Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-08-05
COURT DECISIONS.
.DlGESTED BY w. B. MARTIN
EXCLUSIVELY FOR
vIRCINlAN-PILOT.
Notes of Cases Recently Decided
Which Are of Interest to
Our People.
WARD v. REAsoR.


Supreme Court of Appeals OF Virginia.
June %, 1900.
A DISCHARGE or AN ACCUSED
BY A JUSTICE, WHO DISMISS
ELS THE WARRANT WITHOUT
HEARING ANY EVIDENCE, DOES
NOT ESTABLISH THE INNO-
CENCE OF ACCUSED NOR SHOW
q WANT OF PROBABLE CAUSE
FOR THE PROSECUTION.
A FELONIOUS INTENT is NECES-
sARY TO THE CRIME OF LAR
CENY.
This was an action for malicious
tanning demurrer to the declaration,
the PLAINTIFF appealed.
The Court says:
The ground upon which the demurrer
was sustained Is. that the declaration
does not sufficiently allege the termi-
nation of the prosecution, that Is, that
1t ended in the final acquittaI and dis
charge of the accused. The allegation
of the first count OF the declaration on
this subject is:
Without the introduction of nny tes-
t'mony the said defendant had the suid
justice to dismiss said warrant, and the
Bald defendant has not further prose
cuted his said complaint but has de-
the said complaint and prosecution is
now wholly ended"
The allegation OF the second count is
The said defendant. without the in
PRODUCTION of any testimony against
the plaintiff and without giving to the
said plaintiff the opportunity of de-
Tending himself against said false and
malicious charge and showing his in
nocence therein. caused said plaintiff
to be discharged and not prosecuted
for said offence"
Counsel for the plaintiff in error say,
that the action taken before the JUS
tice-the dismissal OF the warrant. was
equivalent TO nolle proSeuui, and con-
tend that il is q final determination of
that prosecution, whereby this action
may he maintained.
There are a number of decisions by
courts of other States holding that n
holle proseQui Is sufficient to main
tain an action OF malicious prosecu-
tion. but the text writer's. as far as
we have been able to Investigate. hold
the contrary view. Mr. Greenleaf In
Volume 2, sec. 452, says: 1T must ap.
pear that the prosecution is Mt an
end. II Il was n criminal prosecution,
1t must appear that the plaintiff was
acquitted Of the charge. It is not
enough that the Indictment was ended
by the entry of n nolle prosequi."
Notwithstanding the warrant in the
case at bar charges that the larceny
before whom the accused defendant in
error) was brought for trial was cloth
cd with power to convict or acnuit him
upon hearing the evidence. The Of
fence charged in the warrant is n mis-
demennor under our statute, the word
"feloniously" being used to character
ize the intent with which tho taking
and carrying away was done--a felo-
NOUS intent being an essential ingre-
dent in the crime of larceny, whether
nd Il t. n i- N irrr frat
mere trespass.
In this case. therefore. the Justice,
with full power upon hearing the evil
dence to convict or acquit the defend
ant In error of the charge made in the
warrant, without hearing any evidence.
dismissed the warrant and discharged
him. This action amounted to no
more than the assent OF the justice to
n cessation Of the proceedings without
my examination whatever of the
cause upon it's merits. 1t was the
equivalent of a nolle proscqui-nothing
more-and could not establish the In
nocence o. the defendant in error, nor
show want of probable cause for the
prosecution.
The case of Jones ". Finch, 81 Va.
207, very much relied on by counsel for
defendant in error. was a similar ac-
tion to this, and II was there held.
that n discharge of the accused brought
before n commissioner of the United
hing the United states mall. the COM
missioner being clothed with the power
to send the accused on for trial or
discharge him. was sufficient termi-
nation OF the prosecution to maintain
action of malicious prosecution; but.
the court in reaching that conclusion.
emphasizes the fact that the declara-
lion alleged that the commissioner dis
cherRed the accused and dismissed the
warrant upon hearing the evidence.
That is not this case.
While the declaration here does al
ege that the prosecution, upon which
this action is founded. rs now wholly
ended" 1t IS but an allegation of a
conclusion o: law. not warranted by
the facts iccited and upon which It ia
made. They do not convey the idea
or trial and acouittal. but import only
cessation OF the proceedings without
my examination whatever Of the case
upon Its merits. and was. therefore, no
bar to the institution OF another prose
cutlon for the same offence. Affirmed.
Book Note.
We have received from the author.
~