¶1 A police officer within the limits of the city which has clothed him with authority, like a sheriff or constable, may summarily *219 and without warrant arrest a person for a misdemeanor committed in his presence. This is a necessary concomitant of police power and essential for police protection. But in such case it is the duty of the officer to inform the person arrested of the charge against him and immediately take him before someone authorized to issue criminal warrants and have warrant issued, giving him opportunity to provide bail and communicate with counsel and friends. G. S., 160-21; G. S., 15-46; Martin, v. Houck, 141 N. C., 317, 54 S. E., 291; 15 N. C. L., 101.
¶2 It sufficiently appears from the record in this case that the plaintiff was arrested on one of the streets of the city of Elizabeth City between the hours of 1 and 2 o’clock a.m., 28 December, by the defendants who were at the time regular police officers of the city; that the plaintiff was advised ho was under arrest and was taken immediately to the police station where a warrant was sworn out by one of the defendants. The warrant was issiied by the officer authorized by statute so to do, and upon the plaintiff’s failure to provide bail he was committed to jail. Later in the morning he was released on bond. As the defendants on this occasion seem to have acted in substantial conformity to prescribed procedure in making an arrest without a warrant, and there was no evidence of violence or undue force, the causes of action, if sufficiently alleged, for assault and false imprisonment cannot be maintained. The plaintiff was a stranger to the officers and there was no evidence of improper motive. True, the plaintiff in his brief questions the constitutionality of the statute authorizing the appointment of a warrant officer to issue warrants, and argues the warrant was void. But we do not concur in this view or that the officers should be held liable in damages for having complied with the statute.
¶3 However, the plaintiff’s complaint sufficiently alleges a cause of action for malicious prosecution. Melton v. Rickman, 225 N. C., 700, 36 S. E. (2d), 76. In order to maintain an action for damages on this ground it was incumbent upon the plaintiff not only to show termination of the criminal action in his favor, but also that it had been instituted without probable cause and prompted by malice. It appears that following the failure of the jury to agree on the trial of the criminal action, a nolle prosequi with leave had been entered. This would constitute a final determination of the case for the purposes of this action. Wilkinson v. Wilkinson, 159 N. C., 265, 74 S. E., 740. There was no evidence of express malice toward the plaintiff on the part of the defendants. But the plaintiff relies upon absence of probable cause for his arrest and prosecution as affording evidence of malice. Mitchem v. Weaving Co., 210 N. C., 732, 188 S. E., 329. This brings us to the determinative question whether there was evidence of want of probable cause. The rule has been established and frequently stated in the decisions of this *220 Court that when one acts upon appearances in making an arrest and preferring a criminal charge, and the apparent facts are such as to lead a discreet and prudent person to believe that a criminal offense has been committed by the party charged, though it turns out he was mistaken and the party accused innocent, still he is justified. It is a case of apparent rather than actual guilt. Dickerson v. Refining Co., 201 N. C., 90, 159 S. E., 446. The existence of circumstances and facts strong enough to excite in a reasonable mind the well-founded belief that the person charged is guilty would be sufficient to protect a police officer who acts in good faith, though it be subsequently shown the person arrested and prosecuted was not guilty of the offense. Wilson v. Mooresville, 222 N. C., 283, 22 S. E. (2d), 907; Rawls v. Bennett, 221 N. C., 127, 19 S. E. (2d), 126; Parrish v. Hewitt, 220 N. C., 708, 18 S. E. (2d), 41; Miller v. Greenwood, 218 N. C., 146, 10 S. E. (2d), 708; Hicks v. Nivens, 210 N. C., 44, 185 S. E., 469; Rhodes v. Collins, 198 N. C., 23, 150 S. E., 492; S. v. Campbell, 182 N. C., 911, 110 S. E., 86; S. v. Blackwelder, 182 N. C., 899, 109 S. E., 644; S. v. McNinch, 90 N. C., 699.
¶4 The burden of proof was upon the plaintiff to show that the defendants acted without reasonable grounds to believe him guilty of driving a motor vehicle while under the influence of intoxicating liquor or narcotic drugs, and that there was absence of probable cause for making the arrest and causing warrant therefor to issue. In determining the motion for nonsuit the plaintiff’s evidence must be considered in the light most favorable for him.
¶5 Applying these rules, it appears from the plaintiff’s testimony that at midnight on December 27th~28th he was driving along the streets of a city with which he was familiar, and stopped his automobile at a well-known intersection on Main Street near one of the city’s hotels, and there went to sleep in his automobile and slept for more than an hour; that he then awoke and started his automobile and drove across Main Street and along another street, and was confused as to where he was or where he wished to go; and when the officers questioned him answered inconsequentially; that though he testified he had had nothing to drink that night and was sober, one of his witnesses testified that at 6 :00 p.m. the evening before plaintiff had a quart bottle of eggnog, two-thirds empty, in his automobile. This testimony taken in connection with and as clarified by the testimony of the officers that a bottle which had contained eggnog, not entirely empty, with the odor of alcohol about it, was in plaintiff’s automobile when he was arrested, tended to weaken plaintiff’s denial that he had had nothing to drink, and to give point to the suspicion of intoxication.
¶6*221 We think the actions of the plaintiff under the circumstances as shown by his own evidence, and as explained and made clear by defendants’ evidence (Gregory v. Ins. Co., 223 N. C., 124, 25 S. E. (2d), 398), were such as to afford reasonable ground for suspicion and were such as “would lead a man of ordinary caution to believe, or to entertain an honest and strong suspicion” that the plaintiff was driving while under the influence of intoxicating liquor. Stacey v. Emery, 97 U. S., 642; Rawls v. Bennett, supra. The defendants were charged with the duty of suppressing crime and apprehending those who violate the law, and there is nothing in the testimony here to negative good faith on their part in the performance of this duty.
¶7 We conclude that the judgment of nonsuit was properly entered.
¶8 Affirmed.