30 Ind. 457 | Ind. | 1868
This was an action by Blizzard against Hays, the appellant, for a malicious prosecution. The complaint
Issues were formed, which were tried by a jury. Yerdict for the plaintiff. Motionfor a new trial overruled, and judgment.
The first error complained of is the overruling of the demurrer to the second paragraph of the complaint. That paragraph alleges that the defendant “ falsely, maliciously, and without any reasonable or probable cause, indicted and caused and procured toffie indicted the said plaintiff for the alleged crime of forgery,” upon which he was arrested; that the indictment was subsequently quashed, and the plaintiff released and discharged therefrom.
The objection urged to the paragraph is, that to sustain an action for malicious prosecution, it must appear that the plaintiff'was finally acquitted of the criminal charge, and that his release therefrom in consequence of the indictment being quashed is not sufficient. All the authorities concur in saying that to support the action it must be shown that the prosecution is determined. But it was held in Chapman v. Woods, 6 Blackf. 504, after a very careful consideration of the question, that where a nolle prosequi had been entered to the indictment, and a judgment entered thereon that the defendant go hence acquit thereof, there was a final termination of the prosecution. It was ended by the judgment, and although a new indictment might be preferred, no further pi’oeess could issue on the old one; and hence, such a termination was sufficient to support the action. The same result is produced by the indictment being quashed, and a judgment for the defendant thereon. In such case, a new indictment may be presented, but the first prosecution 33 finally ended when the indictment is quashed and the plaintiff’ discharged by the judgment of the court. We think there was no error in overruling the demurrer.
The next question presented by the appellant arises from certain instructions given by the court to the jury.
The court, after having said to the jury that, to sustain
• This instruction is clearly erroneous. It makes the question of the existence or absence of probable cause for the prosecution to depend solely upon the question of the guilt or innocence of the plaintiff’ of the crime for which the prosecution was instituted* and excludes the idea that probable cause for a prosecution could ever exist, where it should appear on final trial or by subsequent developments that the party charged was in fact innocent of the alleged crime. Wo are not aware of any authority to sustain such a proposition.
The mere belief that a person has been guilty of a crime is not sufficient to authorize a criminal prosecution against him. Lawrence v. Lanning, 4 Ind. 194. But where the facts known to the prosecutor, or the information received by him from sources entitled to credit, are such as to justify the belief, in the mind of a person of reasonable intelli
The seventh instruction was wrong, and though the evidence is before us, we cannot say that it did not mislead the jury; and the judgment must therefore be reversed.
The judgment is reversed, with costs, and the cause remanded for a new trial.