Brown v. Randall

Carpenter, J. The defendants complained to a grandjuror of the town of Norwich against the plaintiff, charging him with a breach of the peace, and induced the grandjuror to enter a complaint to a magistrate in due form, whereupon a [60] warrant was issued, arid the plaintiff arrested and held to answer the complaint. After remaining in custody several hours, the magistrate informed the defendants and their counsel, who acted for the grandjuror, that he was ready to proceed with the trial. The defendants sent word to the court that they should prosecute the complaint no further, and thereupon the plaintiff was discharged. It is alleged in the declaration that this proceeding was malicious and without probable cause, and the jury have found that allegation to be true. The complaint and warrant, upon which the plaintiff was arrested, were not preserved by the police court, but were lost and destroyed. Evidence of that fact, in connection with proof of the contents of the documents, was offered and received, though objected to by the defendants. Whether such evidence was properly received is the first question presented by the motion. The complaint and warrant constituted an essential part of the plaintiff’s case. Had they been in existence, it would have been incumbent on him to have produced them. They being lost, it was competent for him to prove the loss, and then prove their contents by parol. The next objection is, that parol evidence to prove the way and manner of the plaintiff’s discharge by the police court was inadmissible. The ground of this objection seems to be that the action of the court can only be proved by the record, and that the course pursued here was, in effect, substituting for the record of the court the recollection of individuals. The general rule relied upon by the defendants is an important one, and ought not to be departed from except for good and substantial reasons. But courts ought not to adhere rigidly to that or any other rule where the result will be, as in this case, to deprive one party of his just rights, and screen the other from the consequences of his illegal and wrongful acts, unless there are reasons of public policy which require them to overlook the effect upon individuals. No such reasons exist in this case. In principle we can hardly distinguish it from the ordinary case of a lost record. Had there [61] been a formal record, and that had been lost, the right of the plaintiff to have proved the existence and contents of the record by parol is clear; and we suppose it would be the same with a mere entry upon the file without a formal record. Mo good reason can be suggested why the omission to make a record or minute should deprive the plaintiff of the power to prove that the prosecution against him had terminated ; for it must be borne in mind that that was the important fact to be proved, and not a judgment. As no record evidence existed showing that fact, we think he was properly permitted to show it by other evidence. We cannot forbear, in this connection, expressing our strong disapprobation of the course pursued in the police court. Papers and documents of this'character ought to be preserved, and a record or some entry made by which it may appear what the action of the court was. But the important question in this ease is whether, upon the facts alleged and proved, the plaintiff is. entitled to recov-, er. All the material averments seem to have been proved except the allegation of acquittal. That was not proved, and the court charged the jury that.it was not necessary. The defendants complain of this, as they rely upon the non-exist-' cnce of that fact as a complete defense to the action. Decisions of courts of the highest respectability, both in England and in this country, justify this claim. It does not appear that this question has ever been directly determined by this court. We are referred to the case of Monroe v. Maples, 1 Root, 553. But no such question arose in that ease. It simply decided that a person convicted of the crime charged against him could not maintain the action. We are therefore at liberty to determine the question upon principle. The grounds of this action are, the malice of the defendant,! the want of probable cause, and’ an injury sustained by the plaintiff 1 Swift’s Digest, 491. The conviction of the plain-1 tiff is justly considered as conclusive evidence of probable cause. The authorities referred to virtually decide—without sufficient reason as it seems to us—that the termination of the [62] prosecution by a nolle prosequi, or abandonment, was equally conclusive upon that question. . One reason given for this is, that no termination of the prosecution in favor of the accused short of an acquittal will discharge the crime or be a bar to a new indictment. This reasoning is not satisfactory. The possibility that the plaintiff may be again prosecuted for the same alleged offense is not inconsistent with an entire want of probable cause in the first prosecution. This reason seems to have been disregarded in Sayles v. Briggs, 4 Met., 421. The complainant abandoned the prosecution against the plaintiff after a trial, and the magistrate, who could only bind over or discharge the person accused, discharged him. The court held that the action could be maintained. Yet such a discharge could be no bar to a subsequent prosecution. Another reason given is, that the common law will not favor actions in behalf of a party criminally prosecuted against one who has acted as complainant in behalf of the public, and ostensibly for the public good; it therefore requires that the plaintiff in such an action shall begin by offering the verdict of a jury who have considered the cause on its merits. This may be a very proper caution to a jury, and a matter which ought to be considered by them in weighing evidence, but we see no sufficient reason for adopting it as an absolute rule of law, the effect of which is, in some cases at least, to shut out the truth. No such rule has been adopted in this state, and we think it is contrary to the prevailing notions of the professsion. Judge Swift, in his Digest, vol. 1, p. 491, states five different modes of terminating a prosecution in favor of the accused which will lay the foundation for this action, and one of them is, “ when the prosecution has been abandoned and given up.” In Parker v. Farley, 10 Cush., 281, Shaw, C. J., in speaking of the rule under -consideration, says, “ Were this a new and original question, to be decided upon principle, it might be doubted whet-hermit would be just and wise to establish this as an inflexible rule of practice.” On the whole we think it wise and safe, when a prosecu [63] tion lias been abandoned, as tliis was, without any arrangement with the accused, and without any request from him that it should be so' abandoned, to leave the question of probable cause to the jury. The charge of the court was in harmony with these views, and we do not advise a new trial. In this opinion the other judges concurred.