Moore v. Winfield
| Decision Date | 27 February 1935 |
| Docket Number | 19. |
| Citation | 178 S.E. 605 |
| Parties | 207 N.C. 767, 97 A.L.R. 1019 v. WINFIELD. MOORE |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Beaufort County; Sinclair, Judge.
Action by D. O. Moore against J. Bryan Winfield. Judgment for plaintiff, and defendant appeals.
No error.
In malicious prosecution action, testimony that defendant told witness that defendant could not make witness testify in trial of plaintiff for larceny, but could make witness wish he had, and that witness had therefore been induced to swear lie in trial of plaintiff, held competent on issue as to whether conviction of plaintiff was procured by defendant upon evidence known to him to be perjured.
This is an action for malicious prosecution, brought by plaintiff against defendant. The following issues were submitted to the jury, and their answers thereto:
"(1) Was the warrant offered in evidence dated the 23rd day of June, 1923, maliciously sworn out by the defendant against the plaintiff, as alleged in the complaint? A. Yes.
(2) Was said warrant issued and sworn out by the defendant without probable cause of plaintiff's guilt of the charge therein contained? A. Yes.
(3) Has the action therein been terminated by a nol pros having been entered in the cause? A. Yes.
(4) What actual damages, if any, is plaintiff entitled to recover? A. $500.00.
(5) What punitive damages, if any, is plaintiff entitled to recover? A. ------."
Judgment was rendered on the verdict in the court below. Defendant made many exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.
Ward & Grimes, of Washington, N. C., for appellant.
H. C Carter, of Washington, N. C., for appellee.
At the close of plaintiff's evidence and at the close of all the evidence, the defendant, in the court below, made motions for judgment as in case of nonsuit. C. S. § 567. The court below overruled these motions, and in this we can see no error. The question presented: Is the conviction of the defendant in a criminal action in a lower court procured by the prosecuting witness upon evidence known to him to be perjured conclusive evidence of probable cause? We think not, under the facts and circumstances of this case.
The plaintiff, in his complaint, alleges: "That not only was said warrant sworn out maliciously and without probable cause of plaintiff's guilt, but such evidence against plaintiff, as was produced in the trial of the cause in said Recorder's Court was untrue, and was secured by the defendant herein by threats, intimidations and promises of rewards to the witnesses so testifying, as plaintiff is advised, believes and alleges."
The plaintiff was tried in the recorder's court for Washington, Long Acre, Chocowinity, and part of Bath townships, in Beaufort, N.C. (chapter 74, Public Local Laws of North Carolina, 1911, subsection (d) of section 7), for the larceny of about two bags of oats (in the warrant, it was alleged two tons). Defendant employed counsel to prosecute plaintiff in the recorder's court.
On the trial, plaintiff was found guilty and it was ordered and adjudged that he be confined in the common jail of Beaufort county for sixty days, to be assigned to work the roads judgment to be suspended upon $25 fine and costs.
The recorder's court had final jurisdiction of the action. Plaintiff appealed to the superior court, and when the action was called for trial at the April (Special) term, 1933, of the superior court of Beaufort county, the state, through its solicitor and counsel representing the defendant, stated in open court that the prosecution was unable to make out a case against the defendant upon the charge laid against him, and thereupon the state took a nolle prosequi in said action, and the same has been terminated.
The main question on this appeal is the exception and assignment of error made by defendant, which cannot be sustained, to the charge of the court below, as follows, in brackets: "I charge you further if you believe from the evidence that the defendant caused the warrant mentioned in the complaint to be issued against the plaintiff and that plaintiff upon his trial before the Recorder on said warrant was convicted in the Recorder's Court, such conviction is conclusive evidence of probable cause and you would answer the second issue No [unless you further find from the evidence that the defendant procured the conviction of the plaintiff in said Recorder's Court by means of evidence known to said defendant to be false, or that such conviction was procured through fraud of the defendant; and, if you find that plaintiff's conviction was procured by means of evidence known to the defendant to be false, then it is for the jury to say upon all the evidence whether the defendant had probable cause to believe plaintiff guilty of the larceny of the oats as charged in the warrant sworn out by the defendant]."
In Williams v. Woodhouse, 14 N.C. 257, we find ...
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