Merrell v. Dudley

• Decision Date: 19 September 1905
• Citation: 51 S.E. 777,139 N.C. 57
• Parties: MERRELL. v. DUDLEY.
• Court: North Carolina Supreme Court

139 N.C. 57

51 S.E. 777

MERRELL.

v.DUDLEY.

Supreme Court of North Carolina.

Sept. 19. 1905.

1. Malicious Prosecution—Evidence—Corroborative Declarations—Res Gestae.

In an action for malicious prosecution, evidence of a declaration by defendant to a justice of the peace, on applying for a warrant for plaintiff's arrest for the larceny of a shovel, to the effect that, when defendant found the shovel in plaintiff's possession and asked him to return it, plaintiff said, "To hell with the shovel!" was admissible, both as corroborative and as res gestae.

2. Appeal—Instructions—Prejudicial Error.

An instruction containing the expression, "if you believe from the evidence, " though objectionable, is not ground for reversal, where it did not appear that prejudice probably resulted therefrom.

3. Malicious Prosecution—Malice.

In an action for malicious prosecution, malice may be inferred from a want of probable cause.

[Ed. Note.—For cases in point, see vol. 33, Cent. Dig. Malicious Prosecution, §§ 67, 68.]

4. Same.

In an action for malicious prosecution, an instruction that malice may be inferred from a want of probable cause, or from "other circumstances, '' was not objectionable as requiring both a total want of probable cause and corroborating circumstances to prove malice.

Appeal from Superior Court, Carteret County; Webb, Judge.

Action by C. A. Merrell, by his next friend, against Thomas Dudley, for malicious prosecution. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Chas. L. Abernethy, for appellant.

D. L. Ward and L. I. Moore, for appellee.

BROWN, J. The evidence tends to prove that the defendant lost a shovel, and after looking for it for several days he was informed the shovel was in the possession of the plaintiff. He went to the plaintiff and asked him to bring the shovel back. The plaintiff used insulting language to the defendant and did not return the shovel. The defendant then went to Magistrate Springle and asked him what to do. After some preliminaries the magistrate advised the defendant to take out a warrant. At the time the defendant applied to the magistrate to know what to do, he stated that he had found the shovel in the possession of Merrell and asked him to bring it back. Merrell did not bring back the shovel until the day of the trial, when he produced the shovel, which was turned over to the defendant, and the case was dismissed. The magistrate wrote the warrant after advising the defendant to take that course. The justice of the peace, Springle, was permitted to testify over plaintiff's objection, upon cross-examination by defendant, that defendant had told him at the time he issued the warrant that he had found the shovel in the possession of Merrell and askedhim to bring it back, and Merrell said, "To hell with the shovel If

1. It is generally true that the declarations of a party to an action are not competent in his Own behalf. When they are corroborative, it is permissible to admit them; but the judge should explain to the jury the character of such evidence and the weight to be given to it. This was not done in this case; but no exception has been taken by the plaintiff to the omission. It appears from the record that the examination of defendant, Dudley, preceded this part of the cross-examination of Springle, and the testimony was properly admitted, both as corroborative and as a part of the res gestæ. This declaration is original evidence as part of the res gestæ. Declarations or acts, accompanying any act or transaction in controversy and tending to explain or illustrate it, are received in evidence as a part of the res gestæ. Doorman v. Jenkins, 29 E. C L. 80...