Charles v. Abell

1 Brightly 131

Opinion

Bell, J.

— It must be acknowledged that the law on this subject has undergone many alterations in modern times. It seems to be now agreed that if a grand jury ignore the bill, it is sufficient to maintain the action. But this rule has been still further modified, and it is settled that if a party is brought before an examining magistrate and discharged, though the proceeding might be again renewed, still; in point of law, that prosecution is ended, and the party may maintain the action for malicious prosecution. There is a precedent of a declaration in Chitty’s Pleadings, in an action brought under such circumstances, There is no difference in point of principle and practice between a discharge by a committing magistrate, and a discharge by a judge who examines the case upon habeas corpus. It as effectually puts an end to the prosecution, as if the defendant were' discharged by a magistrate — although a new charge may be afterwards made. The motion to discharge on common bail is therefore refused.

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In the district court for the city and county of Philadelphia, the practice is directly contrary to the ruling of Judge Bell, in the foregoing case; it is there held, that a discharge on habeas corpus does not end the prosecution: it only relieves the defendant from imprisonment, but he may still be indicted on- the original complaint. Schopffel v. Kleinz, Nov. 11, 1848, MSS. And this view of the law appears likewise to be held by the court of common pleas of Philadelphia county: in Commonwealth v. Ridgway, 2 Ash 258, Judge King said: — “I rejoice that our judgment” (discharging the defendant on habeas corpus) “is not conclusive of the subject: the sole effect of this decision is, that, in the present state of the evidence, we see no sufficient cause to hold the defendant to bail. It is still competent for the proper public officer to submit the case to the grand jury: that respectable body are entirely independent of us; they may form their own view of the prosecutor’s case, and may, if their judgment so indicates, place the defendant on his trial.” See, also, the remarks of Judge Randall, in the same case, 2 Ash 256; and 1 Am. Lead. Cases 231.