#### SPENCER RICE *vs.*ROBERT PONDER.

In an action for a malicious prosecution, it is sufficient, in order to prove the prosecution terminated, to shew that the plaintiff was bound to appear at a term of a Court to answer a criminal -charge, that he did appear and was not rebound. Much more is it so, when the Sohcitor for the State makes an entry on the dopket, that he does not think the evidence sufficient to convict.

It is not a sufficient defence to an action for a malicious prosecution, that the defendant really believed the plaintiff guilty of the crime, with which he charged him, but he must prove facts and circumstances, which would induce a reasonable suspicion of the guilt in the minds of unprejudiced and, at least, ordinarily intelligent persons.

The case of *Murray*v. *Lackey,*2 Mur. 3C9, .cited and approved.

Appeal from the Superior Court of Law of Yancy County, at September Term, IS 45, his Honor Judge Bailey presiding.

The action is for a malicious prosecution for a larceny and was tried on not guilty pleaded.

The plaintiff gave in evidence a State’s Warrant issued against him and two other persons, upon the application of Ponder, for stealing certain hogs belonging to Ponder, in Yancy County, on which the plaintiff was arrested, and, after examination before a Magistrate, was bound over to the County Court, at February term 1842, to answer the charge. At that term the defendant appeared, but no indictment was p referred against him, nor was he further bound over ; but an entry was made on the docket, *M*that the Solicitor, oh examining the witnesses, was of opinion, that the charge could not be sustained : the defendants, or two of them, at least, living in Tennessee and the taking not proved to have occurred in Yancy County.” The plaintiff then called several witnesses, further to support the iissue on his part, who deposed as follows:. One Lamras stated, that he was the son-in-law of the defendant, Pond er, and that being in the house of *393the plaintiff in Tennéssee, a few miles-from- the State line-, the plaintiff proposed to sell to him some fat hogs, then in a pen near the house : And that he went to the pen, to look at the hogs and immediately discovered that two of them were in the mark o,f Ponder, and therefore he asked the plaintiff how he came by them, and the latter replied that he purchased one of them'from Balis Moore, and the other from David Metcalf, who had purchased it from said Moore, and that Moore had bought both of them from one William Rice, a brother of the plaintiff. This witness further deposed, that on the same day, he made inquiry of Balis Moore respecting the hogs, and was informed by Moore, that they, with others in the same mark — which the witness then saw — had been pur» ehased by him from William Rice, and that the plaintiff had afterwards- purchased the two, in the- manner in which the plaintiff had before stated. And this witness further deposed, that he informed the defendant, Ponder, of all these facts, in some short time and before he in» stituted the prosecution.

The said Balis Moore and David Metcalf also deposed', that Moore had purchased the hogs, with others, from William Rice,and that they were soldby them,respectively, to the plaintiff, as- above represented ; and that they so told Ponder, before he took out the warrant.

The said William Rice also deposed, that he had formerly lived in this State, but that, several years past, he had moved over the Tennessee line and lived near the plaintiff’s, and about ten miles from Ponder’s and across the mountains from him — that after getting to-Tennessee, he purchased a brood sow, which had a litter of pigs in the winter, all of which were frozen to death but two, and the ears of those were frost bitten so badly„that when he went to mark them, he found he could not put them- into-the ear-mark, which he had formerly used in this State - — and he then marked them, by cropping both ears and slitting the left. He further deposed, that the sow bad a *394second litter some months afterwards, which he put into the same mark, and that, afterwards, being about to remove back to this State, he sold all the stock of hogs, when the pigs were small, to Balis Moore. Pie further deposed, that shortly after Ponder had heard that hogs in his mark were in the plaintiff’s pen, he enquired of the witness whether he had so marked them and sold them to the plaintiff or Moore ; and that he, the witness, had then forgotten, that he had marked them in this particular mark, and therefore, informed Ponder, that he had not thus marked them and offered to make oath thereof — but that, at the same time, he further informed the defendant, that he remembered the flesh marks of the pigs that he had in Tennessee, and that he had sold to said Moore. The witness further deposed, that soon afterwards and before the defendant took out the State’s Warrant, they went together to the plaintiff’s to see the hogs, and there found them in the pen ; that he, the witness, then recognized the hogs by their flesh marks, as those which he had sold Moore, and so declared to the defendant Ponder, but that still, he did not recollect having marked them, until the plaintiff, in the presence of the defendant, reminded him of the circumstances, under which the two litters of pigs had been marked, as before stated by him, and that then, he did at once remember the same and immediately informed the defendant that he remembered it, and stated all the particulars to him, as above set forth. Some days after that transaction, the defendant took out the State’s Warrant and had the plaintiff arrested.

To maintain the issue on his part, the defendant produced his son, John Ponder, who deposed that he knew his father’s stock of hogs and saw the two hogs in the plaintiff’s pen, and he believed them to belong to his father, and that they had been missing two falls: And he stated also, that the plaintiff denied having a knowledge of his brother William’s stock mark. The defendant also gave in evidence, that, on the trial of the warrant, *395he was examined as a witness for the State and then deposed, that from the ear-marks and the flesh-marks, found in the plaintiff’s pen, he believed them to be his property, and that he also believed that they had been stolen out of the range, in North Carolina. The defendant further gave in evidence, that, on the next day after William Rice had stated to him, at the plaintiff’s house, that he remembered marking the hogs, the said William denied that he had marked the hogs, and said *"*he would not swear to it, to save all their lives.” The said William, however, stated, at the same time, that the hogs, found in the pen of the plaintiff, were the same hogs, he had sold to Balis Moore. And the defendant gave further in evidence, that Balis Moore attempted, after his purchase, to alter the ear-mark, but that finding he could not change it into his own mark, he desisted : And that this also was made known to the defendant, when he was at the plaintiff’s.

Upon that evidence, the counsel for the defendant insisted before the jury, that the plaintiff was guilty of the larceny charged on him ; and if the jury should find otherwise, then he insisted, secondly, that the evidence showed, that he had a reasonable and probable cause, for having the plaintiff prosecuted therefor: and he prayed the Court so to instruct the jury. The Court refused to give the instruction as prayed ; but, after informing the jury, that, to support the action, it was necessary the plaintiff should shew that the defendant instituted the prosecution maliciously and without probable cause, the presiding Judge gave his opinion to the jury, that, if all the facts, as given in evidence were true, there was not any just or probable ground of suspicion, that the plaintiff had stolen the hogs of the defendant, and that there was not therefore probable cause for the prosecution. Thereupon the Court instructed the jury, that, if they should believe, that the defendant was actuated by malice towards the plaintiff, in causing him to be *396cuted for the theft of the hogs, they ought to find for the plaintiff, and assess such damages as they might deem right. The counsel for the defendant also moved the Court to instruct the jury, that the plaintiff could not recover, because he had not shown that the prosecution had been finally determined. But the presiding *Judge*refused to give such instructions. The jury found for the plaintiff and he had judgment, and the defendant appealed.

*Francis*and *Baxter,*for the plaintiff.

*N. W- Woodfin,*for the defendant.

Ruffin, C. J.

Upon the last point, the case of *Murray*v. *Lackey,*2 Mur. 369, is a direct authority for the plaintiff. He was not only not rebound, and thus stood discharged, according to that case ; but it is clear, from the memorandum of the State’s Attorney on the docket, that the proceeding was intended and considered to be at an end.

Upon the question of probable cause, the evidence produces, on the minds of the members of this Court, the same impression that it did on that of his. Honor in the Superior Court. As the case stands, it is to be admitted, that the defendant and his son and son-iii-Iaw, and it may be others, believed that the hogs of the defendant had been stolen, and that those in the plaintiff’s pen were the same or some of them. But with that admission, there was not sufficient evidence that the plaintiff probably stole them. The only circumstance against him is, that hogs, which the defendant thought to be his, were in his possession. That is evidence, that may be very cogent* or the contrary, according to other circumstances. Where a theft is recent, the possession of the stolen goods, not accounted for, is strong evidence, when, from the nature of the goods, it is probable if the party came honestly by them, he could shew it. But it is a sufficient answer to *397the suspicion arising from the possession, if the party does show, that he got them by purchase or in any other fair way. And even in such a case of recent theft, if the person, upon whom the goods are found, does not conceal them, but, as here, keeps them near his house, open to observation, and, upon their being challenged as another man’s, tells at once, how, when and from. whom he received them, and, at the instance of the claimant produces the very persons, from whom he said they came, and they confirm his representation in all its particulars and exonerate him from till charge, and make themselves responsible for his possession; no intelligent and impartial mind could harbour a suspicion, that, however it might be with others, he had stolen the goods though they were in his possession. If indeed this were a fair reason for thinking, that the persons, thus assuming the responsibility, did so falsely in collusion with the possessor, for the mere purpose of screening him, that would make a difference. But such a supposition is not readily credited and is not admissible but upon good proof; and in this case there was no request on the part of the defendant, to leave an enquiry of that kind to the jury. In truth, however, the present case is far less strong than that supposed. The defendant’s own evidence is, that his hogs were turned into the range in the mountains, fifteen, or perhaps, eighteen months before they were seen by the son-in-law, at the plaintiff’s ; which was the distance of ten miles from the defendant’s, with two mountains between. From those facts simply and the identity of the marks of these hogs with that of the plaintiff, it would be a rash presumption and harsh inference that the plaintiff had gone across the mountains and stolen those hogs — at all events, without asking him how he got them, and assuming every thing in its worst form.

No jury would, we think, pronounce a man guilty under these circumstances. But here-enquiries were made of the plaintiff, and he promptly gave answers and explana,-*398tions, which, if true, perfectly excupated him, and then be proceeded to make it appear, that what he declared was true, by producing two men, who acknowlged, tha|; they had sold the hogs *to*him, with the marks they then had, and that, without altering the marks, he had kept them openly and had claimed them notoriously, for a year or more. Surely after that, every possible suspicion of theft by the plaintiff vanishes. It would be impossible for any man, on whom a stolen article may, at any distance of time, be found, to establish his innocence of the theft, by proof of an honest purchase, if the' evidence here, if believed, were not convincing, that the plaintiff was not guilty of either taking the hogs, or of receiving them feloniously. Then let it be taken for granted, that the defendant believed the hogs to be his ; and still that will not affect the plaintiff’s right to recover. The defendant must know, that he, like other men, is liable to be mistaken, and also that others may have the same mark, that he has; and upon the information he had, it was but a just and ordinary diffidence of his own infallibility, to allow, that he might be and was mistaken and that these ware not his hogs. But if he were ever so confident upon that point, yet he could not believe — at least, not rationally- — that the plaintiff had stolen them, when others assured him, that they had sold them to the plaintiff and he had not only kept them exposed to the view of all comers, but when he actually took a member of the defendant’s own family to look at the hogs, upon a proposal *to*sell them *to*him, marked as they were, and when, from that time to the end of the investigation, the plaintiff gave the same account of the manner of his coming by them, and was fully sustained therein by the persons referred to by him. It is true, that one of those persons, William Rice, on being applied to by the defendant, at first said, he did not mark the pigs he sold; but even then he said, he did sell some pigs to Moore, among which were the two the plaintiff afterwards purchased and that he should *399know them, if be could see them : Accordingly the defendant took the witness with him, to examine them; and as soon as he saw them in the plaintiff’s pen, he declared them to be the same which he had sold, when young, to Moore; and upon the circumstances, under which he had marked his pigs, being re-called to his mind, by the plaintiff, in the presence of the defendant, he declared that he then remembered that also. All these statements came fully to the knowledge of the defendant, before he began the prosecution; and it does not appear, that he had the least reason to doubt, or disbelieve, that the plaintiff did purchase the hogs from Moore and Metcalf honestly and thinking that they had a right to them. If those witnesses were to be believed, the defendant had no ground for a lingering suspicion of the plaintiff’s integrity in the transaction, but was obliged then to think him, as the jury has since, upon the same evidence, found him to be, not guilty.

Per Curiam. Judgment affirmed.