Oakley v. Tate

• Decision Date: 26 May 1896
• Citation: 118 N.C. 361,24 S.E. 806
• Court: North Carolina Supreme Court
• Parties: OAKLEY. v. TATE.

24 S.E. 806

118 N.C. 361

OAKLEY.

v.TATE.

Supreme Court of North Carolina.

May 26, 1896.

Malicious Prosecution—Evidence—Mistake of Justice.

1. Where the facts disclosed by defendant to the justice of the peace dirt not constitute perjury, defendant is not responsible for the error of the justice in filling up the warrant as for perjury, so as to render him liable for the malicious prosecution of the accused on such a charge.

2. In an action for malicious prosecution of plaintiff on a charge of perjury, it appeared that defendant disclosed to the justice of the peace facts showing that plaintiff executed a mortgage to defendant, concealing the existence of a prior mortgage. The justice, supposing the crime was perjury, filled up the affidavit, which was signed by defendant's agent, and which recited that plaintiff had committed perjury, to wit, that he had given a mortgage stating that there was no other lien on the property mortgaged, and indorsed the warrant as one for perjury; and, on the warrant being read to defendant's agent, he stated that it was his complaint. The return of the justice to the clerk of the superior court in regard to the criminal cases tried before him stated that the case against plaintiff was one in which he was guilty of fraud, he having discovered after its trial that the crime was not perjury; and the justice testified that the matter investigated before him in the criminal case was "giving a mortgage, and stating in the mortgage that it was the only lien." Held, that the evidence was insufficient to show a prosecution by defendant against plaintiff for perjury.

Appeal from superior court, Caswell county; Starbuck, Judge.

Action by E. W. Oakley against J. A. Tate. From a judgment for plaintiff, defendant appeals. Reversed.

Affidavit on Which Plaintiff was Arrested.

"Before R. L. Mitchell, J. P. J. W. Murray, agent for J. A. Tate, complains and says that at and in said county, and in Hightower township, on or about the 4th August, 1893, E. W. Oakley did commit perjury, to wit, making a statement that there was no claim on property that they had mortgaged to said J. A. Tate, contrary to the form of the statute, and against the peace and dignity of the state. [Signed] J. W. Murray, Agent.

"Subscribed and sworn to before me, the 8th of May, 1894. [Signed] R. L. Mitchell, J. P."

Issues.

"(1) Did the defendant maliciously prosecute the plaintiff on a charge of perjury without probable cause?" Answer: "Yes." (2) "Was said prosecution terminated by compromise or agreement with or by procurement of the plaintiff, Oakley?" Answer: "No." (3) "What damages, if any, has the plaintiff sustained?" Answer: "We, the jury, assess damages for the plaintiff at three hundred and fifty dollars."

Judgment.

"The jury having found all the issues submitted in favor of the plaintiff, and assessed his damages at three hundred and fifty dollars, it is ordered and adjudged that the plaintiff recover of the defendant the sum of three hundred and fifty dollars, with interest thereon from the 21st of October, 1895, until paid, and the costs of this action, to be taxed by the clerk of this court"

J. W. Murray, witness for defendant, testified: "I was in defendant's employment. Tate told me to take out a warrant for the plaintiff for stating, when he gave the mortgage of August, 1893, that there was no other mortgage on crop, when in fact there was one. He gave me the mortgage to carry to the justice, Mr. Mitchell. I did so. I explained the case to the justice. He said he supposed it was perjury, but he would write down the definition of 'perjury' in the complaint. The justice wrote the affidavit I signed it, and swore to it."

K. L. Mitchell, witness for the defendant, testified: "Mr. J. W. Murray came to my house at 2 p. m., May 8, 1894, and said Mr. Tate had sent him to get a warrant against Oakley for giving a mortgage, and stating there was no other mortgage when there was one. I told Murray that I had rather have counsel before I tried it, as I did not know what head it would come under, and what the punishment would be. Murray said Tate wanted it tried the next day. I got my book, and read a clause in it to Murray. He said he did not know whether it came under that head or not. I told him I would put that down in the affidavit, and also state the facts as he had stated them. I wrote it out that way, and he took the warrant to the officer that evening. The clause I read to Murray in the book was under the head of 'perjury, ' and that was why that word was used. (To all this evidence plaintiff objected.) The mortgage was present, and I read it over. The trial took place at Ridgeville, next day, May 9, 1894, at 2 p. m. I read the warrant in the presence of Tate, and he was sworn, and said that was his complaint Sharpe testified that he read the mortgage to Oakley, and that Oakley did not state that there was a mortgage due to the Taylors. The matter investigated was Oakley's giving a mortgage, and stating in the mortgage that it was the only lien. Oakley was bound over to next term of court. Some time after that, I received a note from Tate. Did not think that it would be needed again. Do not know where it is. When I got it, I did not think it would ever be needed again. Have not searched for it. I remember its contents. (Plaintiff objected to witness' stating contents of note.) Tate wrote that the matter had been amicably settled, and that if I had not returned the papers, that I should not do so, and wanted it stopped at as little cost as possible. I made return of my action."

Exhibit B.

"Return of R. L. Mitchell, J. P., to August Term, 1894. To S. B. Adams, Clerk Superior Court: The following is a list of criminal actions tried before me and finally disposed of since the last term of the...