Hinson v. . Powell

Davis, J. after stating the case: The first exception presented is, that his Plonm excluded the testimony offered by the defendant to prove the motive that induced Justice Stanley, who tried the last warrant, to dismiss the same. It is alleged in the complaint, and admitted in the answer, that upon both the first and second trials the plaintiff was adjudged not guilty, and the warrants were dismissed at the cost of the prosecutor. The entry of the judgment must speak for itself, and unless reversed is conclusive. It has been held that a juror will not be heard to impeach a verdict of a jury, but the testimony for that purpose must come from some other source. State v. Smallwood, 78 N. C., 560; and we know of no authority, and counsel for appellant cite none, that will warrant a Judge or Justice of the Peace to state the motive by which he was governed in rendering his judgment. The judgment is conclusive. Davie v. Davis, 108. N. C., 501. and the cases there cited. If it be said that *538 on a trial before a Magistrate the merits of the prosecution were not inquired into, the answer is that it was perfectly competent for the defendant upon the trial in this action to justify his prosecution, not only by showing the guilt of the plaintiff, but by simply showing that he had probable cause for prosecuting him, and the exception cannot be maintained. The second exception was “to the charge as above set forth.” No special instructions were asked for. The charge is set out at length, and contains several distinct propositions of law applicable to the several phases of the evidence, as the jury may find the facts to be, and this exception is general. This Court has said: “A general exception to the charge without assigning errors specifically, will not be considered in this Court.” McKinnon v. Morrison, 104 N. C., 354, and the numerous cases there cited. But counsel for the defendant say: “ The Court cannot intend to hold, in McKinnon v. Morrison, that where the Judge improperly lays down the law to the jury, you not only have to except, but that you have to except specifically, for some of the cases cited by the Court in that case held expressly the other way.” We think counsel misapprehend McKinnon v. Morrison, and the cases cited. It is not required that the exception shall be specifically noted at the time, for the whole charge may be deemed excepted to, but it is “the duty of counsel to make specifically an assignment of errors in the charge when making up the case on appeal.” Lowe v. Elliott, 107 N. C., 718; State v. Black, at this term. This has not been done, but it is not improper to add that we have examined carefully the charge of the Judge before whom this action was tried, in the light of the error specifically alleged in the brief of counsel for the appellant, and we can see no error of which the defendant can complain. His Honor expressly instructed the jury that the defendant had shown probable cause for the first warrant, and the plaintiff could *539 not recover for that, but he submitted the question fairly to the jury upon the second warrant, and we think that there •was abundant evidence to support the verdict of the jury upon that prosecution. There is no error. Affirmed.