Swaim v. Stafford.
| Decision Date | 30 June 1844 |
| Citation | 26 N.C. 392,4 Ired. 392 |
| Parties | ANTOINETTE SWAIM BY HER NEXT FRIEND v. JOHN M. STAFFORD. |
| Court | North Carolina Supreme Court |
If a prosecutor, on a charge of larceny, has reasonable grounds, at the time he institutes the prosecution, to believe that his goods have been stolen, he is not liable to an action on the case for malicious prosecution, though he may have discovered, after the time the prosecution was commenced, that his goods had not in fact been taken out of his possession, but had been accidentally mislaid.
A search by a store keeper, who supposed his goods to have been stolen, for the purpose of ascertaining whether his goods were missing, need be only such a search as might reasonably satisfy him of the fact. The law does uot require the utmost diligence in making such a search.
The same case, 3 Ired. 289, cited and approved.
Appeal from the Superior Court of Law of Stokes County, at Spring Term 1844, his Honor Judge DICK presiding.
This was an action on the case for a malicious prosecution, in causing the plaintiff to be arrested on a warrant, charging her with feloniously stealing a parcel of belt ribbons. Plea, the general issue. In support of her action the plaintiff produced and proved the warrant stated in the declaration, issued on the oath and at the instance of the defendant. The magistrate, before whom it was tried, testified, that a belt ribbon, found in possession of the plaintiff, was produced before him, and, that, after examining the witnesses for the prosecution, among whom was the prosecutor, John M. Stafford, the present defendant, he dismissed the warrant, it being proved, on the part of the present plaintiff, that she had purchased the belt produced or one like it at a store in Salem a short time before.
The defence relied upon was, that the defendant had a probable cause for the prosecution; and to establish it he introduced several witnesses. One Hartman testified, that the defendant was a merchant, and that the witness, on a Friday, about the last of April, 1840, went to his store, and saw the plaintiff, two of her sisters, two grown ladies, and several school girls in the room--that several parcels of goods were on the counter, near which the grown ladies were standing, the children being a little in the rear--that he saw the plaintiff, with one elbow on the counter, leaning over, as if she were examining a bunch of ribbons, which she had in her hands--that when he first went into the store-room the plaintiff looked towards him--that he did not turn his attention to her afterwards--that in about fifteen minutes she and her sisters left the store, together with all the other females--that after the company were gone, the defendant commenced putting his goods on the shelf, when he seemed to miss something and took the goods down to examine, whether the articles alleged to have been lost were among them--that the witness then told him he had seen the plaintiff have the ribbons in her hands--that the defendant then took the goods down again, re-examined them and opened the folds of the goods--that the plaintiff lived with her father about two miles or two miles and an half from the store--that on the following Sunday he saw her at a preaching, wearing a new belt ribbon--that he saw the defendant on the Tuesday or Wednesday afterwards, when the defendant said to him he had seen or found his ribbons on Sunday--that the witness replied to him that he had seen the plaintiff have on a new ribbon--that he might or might not have told the defendant, that the ribbon resembled his--that he did not recollect but thought he did not tell him so--that the ribbon, produced before the magistrate and now on this trial, resembled in color some of those he saw the plaintiff have in the store. Miss Martha Harris testified, that she had frequently been in the defendant's store up to within a few months of the time when the warrant was taken out, and had seen ribbons resembling in color the one produced by the plaintiff on the trial--that she had never seen the plaintiff wear any ribbon like it, and she has never since seen the ribbons in the store--that the defendant's ribbons were of different figures and colors. W. L. Swaim stated, that he acted as clerk for the defendant during April Court, 1840, and that he saw in his store during that time, ribbons like the one produced. Jackson Stafford testified, that he had owned the store, and sold it to the defendant about twelve months before that time--that among the goods were belt ribbons, like the one shewn on the trial--that he never saw any of the same kind in other stores. A witness, Alspaugh, testified, (the plaintiff objecting to his testimony) that he was present on the Tuesday or Wednesday mentioned by Hartman, and that Hartman did tell the defendant that the ribbon he saw the Sunday before resembled or was similar in color to his. Ezekiel Thomas testified, that he had told the defendant, before he sued out the warrant, that he heard Hartman say the ribbon resembled his in color.
The plaintiff then called a Mr. Lineback, who stated that he had been acting as a clerk in a store for about five or six years--that at the time when the warrant was taken out he was a clerk in a store in Salem, and that some three or four weeks before that time he had sold to the plaintiff, who came there in company with her mother, a belt ribbon of the same kind, quality and color as that produced here on the trial--that such ribbons at that time were common and generally worn. It was also in proof, that, besides two stores in Salem, there were two or three others within a few miles of the defendant's store. Rachel Ebbert testified, that she went with the plaintiff and her sisters to the defendant's store on the Friday mentioned--that it was the last day of a school in the immediate neighborhood--that several females were in company--that the females stood along...
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