There are numerous assignments of error. Some of these are broadside in nature, including a number of questions and answers. These do not properly present any question for our decision.
The burden rested upon the plaintiff to show want of probable cause. Intent was an essential element of the crime with which he had been charged. . Therefore, the evidence as to the efforts the plaintiff made to give the defendant notice that the automobile had been wrecked and as to his conversations with the defendant’s employee Reece was competent on the question of scienter if for no other reason. Likewise, the evidence of plaintiff that the fact that he had been indicted and charged with temporary larceny was generally known in Jonesville and in Elkins, where’the defendant lived and had his place of business, was admissible.
The defendant renewed his motion for judgment of nonsuit at the conclusion of all the evidence. In respect to same the record discloses the following which is the subject matter of one of defendant’s exceptive assignments of error, to wit:
“(Mr. Folger: We move for judgment as of nonsuit.
“The Court: Motion allowed.
“Mr. Woltz: I didn’t understand, — what was your Honor’s ruling ?
*150“The Court: Motion allowed. There is a serious defect in the record. If you want to re-open and introduce that the court will allow you to do so.
(Recess ten minutes.)
“The Court: You did not introduce the summons, which is very material.
“Mr. Woltz: I would like to introduce the summons, then, your Honor.)
“The part enclosed in parentheses is Exception No. 7.”
The record does not disclose that objection was made to any part of the foregoing proceedings but it is made the subject matter of an exception which apparently was not entered at the time.
Is the exception directed to the action of the court in granting the motion of nonsuit or to the remark of the court that “there is a serious defect in the record,” or to his offer to re-open the case to permit the plaintiff to introduce the summons ? As to this we are required to guess. In any event, a 10-minute recess was had before any exception was entered. Likewise, whether the exception is directed to the remark of the court after reconvening that “you did not introduce the summons, which is very material,” or, the statement of counsel that he would like to introduce the summons is left in doubt. In any event, the exception cannot be sustained.
It is altogether discretionary with the presiding judge whether he will re-open the case and admit additional testimony after the conclusion of the evidence and even after argument of counsel. Williams v. Averitt, 10 N. C., 308; Ferrell v. Hinton, 161 N. C., 348, 77 S. E., 224; Worth v. Ferguson, 122 N. C., 381; Dupree v. Ins. Co., 93 N. C., 237. When the ends of justice require this may be done even after the jury has retired. Parish v. Fite, 6 N. C., 258; see also Gregg v. Mallett, 111 N. C., 74, and Wood v. Sawyer, 61 N. C., 251, at p. 274.
The summons was a matter of record. Its introduction did not take the defendant by surprise or improperly prejudice his cause. Nor may the remarks of the court be held for error. The presiding judge is something more than an umpire. It is his duty to see to it that each side has a fair and impartial trial. It is within his discretion to take any action to this end within the law and so long as he does not impinge upon the restrictions contained in C. S., 564. The remarks of the court, even if properly excepted to, do not constitute the expression of an opinion that a fact is fully or sufficiently proven. S. v. Brown, 100 N. C., 519.
The court was correct in its interpretation of the complaint and in its conclusion that plaintiff’s cause of action is for malicious prosecution. The evidence tends to establish the essential elements which are *151necessary as a basis for recovery in sucb action. Mooney v. Mull, 216 N. C., 410; Overton v. Combs, 182 N. C., 4, 108 S. E., 357; and was sucb as required its submission to a jury.
Tbat tbe defendant procured tbe issuance of a warrant against tbe plaintiff and bis arrest and trial before a magistrate thereunder and tbe warrant was issued maliciously and without probable cause is sufficient when it appears tbat tbe prosecution has been terminated. When tbe warrant was issued and tbe plaintiff was arrested thereunder there was an interference with tbe plaintiff’s person and there bad been a “prosecution” within tbe meaning of tbe law. Overton v. Combs, supra; Carpenter v. Hanes, 167 N. C., 551, 83 S. E., 577.
Tbe court instructed tbe jury to tbe effect tbat tbe groundlessness of tbe suit or tbe want of probable cause is evidence to be considered by tbe jury on tbe question of malice or malicious motive. In this there was no error. Turnage v. Austin, 186 N. C., 266, 119 S. E., 359; Dickerson v. Defining Co., 201 N. C., 90, 159 S. E., 446; Bowen v. Pollard & Co., 173 N. C., 129, 91 S. E., 711; Humphries v. Edwards, 164 N. C., 154, 80 S. E., 165. Nor was there error in tbe court’s definitions of legal malice sucb as is required to support an award of compensatory damages.
Tbe defendant did not testify and offered no evidence tending to establish good faith and tbe existence of probable cause upon tbe facts as they appeared to him at tbe time be secured tbe issuance of tbe warrant. Tbe court instructed tbe jury as to what constituted probable cause and charged tbat tbe action of tbe justice of tbe peace constituted prima facie evidence thereof. If there was any error in its failure to charge as to what facts would constitute probable cause, sucb error was favorable to tbe defendant.
Upon tbe record as presented to us no facts appear sufficient to show probable cause within tbe knowledge of tbe defendant at tbe time of tbe issuance of tbe warrant. As be delivered tbe automobile to tbe plaintiff there was no asportation. While be here contends tbat possession was obtained by trick there was no evidence to sustain tbe contention. Tbe fact of tbe wreck and tbe circumstances thereof bad been explained to him and tbe plaintiff bad offered to pay tbe damages. Tbe charge on this phase of tbe case was as favorable as tbe defendant could demand.
We have examined tbe other exceptive assignments of error and find in none of them cause for disturbing tbe verdict.