2 Bisb. Crim. Law, par. 523, Black’s Law Dictionary (2d'Ed.). “Blackstone defines it as ‘the fraudulent making or alteration of a writing to tbe prejudice of another man’s right.’ (4 Bl., 247.)” S. v. Lamb, 198 *710 N. C., 423, 152 S. E., 154. The warrant and affidavit must be construed together, and an inspection thereof will disclose that no crime known to the law of this State was charged in the affidavit, and therefore the warrant issued by the justice of the peace and upon which the plaintiff was imprisoned was void. Young v. Hardwood Co., 200 N. C., 310, 156 S. E., 501. Since the warrant upon which the plaintiff was imprisoned was void, an action for malicious prosecution will not lie, as “malicious prosecution is for a prosecution founded upon legal process, but maintained maliciously and without probable cause.” Rhodes v. Collins, 198 N. C., 23, 150 S. E., 492. An action for malicious prosecution “presupposes valid process.” Allen v. Greenlee, 13 N. C., 370. It may be conceded that there are allegations in the complaint of malice and of absence of probable cause, but there is no allegation of a valid process. The process alleged is invalid and void. The argument advanced in the appellant’s brief that “in the instant case the cause of action for malicious prosecution does not depend alone on the warrant, but a cause of action is alleged based on the bill of indictment in the Superior Court” is untenable, for the reason that it is alleged that the plaintiff was imprisoned and held to the Superior Court upon the warrant, and that “the Solicitor of the 8th Judicial District caused a bill to be presented to the Grand Jury based on the charge and warrant made and sworn out by the defendant and the Grand Jury after its investigation promptly returned ‘not a true bill.’ ” Even if it be conceded that there are allegations that the defendant maliciously and without probable cause procured the bill of indictment to be presented to the grand jury, it is not alleged, and it is obvious that it could not be alleged, that the plaintiff was, or could have been, imprisoned by virtue of a bill of indictment which was returned “not a true bill.” It is unfortunate for the plaintiff that he deferred the commencement of his alleged cause of action for false imprisonment until it was barred by the lapse of time, since “false imprisonment is based upon deprivation of one’s liberty without legal process.” Rhodes v. Collins, supra. We conclude that his Honor’s judgment sustaining the demurrer ore lenus was correct, and it is therefore Affirmed.