Schoonover v. Myers

Catoit, O. J. This case presents a most extraordinary spectacle. Rarely have we met, either in the books or in our own experience, so revolting a case of conspiracy, subornation of perjury, and perjury, as this record presents; and the difficulty in the case, is to determine which is the guilty party, and which the victim. We have carefully studied all the evidence in the light of the very lucid arguments on both sides, in which the subject is quite exhausted, and we still have doubts hanging about us, whether the boy Brill is an abandoned, perjured little villain, as one party insists, or a friendless waif cast upon the world, whom the defendant, by the most inhuman cruelty, sought to mould to his own wicked purposes. The whole case really depended on the credibility of this witness, and the jury believed him, and in this we cannot say they were wrong, nor should we have reversed their finding, had they disbelieved him and found the other way, though we should have been as much inclined to do so then as we are now. We shall not undertake the unprofitable task of reviewing this volume of testimony, but shall proceed to consider the questions of law presented by the record, or such of them as we think are of such importance as to require a discussion here. The first question of law which is presented, arises upon the fact, that when the plaintiff was brought before the magistrate upon the prosecution, for the institution of which this action is brought, he waived an examination and voluntarily gave bail for his appearance at the Circuit Court. This, it is insisted, was an admission at least of such a probability of guilt as to preclude him from ever after saying, that the prosecution was maliciously instituted. We do not think so. Such a course may often be judiciously advised, when the party is not only innocent in fact, but known to be so by the prosecutor. At least, this course should have no more influence than would the finding of the magistrate, upon a hearing of the evidence, that there was probable cause, and binding the party over for his appearance, or committing him. Again it is said, that the prosecution was not sufficiently ended when this action was brought. No indictment was found, nor was one returned ignored by the grand jury, but the recognizance was discharged by the State’s attorney. This, according to our practice, is the usual mode of terminating a prosecution where the party has been recognized by a magistrate, or in case he has been committed; it is by discharging him from jail, where the evidence is insufficient to induce the grand jury to find an indictment. It is not usual in this State for the State’s attorney to prepare an indictment and present it to the grand jury in the first instance, as in England, to be by them ignored, if not sustained by the proof. Indictments here are usually drawn only when directed by the grand jury after having heard the proof. The only record, therefore, of the termination of the prosecution is the order to discharge the prisoner or the recognizance. It is objected, that the deposition of Brill, taken on the complaint before the magistrate, was improperly excluded from the jury. Had there been such a deposition taken, it might properly have been admitted for the purpose for which this paper was evidently offered. But this paper was not such a deposition. It was the notes of the magistrate of the oral testimony of that witness which were never read to, or signed by, him. This paper was not competent evidence in the cause. The judgment must be affirmed. Judgment affirmed.