Woodworth v. Mills

• Decision Date: 23 September 1884
• Citation: 20 N.W. 728,61 Wis. 44
• Parties: WOODWORTH v. MILLS.
• Court: Wisconsin Supreme Court

61 Wis. 44

20 N.W. 728

WOODWORTH

v.MILLS.

Supreme Court of Wisconsin.

Filed September 23, 1884.

Appeal from the circuit court, Jackson county.Bleekmann & Bloomingdale and Wm. F. Vilas, for respondent, Augustus Woodworth.

Johnson & Ainsworth, J. M. Morrow, and S. U. Pinney, for appellant, Daniel Mills.

TAYLOR, J.

The respondent brought an action in the circuit court of Jackson county against the appellant for malicious prosecution for causing him to be arrested upon a charge of grand larceny. The complaint alleges that one Daniel T. Hockert made the complaint upon which the arrest was made, but charges that the defendant maliciously and without probable cause advised and caused the said Hockert to make such complaint and have the plaintiff arrested. The complaint then alleges the issuing of a warrant by a justice of the peace against the plaintiff for larceny, his arrest thereon, the fact that he was brought before the justice, an examination had, that the justice after examination adjudged that an offense had been committed, that there was probable cause for believing the plaintiff guilty, and thereupon held him to bail for his appearance at the next regular term of the circuit court of said county; that he gave bail as required by the justice; that at said next term the defendant falsely and maliciously, and without probable cause, caused and procured the district attorney of said county to present and file an information against the said plaintiff on said charge of larceny, setting out the substance of such information. It then alleges that the trial of the cause was continued at the term at which the information was presented, by the consent of the parties, to the next regular term, and that, at the term to which said cause was continued, the district attorney, with the leave of said court, entered a nolle prosequi in said action, and that said action was then and there determined with the advice of the defendant and abandoned by him, and that since that time he has not further prosecuted said charge and complaint. The complaint charges that the arrest and examination was extensively published among his neighbors and friends by the procurement of the defendant; alleges that he was greatly injured in his good name, and otherwise suffered damages by way of the payment of counsel fees and other necessary expenses in defending himself against said charge.

The defendant's answer is, first, a general denial of every allegation, matter, statement, or thing in said complaint contained, except as hereinafter expressly admitted. The answer then alleges and charges the fact to be, that Daniel T. Hockert made complaint in writing to the justice, setting forth the substance of such complaint, the issuing of a warrant upon such complaint, the arrest of the plaintiff, his examination before the justice, the judgment of the justice upon such hearing; that he held the defendant to bail for his appearance at the next term of the circuit court; that at said next term an informationwas presented against the plaintiff by the district attorney; that the trial on said information was continued until the March term, on the application of the plaintiff in this action; that at the next or March term, 1882, the case was continued, on the application of the district attorney, to the September term of the same year, and at such September term the district attorney, with leave of the court, entered a nolle prosequi in said action without the consent or advice of the defendant, and that said action has not been commenced again to the knowledge of the defendant.

The answer then further alleges that the said Hockert, before he made his complaint to the justice, stated all the facts and circumstances which he could or believed he could prove against the plaintiff in this action, tending to show him guilty of the larceny charged in the complaint before the justice, and that, after making such statements, the district attorney advised said Hockert that the plaintiff was guilty of said larceny, and was further advised by said attorney to make and file the complaint against the said plaintiff, and that, relying upon the advice of the district attorney, the said Hockert made said complaint; and, as a further answer, the defendant alleges and charges that at the time said criminal complaint was made against the said plaintiff, from all the facts and circumstances claimed at the time and up to the present time, the defendant believed, and still believes, that there was not only probable cause to believe the plaintiff guilty of the offense charged, but that the sworn testimony of the witnesses on said examination before the justice tended to prove conclusively to this defendant that the plaintiff was and is guilty of the offense charged against him in said complaint, warrant, and information; and he therefore “alleges and charges the fact to be, on information and belief, that the plaintiff is now, and was at the time of the commencement of the criminal action, guilty of the offense therein charged,” etc. Upon the issues made by the pleadings the parties went to trial in the circuit court, and before any evidence was given on the part of the plaintiff, the defendant objected to the reception of any evidence in the case, on the ground that the complaint does not state facts sufficient to constitute a cause of action. The point raised by the learned counsel for the appellant upon this objection is that the complaint fails to show such a termination of the criminal action against the plaintiff as authorizes him to maintain an action for malicious prosecution against the prosecutors of such criminal action.

It is not denied by the learned attorney for the respondent that it is necessary to show a final determination of the criminal action against the plaintiff before the action for the malicious prosecution of the same can be maintained by him. Miller v. Milligan, 48 Barb. 30;Pratt v. Page, 18 Wis. 337-344;Winn v. Peckham, 42 Wis. 493-499. It is unnecessary to cite other authorities to sustain this proposition, as both parties admit that such is the rule of law, and the authorities are not in conflict upon that point. But it is claimed by the learned counsel for the appellant that the facts stated in the complaint do not show a final termination of the criminal action upon which this suit is founded, and they rely upon the following authorities to sustain their contention. Bacon v. Towne, 4 Cush. 217;Parker v. Farley, 10 Cush. 279;Brown v. Lakeman, 12 Cush. 482;Parker v. Huntington, 2 Gray, 124;Dennehey v. Woodsum, 100 Mass. 195-198;Cardival v. Smith, 109 Mass. 158. These cases, as well as others cited by the appellant, would seem to hold that the entering of a nolle prosequi by the district attorney, with the consent and leave of the court, upon the indictment or information for a crime, is not a final determination of such criminal action, and therefore no action for malicious prosecution can be maintained, because it is urged that the defendant may be again arrested upon such indictment or information, and tried, and that upon such trial the accused might be convicted, which conviction would be conclusive evidence that there was probable cause for the prosecution; and upon this point the learned counsel for the appellant cite the followingcases: Whart. Crim. Law. § 513; State v. McNeill, 3 Hawks, 183;Com. v. Wheeler, 2 Mass. 172;Teague v. Wilkes, 3 McCord, 461;Smith v. Shackleford, 1 Nott & McC. 36;Heyward v. Cuthbert, 4 McCord, 354;State v. Blackwell, 9 Ala. 79;Wortham v. Com. 5 Rand. (Va.) 669; Lindsay v. Com. 2 Va. Cas. 345;State v. Haskett, 3 Hill, (S. C.) 95; U. S. v. Shoemaker, 2 McLean, 114.

It will be seen by an examination of these authorities that the question as to whether, after a nolle prosequi had been entered upon an indictment or information, the party could be afterwards proceeded against upon the same indictment or information, was not the point decided; and if such rule was stated as the law, it was only incidental to the real question. All the authorities hold that a nolle prosequi, entered with leave of the court before the jury is impaneled in the case, is not a bar to a subsequent prosecution for the same offense upon a new indictment or information, and there are a few cases which hold that the nolle prosequi may be recalled, and the defendant tried upon the same indictment or information. All that was decided in U. S. v. Shoemaker, supra, was that a nolle prosequi entered on an indictment was not a bar to a subsequent indictment for the same cause. Such was the fact, also, in the case of Com. v. Wheeler, supra. In this last case Justice SEWELL says: “A nolle prosequi is often entered by the attorney for the government on discovering some informality in his indictment. I consider that it applies to the particular indictment only, and not to the offense.” SEDGWICK, J., says: “I think it has been held that a nolle prosequi is not a bar even to the indictment on which it is entered, though I believe this opinion has been since overruled.” Bishop, in his work on Criminal Procedure, in speaking of the effect of the entry of a nolle prosequi, says: “We see, therefore, that a nolle prosequi during trial bars a subsequent prosecution for the same offense, whether on the same or any other indictment. A fortiori, it does, when entered between the verdict and sentence. Entered before trial, it and the proceedings it discontinues are no impediment to a subsequent prosecution for the same offense. It simply puts an end to the particular indictment, count, or part of a count to which it is applied, without prejudice to new proceedings; but the part or whole of the present proceeding which has been reached by it cannot be revived. In the language of an old case, ‘the king cannot afterwards proceed in the same suit, but he may begin anew.’ ” See section 1395. In a note to this section, the learned author refers to...