Graves v. Dawson, 130 Mass. 78

Graves v. Dawson

130 Mass. 78 | Mass. | 1881

Lord, J.

We think it was error in the Superior Court to sustain the demurrer in this case. The principal ground upon which it is contended that the demurrer should be sustained is that it appears by the declaration that the prosecution claimed to have been malicious was terminated by a nolle prosequi, and that a nolle prosequi is not such a legal termination of a suit as the plaintiff is required to show in order to maintain his action of malicious prosecution. Parker v. Farley, 10 Cush. 279, is relied upon in support of this proposition.

That case has been so many times referred to as supporting such doctrine in its broadest form, and thus apparently conflicting with other decisions in other tribunals and within our own jurisdiction, that it is proper to examine the report of that case, and see how far it accords with or differs from established principles. Upon an examination of that case, it appears that nothing was decided by it except that, as matter of law, the termination of a prosecution by the entry of a nolle prosequi was not neces sarily such a termination of the suit as entitled a defendant to maintain an action for malicious prosecution. That question may be one of pure law, or purely of fact, or it may be a mixed question of law and fact. Parker v. Farley was not heard upon demurrer, nor upon exceptions. The parties, foreseeing that certain questions of law which might be decisive of the case would inevitably arise during the trial, as matter of convenience and economy, agreed to present those questions of law for the decision of the court prior to the trial of the facts before a jury, and to accomplish this, and render an investigation of the facts unnecessary, the Chief Justice of this court made a formal ruling, by consent of counsel, that the action could not be maintained, and reported the case for the decision of the full court. In order to present such questions of law, it became necessary to state all the facts in relation to the prosecution of the plaintiff, that the court might see whether there were facts necessarily conclusive in law against the right of the plaintiff to recover.

The facts thus presented were substantially these: Farley, one of the defendants, made complaint against Parker, the plaintiff, of having committed the crime of perjury. Upon this *81complaint an indictment was found against Parker, and upon that indictment Parker was tried and convicted of perjury before the Court of Common Pleas. During such trial, exceptions were taken by him. Those exceptions were argued before this court and overruled, so that nothing remained in that suit, so far as the record showed, except an entry of judgment. Parker thereupon by written motion and affidavit asked for a new trial of the case because of newly discovered evidence, and this motion was allowed and a new trial was granted. Subsequently Parker applied to this court to compel the district attorney to enter a nolle prosequi in the suit, because of an agreement to that effect, and some time afterward the district attorney did enter a nolle prosequi, and no further proceedings were had in the case, and the prosecution was thereby terminated.

The mere presentation of these facts shows that the naked question whether, as matter of law, the entry of a nolle prosequi is or is not such a termination of a suit as authorizes the prosecuted party to maintain an action for malicious prosecution, was not raised. It is undoubtedly true that the Chief Justice was inclined to the opinion that such was the tendency of the common-law decisions; yet it is obvious that it was not necessary for him to consider that question, and it is entirely clear that he did not consider it; for he says expressly, that if, under some circumstances, the rule be that a nolle prosequi is to be taken to be the final termination of the suit, “ we should be of opinion that it would not apply, when a nolle prosequi and discontinuance is entered by consent, or by way of compromise, or where such exemption from further prosecution has been demanded as a right, or sought for as a favor, by the party prosecuted. In the present case, it appears by the record, that the plaintiff endeavored to obtain such exemption from trial by requiring the district attorney to enter a nolle prosequi.”

But the other point decided in Parker v. Farley was absolutely decisive of the case. A jury properly empanelled, under correct instructions in law, had found the plaintiff guilty of the crime of perjury. Upon his application the court had granted him a new trial. He never had a new trial, he did not desire a new trial, he asked to have a nolle prosequi entered, he applied to this court to compel the district attorney to enter it, and it was *82subsequently entered; and upon that state of facts the court held that the record showed conclusively probable cause for the prosecution, and consequently that no action could be maintained by the plaintiff. We think, therefore, as matter of law, it cannot be said that the entry of a nolle prosequi is conclusive upon the rights of a party.

The authorities upon this subject are carefully collated and arranged by the present Chief Justice of this court in Cardival v. Smith, 109 Mass. 158, and the result of all those authorities is, that whether a prosecution" has been so terminated as to authorize the party prosecuted to commence an action for malicious prosecution is to be determined by the facts of the particular case, of which facts the entry of a nolle prosequi may be one of several, may be the only fact, may be a controlling fact, or may be an entirely unimportant one.

We have discussed this question thus far as if the proceedings in this case had been terminated by a nolle prosequi. But that entry may have been a wholly unimportant and immaterial one, or indeed an incompetent fact. The plaintiff avers that he was held for appearance before the Superior Court at the term holden on the third Monday of December 1872, and that authenticated copies of the complaint and warrant and proceedings thereon were entered upon the docket of that court; and, though he does not state the facts chronologically in his declaration, yet he does state the fact that at such term of the court the grand jury found no bill against him, and that on the 26tli day of December he was discharged from custody under such complaint by order of the Superior Court; and it has been repeatedly held that the discharge of a party because the grand jury found no bill against him is a legal end to the prosecution. See cases cited in Cardival v. Smith, ubi supra. The plaintiff avers in his declaration that this complaint was entered upon the docket of the Superior Court at December term 1872, and avers further that the district attorney at the corresponding term of the court a year afterward entered a nolle prosequi. This fact may or may not be important. If, in point of fact, it shall appear thac the grand jury found no bill, and by reason thereof the court ordered the discharge of the party at the same term of the court, it is difficult to understand what legitimate results would follow *83from the subsequent entry of a nolle prosequi, or how the rights of a party discharged a year before that entry could be affected.

It is sufficient if the plaintiff in his declaration states facts upon which, if proved, he would be entitled to a verdict. We think he has stated such facts in his declaration. Whether when he offers his proofs it shall be found that they are insufficient in law or-in fact to support his allegations, is a matter into which we cannot inquire upon this demurrer.

Demurrer overruled.