10 N.C. 66 | N.C. | 1824
Case. The declaration contained two counts, the first for slanderous words spoken, in charging the plaintiff with having committed a perjury; the second count was for a malicious prosecution.
The words were proved to have been spoken; and in support (67) of the second count the plaintiff gave in evidence a State's warrant which had been issued against him for perjury, upon the oath of the defendant and the record, showing that a bill of indictment for perjury had been preferred against the plaintiff in Rowan Superior Court, on which the defendant was marked as prosecutor and the return of the grand jury thereto, "Not a true bill," and that the plaintiff had thereupon been discharged
The defendant relied upon the plea of justification, and there was much conflicting testimony, which (as far as is necessary) is brought into view in the opinion of the Chief Justice. The defendant prayed the court to instruct the jury that if the witnesses were to be believed probable cause was made out. On this part of the case the court (Donnell,J.,) explained to the jury its view of the meaning of probable cause; that it was by no means necessary that it should be a good cause; that if the plaintiff had taken the oath, in which the perjury was charged, in such a manner and under such circumstances as to warrant a reasonable suspicion in the mind of the defendant that he had perjured himself, it was sufficient; that although probable cause was partly a question of law, yet it was so dependent on facts and circumstances of which the jury were the only judges, on the various circumstances attending the transaction, and the knowledge the prosecutor had of those circumstances, on the conduct of witnesses and the inferences that might be drawn from their testimony, that in a case like this, in which the parties had gone into evidence of the whole transaction, and in which there was such contradiction in the testimony of many of the witnesses, the court deemed it most proper to leave to the jury on this count in the declaration to say whether the defendant had not this probable ground for suspicion amounting to probable cause; and that if they should think so, they must find for him on this count. That if they found for plaintiff the verdict might be general on both counts, or it might be on one only. (68)
The verdict was general for the plaintiff. An unsuccessful application for a new trial was made by defendant, and from the judgment rendered he appealed. The most material ground of this action is that a legal prosecution was carried on against the plaintiff without probable *36 cause, and this it was incumbent on him to prove expressly, for it cannot be implied. Where probable cause is absent, it is usual to imply malice as well as the knowledge of the defendant; but the want of probable cause cannot be implied from the most express malice. If a man prosecute another from real guilt, however malicious his motives may be, he is not liable in this action, nor is he liable if he prosecute him (69) from apparent guilt, arising from circumstances which he honestly believes. These principles have been repeatedly laid down and sanctioned, and are necessary to be kept in view in considering the nature of the action. 1 Term, 544.
In order to repel the prima facie evidence of the want of probable cause arising from the indictment not being found a true bill, the defendant introduced several witnesses for the purpose of showing that the plaintiff swore falsely in two particulars upon the trial of the warrants before the magistrates. These were, first, as to the nature of the contract between Mr. Winders and Robinson, whether the rent was payable in money orcorn, at the option of the former; secondly, whether the money was due presently or payable in two months. Much evidence on the first point was adduced on both sides, to the end of showing, on the part of the plaintiff, that the contract was absolute for the payment of money, as he had sworn it to be; and, on the part of the defendant, that there was an option in the tenant to pay money or corn, and that consequently the plaintiff had perjured himself. Whether he did or not depended on the weight and credibility of much conflicting evidence. But if the jury believed that adduced by the defendant, it is incontrovertible that there was probable cause for the prosecution. If, on the other hand, they believed that introduced by the plaintiff, there was not on this part of the case any probable cause, and malice was to be inferred; and this, I apprehend, is the instruction that ought to have been given by the judge. On the second point the plaintiff swore at the first trial that he did not remember when the money was to be paid, whether in two, three, or six months, or ever. On the second trial, which was shortly afterwards, he swore that the money was to be paid within two months; and it was on this occasion, when Mr. Winders called to the plaintiff's recollection what his (70) testimony had been on the first trial, that the defendant demanded a warrant against him. On this part of the case it should have been submitted to the jury to inquire whether the plaintiff's two oaths were in conflict with each other; and, even if they were not, whether the circumstances were such as to produce apparent guilt, and raise a belief in the defendant that the plaintiff had perjured himself; and that in either of these two cases the defendant should be acquitted on this part of the case. *37
As the question of probable cause is compounded of law and fact, the defendant had a right to the opinion of the court distinctly on the law, on the supposition that he had established to the satisfaction of the jury certain facts. Whether the circumstances were true was a question for the jury; whether, being true, they amounted to probable cause, is a question of law.
It is true that the court explained to the jury what probable cause was, and explained it correctly; but then, in the subsequent part of the charge, it is left at large for the jury to say whether the defendant had not this probable ground for suspicion amounting to probable cause; whereas the right instruction was that if the defendant had, in their opinion, this probable ground of suspicion, it amounted in point of law to probablecause. I am of opinion, therefore, that there ought to be a new trial.
HALL AND HENDERSON, JJ., concurred.
PER CURIAM. New trial.
Cited: Beale v. Roberson,
(71)