Auerbach v. Freeman, 43 App. D.C. 176

Auerbach v. Freeman

43 App. D.C. 176 | D.C. Cir. | 1915

Mr. Justice Robb

delivered the opinion of the Court:

The question with which we are confronted is whether there was any basis for this action. According to Bouvier, malicious prosecution or malicious arrest import a wanton prosecution or arrest, made without cause, “by a regular process and proceed*179ing. which the facts did not warrant, as appears by the result.” There is a difference between a false imprisonment, which means an imprisonment made without any process whatever, or under color of process wholly illegal. Newell on Malicious Prosecution, p. 8; says: “The terms ‘malicious prosecution’ or ‘malicious arrest’ always in law suppose regular process and proceedings, but that the facts did not warrant their issuing, and which is to be decided by the result.” In Hicks v. Brantley, 102 Ga. 264, 29 S. E. 459, malicious prosecution was defined as a judicial proceeding instituted by one person against another, from wrongful or improper motives, and without probable cause to sustain it. In Burt v. Smith, 181 N. Y. 1, 73 N. E. 495, 2 Ann. Cas. 576, it was defined as a “prosecution begun in malice, without probable cause to believe that it can succeed, and which finally ends in failure.” In Lewin v. Uzuber, 65 Md. 341, 4 Atl. 285, an action for malicious prosecution, a magistrate, at the instigation of the defendant, issued a paper upon which the plaintiff was arrested, and which the court of appeals was unable to recognize “as a warrant or writ,” holding its illegality to be so apparent upon its face that it afforded one making the arrest no protection. “That being so,” said the court, “it follows very clearly, we think, that the plaintiff cannot maintain this action. The distinction between an arrest by an officer under a warrant legally issued and coming to his hands in a lawful manner, and one made without wavrant, or Tinder process from a court having no authority to issue it, is clearly drawn. * * * Hence the distinction at common law between the action for false imprisonment and that for malicious prosecution. The former is a suit for trespass, and the latter an action on the case. ’The first can be maintained only when the arrest is made without legal process; and the latter, when the process of the law has been perverted and improperly used without probable cause and for a malicious purpose.”

In the present case, according to the evidence for the plaintiff, the arrest was for a petit larceny and without a warrant having been issued. In other words, under the facts stated, it *180was entirely without legal justification. No complaint was ever filed against the plaintiff, and there are no papers on file in the police court relating to the matter. IIow, then, can it possibly be contended that there has been a prosecution of the plaintiff ? He has been arrested, it is true, and threatened with prosecution, but that is not enough to form the basis of this action. The machinery of the law must be set in motion in the regular way, or no prosecution has been instituted. In Simmons v. Sullivan, present term [42 App. D. C. 523], it was ruled that in an action for malicious prosecution it is incumbent upon the plaintiff to allege and prove “a discharge and termination of the criminal proceeding.” Here no criminal proceeding was instituted, and therefore there has been no prosecution, malicious or otherwise.

Judgment reversed, with costs- Be versed.