86 S.E. 1017 | N.C. | 1915
Action to recover damages, the plaintiff alleging a cause of action in slander in that the defendant charged him with the crime of false pretense, and another cause of action for malicious prosecution in procuring and prosecuting a criminal warrant, charging the defendant with false pretense.
At the conclusion of the evidence his Honor entered judgment of nonsuit upon the ground that there was no evidence to support the action, and the plaintiff excepted and appealed. We do not understand why his Honor concluded that there was no evidence to support the cause of action for slander, as a *131 witness for the plaintiff, J. C. McAdams, testified that the defendant said to him: "He (Hadley) had got his mare by false pretense" on an occasion which is not claimed to be privileged, and the defendant has not pleaded justification.
The crime of false pretense is punishable by imprisonment in the penitentiary, and to charge one with an infamous offense is actionableper se (McKee v. Wilson,
It is true that the witness McAdams weakened the force of his evidence upon the cross-examination, but as was said in Poe v. Telegraph Co.,
There is also evidence of express malice, as the justice of the peace to whom the defendant applied for a warrant testified that, after the defendant had told him the facts upon which he relied, he advised him against taking out the warrant and told him he did not think the criminal charge would hold; that they talked about the financial condition of the plaintiff and agreed that he was not financially responsible; that the defendant told him not to have the warrant served until the Monday following; that he wished to wait and see if the plaintiff would return him the horse; that when the defendant was informed on Monday morning that the plaintiff would not return the horse he said he would get even with the plaintiff at the courthouse if it cost him $1,000; that he then caused the warrant to be served and afterwards withdrew it without further prosecution.
We are also of opinion that there is evidence to sustain the charge of malicious prosecution. There is evidence that the defendant caused the warrant to be issued charging the plaintiff with the crime of false pretense and that the criminal charge was terminated prior to the institution of this action, as a prosecution my be terminated by the order of the justice's court or by some unequivocal act of the prosecutor (Brinkley v. Knight
The officer who was entrusted with the duty of serving the warrant testified in substance that he read the warrant to the plaintiff and told *132 him he could see the justice and arrange the bond if any was to be given, and that the plaintiff said he would do so; that the justice was passing by and he called to him; that the justice said he would not require a bond if the plaintiff would agree to attend the trial, which he did. There is also evidence that the plaintiff did not attend the trial because he was informed that the warrant was withdrawn, and the plaintiff himself testifies that he was arrested by the officer.
(87) If, upon this evidence, it was the intention of the officer to arrest, and the plaintiff understood that he was under compulsion to attend the trial, it would furnish some evidence of an arrest.
The Court says, in Lawrence v. Buxton,
It is not necessary to consider the other questions raised, as the plaintiff can present all of his evidence and his contentions under the two causes of action which we have discussed.
Reversed.
Cited: Stancill v. Underwood,