Moyle v. Drake , 141 Mass. 238 ( 1886 )

Field, J.

The defendant made a complaint before a trial justice against the plaintiff, under the Pub. Sts. c. 203, § 94, on which the plaintiff was arrested, and, after an examination by the trial justice, was discharged. This section of the Public Statutes is a reenactment of the Gen. Sts. c. 161, § 81, as amended by the St. of 1868, c. 321, § 1. By § 2 of the latter statute, jurisdiction to punish this offence was given to trial justices concurrently with the Superior Court, “ when the value of the property cut, .... or the injury occasioned by the trespass, is not alleged to exceed the sum of one hundred dollars.” It seems that, by the Pub. Sts. a. 155, § 51, this grant of jurisdiction to trial justices over offences under this section of the statutes was omitted, and that, since the Public Statutes took effect, they have jurisdiction only to commit or bind over for trial in the Superior Court those who, on complaint, appear to be guilty of offences under this section. But this change in the law is immaterial. A discharge by the trial justice is an end of the prosecution, and the prosecution was before a court having some jurisdiction over the offence. Sayles v. Briggs, 4 Met. 421, 426. Cardival v. Smith, 109 Mass. 158. Driggs v. Burton, 44 Vt. 124. Fay v. O’Neill, 36 N. Y. 11.

There was evidence for the jury that the complaint was prosecuted without probable cause, and with malice.

New trial granted.