93 S.E. 432 | N.C. | 1917
Action for malicious prosecution. Defendant had prosecuted the plaintiff before a justice of the peace for stealing his cow, valued at $30; and the justice having, after hearing the evidence, adjudged that there was no probable cause for the accusation, and that the defendant in that case was not guilty, dismissed the proceeding and taxed the prosecutor with the (50) costs. This suit was thereupon brought by the plaintiff, and resulted in a verdict and judgment for the defendant, the jury, upon issues submitted by the court, having found that there was probable cause.
At the trial of this case the defendant was asked the question, whether, at the time he made the charge of larceny against the defendant, he believed it to be true, and that plaintiff had stolen his *54 cow, to which he was permitted to answer, after objection by the plaintiff, that he did believe it to be true. Plaintiff excepted.
There is some conflict in the authorities whether such a question is competent when the suit is brought solely for actual or compensatory damages, but we need not consider this view of the matter, as we find upon an examination of the charge of the court that the question of punitive damages was fully submitted to the jury, with the plaintiff's consent or acquiescence, and when this is done, all the authorities are quite agreed that such a question is clearly competent. The general rule is thus stated in 25 Cyc., at page 420: "Defendant may show in mitigation of damages that the libel or slander was published under an honest conviction of its truth arising from probable grounds of suspicion known to him at the time of publication, or that he otherwise acted in good faith and without malice. But it has been held that absence of malice mitigates exemplary, and not compensatory, damages, and hence in a jurisdiction where compensatory damages alone can be recovered, absence of malice is immaterial and cannot be shown." And again, at page 584: "Where absence of malice on the part of defendant becomes material to the issue, any competent evidence legitimately tending to show that he made the publication in good faith under belief in its truth is admissible. So the fact that an alleged newspaper libel was published in the absence of the owner and against his orders is held admissible on the question of intent."
It was held in People v. Stark, 59 Hun. (N.Y.) 51; 12 N.Y.S. 688 (affirmed in
The principle is said to be based upon common sense and to be fully justified by the reason that, where actual malice, as distinguished from legal malice, is necessary to a recovery of damages, it is competent to show defendant's good faith and an honest belief in the truth of his accusation, as it tends to rebut the actual malice and to show that the charge was induced, not by ill-will toward the party accused, nor by a reckless disregard of his rights. The (51) distinction between legal and actual malice, with reference to the recovery of punitive damages, was well stated by Hoke, J., in Stanford v. Grocery Co., 143 N.C. at page 427, 428, where he said: "It is also correct doctrine, as stated in the charge, that on a verdict for the plaintiff in malicious prosecution, punitive or exemplary damages may be awarded by the jury. Kelly v. TractionCo.,
We understand that in order to establish the cause of action, it is sufficient to show merely the absence of probable cause as evidence of it, but if the plaintiff wishes to add punitive damages to his recovery, he must show actual malice, which imports an evil intent or wish, or design to vex, annoy or injure him. People v. Stark, supra, where the point is carefully considered and the authorities cited. When actual malice must be shown it is held that evidence tending to show its non-existence is competent.
We have discussed this question in order merely to show what appears to be the state of the decisions upon it, and not (52) with a view of expressing any decided opinion as to their merit or the conclusions reached by the Courts in them, for we hold that this exception, not being discussed in the brief of the plaintiff's counsel, is not, strictly speaking, before us, under Rule 34 of this Court, providing that "Exceptions to the record not set out in appellant's *56
brief, or in support of which no reason or argument is stated or authority cited will be taken as abandoned by him."
On the cross-examination of the plaintiff, who testified in his own behalf, he was asked many questions for the purpose of proving that he had committed similar offenses in regard to his neighbors' cattle, and especially that he had stolen this defendant's "bull yearling" of the Jersey blood. There appears to have been no objection to this part of the evidence, but later on the defendant was permitted to show that the plaintiff had committed like offenses in the same neighborhood. Plaintiff objected to this testimony upon the ground, as appears in his brief, that it was collateral, and defendant was bound by the plaintiff's answers in respect thereto, and besides, that it was an attempt to establish one crime by proof of the commission of another one, though of like nature. This evidence was competent to show the intent with which the defendant "took and carried away" the cow in question. Larceny involves three elements, viz.: the taking, the carrying away, or asportation, and the felonious or dishonest intent. The plaintiff did not ask the court to restrict the evidence to the intent, but objected generally. It was competent to show that other similar offenses had been committed at or about the same time as the one mentioned in the complaint, and under the circumstances appearing in this case, for the purpose of proving the plaintiff's intent to take the cow. There was more direct evidence of his felonious purpose, but this did not exclude that to which objection is now taken, as defendant could add to his proof in this respect.
"The general rule is that, on a prosecution for a particular crime, evidence which, in any manner, shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible, but to this rule there are several exceptions." 12 Cyc. 405. And again, at pages 408, 409 and 410, after discussing other exceptions to this general rule, it is said: "Evidence of other crimes similar to that charged is relevant and admissible when it shows or tends to show a particular criminal intent which is necessary to constitute the crime charged. Any fact which proves, or tends to prove, the particular intent is competent, and cannot be excluded because it incidentally proves an independent (53) crime. Where the question is whether a certain act was intentional or accidental, evidence to show that the accused intentionally committed similar acts before is relevant to show the intent. So, also, where malice is an element in the crime charged, as in murder, assault with intent to kill, arson, malicious mischief, and the like, evidence of another similar act by the accused is *57
admitted to show malice. Evidence to show the motive prompting the commission of the crime is relevant and admissible notwithstanding it also shows the commission by the accused of another crime of a similar or dissimilar character. Thus it may be shown that the crime charged was committed for the purpose of concealing another crime or to prevent the accused from being convicted of another crime. But evidence of another crime which has no connection with that for which the accused is on trial, and which therefore is not relevant to prove motive, cannot be introduced under the guise of proving motive." Other notable exceptions are stated, but are all based upon the same evident reason. But there is direct authority for the principle in cases decided by this Court. We quote the headnote in S. v. Murphy,
The Court says, in an opinion by Justice Ashe, who always wrote clearly, accurately, and vigorously, and reviews the English and American cases at length, that "Where the question of identity or intent is involved, or where it is necessary to show a guilty knowledge on the part of the prisoner, evidence may be received of other criminal acts than those charged in the indictment," citing and affirming Yarborough v. State,
The Court also cites and approves Rex v. Davis, 6 Car. and P. 117, where it was held, as to an indictment for receiving stolen goods, that, for the purpose of showing guilty knowledge of the defendant, evidence that other goods not belong to him were found at the same time on the premises of the defendant, which had been taken under similar circumstances, was competent, this Court saying that evidence of independent offenses is an exception to the general rule, excluding proof of other offenses when it is necessary to prove the quo animo or the scientus.
The case of S. v. Murphy is much like this case in many of its features, and is substantially like it in respect to the (54) facts. To the same effect is S. v. Walton,
This rule as to evidence of other transactions has been applied to civil cases where it was necessary to prove the intent with which an act was committed, as, for example, in questions of fraud. Brink v. Block,
The jury manifestly did not agree with the justice of the peace, as they believed, and so found, that the defendant had probably stolen the cow, and may perhaps have included the "Jersey bull yearling," while the justice decided that there was no probable cause of guilt. There was ample evidence to support the jury's finding, and the case is otherwise without any error in law.
While we have reached this conclusion in the case and based it upon the reasons assigned, there are other grounds stated in the defendant's brief, with great force and clearness, which lend additional weight to those selected by us as sufficient to dispose of this appeal favorably to him. These relate to the competency of the evidence as to other transactions of the plaintiff, admitted by the court to show the felonious intent of plaintiff in taking the cow and to contradict material parts of plaintiff's testimony, and also to the particular charge of the court respecting this evidence, to which the plaintiff objected. It is especially stressed in the defendant's brief that the evidence was competent to show what the defendant really knew at the time he made the accusation against the plaintiff, as tending to show good faith and probable cause and the absence of malice.
The trial of the case was conducted in accordance with the law applicable thereto.
No error. *59
Cited: S. v. Simons,
(55)