Rawls v. . Bennett

19 S.E.2d 126, 221 N.C. 127

• Court: Supreme Court of North Carolina
• Decided: March 18, 1942
• Status: Published

Opinion

Stacy, C. J.

The criminal prosecution of which the plaintiff here complains was the result of admissions made by the plaintiff in the civil action brought against him for an accounting in his capacity as manager, secretary and treasurer of Rawls Motor Sales and Service, Inc. The defendant, her counsel, the solicitor and the grand jury all acted upon the adverse examination in that suit. It afforded a reasonable ground for one of ordinary caution “to believe, or to entertain an honest and strong suspicion,” that the plaintiff was guilty. Stacey v. Emery, 97 U. S., 642. In a very real sense, then, it may be said the plaintiff was the author of the indictment. At least, he furnished “probable cause” for it. Dickerson v. Refining Co., 201 N. C., 90, 159 S. E., 446. This defeats the present action. Wilkinson v. Wilkinson, 159 N. C., 265, 74 S. E., 740.

It is true the plaintiff now undertakes to explain the admissions made by him in the adverse examination above mentioned, and did explain them to the satisfaction of the jury. But at the time of the institution of the criminal prosecution, which forms the basis of the present action, these admissions stood without explanation and were sufficient to excite, in a reasonable mind, just suspicion of the plaintiff’s guilt. Smith v. Deaver, 49 N. C., 513. The conduct of the defendant is to be judged as of that time. The examination, as it then stood, unexplained, constituted probable cause for the indictment. Beale v. Roberson, 29 N. C., 280. “It is accepted doctrine with us that, on facts admitted or established, the question of probable cause is one of law for the court” —Hoke, J., in Morgan v. Stewart, 144 N. C., 424, 57 S. E., 149.

Judgment of nonsuit will accordingly be entered.

Reversed.