Shattuck v. Simonds

Braley, J. To sustain an action for a malicious prosecution it was incumbent on the plaintiff to offer evidence from which it could be found not only that the prosecution was terminated in his favor, but that it was instituted by the defendant without having probable cause to believe that he was guilty of the crime alleged, and that in causing a complaint to be made charging him with a criminal offence he was actuated by malice. Stone v. Crocker, 24 Pick. 81, 85. Bacon v. Towne, 4 Cush. 217. Ellis v. Simonds, 168 Mass. 316. If the evidence upon these issues is conflicting, such questions are for the determination of a jury under suitable iustructions, and a verdict having been ordered for the defendant we proceed to an examination of the testimony to ascertain if this direction was right. In such an inquiry neither the credibility of witnesses nor - the weight to be given to their evidence is of importance. That the plaintiff had been discharged by a court or magistrate having jurisdiction at least to determine whether he should be held for trial in the Superior Court is not disputed, and this discharge must be deemed to have ended the prosecution. Moyle v. Drake, 141 Mass. 238, 242, and cases there cited. While the defendant did not appear at the trial of the present case, in his deposition which was read he denied having caused the arrest, and said that until he was notified to appear as a witness in the criminal proceedings he had not learned of the plaintiff’s arrest, or that he was charged with having committed the crime. But upon referring to the evidence offered by the plaintiff this denial was met by testimony of alleged statements of the defendant to the effect that it was his purpose to cause the plaintiff to be prosecuted, and accordingly he had taken such action. This, if believed, was enough to show that the making of the complaint and the subsequent arrest were put in train by him. It also appears that he went so far as to offer a pecuniary consideration to at least one of the plaintiff’s witnesses if she would' aid him by supplying testimony from which the plaintiff’s identity as being the thief might be established, and without which his conviction might be defeated. When this evidence is united with the further proof from which a legitimate inference could be drawn 509 that the defendant had manifested a hostile feeling toward the plaintiff by stating in substance that although he was his nephew and had been in his employment for a considerable period of time he had been unfaithful, and because of his conduct he wished to see him apprehended, the elements are supplied not only of bad faith, but of such doubt as to his guilt as to show want of probable grounds which would lead a reasonable man to believe him guilty, and, therefore, a case was presented which entitled the plaintiff to go to the jury. Cheever v. Sweet, 151 Mass. 186. McIntire v. Levering, 148 Mass. 546. Connery v. Manning, 163 Mass. 44. The ruling directing a verdict for the defendant being erroneous, the plaintiff’s exceptions must be sustained, but according to the agreement of the parties if this is done judgment is to be entered for the plaintiff in the sum of $500. So ordered.