#### John C. Cabiness v. Thomas Martin and John Hardcastle.

Suing out a warrant “for taking a falso oatli” in a certain suit, “knowing it to bo falso,” is a prosecution for pcrjuiy.

When a defendant gives evidence of a part of a transaction in his defence, ho cannot complain if the court permits the plaintiff to show the whole*., whether the transaction he strictly relevant or not.

This was an action on the case tried in Rutherford Superior Court, before Nohwoob, Judge, at Fall term last.

The plaintiff declared against the defendants for riia-Iiciously 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 Marlin. had made oath before the justice granting the warrant that he had just reasons to believe that the plaintiff did “take a false oath in a suit in Rutherford Superior Court “ at October Term, 1826, before Judge RxjffiN, inasuifc '“[[of The Stale v. Thomas Martin and others for a conspiracy, he (the plaintiff) knowing the samp tó he false “ and corrupt,” — and therefore commanding that the plaintiff should be arrested, &c. 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 tlardcastle, and one Bolls, for a conspiracy to arrest one James Moni upon á pretended charge of larceny, and thereby to defraud liiinof his money in order to procure a compromise of (he charge; and that the said Marlin, Hanlcastle and Bolls, at the time of Martin’s causing the above recited warrant to he issued, were in jail under a sentence of imprisonment, for the said conspiracy — and they directed one Patterson a son-in-law of Ilardca'stle, 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 ar-*107vested 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 Bolts, the plaintiff was examined as a witness and deposed in substance as follows— that Jíardcastlc sued out a warrant against ¡lord for stealing the money of Hardeasile — which was served by Bolts who was a constable, and returned before Martin who was a justice — that Martin on the trial before him after hearing the evidence, told Hard lie must give up a three dollar note seen in his possession, and execute his own bond to Hardeasile for the residue of the money lost, or lie would send him to court — that Hard refused to do what was demanded, upon which Martin had a private conversation with Hard’s wife, and then declared that the matter could be accommodated, telling Hardeasile 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 Hardeasile declining to go, Bolts-said he would doit, and include in the bond his own fees on the warrant, and thereupon Hard was discharged.— ' The defendants further proved that when Bolts arrived at Hord’s house he found him sick and in bed — and when Hard, being informed of.the business on which he came, refused to give up the note and execute his bond, JBotts threatened to carry him again before a justice, upon which Hard complied with his demand.

The plaintiff then offered to prove that Boits took the bond payable to himself, and being asked the reason why ? said “it was for a Wind,” 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 Moni, at a public gathering of people at his house, a throe dollop *108note was brought to him by one of his servants, upon -which he made proclamation- of the fact and requested ^je owncr to come forward and receive his money, but Jt0 c¡aim was interposed, and that Eardcastle and Martin was present, to which evidence also the defendants objected, hut it was nevertheless recived 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.

Iredell and Bevereux, for the plaintiff.

No counsel appeared for the defendants.

Baniex, Judge.

The defendant caused to he issued against the plaintiff a States’ warrant for perjury. The plaintiff was arrested and carrried 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 warant, 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 Bolts had been indicted for a conspiracy, for having a man by the name of Hord.improperly arrested on a State’s warrant for larceny, ami defrauding the said Hord, by the conspiracy aforesaid, of bis property_ They proved that the plaintiff was introduced as a witness for the State, on the said indictment against them j that he gave his evidence in the case, wdiich 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 Bolts had been indicted._ In this part of- the examination, sufficient appeared tq show that a conspiracy had taken place, and that Batts was one of the confederates. The plaintiff then pro*109posed to continue the examination, and prove all that occurred relative to the conspiracy. This was objected to. but admitted by the court. The plaintiff then proved what Botts did and said in the absence of the defendants, when he 33 ent to the house of Hard to get the money & note, as had been agreed upon by the conspirators the day before. There was a verdict for the plaintiff. The defendants moved for a now trial: First, because the court erred in deciding that the State’s warrant charged the plaintiff with the cióme 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 defendant 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. Gabiness 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 Gabiness knowing the same to be false and corrupt. It appears to me, that the warrant sufficient ly charges a perjury to have been committed; and I think the court acted correctly in permitting it to ho 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 wore principally instrumental in having the facts that constituted the conspiracy, brought out in evidence. They cannot complain if the plaintiff introduced evidence afterwards, to give a full dcvelopcmcnt 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 intro-. duccd by the defendants to show probable cause, or by the plaintiffs to show malice in the defendants, the adverse part;y would have aright to give in evidence all *110the facts that occurred which went to complete the con» spiracy, or to show that it did not exist. The rule of jaw that after a confederation to do an illegal act ]ms been established, then the acts of one of the confedc-rates, 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 Bolts, was a particej)S criminis in the conspiracy ; his acts in furtherance of the illegal design to get the property of JTord, was admissible in evidence against the defendants; and the declarations winch Bolts made, nse of when he took the money and note of fiord, were admissible as part of the res gestee; 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.

Where a common design is propeL^s,t0fteVeact of one in the exe act of all, and so is his declaration explaining the

Per Curiam — Judgment aemkmeb.'