Garvey v. Wayson

Grason, J.,

delivered the opinion of the Court.

At the trial of this case in the Court below, the plaintiff took two exceptions, the first to the exclusion of evidence from the jury and the second to the refusal of the Court to grant his second, third and fourth prayers as well as to the instructions given by the Court in lieu of them, and of the second prayer of the defendant.

1st. The fact that, pursuant to the regular custom of the detective police department, the appellant’s name was entered upon the detective police annals of the city and open to the inspection and use of the police force,' as tending to show the publicity of the charge made against him and the consequent injury to him, was clearly not admissible evidence against the appellee, unless there was some law requiring such a record to be kept, or unless the appellant was prepared to show by proof that the appellee knew that tlie name of the appellant would be so entered as the consequence of the charge of theft being preferred against him. The acts of the detective force were certainly not admissible for the purpose, of inflaming the damages against the appellee without further proving that there was some law, of which the appellee would be bound to take notice, requiring an entry on their books of the name of any party against whom a criminal charge might be preferred, or that it was their custom to make such entry and that the appellee had a knowledge of that fact. There was no error in the ruling in this exception.

The second prayer of the appellant was properly rejected because it defined malice to be, in its legal sense, any wrongful act done intentionally, without legal justification or excuse. Malice is not an act, but the wrongful motive that prompts the act. Addison on Torts, 592. What constitutes a legal justification or excuse is matter of law to be determined by the Court, and no prayer should be granted which submits such a question to the jury. It is the province of the jury to find the facts, but the Court alone is to determine whether the facts so found furnish a legal justification or excuse.

(Decided 12th March, 1875.)

The appellant’s third prayer groups together various facts and asks the Court to instruct the jury that they may consider said facts, if found by them, in determining whether or not the defendant was actuated by malice.

Several of the facts so enumerated, even if found by the jury, would not be evidence of malice, as for instance the voluntary attendance of the defendant upon the execution of the search warrant and his entrance into the plaintiff’s house while the search was being made. He not only had a perfect right to accompany the officer who made the search, but it was his duty to accompany him so as to identify his property if found. This prayer was also properly rejected.

It is conceded by the appellant’s counsel that the instruction asked by his fourth prayer is fully covered by the Court’s instruction.

We find no error in the instructions granted by the Court in lieu of the plaintiff’s second, third and fourth prayers and of the defendant’s second, taken in connection with the plaintiff’s first prayer which was granted.

The principles of law, announced in them, have been so often adopted and sanctioned by this Court, that they can no longer be questioned. Indeed the counsel of the appellant concedes the correctness of the instructions as granted, but complains that the Court did not go further and define malice, which definition he thinks he had a right to demand.

The Court having rejected his prayer defining malice, because it was incorrect, it was not bound, ex mero motu, to give any definition of it.

Finding no error in the rulings of the Court below, the judgment appealed from will be affirmed.

Judgment affirmed.