91 S.E. 602 | N.C. | 1917
1. Did the defendant Asa W. Lee cause the arrest and prosecution of the plaintiff Church D. Holton, as alleged? Answer: "Yes."
2. Was the same done without probable cause? Answer: "Yes."
3. Was the same done without malice? Answer: "Yes."
4. Has the criminal action terminated? Answer: "Yes."
5. What damage, if any, has plaintiff sustained thereby? Answer: "$500."
Defendant appealed from the judgment thereon.
The plaintiff brought this action to recover damages for malicious prosecution. It appears that the defendant had prosecuted the plaintiff before a justice of peace for the larceny of money and at the trial the defendant was discharged for the lack of evidence to show probable cause. It is substantially admitted in the pleadings that the criminal proceedings had terminated unfavorably to the prosecutor (defendant in this action), as the justice found that there was no probable cause upon which to bind the defendant (plaintiff herein) to court. The justice was called as a witness for the plaintiff and was permitted by the court to testify as to the contents of the record of his proceedings, from which it appeared that he had discharged the defendant (plaintiff in this action), as the evidence was insufficient to show probable cause, and that "the court was further of the opinion that said prosecution was frivolous and malicious, and taxed the prosecutor (defendant in this action) with the costs." The defendant objected to this *152
evidence and excepted to its admission. This exception is sustained. It was admitted that this plaintiff had been discharged in the criminal proceedings, because there was no probable cause, so far as shown by the evidence, and, therefore, it was not necessary to prove it. The only other fact contained in this record was the finding by the justice that "the prosecution was frivolous and malicious" and his order taxing (107) him with the costs because it was so. The objection, therefore, was directed to this evidence, as being incompetent to prove malice, and we are of the opinion that it was inadmissible, and we have so held in similar cases. Coble v. Huffines,
There is another question in the case. The record shows that the jury found, by their answer to the third issue, that the plaintiff was prosecuted by the defendant without malice. If this be the true verdict, the defendant would be entitled to judgment; but plaintiff has applied for a writ of certiorari upon the ground that the issue submitted was, "Was the same done with malice?" to which the jury answered "Yes"; that the original issues, upon which the judgment was given, have been lost, and those in this record are not correctly copied in the particular indicated, and the mistake was not discovered until the argument of the case here, when for the first time the defendant claimed that he was entitled to a judgment upon the verdict. The form of the verdict becomes material for the purpose of deciding whether we shall grant the defendant a judgment or a new trial. There is no necessary conflict appearing in the record itself, but there is a conflict between the record and the case, as the judge, in his charge, refers to the issue as being in this form, "Was the same done with malice?" Where there is a conflict between the record and the case, the former controls. Threadgill v. Comrs.,
Error.
Cited: McDonald v. McLendon,