FROM ANSON. The following is an abbreviation of the statement made up by the presiding Judge and attached to the record:
The plaintiff was a resident of Anson, and took a female slave belonging to him and started on foot to the State of Missouri, for the purpose, as he said, of selling the slave, and securing the titles to some land he owned there. On the way, he and the slave stopped at the shop of the defendant, six miles west of Morganton. The plaintiff and defendant were perfect strangers to each other; the former applied to the latter to purchase the slave, offered her at a very low price, (167) and agreed to take a horse at a very high price; said he owned land, slaves and horses in Anson, yet was on foot, and without clothes, except those he had on. The plaintiff stayed all night at the house of the defendant, who caused the arrest complained of to be made in the morning.
One of the magistrates who issued the warrant was examined. On the trial he proved that the defendant made oath to the above mentioned facts, and, further, that he (the defendant,) having his suspicions awakened, went during the night to the house where the negro slept, and examined her as to the truth of the story told by the plaintiff. The negro informed the defendant that she did not belong to the plaintiff, but had been taken by him from Anson county by stealth. The counsel for the plaintiff objected to this testimony, so far as it related to the conversation with the negro, but the objection was overruled by his honor. Two witnesses were examined by the defendant without objection. One of them proved that the plaintiff and the negro passed his house, two miles east of Morganton; that the plaintiff and the negro were on foot, the former appeared to be drunk, and was behaving in an unbecoming *Page 104 manner towards the latter. The other witness swore that he was in Morganton when the plaintiff arrived there; that both himself and the slave were on foot, and had no clothes, except those they had on; that the manner and appearance of the plaintiff excited suspicion, and a man had talked of having him arrested on a charge of stealing the negro; but that he disturbed no person, and then next morning paid his bill and departed. The arrest complained of took place the succeeding morning.
His Honor left the credibility of the witnesses to the jury and instructed them that if they believed the facts deposed to, there was probable cause for the arrest, and that they might take into consideration the conduct and action of the plaintiff before he arrived at the (168) defendant's house as circumstances to aid them in forming their opinion as to the truth or falsity of the facts deposed to by the plaintiff before the magistrate.
A verdict being returned for the defendant, a rule was obtained by the counsel for the plaintiff to show cause why a new trial should not be granted.
1. Because the Judge permitted the magistrate to give in evidence the defendant's declaration as to the conversation between him and the negro.
2. Because as there was no proof that the defendant knew the facts deposed to as to the conduct of the plaintiff before he reached Morganton, and while he was in that place, it was an error in the Judge to instruct the jury that they might estimate it in ascertaining the truth of the other facts, upon which the defendant might, or might not be pronounced, in law, to have had a probable cause for the arrest. The rule was discharged, and the plaintiff appealed.
The warrant and the proceedings formed part of the case. By them it appeared that the trial was postponed from 5 May, 1824, to 5 June following, and the plaintiff gave bail to enable him to return to Anson and procure testimony. On the day to which the trial was continued two justices gave judgment "that the said Duncan McRae shall be discharged on his paying a fine of ten shillings and all accruing costs." This is a suit for malicious prosecution. In this action it is necessary for the plaintiff to aver in his declaration, and to prove on the trial, that a prosecution was instituted against him by the defendant with malice and without probable cause. There (169) must be both malice and a want of probable cause. Johnson v. Martin, 7 N.C. 249. Malice is a question of fact, and is *Page 105 usually inferred from the absence of probable cause. Ib. 2; Starkie on Evi., 912. Malice is either express or implied. Express malice is not alleged in this case; the record of the trial below shows that the parties were strangers to each other until the evening of the arrest; and there was no evidence of any dispute or ill-will between them.
Malice alone is not sufficient; a just accusation may be founded on malicious motives. It has been decided in this Court in Johnston v. Martin,7 N.C. 248, that the discharge of the plaintiff from the prosecution, by competent authority, after full examination, is prima facie evidence of the want of probable cause; and the burden of proving the probable cause is then thrown upon the defendant. This decision has been confirmed by this Court in Bostick v. Rutherford, 11 N.C. 83. The correctness of this position is questionable; the innocence of the plaintiff does not prove the absence of probable cause, and the decision conflicts with English authorities, as appears from Purcell v. McNamara, 9 East., 361. But the expediency of interfering at this time with the subject, and thus unsettling that which has long been considered settled, is very doubtful. The inquiry is not necessary in this case; the defendant does not complain of the verdict, and he alone could have been injured by the application of the principle.
The warrant, the affidavit on which it was issued, and the Judgment rendered on the warrant were given in evidence, and copies thereof are appended to the record, and form a part of this case. The affidavit states that the defendant believed from the conduct of the plaintiff, and of the negro woman accompanying him, that he had stolen her. The warrant is issued, the arrest made, and the plaintiff is brought with the process by a lawful officer, before two magistrates, on 5 May, 1824. The examination is postponed, at the instance of the plaintiff, until 5 June, and he is permitted to go at large on giving bail for his appearance at that day. On the appointed day the examination took (170) place. There is no written memorial of any discharge of the plaintiff from the accusation of felony; but a judgment was rendered by the examining magistrates, and by them entered on the warrant, that the plaintiff "shall be discharged on paying a fine of ten shillings and all accruing costs." Thus it would appear that the charge of felony had been abandoned, and that the magistrates proceeded to render judgment under the act of 1784, ch. 213, being an act for the restraint of idle and disorderly persons, commonly called" the vagrant act." But it is to be inferred from the record, and it is the only construction which can be given to it, that the magistrates did absolutely discharge the plaintiff from the prosecution for felony, although there is no written memorial thereof, and that such discharge was proved on the trial, or admitted by the defendant. From the statement of the evidence made *Page 106 by the presiding Judge, which forms part of the record in this case, it is believed the jury were warranted in finding that there were well-grounded suspicions of the commission of the felony by the plaintiff, and that there was probable cause for commencing the prosecution. The justice of this case being in accordance with the verdict, the Court are not disposed to disturb it, unless there has been some infraction of a rule of evidence, or some violation of a principle of law, which imperiously requires their interference.
One of the examining magistrates was introduced as a witness on the trial of this case, and stated what had been sworn by the defendant on the examination of the charge of felony. The witness detailed those circumstances in the conduct and conversation of the plaintiff which had induced the defendant to believe that the felony had been committed, and which he had declared on oath at the examination, and was proceeding to state those matters which had been communicated (171) to defendant by the negro woman accompanying the plaintiff, but not in his presence. To the latter part of this evidence, viz., that coming from the negro, the plaintiff's counsel objected, but made no objection to the residue of the testimony of that witness. The presiding Judge admitted the testimony, and the defendant now moves, on that ground, for a new trial. It does not distinctly appear from the record by whom this witness was introduced. It has been decided in one of our Superior Courts, Moody v. Pender, 3 N.C. 29, that the defendant, in an action for malicious prosecution, may give in evidence what he swore on the trial of the indictment. Whether this decision be justified by the principle of necessity, or rest on the ground of the res gestae, is not at present to be determined. It is not necessary now to inquire into the correctness of this decision; but on the spur of the occasion it seems to be a violation of that cardinal rule of evidence and fundamental principle of justice which prohibits any man from being a witness in his own cause, and should it be confirmed, may be productive of inconvenient and deleterious consequences. 2 Starkie on Ev., 916, 917.
If the plaintiff introduced this witness to give in evidence the statement made by defendant before the examining magistrates the plaintiff could not garble that statement. If he gave in evidence a part, the defendant had a right to insist on the production of the whole. If the witness was brought forward by the defendant, as is inferred from the record, let it be recollected that the plaintiff made no objection to his introduction, and permitted him to detail all the circumstances deposed by the defendant, without objecting to their admissibility, until the witness reached that part of the statement which emanated from the negro; to the admission of this part the plaintiff's counsel objected. *Page 107 It is not necessary now to inquire whether it were competent for the defendant to give in evidence this statement. The plaintiff did not object to the testimony, but acquiesced in its admissibility, (172) and has, therefore, waived all right at this period to complain of its introduction. It is said, however, that the plaintiff did object to the admissibility of that part which has been sworn to by the defendant, as having been communicated to him by the negro, and that the Court admitted it notwithstanding the objection. The plaintiff had no right to a mutilated or garbled statement of that testimony. If a part be given in evidence the whole should be received.
Two other witnesses were introduced by the defendant, who had seen the plaintiff and the negro woman together on the day preceding that on which the warrant was issued, and in the same neighborhood; and they gave in evidence circumstances calculated to excite well-grounded suspicions unfavorable to the plaintiff, and even to produce a belief that there was probable cause for the accusation on which the plaintiff was arrested. But there was no evidence to show that these circumstances came to the knowledge of the defendant before the arrest was made, or to show at what time he obtained information of them. It is true the inquiry is as to the defendant's having probable cause for making the accusation, and those facts and circumstances which did not come to his knowledge before the commencement of the prosecution, although they had previously occurred, are not evidence of his having probable cause to make the accusation. But the plaintiff did not object to this testimony. He virtually assented to its introduction, and acquiesced in its admissibility, and has thereby waived all right to complain of its introduction, even if it had been improvidently received by the Court, which is by no means conceded. It appears that this testimony was not introduced for the purpose of showing that the defendant had probable cause for instituting the prosecution, but to corroborate the statement which had been made by the defendant on oath before the examining magistrates, and which was given in evidence to the jury, who (173) were to pass on its truth or falsity. The defendant having sworn before the examining magistrates that on the day of the arrest the declarations of the plaintiff were strange and incredible, his deportment and conduct singular and unbecoming, and detailed the particulars thereof, all of which were well calculated to excite a belief of probable cause for the accusation made, and these two witnesses on the preceding day having heard the plaintiff make the like, or very similar declarations, and having seen him exhibit the same deportment and conduct, their testimony might be taken into consideration by the jury in their search after truth, as a mere circumstance in ascertaining the credit to which the statement was entitled that had been made by the defendant *Page 108 before the examining magistrates; and the more particularly as their testimony was confined to the acts and declarations of the plaintiff himself.
The presiding Judge instructed the jury that in forming their opinion of the truth or falsity of the statement made by the defendant before the examining magistrates they might take into their consideration the circumstances deposed to by these two witnesses. No particular instruction was requested by the counsel to be given to the jury, who were told that they were the exclusive judges of the credit of the witnesses and of the truth or falsehood of the circumstances deposed. The verdict accords with the justice of the case. The Court regret that the plaintiff has been here without counsel, and that they have had to look into his case without the benefit of argument.
PER CURIAM. No Error.
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