Action for malicious prosecution in having the plaintiff arrested on a warrant and bound over to the Superior Court for stealing growing corn. In support of the issue on the part of the plaintiff, he gave evidence that the crop of corn in question was raised by a widow by the name of Brooks, on a piece of land for which the present defendant had brought an action of ejectment against her, in which he recovered, and thereon sued a writ of possession and had the same executed in autumn, and about three weeks before the crop of corn, being about 200 bushels, was ripe enough to be gathered; that Mrs. Brooks, on being turned out of possession, went to reside in a house belonging to the plaintiff, about half a mile from his residence and about two from her former residence; and *Page 220 that when the corn became fit to be gathered, she and several of her children, who lived with her, went openly and pulled it and hauled it to her new residence, and there put it in a crib and locked it up, and the plaintiff had nothing to do with the gathering or hauling the corn, though he afterwards purchased it; that the field of corn was on a public road much traveled, and that Mrs. Brooks and her children pulled it and took it away on a Saturday and Sunday, and that during that time great numbers of people passed the road, going to and returning from a large religious meeting near the place, and saw the persons engaged in pulling and carrying away the corn; that Mrs. Brooks made her intention to take the corn publicly known, and borrowed from the plaintiff his wagon and from two other neighbors their horses for the purpose. The plaintiff then produced a witness who deposed that on Monday following he informed the defendant that Mrs. Brooks had taken the corn and had it in her crib, and also of the time and manner and all the (322) circumstances attending it, as above stated, and the defendant and witness went to Mrs. Brooks' and saw the corn there; and that the defendant, on the same day, went to the house of the plaintiff and had a conversation with him respecting the corn, and was then informed by the plaintiff that he had purchased it and claimed it; and that on the succeeding Thursday the defendant obtained a warrant against the plaintiff for stealing the corn, had him arrested and bound over; but at court the defendant made no attempt to prefer an indictment against the defendant, and he was then discharged.
On the part of the defendant evidence was then given that before taking out the warrant he was advised by an attorney that the circumstances made the plaintiff guilty of larceny in taking the corn, and that he stated the circumstances to the attorney to be as follows: That the corn had been gathered and carried away at night in plaintiff's wagon and deposited in a house of the plaintiff in a private place; that one Austin passed by as Mrs. Brooks was gathering it, and she concealed herself. But the defendant did not state to the attorney that in the conversation between plaintiff and defendant, on Monday, the former claimed the corn as before mentioned.
Counsel for plaintiff insisted that there was not probable cause, and that from that circumstance and from the variance between the facts as known to the defendant to exist, and the statement of them made by him to the attorney, malice might be inferred. Counsel for defendant insisted that there was no variance in that part of the statement relative to Mrs. Brooks hiding when Austin passed by, inasmuch as that part did not appear to be untrue.
The court instructed the jury that if they believed the evidence, (323) the circumstances, as in fact existing, and as known to the *Page 221 defendant when he took out the warrant, did not amount to probable cause. The question of malice was left to the jury, with directions that differences between the circumstances as they existed in the defendant's knowledge, and as he stated them to the attorney, might be considered by them as evidence tending to show malice; and the attention of the jury was then called to the several variances alleged, including that in respect to Mrs. Brooks hiding herself.
The jury found for the plaintiff, and the defendant moved for a venirede novo for error in the instructions to the jury, which being refused and judgment given on the verdict, the defendant appealed. Upon the point of probable cause there can be no doubt. There was not the least pretence for accusing any one of the parties concerned, and much less the present plaintiff, with a larceny. The public manner of taking the corn, with the general knowledge of the neighborhood, and the open and distinct avowal to the defendant of the fact and of a claim of property in the corn, repelled all presumption of an intention to steal. Several answers may be given to the other part of the exception. In the first place, there was evidence on which the jury might well have found the representation that Mrs. Brooks hid herself when Austin was passing, was untrue. For, when she showed herself gathering the corn for two days to hundreds of passengers along the public highway, and made her intentions known to the neighborhood generally, it is a natural inference that she had no motive for concealing herself from any particular person, and that, in truth, she did not conceal herself from that person, Austin, for which there is no evidence but the naked declaration of the defendant himself, who declined to sustain it by calling Austin. But, secondly, if there had been an (324) oversight on this point at the trial, it would not be a cause for disturbing the verdict, because it is totally immaterial, since, at most, it would tend to show criminality in Mrs. Brooks, and could in no degree affect the plaintiff. It is true the representation to the attorney that the corn had been secretly taken at night by some one and carried off in plaintiff's wagon and concealed in a private place on plaintiff's premises, and was in his possession, might have induced a suspicion that one so soon found in possession of stolen property had committed the theft or participated in it, without an explanation, as in fact was true and as the defendant had at the time been informed, that the taking was open and notorious and that the plaintiff had nothing to do therewith, but claimed the corn under a subsequent purchase. But with such an explanation *Page 222 according to the truth, the suspicion would be altogether dispelled; and it is seen at once that the inquiry, whether the defendant maliciously prosecuted the plaintiff for a larceny of which he thus knew him to be innocent, it is entirely irrelevant whether Mrs. Brooks, while gathering the corn, with which the plaintiff had nothing to do, did or did not wish Austin not to know it.
PER CURIAM. No error.
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