#### JAMES BEALE *vs.*MARIOT ROBERSON & AL.

In an action for malicious prosecution, where probable cause is alleged, it is-the duty of the Court to direct the jury, that, if they find certain facta-from the evidence, or draw from them certain other inferences of fact» there is or is not probable case ; thus leaving the questions of fact to the jury, and keeping their effect, in point of reason, for the decision of the Court as a matter of law.

The cases of *Leggett*v. *Blount,*No. Ca. Term Rep 123, *Plummer-*v, *Cfheen,*3 Hawks 6G, *Cabiness*v. *Martin,*3 Dev. 454, and *Sviaim v, Stafford,*4 Ired. 392 and 398, cited and approved.

Appeal- from the Superior Court of Law of Chatham County, at the Spring Term, 1847, his Honor Judge Manly presiding.

The plaintiff sued the defendants for having maliciously and falsely sued out a warrant, and prosecuted him, with two other persons, before a Justice of the Peace, for a felonious assault and robbery of the defendant Roberson on the high-way. Upon not guilty pleaded, the evidence was, that on a certain day,. Roberson and the plaintiff, and the two- other persons, who were prosecuted with the plaintiff, were in the town of Pitts-borough together, and, that in the afternoon, Roberson, who was in a state of intoxication, set out on horseback for his residence, which- was in the country in that *281vicinity: Afterwards, but how long did not distinctly appear, the witnesses saying, about an hour or more, the plaintiff and the two other persons, likewise left Pitts-borough together, to return, as they said, to their respective homes. The road, which led to the residences of Roberson, and the plaintiff and his companions, was the same for two miles and a half from Pittsborough, but at this distance there was a fork, and the road on one hand was Roberson’s, and that on the other, of the other persons. When the plaintiff and the two others were on trial before the Justice of the Peace, Roberson was sworn and examined as a witness to support the prosecution. And on this trial, after the plaintiff had given in evidence, the acquittal and discharge of himself and the others by the Magistrate, the defendants, for the purpose of showing probable cause, gave in evidence the examination of Roberson, before the Magistrate, in which he stated, that he proceeded on his return home, to the fork, and then took his own branch of the road and had gone half a mile on it, when he was overtaken by persons on horseback, and that he turned his face around to see who they were, and discovered that they were three in number, and that two of them rode horses of the same color with that of the horses of two of the persons accused, but did not observe the color of the other horse ; and that, as ho turned, and before he recognised either of the persons, who had come up, he was knocked from his horse by a violent blow across the head with a stick: and being then interrogated by the accused, whether he knew or believed that they had stricken him, the said Roberson replied, that he had no right to say they did; for he did not see them, and could not, indeed, say, whether the persons were white or black. And the defendants gave further evidence, that a short time after the blow was given to Roberson, as fixed by him in his examination, the three accused persons crossed Rocky River, in company, a mils or two farther on their way.

*282Upon the foregoing evidence, the presiding Judge directed the jury, “ that it was essential to the defendants9 justification, that they should have had probable cause for deeming the plaintiff guilty, and taking legal proceedings against him.” And his Honor further stated to the jury, *“*that it was not easy to define in precise terms, what probable cause was; but that he believed it to be such cause for proceeding as would have actuated a rational mind, imbued with ordinary respect to the rights of others : and should the jury conclude, in making an application of the facts proved, that the evidence before the minds of the defendants furnishcd( them, at the time, with reasonable grounds of suspicion and for suing out the warrant, the plaintiff could not recover.” And his Honor further stated to the jury, *“*that if the defendants knew or believed, that the plaintiff was innocent, they would then have no cause for what they did ; yet, on the other hand, that it was not inconsistent with probable cause, though there was at the time no certain belief or settled conviction, in the minds of the defendants’, of the plaintiff’s guilt.”

The counsel for- the plaintiff insisted, that the Court was bound to inform the jury, as a matter of law, whether the facts, given in evidence, or any of them, and, which did, or- did not, amount *to probable*cause, *and*prayed the Court to direct the jury, that the evidence in this case, if believed by them, did not amount to probable cause. B.ut his Honor declined giving any further directions, and the jury gave a verdict for the defendants; and from the judgment the plaintiff appealed.

*Badger*and *McRae,*for the plaintiff.

*Manly,*for the defendant.

Rottin, C. J.

This case brings up again the question, whether probable cause is matter of law, so as to mako jt the duty of the Court to direct the jury, that, if they *283find certain facts upon the evidence, or draw from them, certain other inferences of fact, there is or is not probable cause ; thus leaving the questions of fact to the jury, and keeping their effect, in point of reason, for the decision of the Court, as a matter of law. Upon that question, the opinion of all the *Court is in the*affirmative *;*and therefore this judgment must be reversed.

The point is concluded in this State by repeated adjudications. It was first presented in the case of *Leggett*v. *Blount,*N. C. Term, R. 123, in which the Judge told the jury, after the examination of many witnesses on both sides touching the alleged probable cause, that there was probable cause; and the judgment was reversed, because the Judge had assumed the decision of the whole case, including the facts, as well as the law. But it was distinctly admitted, or rather affirméd, there, that *probable cause,*as an abstract question, is one of law and to be decided by the Judge, according to the doctrine in *John-stone. Sutton,*1 T. R. 510, and the authorities therein cited; which establish, that upon a special plea and demurrer, or a special verdict, the Court determines that question, and that, even when there is a general verdict for the plaintiff, it is the province of the Court to say5 whether certain facts, appearing on the declaration, do not amount to probable cause. In the subsequent case of *Plummer*v. *Gheen,*3 Hawks 66, Chief Justice Taylor (who had tried the case of *Leggett*v. Blount,) delivered the opinion of this Court, and admitted that the Superior Court had explained to the jury correctly, what probable cause was, but yet held, that it was a question of law, whether the circumstances, being true, amounted to probable cause, and that the parties had a right to the opinion of the Court, distinctly on it; and the judgment was reversed, because upon very complicated and contradictory-evidence, the presiding Judge had left that question to the jury. In *Cabiness*v. *Martin,*3 Dev. 454, the presiding Judge decided the question *of*probable cause, and this *284Court reversed the judgment, not because he assumed what was not within his province, but because he had decided wrong, as we thought, by holding a certain fact, if found by the jury, to be probable cause, which we deemed not to be so. And, in the two cases of *Swaim*v. *Stafford,*4 Ire. 392 & 398, the question was again decided as matter of law — it being held, in the one case, that there was, and in the other, that there was not, probable cause. Such a series of decisions, in our own Courts, the same way, would protect the doctrine laid down in them from being drawn into debate now, even if we entertained doubts of its correctness originally. But, independent of authority, our reflections satisfy us, that the principle is perfectly sound. It is a question of reason, whether certain ascertained facts and circumstances, constitute a probable and rational ground for charging a particular person with a crime. If, indeed, the question was, what was the actual belief of the prosecutor, respecting the other’s guilt, it would be purely one of fact, and proper for the jury exclusively, as that of malice is. But that is not the question in such eases. It is true, indeed, as his Honor told the jury in thi's case, if a prosecutor knows the person, whom he accuses, to be innocent, or does not believe the apparent circumstances of *suspicion*against him, that then *he*has no probable cause for prosecuting, however other persons, not knowing or believing as he did respecting the evidence, might justly entertain suspicions of the party’s guilt. But while a prosecutor’s belief of the innocence of the person charged may deprive the former of the pretence of probable cause, it does not follow, e *converso,*that the prosecutor’s belief of the other’s guilt shall excuse him; for be must take care, that he acts only on a *reasonable*belief, a *just*suspicion ; in other words, that be bad, under tho circumstances in which ho was placed, as found in fact by the jury, a probable cause to think the party guilty, so that he might fairly and honestly, call him to answer tho charge. It is not, there*285fore, what a prosecutor believed, but what *he ought*to have believed, that justifies. If he has not the capacity to weigh the circumstances justly, or finds his dispositions towards a suspected person interfering with the coolness of his deliberations, and the impartiality of his conclusions, it is his plain duty to consult those,'whose passions are not heated, and whose knowledge Will enable them to judge more correctly, and not at once rashly to accuse an innocent person upon insufficient grounds. Now, our enquiry is, whether, for the determination of the question, as to the sufficiency or the insufficiency of the grounds of suspicion, supposing them to exist in fact, the Court or the jury be the more competent; and we think, very clearly, that the Court is, because it is a question of general and legal reasoning, and can best be performed by those, whose professional province and habit it is, to discuss, weigh, and decide on legal presumptions. The only argument against that is, the difficulty in cases of many and complicated facts, and contradictory evidence, as in *Plummer*v. *Gheen,*of properly separating to the comprehension of the jury, and to the satisfaction of the Judge, the matters of law and fact. But that only proves the difficulty of deciding such cases, whether by the Court or jury, and docs not at all help us in saying, whether this or that point should be decided by the one or the other. But, as was said by counsel in the case of *Panton*v. *Williams,*2 Adolph, and Ellis, *N.*S. 169, however great that difficulty may be, it is one which a Judge can deal with better than a jury ; as he does with reasonable time, due diligence, and legal provocation and the like ; and in the case just referred to,which was cited by the plaintiff’s counsel, the point now under consideration was. after elaborate discussion, decided in the *Exchequer*Chamber, upon a writ of error tor the *Queen’s Bench.*The Court held, unánimously, that in an action of this sort, if the defendant sets up facts,, as showing probable cause, the Judge musí determine, *286•whether the facts, if proved, or any of them, constitute such cause — leaving it to the jury to decide only, whether the facts, or those inferred from them, exist; and as that is so, when the facts are few and the case simple, it can» not be otherwise, when the facts are numerous and complicated. It would seem then, that making a question on this subject must be regarded as an attempt to move fixed things, and cannot be successful either in England or here.

As the case goes back to another trial, on which the facts may appear differently, we think it unnecessary to consider those, that came out on the former trial, in reference to the question of probable cause, further than to remark, that few cases, perhaps, could better illustrate the danger of leaving that question to the discretion of a jury, whose decision of it is not susceptible of review in another Court.

Pert Cüeiam. Judgment reversed, and a *venire ele novar.*