61 N.J.L. 8 | N.J. | 1897
The opinion of the court was delivered by.
The only question presented in this case is, whether there was sufficient evidence that the prosecution, which was claimed to be malicious, had been terminated before the commencement of the action. If not, it was error to refuse the nonsuit, for nothing is better settled in this state than that such action cannot be maintained unless the prosecution complained of had been terminated before the commencement of the action. Potter v. Casterline, 12 Vroom 22; Apgar v. Woolston, 14 Id. 57; Lowe v. Wartman, 18 Id. 413.
The contention on the part of plaintiff in error is that, under our Criminal Procedure act as amended, the discharge by the magistrate of an accused person, upon examination, does not terminate the prosecution, but that it remains pending until the grand jury has considered, or at least has had an opportunity to consider, the complaint by which the prosecution was commenced.
It is not denied that, .prior to the adoption of the amendments to the Criminal Procedure act, to which our attention is called, such a discharge would have terminated the prose
The legislation which, it is contended, has changed this rule is contained in two supplements to the Criminal Procedure act; the first approved March 12th, 1878 (Gen. Stat., p. 1144, § 124), and the second approved March 24th, 1892 (Gen. Stat., p. 1152, § 162).
By the first of these supplements every justice of the peace is required to transmit to the prosecutor of the pleas of his county, “ every complaint, warrant, recognizance, and all other
The second supplement requires every committing magistrate to keep a book in which he shall enter the name of every person against whom he shall issue a warrant,.with other particulars respecting the charge and the proceedings thereon, and to transmit the book to the prosecutor within ten days before each term, with all papers in his possession “ relating to criminal business.”
The contention is that, notwithstanding a complaint has been dismissed, and the accused discharged from custody under the warrant, the fact that the complaint and warrant are transmitted to the prosecutor of the pleas, continues the prosecution originally begun by the complaint. But this contention cannot prevail. If it be assumed that the legislative intent expressed in this supplement was to require the transmission of dismissed complaints (which admits of a doubt), it is impossible to discover an intent to impose upon the prosecutor as a duty, to submit such complaints to the grand jury. Doubtless, if upon examination he should be of opinion that the accused in any case had been improperly discharged, he might lay that case before the grand jury, but the prosecution thus commenced would be a new one, not founded on the original complaint, although begun upon information derived therefrom. This supplement has not changed the rule that fixed the termination of a criminal prosecution, for the purpose of maintaining an action of this kind, at the period of the discharge of the accused from custody under the warrant.
The other supplement has no applicability. Its purpose is expressed to be merely to enable the prosecutor to have a check upon committing magistrates, and to assure himself that all papers relating to criminal matters had been sent to him.
The result is that the nonsuit was rightly refused, and the judgment must be affirmed.