Harris v. . Singletary

Clarkson, J. The defendant contended that the court below erred in allowing the justice of the peace to testify that defendant swore out a warrant against the plaintiff for the larceny of a paper-writing purporting to be a letter. The justice of the peace who tried the ease testified that he had given the original warrant to the clerk of the Superior Court and without objection stated that the clerk said he did not know where it was; said it must have been destroyed as they moved to build a new courthouse, and that he could not locate it. That he had an exact copy on his docket. “It was my judgment on the warrant as well as on the docket.” The witness was then asked to read the warrant as shown on his docket, which he did, as'follows: “Upon the oath of W. P. Singletary set forth that J. T. Harris did on or about 5 June, 1921, did take, steal, conceal and carry away valuable papers, to wit, one letter, being an essential part of a certain contract, which letter was worth to the affiant the sum of $150.” To show a writing is lost or destroyed, in general terms, without showing a reasonable search or inquiry for it, has never been regarded as sufficient to admit secondary or parol evidence of its contents. The *587 best evidence is tbe paper-writing, when a matter is required to be put in writing, or the paper-writing is in issue or tbe subject of tbe controversy. McKesson v. Smart, 108 N. C., p. 17; Avery v. Stewart, 134 N. C., p. 287; Sermons v. Allen, 184 N. C., p. 127; Chair Co. v. Crawford, ante, 531. Tbe exception to tbe rule is where tbe contents of tbe writing is collateral to tbe controversy or issue. Herring v. Ipock, 187 N. C., p. 459. In tbe present case tbe clerk was not introduced as a witness as be should have been. His evidence was hearsay, but no objection was made. Tbe justice of tbe peace said that it was bis judgment on tbe warrant as well as on tbe docket. Justices of tbe peace are required to keep dockets, latter part C. S., 1482, “in which shall be entered a minute of every proceeding bad in any action before such justice.” It is said in a number of cases that a justice of tbe peace’s court is not a court of record, but under tbe statute a record is kept. The defendant in his testimony admitted that be bad sworn out a warrant against plaintiff for stealing tbe letter. If error, it was not prejudicial. Tbe serious contention of defendant is to tbe following answer of tbe justice of tbe peace, Hardy, who tried tbe case: “My judgment was that tbe suit was brought frivolous and malicious, and I taxed Mr. Singletary with tbe costs and dismissed tbe case as to Mr. Harris.” Tbe defendant asked tbe court to’ strike out tbe answer as to be frivolous and malicious, which was refused and exception taken. Tbe witness further stated, to which there was no objection: “Tbe case was dismissed by me and affiant taxed with tbe cost from which affiant, appealed, and that is why tbe papers were banded over to tbe clerk of the court this, 10 January, 1922. It was withdrawn 24 January, 1922, when be paid tbe costs and I mailed tbe sheriff here a check for bis arrest — 'check to. different officers for handling papers on 25 January, 1922.’ ” We think tbe evidence would have been incompetent under Holton v. Lee, 173 N. C., p. 105, if tbe testimony bad not shown that Singletary paid tbe costs. This was admitted by Singletary. C. S., 1288, is as follows: “The party convicted in a criminal action or proceeding before a justice shall always be adjudged to pay tbe costs; if tbe party charged be acquitted, tbe complainant shall be adjudged to pay tbe costs, and may be imprisoned for tbe nonpayment thereof, if tbe justice shall adjudge that the prosecution was frivolous or malicious. But in no action or proceeding of which be has final jurisdiction, commenced or tried in a court of a justice of tbe peace, shall tbe county be liable to pay any costs.” It is well settled, in fact, tbe statute so says that complainant prosecutor shall be adjudged to pay tbe cost and im *588 prisoned for nonpayment thereof if the court finds the prosecution frivolous or malicious. An appeal lies from the judgment of a justice of the peace in a criminal action taxing the prosecutor with the cost. S. v. Morgan, 120 N. C., p. 563. In Holton v. Lee, 173 N. C., at p. 107, it was held: “It was necessary to show malice, as it was one of the material elements of the cause of action. 'The burden of showing that the prosecution complained of was instituted maliciously and without probable or reasonable cause is, as we have seen, upon.the plaintiff, and both of these elements must concur or the suit will fail; for if the prosecution were malicious and unfounded in matter of fact, but yet there was probable cause, the action for malicious prosecution cannot be maintained. Newell on Malicious Prosecution (1892), p. 473, sec. 12; Stanford v. Grocery Co., 143 N. C., 419; Downing v. Stone, 152 N. C., 525; Motsinger v. Sink, 168 N. C., 548. Before punitive damages can be recovered express or particular malice must be shown. Stanford v. Grocery Co., and the other cases above cited.” The presumption is that one knows the law. Singletary could not be imprisoned for nonpayment of cost unless the finding of the justice of the peace was “frivolous or malicious.” The justice of the peace found both it was “frivolous and malicious," from which Singletary appealed and afterwards withdrew the ajipeal and paid the cost. This was a circumstance and competent on the ingredient of malice in this action. In Downing v. Stone, 152 N. C., at p. 527, speaking to the subject: “In Hale on Torts, 354, treating of malicious prosecution, it is said.: 'Malice, as here used, is not necessarily synonymous with anger, wrath or vindictiveness. Any such ill-feeling may constitute malice. But it may be no more than the opposite of tona fides. Any prosecution carried on knowingly, wantonly, or obstinately, or merely for the vexation of the person prosecuted, is malicious. Every improper or sinister motive constitutes malice iii this sense. The plaintiff is not required to prove express malice in the popular sense. The test is, was the defendant actuated by any indirect motive in preferring the charge or commencing the action’ against the plaintiff.’ ” The issues submitted in the present case were similar to those in the Downing case, supra, as shown by the issues. In that case the justice of the peace had final jurisdiction and the court admitted the docket and judgment of the justice of the peace who tried and disposed of the case (1) to show on the issue that the action had terminated; (2) on the issue of probable cause. ' The Court, at p. 530, said: “It is well established with us that when a committing magistrate, as such, examines a *589 criminal case and discharges the accused, his action makes out a prima facie ease of want of probable cause, that is the issue directly made in the investigation; but no such effect is allowed to a verdict and judgment of acquittal by a court having jurisdiction to try and determine the question of defendant’s guilt or innocence, and the weight of authority is to the effect that such action of the trial court should not be considered as evidence.on the issue as to probable cause or malice. In this case the justice had final jurisdiction to try and determine the question. The judgment is necessarily admitted, because the plaintiff is required to show that the action has terminated, but it should be restricted to that purpose, and the failure to do this constitutes reversible error,” citing cases. (Italics ours.) In the ease at bar the justice of the peace had only to determine probable cause; he had no final jurisdiction. In the Holton case, supra, the Court, although the justice of the peace had no final jurisdiction, it was held the evidence incompetent to prove malice. We think on this record the withdrawal of the appeal by defendant on the frivolous and malicious finding was a circumstance to be submitted, with other evidence as to malice. The probative force was for the jury. From a careful review of the charge, we think it practically follows the law as laid down in the Downing case, supra, and the other assignments of error are immaterial on the record. In Swain v. Oakey, 190 N. C., at p. 116, it is said: “We do not think defendant could be arrested unless it is shown in using the words spoken he did so with actual malice. There is no issue of actual malice presented by the record. In actions of this kind,' after verdict and judgment to arrest the defendant; it should appear affirmatively that the slander — the words spoken — were done with actual malice and an issue submitted to the jury. This does not appear to have been done from the record. Ledford v. Emerson, 143 N. C., p. 527; Oakley v. Lasater, 172 N. C., 96; Coble v. Medley, 186 N. C., p. 479, and cases cited. In Elmore v. R. R., 189 N. C., p. 674, we said: ‘There was no separate issue as to punitive damages, and on the record there is no way to ascertain if any of the damages awarded plaintiff were punitive.’ ” So much of the judgment that plaintiff have execution against the defendant, as to the person, cannot be sustained. The judgment in conformity with this opinion is Modified and affirmed.