43 N.J.L. 57 | N.J. | 1881
The opinion of the court was delivered by
The plaintiff brings his action in trespass on the case for a malicious prosecution, in procuring his indictment in the Court of Oyer and Terminer of the county of Warren, for perjury.
If the court in which the prosecution is made has no jurisdiction of the complaint, and the want of jurisdiction is the sole gravamen of the suit, trespass for false imprisonment is the proper action. If the prosecution be malicious and unfounded, and be instituted in a court having no jurisdiction, the party injured may sue either in case, making the malice and want of probable cause the gravamen of his complaint, or in trespass, founding his action on the want of jurisdiction in the court. If the court had jurisdiction, and the process was regular, trespass will not lie, however malicious the conduct of the defendant may have been in setting the prosecution on foot; and the only sustainable action, under such circumstances, is case for the malicious' motive and want of probable cause in promoting the prosecution. 1 Chit. Pl. 133, 182, 186; Elsee v. Smith, 2 Chit. R. 304; Goslin v. Wilcock, 2 Wils. 302; Morris v. Scott, 21 Wend. 281.
The court in which the prosecution complained of was instituted, was a court of competent jurisdiction, and the form of action adopted was the proper form.
The allegations in the declaration that the defendant caused and procured the plaintiff to be indicted, and that he did so falsely and maliciously, and without reasonable or probable cause, are sufficient averments that the defendant instituted
The doctrine that no action can be brought by an individual who has been subjected to a criminal prosecution, against the person who sets it on foot, while the prosecution is pending, is founded upon the most urgent considerations of public policy. It is not consistent with public policy unreasonably to discourage criminal prosecutions at the instance of private individuals. If the prosecution results in a conviction of the accused, he can maintain no action against his prosecutor, though he may be able to show, in his civil suit, that the complainant, in preferring the charge, was actuated by motives of intense malignity, and that he had no reasonable ground, at the time he made the complaint, to suspect or believe that the accused was guilty. Considerations of public policy also debar the accused from any action while the prosecution.is pending, in which the motives of the complainant in preferring the complaint may be put in issue. If a complainant may be subjected to the harassment of an action while the criminal prosecution is pending, prudent persons would be deterred from ever becoming complainants. When the criminal prosecution is ended, if it terminates in favor of the accused, and the public have no longer any interest in its prosecution, the accused may then maintain his action against the complainant. An action before the criminal prosecution is terminated, is prematurely brought. After it is terminated, the accused, if it has resulted in his favor, may sue; and the gravamen of his suit then will be that the prosecution was instigated maliciously, and without reasonable or probable grounds. Except to confer on the accused the capacity to sue, the manner in which the prosecution terminated is irrelevant.
In Potter v. Casterline, 12 Vroom 22, it was said that the rejection of the complaint by the grand jury is prima fade evidence of want of probable cause. This observation was not necessary to the.decision of the case—evidence of facts
The principal feature in an action for a malicious prosecution, is the fact that the prosecution was without probable cause. In the opinion of Lords Mansfield and Loughborough, in the leading case of Johnstone v. Sutton, 1 T. R. 544, this emphatic language is used: “The essential ground of this action is that a legal prosecution was carried on without a probable cause; we say this is emphatically the essential ground, because every other allegation may be implied from this; but this must be substantially and expressly proved, and cannot be implied.” The general rule is that the failure of the proceedings against the plaintiff must be averred and proved; but such failure is not evidence either of the defendant’s malice or of the want of probable cause in instituting them. Stewart v. Sonneborn, 98 If. S. 187. It is invariably necessary in an action of this nature to give some positive evidence arising out of the circumstances of the prosecution, to show that it was groundless. 2 Stark. Ev. 913. ,
That the acquittal of .the plaintiff on the trial of the indictment is not prima facie evidence of the want of probable cause for the prosecution, is universally conceded, though it results from the entire failure of the case on the part of the prosecution. Considerable discussion has been had whether the abandonment of the prosecution before or after indictment found is sufficient prima facie evidence of want of probable cause. In Purcell v. McNamara, 1 Camp. 199, Lord Ellenborough held that the abandonment of the prosecution after indictment, and the consequent acquittal of the plaintiff for want of evidence, was not prima facie evidence of the want of probable cause, and he nonsuited the plaintiff; and his decision was sustained by the King’s Bench. Purcell v. McNamara, 9 East 361. Similar rulings were made by Lord Kenyon in Sykes v. Dunbar, 1 Camp. 202, n., and by Le Blanc J., in Incledon v. Berry, Id. 203, n. In Wallis v. Alpine, 1 Camp. 204, n., the defendant had charged the plaintiff, on oath, with assaulting him. The plaintiff was
In the Treatises on Evidence, the rule is laid down Avithout qualification that, in order to show that the criminal prosecution Avas groundless and Avithout probable cause; it is not sufficient to show that the bill being preferred was thrown out by the grand jury. 2 Stark. Ev. 914; 5 Phill. Ev. 256; 2 Greenl. Ev., § 455.. In Nicholson v. Coghill, 4 B. & C. 21, Holroyd, J., is reported to have said that it had been held that evidence of the bill having been thrown out by the grand jury is sufficient to warrant an inference of the absence of probable cause. This remark was made in an action for a malicious arrest in a civil suit where the defendant Avas himself an actor in discontinuing the action, and which Avas expressly distinguished by Abbott, C. J., on that circumstance, from cases where the prosecution Avas on a criminal charge. I have not been able to find any case in the English courts in which such a decision Avas made, or in which any observation to that effect Avas made by any other English judge. I am aware that there are cases in the courts of this country, entitled to the greatest respect, in which it has been held that the failure of the grand jury to indict is prima, facie evidence of the want of probable cause. But there are also decisions of the courts of our sister states, entitled to equal respect, holding the contrary; and I think the doctrine laid down by Starkie, Phillips and Greenleaf is founded on sound principles of law, and is consistent with public policy.
In an action for a malicious prosecution, the question of probable cause is a question of law for the court. If the facts are in dispute, or the question depends upon a chain of
In this state, all criminal prosecutions, whether before the grand jury or upon the trial of the indictment, are conducted by the public prosecutor, and exclusively at the public expense. The witnesses are called and sworn by the foreman in the presence of the grand jury, and give their testimony in secret, in the private room where the grand jury holds its sessions. The grand jury may call other witnesses besides those named by the complainant, and practically it is within the discretion of the grand jury what testimony it shall hear. Indictments are not prepared and sent to the grand jury to be returned into court ignored, if not found to be true bills. The complaint is made to the grand jury, investigated by it, and either dismissed or an indictment ordered, which is then prepared by the public prosecutor and by him submitted to the
The action of the grand jury in refusing to find a bill, is, as an instrument of evidence, res inter alios acta. The grand jury is not the proper tribunal to try the issues involved in the civil suit, and the issue passed upon by it in refusing to find a bill is not the real issue presented in the civil action— whether the defendant, on the information at his command, had then probable cause for making the complaint. The general rule is that the record in a criminal proceeding is inadmissible in evidence in a civil suit. To this general rule there are two notable exceptions, in the admission of a plea of guilty to an indictment for an assault and battery as evidence in an action for the civil injury, and the admission of the record of the acquittal, or of the non pros., or other proceeding terminating the criminal prosecution, in an action for a malicious prosecution. I think a further relaxation of the general rule would be impolitic and a violation of principle.
The contention in the present case is whether by the averments in the declaration it appears that the criminal prosecution against the plaintitf was terminated.
The only exception to the rule that no action will lie for a
Except in cases of the class just referred to, the rule is universal that no action can be maintained unless the prosecution has terminated in favor of the plaintiff, and that an action for a malicious prosecution is prematurely brought if it be csmmenced before the criminal prosecution is finally ended. The cases are uniform on that subject. But there is considerable diversity of views with regard to the nature of the decision or determination which shall be considered a final termination of the prosecution. In] some cases it has been held that nothing short of a final acquittal will be sufficient; in other cases it has been held that a nolle prosequi by the prosecuting officer will be a sufficient discharge; in others, not. Cooley on Torts 186. In this state the refusal of the grand jury to find an indictment has been adjudged to be a sufficient termination of the prosecution, without any formal order of the court discharging the accused. Potter v. Casterline, 12 Vroom 22. By our practice the prosecutor cannot enter a nolle pros, without the consent of the court, and the discharge of the accused results from the joint act of the prosecutor and the court, and ends the liability of the accused to further answer upon the indictment. On the view which has been taken of the purpose for which the law requires a termination of the criminal prosecution as a prerequisite to the civil action,
The plaintiff was discharged under the sixty-fifth section of the Criminal Procedure act, which provides “that every indictment shall be tried the term or session in which is.-uc is joined, or the term after, unless the court, for just cause, shall allow further time for the trial thereof; and if such indictment be not so tried as aforesaid, the defendant shall be discharged.” Rev., p. 279. The indictment was found at the term of December, 1877. The order of discharge was made at the term of December, 1879, for the failure to prosecute, as is alleged. In the declaration it is averred that the order of the court was that the plaintiff be discharged “ of and from the premises in said indictment specified.” The form of the order is quite immaterial, for the power of the court is derived from the statute, and its efficacy must depend upon the force, and effect of the statute.
The legal construction of this section was before this court in State v. Garthwaite, 3 Zab. 143; and it was there held that the discharge of a defendant because of the failure to prosecute the indictment as prescribed by this section was not a bar to another indictment for the same offence. Chief Justice Green, who delivered the opinion, designedly left open the question now under consideration, though he took occasion to express an opinion upon the legal construction of the section. He traces this legislation to its origin in the acts of March 11th, 1713-14, (Allinson 23,) and February 10th, 1727-28, {Allinson 73)—the provisions of which were embodied in the act of February 2d, 1799, (R. L. 406)—the first section of
I think that the construction put upon this section by the Chief Justice, that an order made by the court under its provisions operates to discharge the defendant from the imprisonment or recognizance only, and not from the indictment, is its proper and legal construction.
In the Habeas Corpus act, as well as in the several acts which are embodied in the Criminal Procedure act, the word “discharge” has acquired a settled meaning as signifying a discharge from imprisonment as distinguished from atlischarge from the prosecution. A like signification should be assigned to it in the sixty-fifth section of the Criminal Procedure act. To give an order of discharge any other meaning than its known legal signification, would introduce into the law a term of uncertain signification. Upon a judgment entered in the words of the statute, that the defendant “ be discharged,” who could say, from an inspection of the record, whether it meant a discharge from imprisonment or a discharge from the further prosecution of the indictment, or from the penalty of the crime, unless guided by an adherence to the legal meaning: the word “ discharge” has received in kindred acts of the legislature? The same reasoning which induced the court, in State v. Garthwaite, to deny to a discharge under the act the effect of a discharge from the penalty of the crime, would be equally efficacious in denial of its effect as a discharge from the indictment.
By the common law an indictment is determined either by
Instances frequently occur in which the prosecutor, through the absence or sickness of a witness, finds himself unable to move an indictment within the specified period, where there are reasons why the prosecution should not be abandoned, and yet where it would be proper to relieve the defendant from imprisonment or from his recognizance. In such cases it may be impracticable or unjust to continue the indictment from term to term. An indefinite postponement, and the discharge of the defendant from imprisonment or from his recognizance, without a day, may, under some circumstances, be advantageous to all concerned.
If it be shown that the indictment is kept on foot for the purpose of vexation or oppression, it is not to be presumed that the public prosecutor, on a suggestion from the court, will refuse to exercise his power of entering a nolle pros.; and if the prosecutor unreasonably refuses to enter a nolle pros., after a failure to try the indictment in the time prescribed by the statute, the accused is not without remedy. In King v. Pritchard, 1 Keble 525, it was held that if the king make default in trial where the king is a party, &c., the party cannot stir or hasten the cause, nor after his default, without leave of the court or license of the attorney-general. In Queen v. Banks, 6 Mod. 246, it was resolved in the Queen’s Bench “ that in all indictments or informations here, or indictments removed hither by the prosecutor, for treason, felony, or any inferior offence, the defendant has no other way to hasten on his trial but by application to the court; who, upon hearing the reasons of Mr.- Attorney, will, as they see occasion, either give
If after a discharge under the statute the indictment remains in force, there need be no difficulty in procuring the attendance of the defendant for trial. The defendant may be
For the reason that it does not appear on the face of the declaration that the criminal proceeding has been finally determined, I think there should be judgment on the demurrer for the defendant.