45 S.E. 760 | N.C. | 1903
This is a petition to rehear the above-entitled case, which was decided at the last term and is reported in
The action was for malicious prosecution. It appeared that the defendant had bought from the plaintiff a horse, and at the time of the purchase the plaintiff represented, as the defendant alleged, that the horse was sound. The defendant kept the horse about a month, (423) when he discovered that he was not sound, and insisted that the plaintiff should take him back. The plaintiff then agreed to give a mare in exchange for the horse, representing that the mare would not balk. This proposal the defendant accepted and the exchange was made. The defendant afterwards found that the mare did balk, and then caused the plaintiff to be arrested and tried before a justice of the peace, who bound him over to court for obtaining goods by false pretenses. The warrant was issued upon an affidavit made by the defendant, and the case in the Superior Court was prosecuted by him. At the trial of the indictment upon this charge the plaintiff was acquitted. Another indictment was *338 sent against the plaintiff at the same term for obtaining goods by false pretenses, it being based upon the first transaction — that is, the purchase of the horse. The particular allegation of the indictment was that the plaintiff had represented to the defendant that the horse was sound, which representation was known to be false, and by reason thereof the plaintiff had obtained the price of the horse from the defendant. The defendant was acquitted also at the trial of this indictment, and the court, having found that the prosecution was frivolous and malicious and not required by the public interest, directed that the defendant in the present case, Huffines, be marked as prosecutor, and adjudged that he pay the costs of the prosecution.
At the trial of this case for malicious prosecution, which is based, as we have said, upon the second transaction — that is, the mare trade — the plaintiff proposed to introduce as evidence the finding and order of the court by which the defendant was marked as prosecutor and taxed with the costs in the second indictment, but upon objection from the defendant the evidence was excluded, and the plaintiff excepted.
At the last terms, when this case was heard, it was supposed, and was so stated in the opinion, that the two indictments were based upon (424) one and the same prosecution, and that the case was therefore within the principle of the decision in Hinson v. Powell,
We are further of the opinion that the proposed evidence was properly excluded, as the order of the court by which the defendant was marked prosecutor and taxed with the costs could not for any purpose be competent against the defendant, not even to show malice or the absence of probable cause. That was a proceeding merely for the taxation of costs, to which the plaintiff in this case was in no sense a party, and the finding and order of the judge could no more be evidence in his behalf, for the purpose of showing malice or of establishing any other fact necessary *339
to a successful prosecution of this suit, than could be the action of the court in any other judicial proceeding to which the plaintiff was not a party. It adjudges nothing and proves nothing as between the plaintiff and the defendant in this case, and is res inter alios acta. It cannot bind or affect this defendant as an estoppel or under the principle of resjudicata, because in order to do so both parties in this suit must have been parties to the litigation out of which the estoppel arose (425) or in which the adjudication was made, and it cannot be evidence for the same reason. What was said and done by the judge is, as to the parties to this action, nothing more than the expression of his opinion that the prosecution was malicious and that the defendant should be marked as prosecutor and taxed with the costs. Casey v. Sevatson,
We must not be understood as deciding that the record of the second indictment is altogether incompetent, as we have only referred to that part of the record in which the prosecution is adjudged to be malicious and the defendant is taxed with the costs. It may be that the record of the plaintiff's acquittal would be evidence in this case to show malice if it established by competent proof that the second indictment was instituted by the defendant with malice. Brink v. Black,
This does not change the judgment of the court by which a new trial was awarded. The lower court instructed the jury that there was no evidence upon which the plaintiff could recover. In this there was error, as we find it stated at page 17 of the record that the defendant Huffines, speaking of the prosecution for false pretenses, had declared that he would spend a thousand dollars in order to have his revenge. This was, of course, some evidence of malice, and, as the court virtually withdrew the case from the jury by its ruling, the plaintiff is still entitled to a new trial because of this error.
We do not understand the defendant in his petition for a rehearing to ask distinctly for an affirmance of the judgment below, but rather for a modification of the former opinion of this Court, so that he will not be prejudiced at the next trial by the erroneous ruling in regard (427) to the entry on the record in indictment No. 103. This error is corrected, but the former decision must stand and the petition to rehear will be dismissed, as there was other evidence in the case which tended to prove malice and which should have been submitted to the jury.
Petition dismissed.
Douglas, J., concurs in result only.
Cited: Roberson v. Halton,
(428)