
    
      John Sims v. James M'Lendon.
    
    In an action for a malicious prosecution, if it appears that defendant, at the time v he instituted the prosecution, acted on information received from others, which was sufficient to excite a belief of guilt in an impartial mind, he will not be liable, although the information should prove to be false.
    In an action for malicious prosecution, whenever the case depends on whether, from all the evidence, there was probable cause, it should, in that aspect, be presented to the jury to decide.
    In an action for malicious prosecution, evidence of the declaration of plaintiff, that he had, some years before, inflicted a beating on his wife, was not admit, ted to shew that defendant had probable cause for procuring an indictment against him for inflicting a beating upon her, of which, it was alleged, she had died; neither was it admitted in mitigation of damages, as the defendant did not know or act upon it when he instituted the prosecution.
    
      Before Evans. J. at Darlington, {Extra Court) July Term, 1848.
    This was an action for malicious prosecution. The facts were these. In May, 1845, the defendant made an affidavit before a magistrate, that he had just cause to believe, and verily did believe, that John Sims did violently beat Gilly Sims, his wife, and thereby caused her death. The magistrate said he took the affidavits of Hurbert Mathews and Jesse Truett, to the same effect, before he issued the warrant. A warrant was issued, but there was no proceeding under it until a few days before October Court, 1846. The plaintiff was then arrested and committed to gaol, and at Court was discharged without objection. For this, the present action was brought.
    It appeared that Sims and his wife, whose name was Truett, did not live happily together. In July, 1842, she died at the house of her brother, Henry Truett. No inquest was held, nor any charge made by her family, implicating Sims as connected with her death. In the summer of 1844, Sims’ brother was killed ; and a prosecution for murder was instituted by Sims, against several persons, of whom the defendant was one, for the murder. They were tried at Spring Term, 1845, and all acquitted, except a brother of the defendant, who was convicted of manslaughter. Soon after this the affidavit was made.
    From the testimony taken on both sides, it appeared that Sims was a neglectful, and even a cruel husband, and that he had, perhaps, on more than one occasion, beaten his wife some years previous to her death, but it did not appear that she died from the effects of any violence inflicted on her by him. There was an old scar on her arm, and some proof, of a doubtful nature, however, of other marks of violence on her person, which, even if they did exist, could have had no connection with her death.
    Mrs. Sims was a dirt-eater, and died of dropsy. In her last illness she did say that Sims was the cause of her death, but there was little doubt but that this was the mere raving of a diseased imagination.
    In the course of the trial, one James Windham was examined, who said that, at some time, at his own house, Sims -told him his wife had disobeyed his orders, and he had given her a whipping. The admissibility of this was objected to, and stricken out of the evidence to go to the jury. It had no connection with her death, and there would have been no end of the case if the history of the lives these people led was to be heard. If admitted, the other side would have a right to reply, and shew the circumstances under which this and every other act of cruelty had been done.
    ' The jury were instructed that, to maintain this action, malice and the want of probable cause must concur. Neither, by itself, would suffice. The evidence on these points was collated and submitted to them. The facts lead to no other conclusion than that M’Lendon, (a stranger to the family of the deceased,) had no other motive in instituting the prosecution, than that of revenge for Sims prosecuting him for the murder of his brother, Vincent Sims.
    As to the other point, the jury were told that it was not necessary for the defendant to shew that Sims was guilty. Probable cause, meant a reasonable ground of suspicion, such as would excite belief or suspicion of guilt in the mind of an impartial man. His Honor said that, in the view which he took of the case, there was nothing which rendered it probable that Mrs. Sims died from any violence inflicted on her by her husband. He thought it very clear her disease was of dropsical character. It was clear she did not die of the beating proved by Holly, in 1838; nor of that which had left a scar on her arm. The account of the bruises on her head and back, as testified to by some of the witnesses, (even if the account was true, which was very doubtful) were not of a mortal character, and were not so regarded by these witnesses themselves. The only remaining evidence was her dying declaration, that Sims was the cause of her death. There was but little doubt they were the ravings of a diseased imagination; they were so unlike what she said to Sansbury and his wife, and Mrs. Doroty. Although his Honor did express his opinion, he told the jury they should decide according to their own judgment, and submitted the case to them under this proposition, viz: — from all the facts proved, did they, as impartial men, think there was reasonable ground of suspicion, or probable cause to believe, that Sims had caused the death of his wife by violently beating her?
    On the subject of damages, he said to the jury, that Holly and some of the other witnesses were to be believed, the plaintiff’s brutal treatment of his wife entitled him to little favor. They gave two hundred dollars.
    The defendant moved the Court of Appeals for a new trial, on the following grounds.
    1. Because his Honor erred in charging the jury that, according to the evidence, there was no probable cause for the prosecution instituted by the defendant against the plaintiff.
    2. Because the jury were induced to believe, that the question of probable cause was to be solved by the consideration of the whole case, after the examination of witnesses on both sides, and after argument. Whereas, it is respectfully submitted that the jury should have been instructed to solve the question by a consideration of those circumstances relied upon by defendant; and if, upon these, there arose a reasonable doubt of the guilt of the plaintiff, the defendant was justifiable.
    3. Because his Honor improperly rejected the testimony of James Windham, as to a most unchristian and cruel beating, inflicted by plaintiff on his wife, as incompetent. Whereas, it is submitted that the testimony was competent, would have been admissible on the trial of plaintiff on a charge of murder, and was at least admissible in mitigation of damages.
    4. Because the verdict of the jury was contrary to law and evidence, and was for much more than the plaintiff, under the circumstances of the case, was entitled to recover.
    5. Because the affidavit, by its terms, did not charge the plaintiff with murdering his wife, but by his brutality “causing her deathwhich is sustained by the evidence.
    Dargan, for the motion.
    
      Moses, contra.
   Evaks, J.

delivered the opinion of the Court.

Taking all the facts, as testified on both sides, there is no doubt that the prosecution instituted by M’Lendon against Sims for the murder of his wife, was without any probable cause, and that it originated purely in malice; and such was the opinion and the charge of the Circuit Judge. But the defendant’s second and third grounds of appeal require some consideration. If, as would seem from the way in which it is stated, the 2d ground means that the jury should decide on the existence of probable cause from the evidence alone which was offered by the defendant at the trial, without regard to the plaintiff’s evidence in reply, then it is too plain to require argument, that the proposition cannot be sustained. But jf it appears that the defendant acted on information , received from others, which was sufficient to excite a belief ' of guilt in an impartial mind, he would not be liable to this action, although the information should turn out to be false— then the proposition is true. Take, for example, the case of presumptive evidence usually put in the books, where A sees B coming out of a room with a bloody knife, and on entering, a person is found dead, evidently from wounds inflicted by a sharp instrument; and upon this he causes B to be arrested and indicted for murder; he would not be liable although it should turn out that B was innocent, and that the deceased had committed'suicide. The law is the same where the prosecutor acted on the information of another; as in the case of Coxe v. Worrell, where the defendant, on the information of his daughter, a small girl, that the plaintiff had ravished her, caused the plaintiff to be arrested and indicted. Croke was of opinion this was no cause, because he was too credulous; but all the other Judges were of a contrary opinion, and held that it was “ good cause to excuse him from maliciously procuring the indictment, which is the ground of the action.” Neither would a prosecutor be liable where he acted honestly, but under mistaken advice as to the law. 'This was settled by the case of Snow v. Allen, and the case of Fields v. Gibbs, decided in this court. Whether these cases have been decided on the ground, that the facts proved rebutted the presumption of malice, or shewed a probable cause existing in the mind of the defendant when he instituted the prosecution, is not so very clear from the authorities, and about which there is a difference of opinion in this Court. In Coxe v. Worrell, it is said the information which the defendant had received was good cause to excuse him from the charge of maliciously procuring the indictment. But it is said by Colridge, J. in James v. Phelps, that it had been decided in Delagal v. Highly, that reasonable and probable cause must be that which existed in the mind of the prosecutor at the time. In that case, the defendant pleaded specially certain facts and circumstances, calculated to excite a reasonable ground of suspicion. On demurrer, the plea was held to be bad, because it was not averred that these facts and circumstances had been communicated or were known to the defendant at the time he instituted the prosecution. But whether this class of cases are to be referred to the absence of malice or the existence of probable cause, is wholly immaterial to the decision of this cause. On the circuit, no such ground was taken, and there was nothing in the evidence requiring the Circuit Judge to notice and bring such a distinction to the view of the jury. The only information which it was proved the defendant had at the time he made the affidavit before the magistrate was, what was stated by Mathews, that “ he saw no marks” upon her; she was much swelled and bloated; she said, 5 or 6 days before her death, that “ she was almost gone, and John1 Sims was the cause of it.” There was, certainly, nothing in this to excite belief of guilt in an impartial mind. The case, therefore, depended on whether, from all the evidence, there was probable cause; and in- that aspect it was presented to the jury.

Cro. Jac. 193.

0 „ j. " Rep’ 485. Sp. T. 1837.

3 Bing! N. C. 950. ' *

The only remaining question which was argued, was whether the evidence of Windham was admissible. The admissibility of evidence often depends on the purpose for which it is offered. It may be admissible for one purpose, and inadmissible for another, as wholly irrelevant. If it had been proved that Mrs. Sims died of the effects of certain wounds inflicted on her by some person, and the question was whether the plaintiff had inflicted them, then proof that he had severely beaten her before, might be received as a circumstance to shew tha .probability he inflicted the beating of which she died. ' But the whipping which Sims stated to Windham he hád given her, was inflicted years before, and had not the remotest connexion with her death. It was wholly irrelevant to the issue before the Court. Nor was it admissible in mitigation, for it was not pretended that the defendant knew of or acted on it when he instituted the prosecution. But the fact (whether admissible or not) was stated by the witness, in the hearing of the jury, and under the circumstances of the case this Court will not grant a new trial on that ground.

That the plaintiff is a brutal wretch, who deserved no favor, I think is very clear. But it seems to me that the defendant’s position is almost as blameable. Mrs. Sims had been dead near three years. She was buried without inquest, and without any charge made by her family, that she had died of violence. At the end of that time, the defendant, a mere stranger, for the gratification of his malice, preferred the charge of murder against her husband. I have little doubt that the amount of the verdict was fixed by the jury with reference more to the defendant’s demerits than the plaintiff’s merit. The amount is high, considering the ability of the defendant to pay, but this Court does not think it a case requiring a departure from the general rule, that in cases where there is no particular measure of damages, the jury are the proper judges.

The motion is dismissed.

O’Neall, J. — Wardlaw, J. — and Frost, J. — concurred.

Motion refused.  