125 Mass. 272 | Mass. | 1878
In an action for malicious prosecution, the burden is upon the plaintiff to prove that the defendant has instituted against him a prosecution, civil or criminal, which has been terminated in his favor, and that it was instituted maliciously and without probable cause. Malice may be inferred by the jury from want of probable cause, but it is not a necessary inference. In ordinary cases, proof that the defendant knowingly and designedly commenced a prosecution without reasonable or probable cause would be sufficient proof of malice; but the question of the existence of malice is a distinct issue, and even if it be shown that the prosecution was without probable cause, it is competent for the defendant to introduce evidence to show that it was instituted in good faith and without malice. Savage v. Brewer, 16 Pick. 453. Cloon v. Gerry, 13 Gray, 201. Barron v. Mason, 31 Vt. 189.
In the case at bar, the prosecution, alleged to be malicious, was a complaint made by the defendant to the Municipal Court of the city of Boston, in which he charged the plaintiff with an assault and battery upon him, the defendant. At the trial, the defendant admitted that the plaintiff had never assaulted him, and that there was no probable cause for such complaint. But he introduced evidence tending to show that, when he made the complaint, he stated to the officer of the court that an assault had been committed upon one Bogue, a servant of the defendant ; that he intended to complain of an assault on Bogue, but, by a mistake, the complaint was written so as to charge an assault upon himself; that he did not read the complaint when he signed it, but supposed it to be a charge of an assault upon Bogue, and that, when he discovered the mistake, he notified the court of it, and thereupon the plaintiff was discharged. He then offered evidence to show that an assault had been made
We are of opinion that this evidence was competent and should have been admitted. Proof that the plaintiff committed an assault upon Bogue would corroborate the evidence of the defendant, and would tend to show that he had just ground for making a complaint, and that the complaint, as made, was the result of an innocent mistake. If the defendant, in making the complaint, acted in good faith and with the honest purpose of bringing an offender to justice, the prosecution, even if it can be held to be without probable cause, was not malicious. It is not necessary to decide whether an innocent misdescription of an offence, like that in the case at bar, shows a want of probable cause for the prosecution, because, if the prosecution instituted by the defendant is held to be, as admitted by him, without probable cause, yet the evidence rejected was competent upon the issue of malice. It would tend to rebut the inference of malice arising out of the fact that he had instituted a groundless complaint.
Although this case was tried by the court, the defendant has the same right of exception as if the evidence had been excluded in a trial by a jury. Exceptions sustained.
