Wingersky v. E.E. Gray Co.

• Decision Date: 07 January 1926
• Citation: 150 N.E. 164,254 Mass. 198
• Parties: WINGERSKY v. E. E. GRAY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 198

150 N.E. 164

WINGERSKY

v.E. E. GRAY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1926.

Affeal from Superior Court, Suffolk County; Marcus Morton, Judge.

Action of tort of A. Samuel Wingersky against the E. E. Gray Company to recover for alleged malicious prosecutions. From orders sustaining the demurrer to the declaration and from a judgment for the defendant, plaintiff appeals. Judgment affirmed.H. Silverman, of Boston, for appellant.

R. A. B. Cook, of Boston, for appellee.

RUGG, C. J.

[1] This is an action of tort for malicious prosecution. It is alleged in count one of the declaration that the defendant maliciously and without probable cause instituteda criminal complaint in the municipal court of the city of Boston, charging the plaintiff with receiving stolen goods, and that after hearing the plaintiff was discharged. It is alleged in the second count that the defendant maliciously and without probable cause instituted a complaint in the same court, charging the plaintiff with larceny, and that after hearing he was ordered to appear before the superior court, where later he was acquitted by a verdict of the jury. Copy of each complaint is annexed to the declaration, whereby it appears that both bear the same date and describe the same goods alleged in each to be of the value of $1.48. It is manifest by necessary intendment from the allegations of the second count that the plaintiff was found guilty in the municipal court of the city of Boston and appealed to the superior court and was in the latter court acquitted. The plaintiff was allowed to amend by adding a third count alleging in more brief and accurate form malicious prosecution arising from the complaint for receiving stolen goods.

[2][3] It is plain from the declaration that the two complaints constituted but a single prosecution in the sense in which that word is used in the law of civil remedy for malicious prosecution. The date of the complaint, the date of the alleged crime and the description of the property are identical in each complaint. One cannot be convicted of being the thief and the receiver, knowing it to be stolen, of the same property. The two are separate and distinct offenses. A finding of guilty upon one charge is inconsistent with conviction upon the other. Commonwealth v. Haskins, 128 Mass. 60.

The difference between the offenses described in the two complaints is that in one the defendant was charged as being the principal and in the other he was charged with being in substance an accessory after the fact, both with respect to the same main crime. ‘The line which separates a felonious taking as proved by recent possession of stolen property, and a receiving of it, knowing it to be stolen, is often indistinct and difficult to establish by proof. But the identity of the prosecution is none the less clear, because the nature of the evidence renders it difficult to ascertain whether the offense consists in an active commission’ of the crime or of being an accessory before or after the fact. Bacon v. Waters, 2 Allen, 400, 402;Bacon v. Towne, 4 Cush. 217;Gaiser v. Hurleman, 74 Ohio St. 271, 78 N. E. 372,113 Am. St. Rep. 953. Two complaints were made by the defendant, but in the sense in which the word is used in this branch of the law the two complaints constituted but a single prosecution. It was one and only one effort to convict the plaintiff of criminal conduct with respect to the same general subject.

[4][5] In the municipal court the plaintiff was found guilty of larceny on the complaint set forth in the second count. Although not...