Cabiness v. . Martin , 15 N.C. 106 ( 1833 )

The plaintiff declared against the defendants for maliciously prosecuting him for the crime of perjury; and on the trial he produced and gave in evidence a warrant, sued out by the defendant Martin — reciting that Martin had made oath before the Justice granting the warrant that he had just reasons to believe that the plaintiff "did take false oath in a suit in Rutherford Superior Court, at October Term, 1826, before JudgeRuffin, in a suit of The State v. Thomas Martin and others for a conspiracy, he (the plaintiff) knowing the same to be false and corrupt," — and therefore commanding that the plaintiff should be arrested, etc., to be further dealt with according to law.

The plaintiff showed that the suit referred to in the warrant was a prosecution against the defendants Martin and Hardcastle, and one Botts, for a conspiracy to arrest one James Hord upon a pretended charge of larceny, and thereby to defraud him of his money in order to procure a compromise of the charge; and that the said Martin, Hardcastle and Botts, at the time of Martin's causing the above recited warrant to be issued, were in jail under a sentence of imprisonment for the said conspiracy — and they directed one Patterson, a son-in-law of Hardcastle, to deliver the warrant to an officer and have the plaintiff arrested and brought to trial without the knowledge of any of his friends. And the plaintiff further proved that he was accordingly (107) arrested and brought before a Justice, who after hearing the testimony adduced in support of the warrant, discharged him.

The defendants' counsel then objected that the warrant produced did not charge the plaintiff with the crime of perjury, and that therefore, the declaration was not supported by the proof, but the presiding Judge overruled the objection.

The defendants then proved, that on the trial of the indictment against them and Botts, the plaintiff was examined as a witness and deposed in substance as follows — that Hardcastle sued out a warrant against Hord for stealing the money of Hardcastle — which was served by Botts who was a constable, and returned before Martin who was a Justice — that Martin on the trial before him after hearing the evidence, told Hord he must give up a three dollar note seen in his possession, and execute his own bond to Hardcastle for the residue of the money lost, or he would send him to Court — that Hord refused to do what was demanded, upon which Martin had a private conversation with Hord's wife, and then declared that the matter could be accommodated, telling Hardcastle that if he would on the next day go to Hord's house, he could get the three dollar note and a bond for the residue of his money — that Hardcastle declining to go, Botts said he would do it, and include in the bond his own fees on the warrant, and thereupon, Hord was discharged. The defendant further proved that when Botts arrived at Hord's house, he found him sick and in bed — and when Hord, being informed of the business on which he came, refused to give up the note and execute his bond. Botts threatened to carry him again before a Justice, upon which Hord complied with his demand.

The plaintiff then offered to prove that Botts took the bond payable to himself, and being asked the reason why? said "it was for a blind," which was objected to by the defendants' counsel, but the evidence was received by the Judge. The plaintiff further offered to prove that a short time before the warrant against Hord, at a public gathering of people (108) at his house, a three dollar note was brought to him by one of his servants, upon which he made proclamation of the fact and requested the owner to come forward and receive his money, but no claim was interposed, and that Hardcastle and Martin were present, to which evidence, also, the defendants objected, but it was nevertheless, received by the Judge.

A verdict was found for the plaintiff, and a new trial having been refused and judgment rendered upon the verdict, the defendants appealed. The defendants caused to be issued against the plaintiff a State's warrant for perjury. The plaintiff was arrested and carried before a magistrate, who, after examination, discharged him. The plaintiff has brought an action on the case against the defendants, for a malicious prosecution. On the trial the defendants first objected, that the warrant, from the face of it, did not charge the plaintiff with a perjury, and it ought not to be read as evidence against them. The Court overruled this objection, and the warrant was read. The defendants then introduced testimony with a view to show that they had probable cause to issue the said warrant. They proved that themselves and one Botts had been indicted for a conspiracy, for having a man by the name of Hord improperly arrested on a State's warrant for larceny, and defrauding the said Hord, by the conspiracy aforesaid, of his property. They proved that the plaintiff was introduced as a witness for the State, on the said indictment against them; that he gave his evidence in the case, which they contend was different from the truth of the facts that actually occurred on the trial of the State's warrant against Hord, for the supposed larceny. The defendants introduced further testimony, showing how the transaction occurred for which they and Botts had been indicted. In this part of the examination, sufficient, appeared to show that a conspiracy had taken place, and that Botts was one of the confederates. The plaintiff then proposed to continue the examination, and prove all that occurred relative to the conspiracy. This was objected to, but admitted by the Court. (109) The plaintiff then proved what Botts did and said in the absence of the defendants, when he went to the house ofHord to get the money and note, as had been agreed upon by the conspirators the day before. There was a verdict for the plaintiff. The defendants moved for a new trial: First, because the Court erred in deciding that the State's warrant charged the plaintiff with the crime of perjury; secondly, because the Court admitted improper evidence to be introduced for the plaintiff. The motion was overruled, and judgment rendered for the plaintiff, from which the defendants appealed.

The State's warrant issued at the instance of the defendants against the plaintiff, states that he, Thomas Martin, has just cause to believe that J. E. Cabiness did take a false oath in Rutherford Superior Court at October Term, 1826, before the Judge, in a suit, the State against Thomas Martin and others for a conspiracy, the said Cabiness knowing the same to be false and corrupt. It appears to me that the warrant sufficiently charges a perjury to have been committed; and I think the Court acted correctly in permitting it to be read as evidence in the cause. Secondly, the evidence that went to prove the facts which constituted a conspiracy by the defendants and Botts, was mainly brought before the Court by the defendants themselves. If this part of the evidence on this head, which was introduced by the plaintiffs, was irrelevant and immaterial, the defendants must recollect that they were principally instrumental in having the facts that constituted the conspiracy, brought out in evidence. They can not complain if the plaintiff introduced evidence afterwards to give a full development of that transaction. If the evidence of part of the facts which constituted the crime of a conspiracy by the defendants and Botts, could be considered proper evidence in the cause, either as introduced by the defendants to show palpable cause, or by the plaintiffs to show malice in the defendants, the adverse party would have the right to give in evidence all the (110) facts that occurred which went to complete the conspiracy, or to show that it did not exist. The rule of law is, that after a confederation to do an illegal act has been established, then the acts of one the confederates, in the absence of the others, in furtherance of the original illegal design, may be given in evidence against the others. (MacNally, 611, 612.) The case shows that Botts was a particeps criminis in the conspiracy; his acts in furtherance of the illegal design to get the property of Hord, was admissible in evidence against the defendants; and the declarations which Botts made use of when he took the money and note of Hord, were admissible as part of theres gestae; they show the quo animo that actuated him, in receiving the money and taking the note. (1 Starkie, 49.) Upon reviewing the whole case, I think there is no ground for a new trial, and the judgment must be affirmed.

PER CURIAM. Judgment affirmed.

Cited: Roberts v. Roberts, 85 N.C. 11.