268 Mass. 25 | Mass. | 1929
This case comes before us on report by the trial judge of the correctness of his order sustaining the de
It was said by Chief Justice Shaw in Bacon v. Towne, 4 Cush. 217, 235: "It must appear, before this action [maliclous prosecution] will lie, that the defendant in the indictment has been fully acquitted; but a nolle prosequi is no discharge of the crime, and no bar to a new indictment.” Again the same eminent Chief Justice said in Parker v. Farley, 10 Cush. 279, 280: “according to a well settled series of authorities, a plaintiff cannot maintain an action for a malicious criminal prosecution' by indictment, by showing that the prosecution has been determined by a nolle prosequi.” Again in Brown v. Lakeman, 12 Cush. 482, substantially the same language was used by Chief Justice Shaw. That case was precisely the same in its essentials as the case at bar; a
It may be added, also, that there are no allegations adequate to show that the prosecution was obtained solely through the false testimony of the agents of the defendant or to impeach it on the ground of fraud, conspiracy or subornation. Wingersky v. E. E. Gray Co. 254 Mass. 198. Dunn v. E. E. Gray Co. 254 Mass. 202. Carere v. F. W. Woolworth Co. 259 Mass. 238.
The circumstance that the plaintiff’s name was not in the indictment as returned by the grand jury, but was at a later stage "entered on the record,” G. L. c. 277, § 19, makes no difference with the governing principles of law. It has been held that said § 19 violates no constitutional rights of a defendant. "Motion to enter upon the record the true name of the person indicted, to be used in subsequent proceedings, must be allowed by the court .... Such allowance presupposes the finding by the court of all the facts essential thereto to the end that no injustice be done to any defendant.” Commonwealth v. Gedzium, 259 Mass. 453, 461. In every essential particular the case at bar with respect to the
It follows that the order sustaining the demurrer was right. In accordance with the terms of the report the entry may be
Judgment for defendant on count 1 of the plaintiff’s declaration; the case to stand for trial on counts 2 and 8.