Griffith v. Slinkard

• Decision Date: 16 October 1896
• Docket Number: 17,968
• Parties: Griffith v. Slinkard
• Court: Indiana Supreme Court

44 N.E. 1001

146 Ind. 117

Griffith v. Slinkard

No. 17,968,

Supreme Court of Indiana

October 16, 1896

From the Greene Circuit Court.

Affirmed.

Cavins & Cavins and Davis & Moffett, for appellant.

Emerson Short and W. L. Slinkard, for appellees.

OPINION

McCabe, J.

The circuit court sustained a several demurrer to each of the two paragraphs of the complaint, and plaintiff, the appellant refusing to amend and electing to stand upon his complaint the defendant recovered judgment upon the demurrer that the plaintiff take nothing by his complaint. The rulings upon said demurrer are called in question by the assignment of errors.

The substance of the complaint is as follows:

"1st Par. Plaintiff, for amended complaint complains of the defendant, and says that on October 4, 1893, during the September term of the Greene Circuit Court, while a grand jury of said county was in session inquiring into crimes, etc., the defendant was the regularly elected and qualified prosecuting attorney for the fourteenth judicial circuit of said State and for said county of Greene, the same being one of the counties of said circuit; that during said session of said grand jury it became their duty to inquire into a charge of crime presented them against one John Mullins for having feloniously and purposely set fire to and burned a certain barn, of the value of $ 400.00, the property of said Mullins, the said property being insured by the Indiana Underwriters Insurance Company in the sum of $ 400.00, with intent to cheat and defraud said insurance company; that said grand jury voted and decided to present an indictment against said Mullins in due form charging him with said crime; that said Slinkard, acting as prosecuting attorney, but maliciously, wrongfully, and willfully intending to injure plaintiff, represented to said grand jury that he was able to present evidence that would show probable cause for and justify an indictment against said plaintiff for said crime jointly with said Mullins; that said grand jury investigated and heard said pretended evidence; that there was no evidence whatever against this plaintiff in any way whatsoever tending to connect said plaintiff with the commission of said crime, and that he in fact was not guilty thereof, nor of complicity therein; that said grand jury thereupon voted, decided and determined not to present or return any indictment against said Griffith, plaintiff herein, charging him with said crime, of which action and determination of said grand jury said defendant at the time well knew; that thereupon said grand jury directed said Slinkard to prepare an indictment against said Mullins charging him with said crime, but did not direct him to include this plaintiff in said indictment; that said indictment against said Mullins, charging him with said crime, was prepared by said Slinkard and by said grand jury returned into open court, but that said defendant, well knowing all the foregoing action and determination and decision of said grand jury, and maliciously intending to harass and injure said plaintiff, did knowingly, willfully and without any probable cause whatever, and without any authority or direction from said grand jury, and without its knowledge or consent, or without the knowledge or consent of any of its members, insert the name of said plaintiff in said indictment at the time the same was so prepared by said Slinkard, causing said indictment to jointly charge said Mullins and Griffith with said crime, and furnish the same in said form to said grand jury, whose foreman, without reading the same or knowing the plaintiff's name was included therein, indorsed the same 'a true bill,' and the same in said form was presented in open court as aforesaid. But the defendant, well knowing all the foregoing action, and willfully, maliciously and without probable cause in his capacity as attorney for the State, caused a warrant to be issued for the arrest of said plaintiff on said indictment, and caused said plaintiff to be arrested thereon, and compelled him to enter into his recognizance for his appearance in said court from day to day and term to term willfully, maliciously and without probable cause compelled plaintiff to appear from day to day and term to term to answer said charge for a period of nine months, and dismissed said pretended cause and entered a motion to nolle prosequi the same, which motion was sustained and said prosecution terminated."

The theory of the first paragraph is in the nature of a complaint for malicious prosecution.

And it may be first noted that it states enough to show that there was an indictment against the appellant returned into open court by the grand jury, indorsed by the foreman a true bill. It takes at least five of the grand jurors to concur in the finding of an indictment, and it must be indorsed by the foreman a true bill. Burns' R. S. 1894, section 1738 (R S. 1881, 1669). The statute further requires it to be returned into court, and if the foreman has not signed his name to the indorsement aforementioned, the court must...