Yocum v. Polly
| Decision Date | 27 May 1841 |
| Citation | 40 Ky. 358 |
| Parties | Yocum v. Polly. |
| Court | Kentucky Court of Appeals |
Malicious prosecution. Nolle prosequi. Malice. Probable cause.
APPEAL FROM THE WASHINGTON CIRCUIT.
Owsley and C. A. Wickliffe for appellant.
Morehead & Reed for appellee.
The case stated.
THIS was an action for a malicious prosecution brought by Polly against Yocum. The declaration avers that the defendant maliciously, & c., and without probable cause, procured a warrant to be issued for the arrest of the plaintiff on the charge of being present, aiding and assisting in the murder of Preston Coulter, upon which he was arrested, imprisoned and remained in prison until he was brought before the justices and put upon his trial, and the evidence being heard, the prosecution was dismissed by the Commonwealth.
The warrant and its indorsements show that several others were arrested with the plaintiff, on the same charge; that two of the others having been brought up for trial, and the evidence being heard, the justices discharged one of them, and the Attorney for the Commonwealth directed a nolle prosequi as to the other, and also directed a nolle prosequi as to the present plaintiff.
We do not regard this as a substantial variance between the allegation and the proof. Nor do we doubt that the entry of a nolle prosequi, by the attorney for the Commonwealth, was such a termination of the prosecution as authorized the bringing of this action, if the prosecution was in fact malicious and without probable cause, and if Yocum can be regarded as, in any proper sense, the prosecutor.
But a discharge from the prosecution by a nolle prosequi is not prima facie evidence of malice, or of want of probable cause, from which malice may always be implied: Selwyn's Nisi Prius, 2 nd vol. 259; 2 Starkie on Evidence, 913.
A discharge from a prosecution by a nolle prosequi, by Commonwealth's Attorney, is not prima facie evidence of malice, or want of probable cause.
In the case of Murray vs Long, 1 Wend. 140, it is decided that proof of malice alone will not support the action; that malice may be implied from want of probable cause, but the want of probable cause cannot be implied from the most express malice; and it is well settled that both must concur, to sustain the action. And as both must be averred by the plaintiff, so he must adduce some proof tending to establish both, or at least tending to show that the prosecution was without probable cause, from which malice will be implied: 3 Starkie, 911-15, Starkie says: " It is invariably necessary to give some evidence arising out of the circumstances of the prosecution, to show it was groundless, it is insufficient to prove a mere acquittal, or even to prove any neglect or omission on the part of the defendant to make good his charge," & c.
Malice alone will not...
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