BACON v. TOWNE

• Decision Date: 01 October 2016
• Citation: 4 Cush. 217,58 Mass. 217
• Parties: IRA P. BACON v. HENRY M. TOWNE & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

4 Cush. 217

58 Mass. 217

IRA P. BACON v. HENRY M. TOWNE & others

WORCESTER County

October 1, 1849

An action for maliciously prosecuting the plaintiff by indictment cannot be maintained, unless it be alleged in the declaration and proved, that the plaintiff has been fully acquitted of the charge in the indictment; and a discharge therefrom by the entry of a nolle prosequi is not sufficient; but the plaintiff is not bound to prove that he was acquitted by the jury promptly, without hesitation, delay, or deliberation.

In an action for malicious prosecution, the judgment of the magistrate, by whom the plaintiff was bound over for trial, on a complaint which the magistrate had no jurisdiction to try, if admissible at all as evidence of probable cause, is prima facie evidence only, and not conclusive.

The judgment of the magistrate, by whom the plaintiff in an action for malicious prosecution has been bound over, to answer to a criminal charge, if relied upon as evidence of probable cause, cannot be controlled or impeached by evidence that he acted unfairly and improperly in the examination.

In an action for a malicious prosecution of the plaintiff before a magistrate, it is not incumbent upon him, in proof of want of probable cause, to give in evidence all the evidence introduced before the magistrate, in order that the court may determine whether there was or was not probable cause.

If, in an action for a malicious prosecution, in instituting proceedings before a magistrate, against the plaintiff, on a criminal charge, upon which the plaintiff was bound over and subsequently indicted, it appear that the indictment has been withdrawn by a nolle prosequi, on account of a formal defect therein, and that a second indictment has been returned upon the same evidence, for the same or a substantive part of the same charge, the original complaint and the proceedings thereon must be considered as the actual cause of the second indictment.

Probable cause for instituting a prosecution is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person accused is guilty.

The defendant, in an action for a malicious prosecution, may prove by the magistrate, before whom the prosecution was instituted, what the testimony before him was on the part of the government, in order to show probable cause and rebut the allegation of malice; and it is not necessary, for this purpose, that the witnesses by whom the testimony was given, or their depositions, should be produced; but, it produced, and the witnesses or deponents are unable to recollect what their testimony was, it may nevertheless be proved by the magistrate. So, for the same purpose, the defendant may prove, that a certain person communicated to another, with a request that the latter would make it known to the defendant, the fact that the former saw the plaintiff do the criminal act of which he was accused, and that this information was communicated to the defendant, before the complaint against the plaintiff was made.

It seems, that in an action for malicious prosecution, evidence of the general bad reputation of the plaintiff is admissible, to rebut the proof of want of probable cause, and also in mitigation of damages.

Since the abolition of special pleading, the defendant in an action for malicious prosecution may give evidence of facts tending to prove the plaintiff guilty of the criminal charge imputed to him, both in proof of probable cause, and in mitigation of damages; although he is not prepared with evidence to show, that these facts were known to him at the time of the complaint against the plaintiff.

Where, in the trial of an action for the malicious prosecution of the plaintiff, on a charge of burning his own building, for the purpose of defrauding the insurers thereon, the judge instructed the jury, in reference to the question of probable cause, that the evidence tended to prove three propositions, namely: 1. An intent or motive in the plaintiff to commit the crime; 2. Guilty conduct, or acts, or knowledge of the plaintiff; 3. That the fire was the act of an incendiary; and that any two of these propositions, if proved, would constitute probable cause, but that neither alone would be sufficient: It was held, that this direction was not correct in matter of law; but that the evidence to prove the prominent facts should have been distinctly laid before the jury, with specific instructions as to what leading facts, or classes of facts, in evidence, if proved, would or would not constitute reasonable or probable cause, leaving the facts and the inferences to be drawn from them to be found by the jury.

THIS was an action on the case for a malicious prosecution, tried before Hopkinson, J., in the court of common pleas. The writ bears date August 14th, 1847, and contains four counts. The defendants, Henry M. Towne, Joshua Shaw, and Marcus Randall,²¹⁸ are charged therein with having maliciously and without reasonable or probable cause instituted a complaint against the plaintiff, before Mark Doolittle, esquire, a justice of the peace for the county of Hampshire, on the 7th day of November, 1846, for burning the plaintiff's factory in Belchertown, with intent to defraud the insurers, the Washington Insurance Company of Providence, who had insured certain sums upon the factory and the stock and the machinery therein; and also with burning a grist mill in Belchertown belonging to Towne, the defendant, and one Ferry. It then sets forth, that Doolittle, after examination, had bound over the plaintiff to appear at the next court of common pleas at Northampton to answer to said complaint; that an indictment was found against him at that court containing two counts, one for burning his factory with intent to defraud the insurers, and one for burning the grist mill of Town and Ferry; that the indictment was continued to the next term of the court, when a nolle prosequi was entered on the indictment, and a second indictment was found, on which the plaintiff was tried and acquitted by the verdict of a jury. The second indictment did not contain any count for the burning of the grist mill. The record and proceedings before the magistrate were only set forth in the first count. In the first and fourth counts it was averred, that the plaintiff was discharged from the prosecution against him, by the entry of a nolle prosequi on the indictment. These two counts alone made any reference to the charge of burning the grist mill. The defendants pleaded jointly the general issue, with notice that if the plaintiff made out any case, they would prove that they acted without malice, and had probable cause.

The plaintiff, to maintain the issue on his part, offered in evidence copies of the complaint and record of the magistrate. The defendants objected, that, as the record of the proceedings before the justice showed that he found there was probable cause, and that he bound over the plaintiff to answer to the complaint, this was a bar to the action; and that the plaintiff ought not to be permitted to show there was not probable cause; but the judge ruled that this was only evidence of probable cause, and that the plaintiff might be permitted to introduce the record of the court of common pleas to show an acquittal, &c. and that he might show by any other proper and competent evidence that there was not probable cause. The defendants objected to the admission of this record of the proceedings before the justice, under any count but the first, in which it was set forth, but it was admitted generally.

The defendants then insisted, that the plaintiff ought to be required to produce all the testimony given before the magistrate on the part of the prosecution, if not that given by the plaintiff, if he desired to control or impeach the finding of the magistrate, to the end that the court might be enabled to determine, whether there was or was not probable cause for the prosecution; but the presiding judge ruled, that it was not necessary for the plaintiff to show what the evidence was which was given before the magistrate; and the plaintiff gave no evidence as to what witnesses were examined, or what testimony was given before Doolittle.

The plaintiff then offered in evidence copies of the indictments and record of the court of common pleas referred to in the plaintiff's writ; to the admission of which the defendants objected, first, on the ground that as the magistrate had found probable cause, that finding could not be controlled; and, secondly, because the evidence did not prove an acquittal upon the prosecution commenced before Doolittle, as the first indictment was disposed of by a nolle prosequi, which in its legal effect was not an acquittal; it not being such a final determination of the prosecution, that another prosecution could not be commenced. The presiding judge ruled, that the record of the first indictment, for the reason stated, did not prove an acquittal, and it was not admitted. This ruling precluded the plaintiff from recovering on the first and fourth counts. The record of the second indictment was admitted for both purposes. It was contended by the defendants, that the second indictment was an independent prosecution, and not a continuation of the prosecution commenced before Doolittle.

The plaintiff then offered to show by Edward Clarke, esquire, in order to control or impeach the finding of the justice, which was ruled to be prima facie evidence of probable cause, that the magistrate acted unfairly and conducted himself improperly in the examination; that he was the counsel of the complainant, and had entered into some agreement or understanding with the prosecutor, in advance, to bind the plaintiff over; and that he manifested prejudice and partiality upon the hearing before him in this, that he had first associated with him the said Clarke...