Opinion
(August Term, 1848.)
It is no objection to an action for malicious prosecution that the party was arrested under a warrant having no seal, nor is it necessary in such an action to show that the name of the person who commenced the prosecution was endorsed on the bill of the indictment as prosecutor.
APPEAL from the Superior Court of Law of MACON, at Spring Term, 1848, Battle, J., presiding.
J. W. Woodfin for plaintiff.
Edney for defendant.
This is an action for maliciously prosecuting the plaintiff and causing him to be indicted for stealing some sheaves of oats from the defendant. Plea, not guilty. On the trial the plaintiff gave in evidence a warrant issued against him for the offense by two justices of the peace, which was not under seal, but only signed by them, and the plaintiff further gave evidence that the defendant made oath that the plaintiff stole the oats, and applied to the magistrate for the warrant; and that the plaintiff was arrested thereon, and, upon examination had, was bound over by the magistrate to court on the charge, and that the warrant and recognizances were duly returned. The plaintiff further gave in evidence the record of an indictment found for the larceny, and his subsequent trial and acquittal thereon, and, also, that the defendant, upon the return of the process to court, appeared as a witness against the plaintiff, and was the only one sworn and sent to the grand jury upon the indictment; and that, pending the indictment, the defendant made a bet with another person that he would convict the plaintiff on the indictment. The counsel for the defendant insisted that the warrant was void, because it was not under seal, and therefore that the defendant could not be held responsible as the prosecutor on that, and that, for that reason, and because the defendant (485) was not marked on the indictment as the prosecutor and did not appear to have been a witness on the trial of the plaintiff, there was no evidence that the defendant was the prosecutor of the indictment; and he moved the court so to instruct the jury. The court refused the motion, and charged the jury that the defendant could not avail himself of the want of a seal to the warrant as showing that he did not cause the plaintiff to be prosecuted and indicted for the larceny, and that upon the warrant and record and the parol evidence, if believed by them, the jury might find that the defendant was the prosecutor of the indictment, if they were satisfied therefrom that such was the fact. The jury found for the plaintiff, and the defendant appealed from the judgment.
If the magistrates had discharged the plaintiff and the action were for maliciously charging the plaintiff with the larceny before them and causing him to be arrested therefor, it is not seen that the defect in the warrant could have protected the defendant. For the charge alleged against the plaintiff was of an infamous offense, and the magistrates had cognizance of it as respected the arrest and examination of the person accused, and by the prosecution the plaintiff would have been prejudiced in his property and character. Upon those grounds it has been often held that after the discharge of the accused this action will lie, if the proceedings, though defective, were maliciously prosecuted without probable cause. Chambers v. Robison, Str., 691; Elsee v. Smith, 1 Dow. and Ryt., 99. But that is not material here, since the action is for the malicious prosecution of the indictment. Now, the defense is that the defendant was not, in point of law, to be taken as the (486) prosecutor of it, because he was not endorsed as such on the bill and the plaintiff did not prove that the defendant gave evidence against him on his trial. But, clearly, those circumstances do not determine the defendants' liability, as he may have promoted the prosecution and been the cause of it, though not avowedly the prosecutor appearing of record. He is liable if in point of fact the indictment was preferred at his instance. To establish the affirmative, the circumstances that the defendant in the first instance applied for a warrant against the plaintiff for the larceny and caused him to be arrested and bound over, and again attended and went before the grand jury as a witness against him and also made a wager that he would convict him on the indictment, certainly constituted evidence proper to be submitted to the jury. It not only tended to show that the defendant caused the indictment to be preferred, but to most minds it amounts to sufficient and convincing proof. It is plain that the defect in the warrant could not impair its force as evidence to the point now under consideration, namely, the defendant's connection with the preferring and prosecuting the indictment, for whether the warrant be good or bad, it was issued at the instance of the defendant and was the first move in the affair which ended in the indictment for the same charge, and he offers nothing to show that he repented of his agency in making the accusation and separated himself from it before the indictment was sent. However, the sufficiency of the proof is not a question for the court, but was exclusively for the jury, and was left to them; and our province is merely to say whether the facts amounted to any evidence on which the case could be left to the jury, upon which the opinion of the Court is decidedly in the affirmative.
PER CURIAM. Judgment affirmed.
Cited: Kelly v. Traction Co., 132 N.C. 372.
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