| N.C. | Apr 21, 1903
This is an action for malicious prosecution. The plaintiff and defendant had a horse trade, perhaps the most fruitful source of strife and litigation known to the law. As its result, the defendant procured a warrant for the plaintiff, charging him with trading to the defendant a horse with the assurance that he had never known him to balk, when in fact he was an accomplished balker. The plaintiff was bound to court, where he was tried and acquitted upon two separate indictments based upon the same transaction, to wit, the horse trade. He now brings action for damages, alleging that the prosecution was malicious and without probable cause. He submitted to a nonsuit in the court below upon an intimation of his Honor that he could not recover.
It is needless for us to repeat the evidence. It is sufficient to say that, in connection with the rejected evidence which should have been submitted, it contained more than a scintilla tending to prove the contentions of the plaintiff. This being so, it should have been submitted to the jury.
The warrant upon which the plaintiff was arrested and the first indictment, marked No. 88, upon which he was tried, were admitted in evidence, but the second indictment, marked No. 103, upon which the plaintiff herein was also tried and acquitted, was excluded upon objection by the defendant. In such exclusion we think there was substantial error. It is apparent to us from an inspection of the indictments that they were both based on the same transaction — the horse trade — and were practically parts of the same general prosecution. There is no evidence whatever to the contrary.
The plaintiff offered to show from the records of the Superior Court that he was tried and acquitted on said second indictment, and that in said action the following order and judgment were rendered: "In (401) the above case the court finds as a fact that the prosecution is frivolous, malicious, and not required for the public interest; and the prosecutor, D. R. Huffines, being present in court, he is hereby marked as prosecutor, and it is adjudged that he be and he is hereby taxed with the costs of the action, and is committed to the custody of the sheriff of Guilford County until the said costs of action are paid." This evidence should have been admitted. The clerk of the Superior Court testified that these papers were among the records of his office; that he knew in whose handwriting the warrant and bill of indictment No. 88 and also bill of indictment No. 103 were; that all of them were in the handwriting of J. A. Barringer, who was the attorney of the defendant Huffines in this case, and it was admitted that Mr. Barringer was employed by Huffines and prosecuted Coble in the above criminal cases. We do not mean to say that the adjudication by the court that the *285
prosecution on the second indictment was frivolous and malicious is conclusive evidence of malice or want of probable cause in the present action, but that it is competent evidence to be considered by the jury in arriving at their verdict. Taken in connection with the second indictment for the same transaction, it strongly tends to prove malice, if nothing more. In Hinson v. Powell,
New trial.
Cited: S. c.,