Swartz v. Bortree

Citations

• 253 Pa. 304
• 98 A. 597
• 1916 Pa. LEXIS 828

Syllabus

<p>Trespass — Malicious prosecution — Evidence—Burden of proof— Advice of counsel — Nolle pros — Probable cause — Case for jury.</p> <p>1. Where, in an action for malicious prosecution, it appears that an indictment found against plaintiff in the criminal proceedings complained of has been nolle prossed, the burden of proof is still upon plaintiff to prove want of probable cause; where, however, there has been a verdict of acquittal, the burden of proof is shifted and it is then incumbent upon defendant to prove that there was probable cause.</p> <p>2. It is not error, in such action, for the trial judge to permit plaintiff to prove that indictments against him had been nolle prossed, where the court ruled, on the burden of proof, as above, and there was sufficient evidence to justify the conclusion that the nolle prossed indictments had been dropped at' the instance of defendant.</p> <p>3. Where in such case it appeared that plaintiff had been in the employ of a partnership as cashier; that plaintiff under his arrangement with defendant, one of the partners, had the right to take merchandise from the shop charging himself with it, and also to take cash from the money bag on account of his salary, that other persons had access to the bag and that cash therefrom was occasionally given to plaintiff’s employer without any record being made of the transaction; that defendant having discovered a supposed shortage in plaintiff’s cash account and that certain customers had received goods through plaintiff of which no record was kept, had caused plaintiff’s arrest and prosecution for larceny and embezzlement, that certain indictments found against plaintiff were nolle prossed at the instance of defendant and that on other indictments plaintiff was acquitted, and there was evidence that at the time of the institution of the prosecution defendant 'had not made full disclosure of all the facts to his counsel and to the district attorney, a verdict for plaintiff will not be dis