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District Court of Appeal, Second District, Division 3, California.


Civ. 12942.

Decided: July 31, 1942

Elbert E. Hensley and John H. Klenke, both of Los Angeles, for appellant. Roy V. Reppy, E. W. Cunningham, and R. E. Woodbury, all of Los Angeles, for respondents.

Plaintiff in this action for malicious prosecution appeals “from the order of court * * * granting defendants' motion for a non–suit, and from the judgment or order of dismissal * * * granting defendants' motion for a non–suit.” The order granting the nonsuit, upon which the “judgment or order of dismissal” was based, was made upon motion of defendants at the conclusion of the opening statement of plaintiff's counsel, before the introduction of any evidence, and, according to its recitals, “on grounds it appears there has not been a final legal determination of the criminal proceedings in favor of defendant prior to commencement of this action.” Because either an order of dismissal or an order of nonsuit, entered upon the minutes of the court, constitutes a final judgment from which an appeal may be taken, and since for all purposes of this appeal both orders amount to the same thing (2 Cal.Jur. 158–159, and cases there cited), references hereinafter in this opinion will be to the judgment only.

By allegations in the complaint admitted by defendants' answer it is established that defendants on or about May 14, 1938, in the Justice's Court of San Gabriel Township, charged the plaintiff with having violated section 499a of the Penal Code in that said plaintiff “being the person in charge and control of the premises located at 513 La Merced Road in the City of Wilmar, * * * did wilfully and knowingly, with intent to injure and defraud Southern California Edison Company, Ltd., a corporation, make or cause to be made a connection with an electric wire and electric appliance operated by the Southern California Edison Company, Ltd., a corporation, * * *; and * * * [with similar knowledge and intent] use or cause to be used such connection in such manner as to supply electric current for heat or light or power to an electric lamp or apparatus or device, by and at which electric current for heat or light or power is consumed * * * without passing through a meter * * *.” It is further alleged and admitted that defendants on those charges and at that time caused the plaintiff to be arrested, imprisoned for 14 hours, and compelled to give bail.

The plaintiff's complaint further avers in substance, and defendants admit, that some five months later, on October 20, 1938, the defendants caused a second or so–called “amended” complaint to be filed in the same justice's court whereby plaintiff was charged with violation of section 499a of the Penal Code and in which the same specific averments contained in the original complaint were repeated and in addition to which it was charged that plaintiff “did knowingly and wilfully and with intent to defraud said Southern California Edison Company, Ltd., a corporation, alter and procure to be injured and altered an electric meter and obstruct its working and procure the same to be tampered with and injured and did use and cause to be used said electric meter and appliance so tampered with and injured.” Whether the so–called “amended” complaint technically constitutes an amended complaint or a new action we need not now determine. Plaintiff's complaint continues with allegations that the “amended” criminal complaint was duly transferred to the Justice's Court of Pasadena Township and that “thereafter between the said 3rd day of November and the 7th day of November, 1938, said case was tried upon its merits, and on the 7th day of November, 1938, after the trial of said cause the said amended complaint was dismissed by the court for insufficiency of the evidence and the plaintiff was acquitted of said crime and his bail exonerated; and said prosecution is wholly and finally ended and determined in favor of this plaintiff.” Defendants admit the transfer of the case to the Justice's Court of Pasadena Township and that it was on trial during the period alleged, but deny that plaintiff was acquitted or that the prosecution was ended or determined in favor of plaintiff. The defendants also deny that any charge was made maliciously or without probable cause.

At the opening of the trial in this action plaintiff made an offer of proof including the following facts: that from the year 1934 to a date subsequent to the filing of the criminal charges against him he had resided at 513 La Merced Road, Wilmar, California; that during all of said time the defendant Southern California Edison Company, Ltd., had serviced the premises with electrical current; that it was an old four–room house the wiring system of which was old and had not been changed since its original installation; that plaintiff had complained to the defendant Edison Company that the electric lights flickered, that the radio sometimes would not work, and that his bills were sometimes too high and were irregular; that in March, 1938, prior to the filing of the criminal charge, the defendant company admitted to plaintiff that it had overcharged him; that on April 4, 1938, representatives of the defendant company came into plaintiff's home and searched it and examined the wiring and found nothing irregular but told plaintiff “that they would not bring any charges against him if he would buy an electric range from the Edison Company”; that subsequently a representative of the defendant company threatened on several occasions to have plaintiff arrested if plaintiff did not pay a sum of money to him; that during the month of April, 1938, plaintiff had his house rewired in compliance with the request of the defendant company and a new meter was installed by the company; that the defendant company endeavored to coerce plaintiff into buying an electric range. On May 14, 1938, a Saturday, plaintiff was arrested in the evening and confined in jail until the following morning; in June, 1938, plaintiff was tried before a jury on the charges filed and was found guilty; on appeal to the Appellate Department of the Superior Court the judgment of conviction was reversed; thereafter the complaint “was dismissed upon motion of the District Attorney for the purpose of filing an amended complaint.” (The substance of such so–called amended complaint is hereinabove set forth.) A change of venue was requested, the case transferred to the Justice's Court of Pasadena Township and after trial on November 3 to 7, 1938, the following proceedings were had:

“Mr. Hensley: If your Honor please, on behalf of the defendant, I want to at this time move to dismiss this complaint and charge on the ground of insufficiency of evidence to establish the charge. (Argument to the Court on motion)

“The Court: Well, I feel that the evidence is insufficient to show that the defendant has committed this crime.

“Mr. Hunt: Well, I never quarrel with the Court when the Court arrives at his decision.

“The Court: Well, the Court feeling in this matter that the evidence is insufficient to show the defendant guilty of this crime, the matter will be dismissed.”

A minute order of dismissal was then entered, the defendant was discharged, and his bail was exonerated.

Upon conclusion of the foregoing summarized opening statement defendants moved for a nonsuit on the following grounds: “1. That there was no final and legal termination of the said criminal cause upon the amended complaint in favor of the plaintiff and therefore, an essential element for an action for malicious prosecution was entirely absent. 2. That there was a conviction on the original complaint which is a complete defense as it conclusively shows probable cause for the criminal prosecution under both the original and the amended complaints.”

Upon each of the two grounds above stated defendants urge that the judgment of nonsuit was properly entered. We conclude that the nonsuit could have been properly granted upon neither of such grounds and that the judgment appealed from must be reversed.

Defendants' chief argument in support of their first ground for nonsuit is that by the terms of section 1118 of the Penal Code, the justice of the peace of Pasadena Township was without power to dismiss the “amended” criminal complaint against plaintiff herein because of insufficiency of the evidence. Section 1118 of the Penal Code provides that “If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice,” and it has been several times stated by our courts that this section does not empower the court to arbitrarily direct the jury to acquit the defendant (People v. Stoll (1904), 143 Cal. 689, 691, 77 P. 818; People v. Roberts (1896), 114 Cal. 67, 68, 45 P. 1016; People v. Daniels (1894), 105 Cal. 262, 266, 38 P. 720). The difficulty with defendants' proposition on this point is that the justice of the peace was not acting under section 1118 of the Penal Code. He did not advise or instruct the jury to acquit the defendant; he dismissed the action. It seems apparent to us that in so dismissing the criminal complaint the justice was acting under the terms of section 1385 of the Penal Code which provides that “The court may, either of its own motion or upon the application of the district attorney, and in furtherance of justice, order an action or indictment to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes.”

Although the above quoted section 1385 does not specifically contemplate a motion by a defendant on the ground of insufficiency of the evidence, or any other ground, practicality suggests that the court in acting on its own motion “in furtherance of justice” must in some way have its attention brought to the facts which impel its action. Whether the trial judge on his own initiative engages in inquiry which brings the facts to his attention and then of his own volition orders a dismissal, or whether the district attorney makes the application, or whether a suggestion is made by the defendant, seems relatively inconsequential. If and when a trial judge determines that the circumstances are in fact such that it will be in furtherance of justice in any particular case for him to assume the grave responsibility to the people of his jurisdiction of ordering a criminal action dismissed it is not only his prerogative but his duty to make such order. It is a discretionary power, the use of which entails consideration of all pertinent facts (see Gossman v. Gossman (1942), 52 Cal.App.2d 184, 126 P.2d 178), but within the limits of judicial discretion the legislature has left it to the trial judge to determine what particular facts constitute reasons warranting the dismissal (People v. Disperati (1909), 11 Cal.App. 469, 476, 105 P. 617; People v. Superior Court (1921), 53 Cal.App. 185, 199 P. 840; People v. Martin (1924), 70 Cal.App. 271, 276, 233 P. 85; Wilson v. Troy (1937), 19 Cal.App.2d 156, 158, 64 P.2d 1141). The legislature in enacting section 1385 and requiring that “The reasons of the dismissal must be set forth in an order entered upon the minutes” certainly did not contemplate that the court in each such case should merely enter the words “in furtherance of justice.” A statement of the reasons, in the opinion of the court, why a dismissal in a particular case would be in furtherance of justice, is rather what was contemplated. It is difficult to conceive of any more appropriate or compelling reason than that the evidence is legally insufficient to warrant a verdict of guilty.

Defendants advance also the argument that where the termination of a criminal prosecution or civil action has been brought about by the procurement of defendant therein an action for malicious prosecution cannot be maintained and cite, among others, the cases of Holliday v. Holliday (1898), 123 Cal. 26, 35, 55 P. 703, and Paskle v. Williams (1931), 214 Cal. 482, 484, 6 P.2d 505.

We are of the opinion, however, that the case of Jaffe v. Stone (1941) 18 Cal.2d 146, 114 P.2d 335, 135 A.L.R. 775, provides a conclusive answer to the above stated contention and also to the defendants' general proposition that there was no final legal termination of the criminal proceedings in favor of plaintiff. In that case the plaintiff (in the malicious prosecution suit) alleged that after being arrested under a complaint charging him with grand theft, a felony, he moved at the preliminary hearing for dismissal of the proceeding on the ground that there was no evidence to prove his guilt, and that the motion was granted and the proceedings dismissed. It was held that such dismissal satisfied the requirement of a final and favorable termination of the proceeding sufficient to support an action for malicious prosecution, the court stating (18 Cal.2d page 150, 114 P.2d page 338, 135 A.L.R. 775):

“If it [the dismissal] is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement. If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination. * * * [18 Cal.2d page 151, 114 P.2d page 338] On the other hand, where the prosecuting officials press the charge before the committing magistrate, the accused does not seek improperly to prevent a fair hearing, and the complaint is dismissed for failure to produce a case against the defendant, there is a favorable termination sufficient to form the basis of a tort action. * * *

“[18 Cal.2d page 152, 114 P.2d page 339] In stating the requirement of termination, courts often say that the proceeding must be ‘finally’ terminated. Such a statement is entirely accurate if the ordinary reasonable meaning of the words is taken. The proceeding must be finally terminated; that is, the particular criminal proceeding commencing, for example, by complaint and arrest, must have passed through some such stage as preliminary hearing and dismissal, or trial and acquittal or abandonment by the prosecuting authorities. When this has occurred, that proceeding is finally terminated. If the termination was such as not to constitute a bar to a new prosecution, the accused may be charged and tried again for the same offense; but this will be a new proceeding, with a new court number, new pleadings, new judge and jury, and a new judgment.

“[18 Cal.2d page 156, 114 P.2d page 341] * * * It is immaterial whether the termination is a bar to any further prosecution for the same offense, or whether the accused may be charged and tried anew. Only if the new proceeding is already instituted can the accused be precluded from suing for malicious prosecution.”

In the case now before us the dismissal was for insufficiency of the evidence to justify a conviction, or, as expressed in the Jaffe case, for “failure to produce a case against the defendant,” the particular criminal proceeding was finally terminated, and the basis of a malicious prosecution action was thereupon established (see also Miller v. Lee (1942), 52 Cal.App.2d 10, 125 P.2d 627).

Defendants' second ground urged in support of the nonsuit––that the conviction on the first criminal complaint, even though reversed on appeal, established probable cause for the prosecution under the “amended” complaint (see Roos v. Harris (1928), 203 Cal. 201, 202, 263 P. 225; Carpenter v. Sibley (1908), 153 Cal. 215, 217, 94 P. 879, 15 L.R.A.,N.S., 1143, 126 Am.St.Rep. 77, 15 Ann.Cas. 484; Holliday v. Holliday (1898), supra, 123 Cal. 26, 32, 55 P. 703; Norton v. John M. C. Marble Co. (1939), 30 Cal.App.2d 451, 454, 86 P.2d 892)––is answered, as pointed out by plaintiff, by an analysis of section 499a of the Penal Code, violation of which was charged by both the original and the “amended” criminal complaints. Four different crimes are there created (all predicated in part on the guilty knowledge and intent therein specified): (1) to “make or cause to be made any connection * * * with any electric wire or electric appliance * * *”; (2) to “use or cause to be used any such connection * * *”; (3) to “injure, alter or procure to be injured or altered any electric meter * * *”; and (4) to “use or cause to be used any electric meter, or appliance so tampered with or injured * * *.” The original criminal complaint charged plaintiff herein with knowingly and with intent to defraud defendant Southern California Edison Company making or causing to be made and using or causing to be used a connection with an electric wire and electric appliance operated by the defendant Southern California Edison Company, Ltd., and on reversing the judgment of conviction under such complaint the Appellate Department of the Superior Court of Los Angeles County rendered the following memorandum opinion: “The defendant is not charged with tampering with or injuring the meter on his premises or with using such meter knowing that the same had been tampered with or injured; he is charged with making, or causing to be made, and using a connection with an electric wire, so that electric current would be consumed ‘without passing through a meter’. The evidence is wholly insufficient to establish that any connection was so made on defendant's premises that Electric current was consumed therein without passing through the meter. The evidence tending to show that some current passed through the meter without registering therein is not at all the equivalent of proof that the current was consumed without passing through the meter. The statute does not declare it to be an offense merely to use electric current which has passed through a meter which is not registering. The judgment is reversed and cause remanded * * * for a new trial.” The “amended” complaint thereafter filed charged plaintiff herein, in addition to the charges set out in the original complaint, with altering and procuring to be injured and altered an electric meter and obstructing its working and procuring it to be tampered with and injured and using and causing to be used said electric meter so tampered with and injured.

Defendants argue that but a single crime is defined by section 499a of the Penal Code, that both the original and the “amended” criminal complaint charged the same crime, that the “amended” complaint made good a defect in the original complaint, and that “the filing of the amended complaint therefore operated not as the beginning of a new prosecution but only as a continuation of the prosecution instituted by the filing of the original complaint.” In support of this view numerous cases are cited to the effect that “when a statute enunciates a series of acts, either of which separately or all together may constitute the offense, all of such acts may be charged in a single count, for the reason that notwithstanding each act may, by itself, constitute the offense, all of them together do no more, and likewise constitute but one and the same offense.” (See 14 Cal.Jur. 61; People v. Frank (1865), 28 Cal. 507, 513; People v. Harrold (1890), 84 Cal. 567, 568, 24 P. 106; People v. Leyshon (1895), 108 Cal. 440, 442, 41 P. 480; People v. Gusti (1896), 113 Cal. 177, 45 P. 263; People v. McClennegen (1925), 195 Cal. 445, 452, 234 P. 91; People v. Horiuchi (1931), 114 Cal.App. 415, 427, 300 P. 457.)

With this general principle of law we are in full accord, but it does not apply where, as here, the statute enunciates several different and distinct offenses, rather than merely a series of acts constituting the offense. The situation here is similar to that in People v. Plath (1913), 166 Cal. 227, 135 P. 954, and to that in Ex parte Roberts (1910), 157 Cal. 472, 108 P. 315, in both of which cases section 337a of the Penal Code, relating to gambling by pool–selling, bookmaking, bets, and wagers, was analyzed by our Supreme Court and found to declare several distinct crimes. It is to be noted that at the time Ex parte Roberts, supra, was decided section 337a comprised but a single sentence, as does section 499a, here in question. Nevertheless, the court there declared, 157 Cal. at page 474, 108 P. at page 315: “Although comprising but a single sentence, section 337a of the Penal Code creates many distinct offenses. It begins by the phrase ‘every person,’ [[[[as does section 499a], and each subsequent clause is connected therewith by appropriate punctuation. It is written in the disjunctive throughout, and the several offenses therein described are apparently as distinct and independent of each other as if they had been enacted in separate sections.” In further clarification of this distinction it should be here pointed out that People v. Frank, supra, People v. Harrold, supra, and People v. Leyshon, supra, all involved construction of the statute defining the crime of forgery (Pen.Code, sec. 470), which statute declares that “Every person who * * * [[[does any one of a series of acts] is guilty of forgery.” Thus it was a statute enunciating a series of acts constituting but one offense which was there analyzed, rather than, as here, a statute defining several distinct offenses. Upon individual scrutiny the other cases advanced by defendants in support of their second ground for nonsuit are found to be equally inapplicable here.

It is to be remembered that this appeal comes to us from a judgment of nonsuit; that in considering it all reasonable inferences permitted by the opening statement must be drawn in favor of plaintiff; and that our ruling herein does not preclude, but rather tends to require, trial on the merits as to whether probable cause did or did not exist for the making of the charges by defendants (Sebastian v. Crowley (1940), 38 Cal.App.2d 194, 203, 101 P.2d 120; Perry v. Washington National Ins. Co. (1936), 14 Cal.App.2d 609, 616, 58 P.2d 701, 59 P.2d 158; Haydel v. Morton (1935), 8 Cal.App.2d 730, 733, 48 P.2d 709).

We conclude that the second (so-called amended) criminal complaint, in addition to reiterating the offense charged in the first complaint after the evidence had been held insufficient to establish it, set forth new and independent charges; that the conviction on the first complaint, under the circumstances shown here, does not alone establish reasonable cause for the filing of the new complaint; that the proceeding on the new complaint was finally terminated in favor of plaintiff, and hence that the facts admitted by the pleadings augmented by those set forth in plaintiff's opening statement, are sufficient prima facie to form the basis of an action for malicious prosecution. The orders and the judgment appealed from are reversed.

SCHAUER, Presiding Judge.

SHINN and PARKER WOOD, JJ., concur.