Newton v. McGowan , 256 N.C. 421 ( 1962 )

124 S.E.2d 142 (1962) 256 N.C. 421

John E. NEWTON
v.
Thomas L. McGOWAN.

No. 24.

Supreme Court of North Carolina.

February 28, 1962.

John H. Hall, Elizabeth City, for defendant-appellant.

Robert B. Lowry and Frank B. Aycock, Jr., Elizabeth City, for plaintiff-appellee.

RODMAN, Justice.

Appellant's claim of prejudicial error is based on asserted imperfections in the charge.

The court, in the first part of the charge, read the issues to the jury and expressly informed them plaintiff had the burden of proving each issue. He then defined the terms "greater weight of evidence," "probable cause," and "malice." Next he reviewed the evidence and then informed the jury what the law was in relation to each issue. When he reached the second issue, he said:

"The burden of that issue is upon the plaintiff to satisfy you from the evidence and by its greater weight, and in that connection I instruct you that if the plaintiff has satisfied you from the evidence and by its greater weight that the defendant caused the plaintiff to be arrested and prosecuted by virtue of a warrant sworn out by the defendant in the Recorder's Court of Currituck County, wherein or whereby the plaintiff was charged in said warrant issued upon affidavit of the defendant with the larceny of a quantity of wood or slabs, the property of the defendant, that the affidavit made by the defendant was made without a reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the plaintiff was guilty of crime of larceny of said wood or slabs; or such affidavit for the issuance of such warrant was made by the defendant without there existing to his knowledge such a state of facts as would lead a man of ordinary caution to believe or to entertain an honest and strong suspicion that the plaintiff was guilty of the larceny of his, the defendant's, wood or slabs, then and in that event you would answer the second issue YES.

"If, on the other hand, you find that the defendant had a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the plaintiff had stolen his wood or slabs, or if the defendant had knowledge of such facts as would lead a man of ordinary caution to believe or to entertain an honest and strong suspicion that the plaintiff had stolen his wood or slabs, then the procurement of the arrest and prosecution of the plaintiff by the defendant would have been with probable cause and you would answer the second issue NO."

Appellant contends the quoted portion is erroneous and prejudicial in two respects. First, it informs the jury that proof of certain facts requires an affirmative answer, but fails to inform them that plaintiff's failure to establish the requisite facts required a negative answer; and, second, imposed a burden on defendant to find facts which would permit a negative answer.

Appellant, to support his contention, breaks the charge into two segments, the first segment ending with that portion permitting an affirmative answer and the second segment with that portion relating to a negative answer.

The duty to inform a jury as to when to give negative as well as affirmative answers to the issues is clearly stated in Hunnicutt v. Shelby Mutual Insurance Co., 255 N.C. 515, 122 S.E.2d 74, which appellant cites and urges in support of his contention. The question here is: Does this charge fail to conform to the law as there stated? When an exception is taken to a portion of a charge, the whole must be considered and the part objected to considered in context. Beauchamp v. Clark, 250 N.C. 132, 108 S.E.2d 535; 1 Strong's NC Index 124, note 443.

Applying this rule to the error asserted, it is, we think, apparent that the court correctly instructed the jury. The language used with respect to a negative answer imposed no burden on defendant. It is equivalent to a statement that failure to prove facts necessary for an affirmative answer required a negative answer.

Was the demand in the recorder's court for a jury trial and the execution of an appearance bond at the next term of the Superior Court equivalent to a waiver of a preliminary examination and hence an implied admission that probable cause existed?

Under our decisions when a committing magistrate finds probable cause or when a defendant in a criminal action waives a preliminary hearing, a prima facie showing of probable cause is made, but such finding or waiver of examination is not conclusive, the question of probable cause is still for the jury. Abbitt v. Bartlett, 252 N. C. 40, 112 S.E.2d 751; Bryant v. Murray, 239 N.C. 18, 79 S.E.2d 243; Taylor v. Hodge, 229 N.C. 558, 50 S.E.2d 307. The original act relating to the transfer from the Recorder's Court of Currituck County to the Superior Court upon demand for jury trial required the recorder to sit as a committing magistrate and ascertain if probable cause existed. C. 897 S.L.1945. But this statute was repealed. (See c. 273 S.L.1949.) The present statute, c. 972 S.L.1951, makes it the duty of the recorder to transfer without an investigation upon demand for jury trial. The demand for a jury trial under the present statute has no relation to the question of probable cause.

Appellant assigns as error the court's definition of "malice." The definition given by the court is taken verbatim from Motsinger v. Sink, 168 N.C. 548, 550, 84 S.E. 847. In substance, if not in identical language, it has been so defined in numerous cases since 1915 when the Motsinger case was decided. State v. Bass, 255 N.C. 42, 120 S.E.2d 580; Abbitt v. Bartlett, supra; Brown v. Guaranty Estates Corp., 239 N.C. 595, 80 S.E.2d 645, 40 A.L.R. 2d 1094; Betts v. Jones, 208 N.C. 410, 181 S.E. 334; Swain v. Oakey, 190 N.C. 113, 129 S.E. 151; Cottle v. Johnson, 179 N.C. 426, 102 S.E. 769.

Defendant's final assignment of error is directed to the charge as it relates to the issue of damages. Apparently the court had before it 54 C.J.S. Malicious Prosecution § 112, at p. 1103 when it enumerated damages which might flow from a malicious prosecution. Among other elements which the court told the jury it could consider in awarding damages was injury to his fame, reputation, and character, "if any such occurred," and "decrease in his earning capacity, if any."

Defendant argues it was error for the court to permit the jury to determine if any such injuries occurred and to assess damages therefor. He assigns two reasons for his contention: (1) Two witnesses for plaintiff testified to his continuing good reputation. None testified to the contrary. (2) Plaintiff was receiving a higher wage at the time of trial (December 1961) than he was receiving when arrested in March 1960.

Plaintiff testified he was arrested at his home. He had visitors at that time. A newspaper in Elizabeth City published the fact that he had been arrested on the charge of stealing plaintiff's wood. He had never before been charged with larceny or embezzlement nor had he ever committed such a crime.

When the jury answered the first three issues in the affirmative, thereby establishing plaintiff's right of action, he was, as a matter of law, entitled to nominal damages. The burden was, as the court told the jury, on plaintiff to show damages sustained beyond a nominal sum; but this burden did not obligate him to show the amount with mathematical certainty. When he offered evidence from which the jury could reasonably find damage in excess of a nominal sum, the amount of such damage was a question for the jury. Creech v. Creech, 98 N.C. 155, 3 S.E. 814; Stevenson v. Northington, 204 N.C. 690, 169 S.E. 622; Roth v. Greensboro News Co., 217 N.C. 13, 22, 6 S.E.2d 882; 15 Am.Jur. 415.

The charges falsely made, accompanied by the arrest, followed by the news item reporting the asserted criminal conduct, suffice to support an award for more than nominal damages without the necessity of producing witnesses to testify their estimate of plaintiff's character had changed from good to bad. No one would gainsay the fact that it is easier for one of good reputation to secure employment in better paying positions than for one described as a thief to secure such employment.

Appellant has failed to show prejudicial error.

No error.

WINBORNE, C. J., not sitting.