| Mass. | Apr 11, 1927
The defendant contends that there was error (1) in refusing to grant its motion for a directed verdict for the defendant; (2) in refusing to give the instructions asked in its requests numbered 4, 5, and 6; and (3) in parts of the charge to the jury.
(1) The declaration contained three counts for assault, for false imprisonment, and for malicious prosecution. The motion for a directed verdict did not discriminate between these counts. It prayed that a general verdict for the defendant be ordered. There was evidence on the counts for assault and for false imprisonment which was properly for the jury to consider; the judge, therefore, could not rightly direct a general verdict for the defendant. There was no error in his refusal.
(2) The plaintiff was found guilty on the complaint made against him in the Municipal Court of the City of Boston, but in the Superior Court, on appeal, was found not guilty. The defendant contends that the finding in the Municipal Court establishes that there was probable cause for instituting the complaint, and that, consequently, a verdict for malicious prosecution in bringing and prosecuting it cannot be sustained.
This court in Desmond v. Fawcett, 226 Mass. 100" court="Mass." date_filed="1917-02-28" href="https://app.midpage.ai/document/desmond-v-fawcett-6433857?utm_source=webapp" opinion_id="6433857">226 Mass. 100, after a discussion of all the earlier cases in Massachusetts and of decisions elsewhere, established as the law of this Commonwealth, that a judgment of guilty found by a lower court is conclusive proof of probable cause to institute the prosecution, unless that judgment was obtained solely by perjured testimony given in person by the defendant charged with malicious prosecution or procured by him to be given by others. A declaration in a suit for malicious prosecution which shows by necessary implication that the plaintiff once
It appears that the Municipal Court heard testimony from the plaintiff and from two witnesses for the Commonwealth. Argument was made by an attorney for the plaintiff, but no counsel appeared for the Commonwealth. There is nothing to show any conspiracy by the defendant or any subornation of perjury by it or in its behalf. The mere falsity of the evidence of the two witnesses for the complainant, if there was falsity, does not impeach the conviction. Parker v. Huntington, 7 Gray, 36. A threat “to fix” the plaintiff, though followed by an arrest and prosecution, is not enough to support a finding of fraud practised on the court.
We cannot know that the judge of the Municipal Court did not act upon conclusions based in part on testimony given by the plaintiff. When that is so, a judgment of conviction must be taken as conclusive proof of probable cause to institute the proceeding, at least in an action for malicious prosecution.
The action is not one to be encouraged. Wingersky v. E. E. Gray Co., supra. The defendant’s sixth request should have been given. The instructions actually given did not cure the error. No recovery on the first count was possible.
(3) There is no sound foundation to the exception to the charge in reading from Stone v. Crocker, 24 Pick. 81, at page 83, the characterization of the wrong inflicted by a malicious prosecution.
No exception was claimed to the statement that Walker was manager of the defendant. Had there been, the judge could have corrected what, doubtless, was a slip of the
So ordered.