Young v. Andrews Hardwood Co.

BROGDEN, J. (1) Was the warrant issued by the justice of the peace for- the arrest of plaintiff void ? (2) Does an arrest by virtue of void process, nothing else appearing, support a suit for malicious prosecution? The warrant and the 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. The possession of goods, “which plaintiff is fully satisfied were stolen goods from said company’s commissary,” does not charge a criminal offense. S. v. Whitaker, 89 N. C., 472; Cooper v. B. R., 165 N. C., 578, 81 S. E., 761; S. v. Shew, 194 N. C., 690, 140 S. E., 621; S. v. Barbee, 197 N. C., 248, 148 S. E., 249. The second question of law involves the distinction between actions for false arrest or imprisonment and malicious prosecution. Corpus Juris, Vol. 25, p. 444, draws the distinction as follows: “Put briefly, the essential difference between a wrongful detention for which malicious prosecution will lie, and one for which false imprisonment will lie, is that in the former the detention is malicious but under the due forms of law, whereas in the latter the detention is without color of legal authority.” This Court adopted the same view of the law in Rhodes v. Collins, 198 N. C., 23, 150 S. E., 492. Clarkson, J., said: “False imprisonment is based upon the deprivation of one’s liberty without legal process, while malicious prosecution is for a prosecution founded upon legal process, but maintained maliciously and without probable cause.” *312 Tbe fact that tbe plaintiff was bound over to tbe Superior Court by a magistrate and tbat tbe grand jury thereafter returned a true bill establishes probable cause prima facie, although such is not conclusive. Bowen v. Pollard, 173 N. C., 129, 91 S. E., 711. Moreover, there is no evidence overthrowing or tending to overthrow the legal effect of the finding of the grand jury. Hence the ruling of the trial judge was correct. Affirmed.