#### Duncan McRae v. James Oneal.

From Anson.

In an action for a malicious prosecution, can the Defendant give in evidence wliat he swore to, when suing out the warrant, or upon the trial of the indictment. Q,uere ?

But where a witness was permitted to give this in evidence, without objection from the Plaintiff, and a part of the Defendant’s oath when suing out the warrant, detailed information given by a negro.— Held that the Plaintiff having permitted a part to be given in evidence, the Defendant had a right to have the whole stated.

On a question whether there was probable cause for an arrest, evidence of suspicious behaviour in the Plaintiff, the day before it was made is admissible, although there was no proof that the Defendant knew of that conduct at the time of the arrest.

The cases of Johnston v. Martin, (3 Murp. 248) and of Bostick v. Rutherford, (4 IJuwks 83) questioned by Toomeu, Judge.

Case for maliciously prosecuting tbe Plaintiff for stealing a negro, tried on the last circuit before his honor judge Daniel.

The following is an abbreviation of the statement made up by the presiding Judge, and attached to the record :

The Plaintiff tv as a resident of Anson, and took a female slave belonging to him, and started on foot to tbe State of Missouri, for the purpose, as he said, of selling the slave, and securing the titles to some laud he owned there. On the way, lie and the slave stopped at the shop of the Defendant, six miles west of Morganton. The Plaintiff and Defendant were perfect strangers to each other — the former applied; to the latter to purchase the

*167slave, offered her at a very low price, and agreed to take a horse at a very high price — said he owned land, slaves , and horses in Anson, yet was on foot, and without endues except those, he liad on. The Plaintiff staid all night at the house of the Defendant, who caused the arrest complained of, to be made in the morning.

June, 1829.

One of the Magistrates who issued tiie warrant was examined, on the (rial — he proved that the Defendant made oath to the abovementioned facts, and further, that he (the Defendant,) having his suspicions awakened, went during the night to the house where the negro slept, and examined her as to the truth of the story told by the Plaintiff. The negro informed the Defendant that she did not belong to the Plaintiff, but had been taken by him from Anson county by stealth. The Counsel for the Plaintiff objected to this testimony, so far as it related to the conversation with the negro, but the objection was ov erruled by his Honor. Two witnesses were examined by the Defendant without objection, one of them proved that the Plaintiff and the negro passed his house two miles east of Morganton, that the Plaintiff and the negro were on foot, the former appeared to be drunk, and was behaving in an unbecoming manner towards the latter. — The other witness swore that lie was in Morganton when the Plaintiff arrived there — that both himself and the slave were on foot, and had no clothes except those they had on — that the manner and appearance of the Plaintiff excited suspicion, and a man had talked of having him arrested on a charge of stealing the negro — but that he disturbed no person, and the next morning paid his bill and departed. The arrest complained of took place the succeeding morning.

His Honor left the credibility of the witnesses to the Jury, and instructed them that if they believed the facts deposed to, there was probable cause for the arrest, and that they might take into consideration t?ie conduct and. action of the Plaintiff before he arrived at the Defen*168d ant’s house, as circumstances to aid them in forming their opinion, as to the truth or falsity of the facts de-p0ge[¡ p,y ^he plaintiff, before the magistrate.

verdict being returned for the Defendant, a rule was obtained by the Counsel for the Plaintiff to show cause why a new trial should not be granted.

1st. Because the Judge permitted the Magistrate to give in evidence the Defendant’s declaration, as to the conversation between him and the negro.

. 2d. Because as there was no proof that the Defendant knew the facts deposed to, as to the conductor the Plaintiff before he reached Morganton, and while he was in that place, it was an error in the Judge to instruct the jury, that they might estimate it in ascertaining the truth of other facts, upon which the Defendant might, or might not be pronounced, in law, to have had a probable cause for the arrest. The rule was discharged, and the Plaintiff appealed.

Tire warrant and the proceedings formed part of the case. By them it appeared that the trial was postponed from the 5th of May, 1824, to the 5th of June following, and the Plaintiff gave bail to enable him to return to Anson county and procure testimony. On the day to which the trial was continued, two Justices gave judgment “ that the said Duncan McRae shall be discharged “ on his paying a fine of ten shillings, and all accruing "costs.”

No Counsel appeared for the Plaintiff in this Court.

The Attorney-General, for the Defendant.

Toomer, Judge.

This is a suit for malicious prosecution. In this action, it is necessary for the Plaintiff to aver in his declaration, and to prove on the trial, that a prosecution was instituted against him by the Defendant, with malice, and without probable cause. There must be both malice, and a want of probable cause. (3 Murp. 249.) Malice is a question of fact, and is usually *169inferred from the absence of probable cause. (Id.—2 Starkie on Ev. 912.) Malice is either express or implied. Express malice is not alleged in this case; the record of the trial below shows that the parties were strangers to each other until the evening of the arrest; and there was no evidence of any dispute or ill-will between them.

Malice alone is not sufficient; a just accusation may be founded on malicious motives, it has been decided in this Court in Johnston v. Martin, (3 Murph. 248,) that the discharge of the Plaintiff from the prosecution, by competent authority, after full examination, is prima fade evidence of the want of probable cause ; and the burden of proving the probable cause is then thrown upon the Defendant. This decision has been confirmed by this Court in the case of Bostick v. Rutherford. (4 Hawks 83.) The correctness of this position is questionable; the innocence of the Plaintiff does not prove the absence of probable cause, and the decision conflicts with English authorities, as appears from Purcell v. McNamara. (9 East. 361.) But the expediency of interfering at this time with the subject, and thus unsettling that which has long been considered settled, is very doubtful. The inquiry is not necessary in this case; the Defendant does not complain of the verdict, and he alone could have been injured by the application of the principle.

The warrant, the affidavit on which it was issued, and the judgment rendered on the warrant were given in evidence, and copies thereof are appended to the record, and form a part of this case. The affidavit states, that the Defendant believed from the conduct of the Plaintiff, and of the negro woman accompanying him, that he had .stolen her. The warrant is issued, the arrest made, and the Plaintiff is brought with the process by a lawful officer, before two Magistrates on the 5th of May, A. D. 1824. The examination is postponed at the instance of the Plaintiff, until the 5th of the following month, and he is permitted to go at large, on giving bail for his ap-*170pearartcc at that «lay. Oti the appointed day the. examination took {.lace. There is no written memoria] of any ¿jacjial.ge 0f {|1C Plaintiff from the accusation of felony ; but a judgment was rendered by the examining Magistrates, and by them entered on the warrant, that the Plaintiff “ shall be discharged on paying a fine of ten shillings, and all accruing costs’.” Thus it would appear that the charge of felony had been abandoned, and that the Magistrates proceeded to render judgment under the act of 1784, N. R. ch. 213, being an act for the restraint of idle and disorderly persons, commonly called « the vagrant act.” But it is to be inferred from the record, and it is the only construction which can be given to if, that the Magistrates did absolutely discharge the Plaintiff from the prosecution for felony, although there is no written memorial thereof, and that such discharge was proved on the trial, or admitted by the Defendant. From the statement of the evidence made by the presiding Judge, which forms part of the record in this case, it is believed the jury were warranted in finding, that there were well grounded suspicions of the commission of the felony by the Plaintififj and that there was probable cause for commencing the prosecution. The justice of this case being in accordance with the verdict, the Court are not disposed to disturb it, unless there has been some infraction of a rule of evidence, or some violation of a principle of law, which imperiously requires their interference.

One of the examining Magistrates W'as introduced as a witness, on the trial of this case, and stated what had been sworn by tiie Defendant, on the examination of the charge of felony. The witness detailed those circumstances in the conduct and conversation of the Plaintiff, which had induced the Defendant to believe that the felony had been committed, and which he had declared on oath at the examination, and was proceeding to state those matters which had been communicated to Defend*171ant by the negro woman accompanying the Plaintiff, but not in bis presence. To the latter part of this evidence, viz. that coming from the negro, the Plaintiff’s Counsel objected, but made no objection to the residue of the testimony of that witness. The presiding Judge admitted the testimony, and the Defendant now moves on that ground for a new trial. It does not distinctly appear from the record, by whom this witness was introduced. It has been decided in one of our Superior Courts, and is reported in 2 Hayw. 29, that the Defendant, in an action for malicious prosecution, may give in evidence what he swore on the trial of the indictment. Whether this decision be justified by the principle of necessity, or rest on the ground of the res gestee, is not at present to he determined. It is not necessary now to enquire into the correctness of this decision ; but on the spur of the occasion, it seems to be a violation of that cardinal rule of evidence, and fundamental piineiple of justice, which prohibits any man from being a witness in his own cause, and should it be confirmed, may be productive of iuconvenient and deleterious consequences. (2 Starkie on Ev. 916, 917 )

If the Plaintiff introduced this witness, to give in evidence the statement made by Defendant before the examining Magistrates, the Plaintiff could not garble that statement. If he gave in evidence a part, the Defendant had a right to insist on the production of the w hole. If the witness was brought fortv. rd by tl-.rD. femlant, as is inferred from the record, let it be recollected, that the Plaintiff made, no objection to hi® introduction, and permitted him to detail all the circumstances deposed by the Defendant, without objecting to their admissibility, until the witness reached that part of the statement which emanated from the negro ; to the admission of this part, the Plaintiff’s Counsel objected. It, is not necessary now to enquire, whether it were competent for the De- , fendant to give in eviuence this statement. The Plain*172tiff did not object to the testimony, but acquiesced in its admissibility, and lias therefore waived all right at this period to complain of its introduction. It is said however, that the Plaintiff did object to the admissibility of that part which has been sworn to by the Defendant, as •having been communicated to him by the negro, and that the Court admitted it notwithstanding the objection.— The Plaintiff had no right to a mutilated or garbled statement of that testimony. If a part be given in evidence, the whole should be received.

Two other witnesses were introduced by the Defendant, who had seen the Plaintiff and tfie negro woman together,.on the day preceding that on which the warrant was issued, and in the same neighborhood ; and they gave in evidence circumstances calculated to excite well-grounded suspicions unfavorable to the Plaintiff, and even to produce a belief, that there was probable cause for the accusation on which the Plaintilf was arrested. But there was no evidence to show, that these circumstances came to the knowledge of the Defendant before the arrest was made, or to show at what time he obtained information of them. It is true, the enquiry is as to the Defendant’s having probable cause for making the accusation, and those facts and circumstances, which •did not come to Ms knowledge before the commencement of the prosecution, although tiiey had previously occurred, are not evidence of Ms having probable cause to make the accusation. But the Plaintiff did not object to this testimony. He virtually assented to its introduction, and acquiesced in its admissibility, and has thereby waived all right to complain of its introduction, even if it had been improvidently received by the Court, which is by no means conceded. It appears that this testimony was not introduced, for the purpose of showing that the Defendant had probable cause for instituting the prosecution, but to corroborate the statement which had been made by the Defendant on oath, before the examin.-*173ing Magistrates, and which was given in evidence to the jury, who were to pass on its truth or falsity. The De- * fendant having sworn before the examining Magistrates that on the day of the arrest, the declarations of the Plaintiff were strange and incredible, his deportment and conduct singular and unbecoming, and detailed the particulars thereof, all of which were well calculated to excite a belief of probable cause for the accusation made j and these two witnesses on the preceding day having heard the Plaintiff make the like, or very similar declarations, and having seen him exhibit the same deportment and conduct, their testimony might be taken into consideration by the jury, in their search after truth, as a mere circumstance in ascertaining the credit to which the statement was entitled, that had been made by the Defendant before the examining Magistrates; and the more particularly, as their testimony was confined to the acts and declarations of the Plaintiff himself.

The presiding Judge instructed the jury, that informing their opinion of the truth or falsity of the statement, made by the Defendant before the examining Magistrates, they might take into their consideration the circumstances deposed to by these two witnesses. No particular instruction was requested by the Counsel to be given to the jury ; who were told that they were the exclusive judges of the credit of the witnesses, and of the truth or falsehood of the circumstances deposed. The verdict accords with the justice of the case. I perceive no error for which it should be disturbed. The Court regret that the Plaintiff has been here without Counsel, and that they have had to look into his case without the benefit of argument.

Per Curiam. — Let the rule for a new trial be discharged, and the judgment be affirmed.