Swartwout v. Dickelman

Boardman, J.: Upon tbe complaint of defendant tbe plaintiff was arrested for grand larceny, and, after tbe examination before tbe justice, was held and committed to jail for want of bail. Afterwards, and before any grand jury bad been in session in tbe county, the plaintiff was discharged from bis imprisonment, upon habeas corpus issued by tbe county judge. Tbe reason for tbe discharge from custody does not appear. Two days thereafter tbis action was commenced. Tbe crime charged was not cognizable by tbe justice. All be could do was to take bis examination and bold him for the action of tbe next grand jury. That was done. Tbe plaintiff was discharged from custody, but that was not a determination that be was innocent of tbe offense charged against him. The prosecution was not thereby determined in plaintiff’s favor, or determined at all, so far as appears by tbe case made. Until tbe grand jury met, and tbe ease was presented and ignored, or tbe complainant failed to prosecute, tbe proceeding initiated before tbe justice was not ended. (Bacon v. Townsend, 6 Barb., 426; Clark v. Cleveland, 6 Hill, 344 ; Thomason v. Demotte, 9 Abb., 242; 2 Green. on Evidence, § 452.) We conclude, therefore, from the exceptions before us, that tbe learned judge erred in not granting the nonsuit moved for at tbe close of tbe case, upon tbe ground that tbe proceedings and prosecution bad not been terminated so as to allow this action to be brought. The motion for a new trial is, therefore, granted, with costs to abide tbe event. Learned, P. J., and Bookes, J., concurred. New trial*granted, costs to abide event.