#### P. A. HAWKINS v. WARREN REYNOLDS.

(Filed 5 November, 1952.)

1. Malicious Prosecution § 2—

An action for malicious prosecution must be based upon a valid process, and where the warrant under which plaintiff was arrested fails to charge him with any crime, defendant’s motion to nonsuit should be allowed.

2. Public Officers § 7b: Municipal Corporations § lie—

The elements of the offense created by G.S. 14-247 and G.S. 14-252 are (1) the use of a vehicle belonging to the State or one of the political subdivisions named in the statute (2) by a public official or employee answering to the statutory description (3) for a private purpose, and a warrant which fails to charge that the use of a police car by a policeman of a municipality was for a private purpose, is insufficient to charge the offense.

3. Indictment and Warrant § 9—

A warrant for a statutory offense must charge the offense in the language of the statute or specifically set forth the facts constituting the offense as defined by the act.

Appeal by defendant from *Clement, J.,*and a jury, July Term, 1952, Of CLEVELAND.

*423Civil action to recover damages for an alleged malicious prosecution.

After tbe pleadings were read, the defendant demurred *ore tenus*to the complaint on the ground that it does not state facts sufficient to constitute a cause of action for that the warrant declared on and set out in the complaint was void for failure to charge a crime. The demurrer was overruled and the defendant excepted.

The parties then proceeded to trial. Issues were submitted to and answered by the jury as follows :

“1. Did the defendant cause the arrest and prosecution of the plaintiff, as alleged: Answer: Yes.

“2. Was the arrest and prosecution without probable cause? Answer: Yes.

“3. Was the prosecution malicious? Answer: Yes.

“4. What amount of compensatory damages is the plaintiff entitled to recover ? Answer: $500.00.

“5. What amount of punitive damages is the plaintiff entitled to recover? Answer: None.”

From judgment on the verdict, the defendant appealed, assigning errors.

*E. A. Harritt and A. A. Powell for defendant, appellant.*

*No counsel contra.*

JOHNSON, J.

It is established by authoritative decisions of this Court that an action for malicious prosecution may not be maintained by one arrested on a charge not amounting to a crime, or where the process was void. *Parrish v. Hewitt,*220 N.C. 708, 18 S.E. 2d 141; *Rhodes v. Collins,*198 N.C. 23, 150 S.E. 492; *Caudle v. Benbow,*228 N.C. 282, 45 S.E. 2d 361. An action for malicious prosecution “presupposes valid process.” *Allen v. Greenlee,*13 N.C. 370. It is otherwise as to an action for false imprisonment. *Caudle v. Benbow, supra; Melton v. Rickman,*225 N.C. 700, 36 S.E. 2d 276; *Rhodes v. Collins, supra.*

The warrant declared upon in the complaint charges: “. . . that . . . on or about the 12th day of October 1951, and other occasions before and thereafter, P. A. Hawkins did unlawfully and wilfully use his position as a police officer for the Town of Kings Mountain, North Carolina, by intentionally embarrassing and inquiring into the private affairs of Warren E. Eeynolds, a citizen of said town and state, in that he went to the homes of certain tenants of the said Warren E. Eeynolds in a uniform of the Kings Mountain Police, and in an automobile furnished him by the said town to be used in his duties as a policeman, and while on duty as a policeman, and inquired of the said tenants as to how much rent they were paying the said Warren E. Eeynolds; and that said acts on the part of the said P. A. Hawkins were done by him not in the line of his *424official duties, but were calculated to humiliate and embarrass tbe said tenants and "Warren E. Reynolds, and tbat one of bis tenants to wit: Lonnie Butler moved out of tbe bouse of tbe said Warren E. Reynolds; tbat sucb actions on tbe part of tbe said P. A. Hawkins amounted to a breach of bis duties as a public officer, contrary to tbe form of statute and against tbe peace and dignity of tbe State.”

This case was tried solely upon tbe theory of malicious prosecution. It seems to have been conceded in tbe trial below tbat tbe warrant falls short of alleging malfeasance in office in violation of G.S. 14-230. However, tbe trial court, in overruling tbe defendant’s demurrer *ore tenus*and proceeding to trial, apparently did so on tbe theory tbat while tbe warrant fails to charge tbe offense of malfeasance in office, nevertheless it does charge tbe plaintiff with using a publicly owned police automobile of tbe Town of Kings Mountain for a private purpose in violation of G.S. 14-247 and G.S. 14-252, which provide in substance tbat it shall be unlawful for any officer, agent or employee of tbe State of North Carolina, or of any institution or agency of tbe State, or of any County, City or incorporated town “to use for any private purpose whatsoever any motor vehicle of any type or description whatsoever belonging to tbe State” or any of tbe enumerated political subdivisions thereof.

Tbe essential elements of tbe crime created by G.S. 14-247 and G.S. 14-252 are (1) tbe use of a vehicle belonging to tbe State or one of tbe political subdivisions named in tbe statute (2) by a public official or employee answering to tbe statutory description (3) for a private purpose.

Tbe warrant does not charge tbat tbe defendant therein (tbe plaintiff herein) used the police car belonging to tbe Town of Kings Mountain for a “private purpose.” This omission renders tbe warrant fatally defective. *S. v. Miller,*231 N.C. 419, 57 S.E. 2d 392; *S. v. Jackson,*218 N.C. 373, 11 S.E. 2d 149; *S. v. Ballangee,*191 N.C. 700, 132 S.E. 795.

Tbe rule is tbat no indictment or warrant, whether at common law or under a statute, can be good if it does not accurately and clearly allege all tbe constituent elements of tbe offense charged. *S. v. Morgan,*226 N.C. 414, 38 S.E. 2d 166.

“Tbe breach of a statutory offense must be so laid in tbe indictment as to bring tbe case within tbe description given in tbe statute and inform tbe accused of tbe elements of tbe offense.” *S. v. Ballangee, supra*(191 N.C. 700, 701). True, tbe bill or warrant need not be in tbe exact language of tbe statute, but there must be averments of all tbe essential elements of tbe crime created by tbe act. *S. v. Miller, supra.*

In *S. v. Jackson, supra*(218 N.C. 373), the formula is stated this way: “An indictment for an offense created by statute must be framed upon tbe statute, and this fact must distinctly appear upon tbe face of tbe indictment itself; and in order tbat it shall so appear, tbe bill must either *425charge the offense in the language of the act, or specifically set forth the facts constituting the same . . . ‘Where the words of a statute are descriptive of the offense, an indictment should follow the language and expressly charge the described offense on the defendant so as to bring it within all the material words of the statute. Nothing can be taken by intendment.’ ” See also *S. v. Liles,*78 N.C. 496; *S. v. Cole,*202 N.C. 592, 163 S.E. 594; *S. v. Tarlton,*208 N.C. 734, 182 S.E. 481; *S. v. Gills,*234 N.C. 259, 66 S.E. 2d 883.

It follows from what we have said that the judgment below will be vacated and reversed and the demurrer *ore tenus*sustained.

Reversed.