Graves v. Scott
| Decision Date | 14 September 1905 |
| Citation | 104 Va. 372,51 S.E. 821 |
| Parties | GRAVES. v. SCOTT et al. |
| Court | Virginia Supreme Court |
Malicious Prosecution — Termination of Prosecution—Dismissal.
The dismissal of a criminal prosecution, with costs against the prosecutor, on his failure to produce evidence in support of the charge, is such a termination of the prosecution as will enable the accused to sue for malicious prosecution.
[Ed. Note.—For cases in point, see vol. 33, Cent. Dig. Malicious Prosecution, §§ 70-75.]
Error to Circuit Court, Giles County.
Action by Joseph W. Graves against W. H. Scott and others. There was a judgment sustaining a demurrer to the declaration, and plaintiff brings error. Reversed.
A. H. Woodyard, for plaintiff in error.
Williams & Farrier and Williams & Williams, for defendants in error.
KEITH, P. This is an action for malicious prosecution, in the circuit court of Giles county, in which the defendants demurred to the declaration. The only question raised is whether or not it is sufficiently averred that the prosecution had been terminated, which was alleged to have been maliciously instituted.
It seems that the defendants had charged Graves with having procured goods and chattels of them under false pretenses, and under a warrant issued by a justice he was arrested and entered into a recognizance for his appearance before the justice upon a day named. When the day arrived the declaration proceeds to set forth that "the said plaintiff, in obedience to said recognizance, appeared before the said justice at the said place designated for trial, and had with him his witnesses to prove and establish his innocence of the said supposed offense charged in the said warrant and complaint, and announced his readiness for a trial to the said justice and to the said Scotts, and insisted upon a trial then and there; but the said defendants refused, and declined to be sworn and give any evidence touching the supposed crime charged in said warrant against said plaintiff, and failed to offer and produce, and refused to offer and produce, when called upon, any evidence whatsoever to prove the charge in said warrant against the said plaintiff, and then and there the said justice aforesaid dismissed the said warrant at the costs of the said Scotts, and then and there caused the said plaintiff to be discharged out of custody, fully acquitted of the said supposed offense, and the said de fendants hath not further prosecuted the said complaint, but hath deserted and abandoned the same, and the said complaint and prosecution is now fully ended."
The demurrer was sustained, and a writ of error brings the case before us for review.
In Ward v. Reasor, 98 Va. 399, 36 S. E. 470, this court held that,
It is obvious, therefore, that the case under consideration must be affirmed, if we adhere to the law as propounded in Ward v. Reasor. The conclusion there reached is supported by Hilliard on Torts, by Greenleaf, by Mr. Minor in his Institutes, by Barton in his Law Practice, by the Supreme Court of Massachusetts in Bacon v. Towne, 4 Cush. 217, and by a dictum by Judge Burks in Scott & Boyd v. Shelor, 28 Grat. 891.
The opportunity for a more extensive research and a further consideration of the principles involved have led us to a different conclusion.
It is true that "public policy favors prosecution for a crime, and requires that a person who in good faith and upon reasonable grounds institutes proceedings upon a criminal charge shall be protected." 19 Am. & Eng. Encyc. of Law, p. 650.
It is the lawful right of every man to institute or set on foot criminal proceedings wherever he believes a public offense has been committed. But it is a duty which every man owes to every other not to institute proceedings maliciously which he has no good reason to believe are justified by the facts and the law. Newell on Malicious Prosecution, § 1.
The difficulty, therefore, presented is to protect the citizen against criminal proceedings which are not justified by the facts and by the law, being at the same time careful not unduly to deter men from the institution of criminal proceedings honestly intended to punish public offenses against the law.
To meet and harmonize these difficulties as far as practicable, the law requires that the plaintiff in an action for malicious prosecution must aver and prove the institution of a suit or proceeding without reasonable cause, malice in the institution of the suit or proceeding, and the complete termination of the suit or proceeding. If a plaintiff in a suit for malicious prosecution can maintain these propositions to the satisfaction of a jury, he may and should recover damages; nor would the result tend to deter others from the honest and fearless prosecution of offenders against the law.
In Scott & Boyd v. Shelor, supra, Judge Burks states that to warrant a recovery in a suif for malicious prosecution it must be proved that the prosecution alleged in the declaration had been set on foot and conducted to its termination. Had he stopped there, he would have been in entire harmony with the law as stated in Newell on Malicious Prosecution; but he goes further and says: "And that it ended in the final acquittal and discharge of the plaintiff." It is true that in the case which Judge Burks was considering there had been a final acquittal and discharge of the plaintiff, and it, of course, cannot be questioned that there was a final termination of the prosecution; but that case cannot be binding authority for the proposition that nothing short of a final acquittal constitutes such a termination of the proceeding as will support an action for malicious prosecution.
In Morgan v. Hughes, 2 Durn. & East's 225, Justice Buller says: ...
To continue reading
Request your trial
-
Snyder v. City of Alexandria
...to the malicious prosecution plaintiff. See Lee v. Southland Corp., 219 Va. 23, 244 S.E.2d 756, 758 (1978); Graves v. Scott, 104 Va. 372, 51 S.E. 821, 822-23 (1905). Given this, it surely follows that a prosecution can end favorably to a defendant even if, as a matter of historical fact, it......
-
Bennett v. R & L Carriers Shared Serv. Llc
...to plaintiff for purposes of instituting a malicious prosecution action.” Niese, 222 S.E.2d at 800–01 (citing Graves v. Scott, 104 Va. 372, 51 S.E. 821 (1905) and Keaton v. Balser, 340 F.Supp. 329 (W.D.Va.1972)). The Defendants argue that, under Niese, whether the Commonwealth's decision no......
-
McIntosh v. Wales
...disposed of that it cannot be revived, or that if the prosecutor intends to further prosecute new proceedings must be commenced. (Graves v. Scott, 104 Va. 372; Bell Mathews, 37 Kan. 686; see note to Graves v. Scott, supra, in 7 Ann. Cas. 482; Fox v. Smith, 26 R. I. 1, 3 Ann. Cas. 110; 19 En......
-
Bennett v. R&L Carriers Shared Servs., LLC
...unfavorable to plaintiff for purposes of instituting a malicious prosecution action." Niese, 222 S.E.2d at 800-01 (citing Graves v. Scott, 51 S.E. 821 (Va. 1905) and Keaton v. Balser, 340 F. Supp. 329 (W.D. Va. 1972)). The Defendants argue that, under Niese, whether the Commonwealth's decis......