Summary
In Beal v. Robinson, the same mode of proof was offered, and in Barfield's case, he puts the objection to the evidence of the character of the deceased, as to temper and violence, on the ground of its irrelevancy, and does not allude to the fact, that the mode of proof was by general character or reputation, although he quotes the remark made in Tilly's case, for the purpose of showing that Tackett's case was doubtful.
Summary of this case from Bottoms v. KentOpinion
(June Term, 1848.)
1. Where in an action for a malicious prosecution it became material to inquire whether a party was drunk at a particular time, he may give evidence by witnesses, who have known him long and intimately, that he was not addicted to drunkenness; but he cannot give in evidence his general reputation of being a sober man.
2. In civil cases the general rule is that unless the character of the party be put directly in issue by the nature of the proceeding, evidence of his character is not admissible.
3. In an action for a malicious prosecution, in order to rebut the imputed malice the defendant may show that he had consulted counsel learned in the law, upon a full and fair statement of all the facts of the case, and acted according to his advice; but it is incompetent for him to prove that he consulted with an unprofessional man and followed his advice, in order to show that he acted bona fide and without malice.
APPEAL, from the Superior Court of Law of CHATHAM, at Spring Term, 1848, Pearson, J., presiding.
McRae for plaintiff.
Waddell for defendants. (278)
After the new trial granted in this case at June Term, 1847 (see 29, N.C. 280), it was again tried at Chatham, on the Spring Circuit of 1848, when the defendants had a verdict and judgment, and the plaintiff appealed. In the bill of exceptions it is stated that, upon the question of probable cause, much testimony was given on both sides, but it is not set forth, for the reason that his Honor charged that there was no probable cause for the prosecution, and no exception was taken to the charge.
To show that the defendants had acted with malice the plaintiff contended that the defendant Robeson had not been robbed at all; that he went from Pittsboro very drunk, and on his way home fell from his horse and hurt his head, and thereby received the injury, which he swore that the plaintiff (277) and his associates had inflicted upon him. As to the fact whether he was drunk when he left Pittsboro, the testimony was contradictory, one witness swearing that he was very drunk, another that he was only intoxicated, and a third that he was neither drunk nor intoxicated, but had only taken a dram.
The defendant Robeson then offered to prove by witnesses, who had known him intimately for the last thirty years, that he was not addicted to drunkenness, and that although he would take a dram, they had never known him to be drunk, and that he bore the character of being a sober man. This testimony was objected to by the plaintiff, but was admitted by the court.
To disprove the allegation of malice, the defendant Robeson offered to show by one Isaac Holt that the witness was a justice of the peace in the county of Orange and had acted as such for many years; that the defendant formerly lived near him, and was in the habit, as were the other neighbors, of advising with him on legal questions; that the defendant afterwards removed to the county of Chatham, and the next day after he had received the injury complained of, the witness, who was in the neighborhood on a visit, called to see him, and the defendant then stated to him the circumstances under which he had been robbed, and the facts tending to show that the plaintiff was one of the persons concerned in the act, and asked his advice as to the proper course for him to pursue; and the witness advised him that it was his duty to take out a State's warrant against the plaintiff. This testimony also was objected to by the plaintiff, but admitted by the court. After the verdict for the defendants, the only ground upon which a new trial was asked was for the improper admission of testimony. A new trial was refused, and the plaintiff appealed.
The testimony offered by the defendant to prove, by witnesses who had known him long and intimately, that he was not addicted to drunkenness, was properly admitted. This habit in the use of ardent spirits was a fact which might well be within the knowledge of the witnesses, and to which they might testify, as it was relevant to the subject of inquiry, to wit, whether the defendant was drunk at the time spoken of by the other witnesses. But we think that there was error in admitting the testimony for the purpose of proving that the defendant had the character of being a sober man. "In civil suits the general rule is that unless the character of the party be put directly in issue by the nature of the proceeding, evidence of his character is not admissible. McRae v. Lilly, 23 N.C. 118. Here the character of the defendant for sobriety was not put directly in issue, and we can see no reason to take the case out of the general rule.
The other testimony, offered by the defendant to disprove malice, was inadmissible and ought to have been rejected. When a party consults counsel learned in the law, upon a full and fair statement of all the facts of the case, and acts according to his advice, that circumstance may be proved to show that he acted bona fide and without any malicious intent. Blunt v. Little, 3 Mason, 102; Hewlett v. Cruckley, 5 Saund., 277 (1 Eng. C. L., 107); 2 Stark. Ev., 495. We have neither seen nor heard of any case where the opinion of an unprofessional man, taken by the defendant, has been admitted to show that he acted in good faith and without malice. In the case of Blunt v. Little, supra, Judge Story says that "it is certainly going a great way to admit the evidence of any counsel that he advised a suit upon a deliberate examination of the facts, for the purpose of repelling the imputation of malice and establishing probable cause"; and in Hewlett v. Cruckley, supra, the (279) rule is laid down by the Court, after an advisari, with evident caution and with some doubts as to its correctness. We do not feel at liberty to carry it further, by admitting testimony of the opinion of any gentleman, however respectable, who has not qualified himself for giving advice upon questions of law, by studying it as a science and pursuing it as a profession. This Court certainly did not intend to do so when this case was formerly before it. The persons, to consult whom it is stated, in the opinion then delivered, to be the duty of a party who conceives himself aggrieved and is about to institute a criminal prosecution, are gentlemen of the legal profession, and not those who in point of qualification to advise upon such questions stand no higher than the party himself.
PER CURIAM. Judgment reversed and new trial.
Cited: Bottoms v. Kent, 48 N.C. 155.
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