The plaintiff was arrested under a warrant sworn out at the instance of the defendant, in which he was charged with unlawfully injuring the telegraph poles of the defendant, and also with unlawfully and maliciously throwing stones at their trains. The plaintiff waived a preliminary examination before the Justice of the Peace, and gave bond for his appearance at the next term of the Superior *229Court. A bill of indictment was sent to tbe grand jury, but it was ignored, and tbe plaintiff discharged, and soon thereafter this action was commenced by the plaintiff against the defendant for malicious prosecution.
At the request of the plaintiff the Court instructed the jury, “That what amounts to probable cause is a matter for the jury, and in this case the plaintiff must show by the weight of the evidence that the defendant company acted in taking out the warrant without probable cause, and, where there is a total want of probable cause, the jury may infer malice almost as a necessity, as a prosecution totally groundless can not be accounted for in any other way.” The defendant excepted.
Leaving out any discussion as to whether the latter part of the instruction had any proper connection with the former part, it is clear that the former part is erroneous.
In actions for malicious prosecution, whether there was probable cause for the conduct of the prosecutor is a question of law, but the jury must find the facts which constitute it. In such actions after the evidence has been given, if in the opinion of the Court the testimony of the witnesses satisfies the Couid that the prosecutor commenced the prosecution upon the honest and reasonable belief that the accused was guilty, it would be its duty to submit the matter to the jury with an instruction to the effect that if they believed the witnesses probable cause had been shown. If, on the other hand, the Court should be of the opinion that even taking the evidence as true, it did not constitute probable cause, then the Court should instruct the jury that in its opinion, taking all the facts and circumstances testified to by the witnesses to be true, there was not a probable cause for the prosecution against the plaintiff. Leggett v. Blount, 4 N. C., 560; Plummer v. Gheen, 10 N. C., 66; Beale v. Robinson, 29 N. C., *230280; Swain v. Stafford, 26 N. C., 398; Viccars v. Logan, 44 N. C., 394. In the case of Swain v. Stafford, supra, his Honor instructed the jury that in the opinion of the Court, taking all the facts and circumstances proved by the witnesses, Hartman, Harris, Swain and Alspaugh, to be true, there was not a probable cause for the prosecution against the plaintiff, and this Court affirmed the judgment pronounced on the verdict of the jury.
In the case of Viccars v. Logan, supra, after the testimony was closed, his Honor was requested by plaintiff’s counsel to instruct the jury that there was no probable cause for suing out the State’s warrant against the plaintiff. The Court “refused to give the instruction prayed for, but defined to the jury what in law constituted probable cause, and submitted the case to them.” There was a verdict for the defendants, and a judgment thereon. This Court, in considering the correctness of the charge in that case, said: “We may say here what this Court said in the case of Beale v. Robinson, 7 Ired., 280, that This case brings up again the question whether probable cause is matter of law, so as to make it the duty of the Court to direct the jury that if they find 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.’ ” It is further said in the opinion in that case, after discussion and extended investigation into the principle and the authorities: “It would seem, then, that making a question on this subject must be regarded as an attempt to move fixed things, and can not be successful either in England or here.”
*231His Honor further instructed the jury, at the request of the plaintiff, “That the circumstances of the arrest, of the handcuffing of the plaintiff, he not offering resistance, in the presence of his mother and family, the handcuffing of the plaintiff and his brother at their home, and leaving them there handcuffed while the officer went to arrest another, the refusal of the officer to take bail, the offense charged being only a misdemeanor, the failure to prosecute and bring to trial the plaintiff, and the circumstances of the arrest and imprisonment are to be considered by the jury in determining whether there was malice and want of probable cause.” Defendant excepted.
No representative of the defendant was present at the time of the arrest, and there was no evidence that the defendant gave any instructions about how the arrest should be made. The officer who made the arrest was a constable, whose duty it was- to serve such process. The evidence of the alleged abuse of his official authority by the constable was objected to by the defendant, and the exception to its being received by the Court can be considered along with that part of the charge now under consideration.
There is no natural connection between the manner in which the arrest was made, the defendant not having given any instructions in that respect and not being present, and the original procuring of the warrant by the defendant. If the officer abused his official authority and put upon the plaintiff when he arrested him or while he had him in charge unnecessary restraint or unnecessary humiliation, the plaintiff has his remedy against the officer. If the defendant had instructed the officer to make the arrest in an unnecessary offensive and insulting manner, that could have been shown as evidence of malice. Whether or not the evidence was competent to show mental anguish, it is unnecessary to dis*232cuss. His Honor charged that tbe testimony was evidence of malice, and we are of the opinion that there was error in the instruction. Vancickle v. Brown, 68 Mo., 627.
For the erroneous instructions pointed out there must be a new trial.
There is another exception, however, which we think was well taken by the defendant, and is fatal to the plaintiff’s cause of action. His Honor refused to instruct unqualifiedly the jury, at the defendant’s request, that the waiving of the preliminary examination before the Justice of the Peace was prima facie evidence-of probable cause. He told the jury that the waiving of the examination was prima facie evidence of probable cause unless satisfactorily explained. The evidence of the plaintiff himself is, without qualification or explanation, that he waived tbe preliminary examination, and gave bond in the sum of $50. The evidence of L. J. Best, the attorney of the plaintiff, on that point, is: “We demanded trial as soon, as we reached Fayetteville, and the attorney for the defendant stated he was not ready, as his witness was not here at that time, and we waived an examination, to have an opportunity to give bail.” Overby, the justice of the Peace, testified: “The next day, on arrival of the train, Mr. Best, their attorney, came. I had the boys brought before me, and their attorney entered a plea of not guilty, and waived preliminary examination, and I required them to give bond in the sum of $50 for appearance at court, and the bond was accepted. I do not think that the State asked for a continuance. So far as I know the waiver of examination was voluntary. I can not say that the prosecution had any witness at the time the examination was made, because no evidence was called for.”
From the whole of the testimony, it appears that the waiver of the preliminary examination was voluntary. The *233most tbat can be said for tbe plaintiff is tbat be made tbe waiver in order to give bond. He could do tbat with little prejudice to bis rights in tbe criminal prosecution, because, in tbe trial upon the plea of not guilty, tbe State would have to prove bis guilt. Tbe waiver of tbe preliminary examination ivas only an admission tbat the defendant bad probable cause for the accusation, and not an admission tbat be was guilty. But when tbe plaintiff waived tbe preliminary examination in order tbat he might gain bis liberty by tbe execution of tbe bond for bis appearance at tbe next term of the court, be by tbat act confessed probable cause so far as tbe action of tbe defendant in procuring tbe warrant for bis arrest was concerned. Tbe Justice of the Peace, be not having jurisdiction to try and to determine tbe offense charged in, tbe warrant, could only bind tbe accused over to tbe Superior Court, on tbe ground that probable cause bad been shown tbat an offense’ had been committed. Tbe course of the Justice of the Peace could be founded only on an investigation of the facts by tbe witnesses, or by the admission of tbe accused, and we are of tbe opinion tbat so far as this action is concerned tbe waiver by tbe plaintiff of tbe preliminary examination was an admission tbat the defendant reasonably and honestly believed tbat the plaintiff was guilty of the offense with which be was charged in the indictment.
Error.