104 Ga. 235 | Ga. | 1898
Smith, based his right to recover damages against Hartshorn, for a malicious prosecution, on the ground that on the 24th day of June, 1893, Hartshorn swore out before a magistrate a warrant charging him with the offense of larceny by “stealing six poplar saw-logs of the value of twelve dollars, the property of Harris-Hartshorn Lumber Co.,” etc., and an entry made by the magistrate upon said warrant on July 8, 1893, in the following language: “Upon hearing evidence in this case, the .within warrant is dismissed, the defendant discharged.” The plaintiff alleged that he was arrested under this warrant; that the prosecution was maliciously carried on thereunder and without any probable cause, and that he had been damaged by reason of such malicious prosecution in the particulars outlined in the petition. At the trial, the warrant above referred to was introduced in evidence, but the entry of the magistrate thereon, discharging the accused, was excluded by the court, upon the ground that the entry on the docket of the justice of the peace was the highest evidence of the judgment of the justice, and that the proposed evidence was secondary and inadmissible until the absence of the docket was accounted for. The defendant introduced in evidence an indictment by the grand jury of Floyd superior court, found
As before said, if a criminal prosecution has been dismissed with no intention of commencing it again, or if delay has been made in commencing the prosecution again, so as to lead the accused to believe that it has been finally terminated, and if he then and at once commences his action for a malicious prosecution, he might probably maintain the same. But, in all reason, he should not be allowed to maintain such an action when substantially the same criminal prosecution as the one upon which he founds his action is still in the courts undisposed of. Newell on Mal. Pros. 331; Marbourg v. Smith, 11 Kas. 554, 562; Schippel v. Norton, 38 Kas. 567. In the latter case it was held that: “Where a criminal prosecution is commenced before a justice of the peace, and is afterwards dismissed with the intention of commencing it again in the district court, and on the same day it is commenced in the district court, . . such criminal prosecution before the justice of the peace can not constitute the basis of an action for a ma
Reversed.