Cabiness v. Martin

• Decision Date: 31 December 1832
• Citation: 14 N.C. 454
• Court: North Carolina Supreme Court
• Parties: GEORGE E. CABINESS v. THOMAS MARTIN ET AL.

14 N.C. 454

GEORGE E. CABINESS

v.THOMAS MARTIN ET AL.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1832

Probable cause is such a suspicion as would induce a reasonable man to commence a prosecution, and where a witness swore that a magistrate, upon the return of a State warrant, said that he "would commit the defendant unless," etc., and the magistrate had in fact said he "would bind the defendant over unless," etc.: It was held that the variance did not constitute probable cause for a prosecution for perjury.

THIS was an action on the case, in which the plaintiff declared against the defendants for maliciously, and without probable cause, prosecuting him for perjury. Upon not guilty pleaded, the cause was tried before Donnell, J., at RUTHERFORD, on the last spring circuit. The perjury for which the defendants had the plaintiff arrested was alleged to have taken place on the trial of an indictment against the defendants for a conspiracy to extort money from one Horde, and it appeared that Horde, having been arrested upon a charge of larceny, and brought before the defendant Martin, who was a justice of the peace, had been discharged upon his surrendering a bank-note of three dollars to the person who sued out the warrant against him, and also executing to the prosecutor his own promissory note for $8.75. On the trial of the indictment against the defendants, the plaintiff swore that the defendant Martin had told Horde that unless he gave his note, and surrendered the bank bill as above mentioned, he would send him to jail. In this, it was alleged the plaintiff swore falsely, and it was contended that the defendant had said that unless he, Horde, gave his note, etc., that heshould bind him to appear at court. Much testimony was offered on both sides, on the trial, which it is not necessary to state.

The presiding judge charged the jury that if the plaintiff had sworn on the trial of the indictment against the defendants that Martin had said he would send Horde to jail, by a mistake, yet if it was false, it amounted to probable cause, and justified the defendants in suing out the warrant against him for perjury.

A verdict was returned for the defendants, and the plaintiff appealed.

DANIEL, J., after stating the facts, proceeded as follows: We are of opinion that if the facts were such as are contended for by the defendants, they would not make out a probable cause to authorize their issuing a State's warrant and prosecuting the plaintiff for perjury. In the case of Munns v. Dupont, 2 Brown Rep. Ap., 65, Judge Washington, in delivering the opinion of the Court, asks, "What is the meaning of probable cause? I understand it to be the existence of circumstances and facts sufficiently strong to excite in a reasonable...