Harrelson v. Johnson

• Decision Date: 28 April 1922
• Docket Number: 10884.
• Citation: 111 S.E. 882,119 S.C. 59
• Parties: HARRELSON v. JOHNSON.
• Court: South Carolina Supreme Court

111 S.E. 882

119 S.C. 59

HARRELSON v. JOHNSON.

No. 10884.

Supreme Court of South Carolina

April 28, 1922

Appeal from Common Pleas Circuit Court of Georgetown County; R. W Memminger, Judge.

Action by A. B. Harrelson against A. P. Johnson. From an order overruling a demurrer to the complaint defendant appeals. Affirmed.

Fraser J., dissenting.

Capers G. Barr, of Georgetown, and L. M. Gasque, of Marion, for appellant.

James W. Wingate and M. W. Pyatt, both of Georgetown, for respondent.

COTHRAN J.

Action for malicious prosecution. The appeal is from an order overruling a demurrer to the complaint, upon the general ground, specifying the particular objection that it failed to allege a final determination of the prosecution claimed to have been maliciously instituted.

The sole question at issue in the appeal is whether or not the discharge of a defendant by a magistrate, upon preliminary investigation, is such a termination of the prosecution as will supply that necessary element in a subsequent action for malicious prosecution. Narrowing the issue still further, it is whether the element referred to is established by the termination of the particular proceeding instituted, or must there be an adjudication of the innocence of the party prosecuted.

My conception of the law is that the remedy accorded a citizen of damages for a malicious prosecution is intended to prevent and redress the malicious abuse of the process of the law, and that, when the particular proceeding instituted in malice had been legally terminated, the remedy of the injured party has matured; he is not required to await an acquittal, an adjudication of his innocence, which may never come, and may be purposely prevented. A contrary ruling would permit a maliciously disposed prosecutor to hail the defendant before every magistrate in the country, or before the same magistrate a dozen times, and be immune from damages by allowing the case to be dismissed by the magistrate.

As is said in 18 R. C. L. 23:

"To require a trial of the action on the merits resulting in an acquittal, would be to permit a prosecutor to do all the damage which a malicious prosecutor can possibly effect, and then deny the accused the opportunity to vindicate himself by a trial, by having the proceeding quashed or dismissed and thus escaping all liability for the wrong unlawfully inflicted. So, as a general rule, all that is required is that there be an end to the particular proceeding."

The precise point was raised and decided in conformity with this view in the following cases: Rider v. Kite, 61 N. J. Law, 8, 38 A. 754; Long v. Rogers, 17 Ala. 540; Schaefer v. Cremer, 19 S.D. 656, 104 N.W. 468; Mentel v. Hippely, 165 Pa. 558, 30 A. 1021; Secor v. Babcock, 2 Johns. (N. Y.) 203; Findley v. Bullock, 1 Blackf. (Ind.) 467; Comisky v. Breen, 7 Ill.App. 369; Gibbs v. Ames, 119 Mass. 60; Sayles v. Briggs, 4 Metc. (Mass.) 421; Moyle v. Drake, 141 Mass. 238, 6 N.E. 520; Eagleton v. Kabrich, 66 Mo.App. 231; Clark v. Cleveland, 6 Hill (N. Y.) 344; Robbins v. Robbins, 133 N.Y. 598, 30 N.E. 977; Streight v. Bell, 37 Ind. 550; McWilliams v. Hoban, 42 Md. 56; Jones v. Finch, 84 Va. 204, 4 S.E. 342; Graves v. Scott, 104 Va. 372, 51 S.E. 821, 2 L. R. A. (N. S.) 927, 113 Am. St. Rep. 1043, 7 Ann. Cas. 480--and many more could be cited upon the point. See full notes to 2 L. R. A. (N. S.) 927 and Ann. Cas. 1913A, 926, 26 Cyc. 58. In a note to 26 Am. St. Rep. 123, Judge Freeman states:

"It is sometimes stated that it (the prosecution) must have terminated in his acquittal, but this is not true. It is sufficient if the prosecution has ended, so that it cannot be reinstated nor further maintained without commencing a new proceeding; but it must have terminated in some of the several modes in which it is possible for a criminal proceeding to reach a stage beyond which the accused cannot be further prosecuted therein."

He further states:

"If the examining magistrate finds that there is not sufficient cause to hold the accused to answer, and therefore discharges him, that prosecution is thereby ended and the consideration that other prosecutions may be brought against the same person on the same charge * * * cannot prevent the action of the magistrate from having its effect as a termination of the prosecution before him, sufficient to support a civil action."

In the case of Caldwell v. Bennett, 22 S.C. 1, the plaintiff had been arrested, charged with stealing cotton from the field. He was carried before a magistrate, who on a preliminary examination dismissed the prosecution for insufficiency of evidence. The party prosecuted then brought an action for malicious prosecution. In sustaining refusal of nonsuit, the court said:

" For it is quite clear that there was testimony that the prosecution was ended."

In Whaley v. Lawton, 57 S.C. 256, 35 S.E. 558, the court says:

"For this reason the rule also requires that the prosecution must have been legally ended before any action for malicious prosecution can be commenced."

In the case last cited the court held that the prosecution had not been legally ended by a discharge of the prisoner by a ministerial magistrate of Charleston for the reason that he had no legal authority to discharge a defendant. The implication is strong that if he had had such authority his discharge would have constituted an end of the prosecution.

In Shackleford v. Smith, 1 Nott & McC. 36, it was held that a nol. pros. entered by the solicitor upon the warrant, without taking an order of discharge, was not a termination of the prosecution, for the very plain reason that he could have recalled his entry and tried the defendant.

In Thomas v. De Graffenreid, 2 Nott & McC. 143, it is held that the return of a "no bill," without an order of the court is not a termination of the prosecution, for another bill could be handed out.

To the same effect is Teague v. Wilks, 3 McCord, 465; Heyward v. Cuthbert, 4 McCord, 354.

The fact that the absence of an order of court in these cases was so emphasized by the court contains a strong implication that, if the order had been obtained, the discharge, though not an acquittal, would have ended the prosecution.

The case of Glover v. Heyward, 108 S.C. 489, 94 S.E. 878, seems to me absolutely conclusive of the question. In that case Mr. Justice Watts uses this language:

"Magistrate Weston had jurisdiction of the case, and dismissed the charge and discharged Glover, and that terminated the case as far as the warrant was concerned. His order was binding, and released Glover, and then Glover had the right to commence his action for damages."

The fact that the offense in that case was within the jurisdiction of the magistrate for trial cannot possibly affect the question. In the present case the magistrate had as full jurisdiction to discharge the prisoner as the magistrate in the last case cited; that the latter might have tried the case does not enlarge his power of discharge, or make it superior in any way to that of the magistrate in the case at bar.

The order appealed from is affirmed.

GARY, C.J., and WATTS, J., concur.

FRASER J. (dissenting).

This is an action for malicious prosecution. The complaint reads:

"(1) That heretofore, to wit, on the 15th day of January, 1920, the defendant applied for and obtained from C. W. Rouse, Esq., a magistrate in and for the state and county aforesaid, an arrest warrant for

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