The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-06-24

of the Court per Judd, C.. J.
The case comes to us on exceptions by the
defendant, to certain refusaIs Of the Court who
tried the case, to direct the jury as requested.
The action was case for malicious pTosecu-
ton. the complaint averring that on the 18th
of January last at Hama, island Of Maui: the
defendant maliciously etc., and without prob
able cause, caused the plaintiff to be inpris-
oned on false charge that plaintiff had COM
mitted the offence of using threatening Ian
guage to the defendant, and caused him to be
arrested and brought before the District JUS
tice. whereupon he was admitted to bail to
appear on the 10th Of January, pursuant TO
the condition of his bond. and the plaintiff an-
reared before said District Justice and the
defendant did not appear to prosecute said
charge. and thereupon the plaintiff, by order
Of said District Justice was discharged on the
said complaint.
The evidence is that the deputy sheriff stated
to the Justice that he had no evidence in sup
port of the charge, and asked to enter a dis
continuance which was allowed and the plain
tiff was dismissed.
II is claimed on behalf of the defendant that
the evidence does not sustain the allegation
and that the Court should have directed the
jury to find for the defendant.
Is the variance material? We think not:
The statement by the deputy sheriff, who had
charge Of prosecutions in the District Court,
that he had no evidence in support of the
charge and SO asked to enter discontinuance,
might well be in consequence either OF the
failure Of the defendant to appear and prose-
cute the charge, or his unwillingness, if pres
ent. to give testimony against the plaintiff.
| On this the District Justice allowed discon-
tinuance and dismissed the plaintiff. This
does not differ in effect from the allegation
that the "plaintiff was discharged on said COM
plaint." The legal effect would be the same,
whether the complaint was discontinued, q
,loHs prosegui entered, or the plaintiff dis
charged or dismissed. Without trial oil the case
the prosecution abandoned it and the prisoner
was released.
But ii is further urged that dscontinuauce
! or ,soLe pros is not a sufficient ending OF the
prior suit.
This Court in Stone rs. Hutchinson Hawn.
l24, said that "the rule requiring it TO be shown
that the previous action terminated in an 40
quittal was founded upon the reason that it can
not be made evident otherwise that the plaintiff
would not have been convicted, and if he had
| been convicted it would be evident that the
accusation was not false" In that case the
prosecution was Withdrawn on terms consented
| to by the plaintiff-to wit: the surrender OF
certain papers he then held, and although
some of the language used by the Court would
| imply that it was their view that the case
must be shown to have terminated by an abso.
lutte acquittal, they are obitCr dictd and beyond
the scope of the case then under considera-
ton.
Cooley on Torts, p. 1877 says: whether
the entry Of nols prosequi by the prosecut-
\ ing officer is o sufficient discharge has been
made o question. In some cases it has been
held that it was; but other cases hold the con-
trary. But the reasonable rule seems to be
that the technical prerequisite is only that the
particular prosecution be disposed Of in sucl
a manner that this cannot be revived, and the
prosecutor, if he proceeds further, will be put
to new one. -
| In the case of Ctudiual as. S,,iLt, 100 Mass
l5s, the Court say: "But if it (the prosecu-
toni is commenced by complaint to magis-
trate who has jurisdiction only TO bind over 1
discharge, his record, stating that the complain
ant Withdrew his prosecution and 1t was there.
upon ordered that the accused be discharged
is equivalent to an acquittal." Citing Sdyts
rs. Briggs, Met, 32l and 326.
$50 if the accused, after being arrested, ii
discharged by the grand jury's finding no in.
dictment, that shows legal end to the pros
ecution." See Morgan Us. Hughes, 2 I. K.
225, Freeman rs. ArkeR, 2 D. and c., 494
Nickel rs. HiRiaDls, IL NJ. and W., 205, Ba
con rs. Waters, 2 Allen, 400. "And if thu
prosecutor, after procuring the arrest, fails t.
Il enter any complaint, this with the attending
; circumstances is sufficient to be submitted t.
the Jury as evidence of want of probable cause.
Cases mainly not accessible to US are cited il
support.
In G1rdipnl rs. SSaiDi the Court held tina
the failure Of plaintiff to enter in Court th
writ in q civil action, on which he has mali
. ciously and without probable cause procuret
the arrest Of the defendant il such final de
termination Of the action as to enable the de
fendant thereupon to sue him for maliciou
prosecution. ~
In Bro,5n IS. Randall, Sc Conn., Sc, til,
Court held that it is not necessary TO sustain
an action for malicious prosecution, that th
+ plaintiff should have been acquitted on tn
criminal proceedings. 1t is sufficient if tb
plaintiff was discharged without trial; by,
withdrawal or abandonment of the prosecution
not made at his request or arrangement wit
him, if the jury shall find on the whole evI
dence that there was want Of probable cause
See also Stanton rs. Hart, % Mich, SIS
Here discharge on noile proseq,a after effort
, to procure a trial was held sufficient termin
HtlOn OF the suit. Inc aCtlOu IOI uldlClOu
I prosecution lies whenever the proceeding hu
! come 10 an end, whatever may be the form 9
I its termination"
We think that the above citations are suffi
; Gent authority for our holding that the rulin
below was correct.
. And it makes no difference that the proceed
ing in this case was upon affidavit Of the de
i PENDANT (if such indeed was inade) chargin
I plaintiff with having used threatening Ian
I guage, and the magistrate had jurisdiction onl
either to discharge plaintiff or order him !
/ give bond to keep the peace. I.
Z In Deulis rs. Ryan, 65 n. Y, 3s5 the Coul
I held that where one makes false and ma
icious charge against another, and by mean
a thereof, procures the indictment and arrest {
the latter, it is no defense to an action for MA
} lioious prosecution that the false accusatio
; did not allege facts constituting the Grim
charged in the indictment or any other Grim
inal offense.
We think The exceptions should be over
ruled.
5 "A. S. Hartwell for plaintiff; E. Preston fo
defendant. III
G Honolulu, June 18th, 1885.
A Portion of the SOudan.
Between Abyssinnia and the Red Sea is
5 tract Of 1orr al rroForIao. J,co-t !