100 Mass. 195 | Mass. | 1868
Absence of probable cause for the criminal charge is essential to the maintenance of an action for malicious prosecution. It must be made distinctly to appear by the averments of the declaration. It is not alleged affirmatively in either count of the declaration in this case.
In the first count it is alleged that the plaintiff was convicted of the criminal charge before the trial justice, but, upon appeal to the superior court, was there acquitted. This does not show want of probable cause. On the contrary, it is ordinarily held to be conclusive evidence of probable cause, and to defeat the action. Whitney v. Peckham, 15 Mass. 243. This is so, even when the first conviction is obtained by false testimony. Parker v. Huntington, 7 Gray, 36. The plaintiff seeks to take this case out of the general rule, on the ground that the conviction before the trial justice was obtained by the false testimony of the defendant himself, in pursuance of bis original malicious purpose. If the conviction had been obtained solely upon the defendant’s own false testimony, there would be strong reason for balding that it afforded no evidence of probable cause; and then the ultimate acquittal might warrant the maintenance of the action. But we do not think that the declaration sufficiently shows that the conviction before the trial justice was obtained solely upon the false testimony of the defendant. It alleges that he testified falsely; but not that there was no other testimony. “And thereupon ” marks the succession of events in order of time. In pleading we cannot hold that it excludes the existence of other facts than those previously recited. This count therefore neither avers want of probable cause directly, nor makes it appear from its statement of the result of the criminal prosecution.
The other count is equally deficient. In this it is alleged that the conviction before the trial justice was obtained upon the false testimony of tne defendant. We may hold therefore
The defect in both counts is, that they do not aver, nor show, in any manner, the essential element of want of probable cause. The cause of demurrer assigned is, “ that it conclusively appears by said declaration that there was probable cause.” We do not think that it does thus conclusively appear; nor is it necessary that it should. The office of the demurrer is, to point out “ the particulars in which the alleged defect consists; ” not to set up affirmative grounds of defence. Gen. Sts. c. 129, § 12. Although this assignment of grounds of demurrer goes beyond what is required, it does not fail to “ point out ” the particulars of the defect. It is therefore to be sustained.
Judgment for the defendant.