Larocque v. Dorsey
299 F. 556
2d Cir.
1924
Check Treatment
MAYER, Circuit Judge

(after stating the facts as above). [1] The case seems to have been tried under misapprehension of elementary principles applicable to an action of this kind. In false arrest, malice is immaterial.

[2] In malicious prosecution, the arrest may be lawfully or unlawfully made, but the prosecution must have been begun and favorably ended, and there must be both malice and want of probable cause.

[3] Malice may be actual or malice in law; i. e., inferred from the facts and inferences deducible therefrom. If there be want of probable cause, malice may be inferred; but, per contra, even if malice is present, want of probable cause may not be inferred therefrom. Brown v. Selfridge, 224 U. S. 189, 32 Sup. Ct. 444, 56 L. Ed. 727. The trial judge seemed to be of the opinion that either malice or probable cause would suffice. This was error, but possibly was cured by the charge.

[4] But the uncured errors committed were much more vital. There never was a beginning of the prosecution. The mere filing of a complaint or affidavit is not enough. This must be followed by a prosecution.

[5] What Stryker did may or' may not have been a false arrest, but, if what he did was' an arrest, it was made without a warrant, and the arrest was in no sense the beginning of a prosecution by defendant. Cooper v. Armour (C. C.) 42 Fed. 215, 8 L. R. A. 47.

[6] Further, in actions of this character, it must be alleged and proved that there was a termination of the prosecution by plaintiffs acquittal or legal discharge, or at least by such conduct of a defendant as brought about a discharge. There is no proof whatever in this case that defendant took any part in the release of plaintiff.

*559[7] There was no arraignment or hearing of any land before a court of competent jurisdiction. In brief, so far-as affects defendant, there never was a prosecution, malicious or otherwise. Wheeler v. Nesbitt et al., 24 How. 544, 16 L. Ed. 765; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116; Whitten v. Bennett, 86 Fed. 405, 30 C. C. A. 140; Kline v. Hibbard, 80 Hun, 50, 29 N. Y. Supp. 807, affirmed 155 N. Y. 679, 49 N. E. 1099; Halberstadt v. New York Life Insurance Co., 194 N. Y. 1, 86 N. E. 801, 21 L. R. A. (N. S.) 293, 16 Ann. Cas. 1102; Ingram v. Root, 51 Hun, 238, 3 N. Y. Supp. 858; Apgar v. Woolston, 43 N. J. Law, 57; Thomason v. De Mott, 18 How. Prac. 529; Ragsdale v. Bowles, 16 Ala. 62; Carpenter v. Nutter, 127 Cal. 61, 59 Pac. 301.

In view of the foregoing, we deem it unnecessary to discuss other assignments of error, and in view of the undisputed facts it is plain that, on a new trial, plaintiff cannot recover. While, therefore, we have no power to dismiss the complaints (Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 Sup. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914D, 1029), the judgments are reversed, with the direction to the District Court upon the new trial to dismiss the complaints for failure to allege the termination of the alleged malicious prosecution, as pointed out supra.