
    AUERBACH v. FREEMAN.
    False Arrest; Malicious Prosecution.
    1. An action for false arrest and imprisonment is one of trespass, and can be maintained only when the arrest is made without legal process; while the action for malicious prosecution is one of trespass on the case, and is maintainable when the process of the law has been perverted and improperly used without probable cause and for a malicious purpose.
    2. An action for malicious prosecution is not maintainable when the plaintiff was arrested for petit larceny, but without a warrant having been issued, although the defendant threatened prosecution after the arrest; as in such an action the plaintiff must allege and prove a discharge and termination of the criminal proceeding, so that when no criminal proceeding has been legally instituted by an arrest on warrant there has been no prosecution, criminally or otherwise. (Citing Simmons v. Sullivan, 42 App. D. C. 523.)
    No. 2721.
    Submitted January 6, 1915.
    Decided February 1, 1915.
    Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action for malicious prosecution.
    
      Reversed.
    
    
      The Court in the opinion stated the facts as follows:
    Appeal by tlie defendant, Joseph Auerbach from a judgment in the supreme court of the District in an action for malicious prosecution. The first of the two counts of the declaration alleges that the defendant caused the arrest and prosecution of the plaintiff, William II. Freeman, upon the charge of stealing fourteen raincoats, one Panama hat, one suitcase, and four neckties. In the second count it is alleged that the defendant procured tlie arrest and prosecution of the plaintiff upon the charge of stealing a necktie of the value of 35-|- cents. .11 is, of course, further alleged in these? counts that the prosecution terminated favorably to the plaintiff, and that he was discharged.
    ■ According to the evidence for the plaintiff lie was employed as janitor in the Warder .Building in this city, where the defendant had a room, to which plaintiff had access. Early in April, 1913, the defendant complained to officer O’Dea of the detective force that someone had been stealing goods from his room. The next morning, April 3d, O’Dea and officer Evans (‘ailed on the defendant, who said he had just found a necktie belonging to him in plaintiff’s room. O’Dea testified that they then saw the assistant United States attorney in charge of prosecutions in the police court, who said that if they' found a necktie in plaintiff’s possession which the defendant claimed to be his, a charge of larceny would be filed against the plaintiff. Thereupon they went to plaintiff’s room, and there found the necktie claimed by the defendant, buf which the plaintiff said he had found on the waste basket in defendant’s room, and therefore supposed the defendant intended it as a gift for cleaning his ink well. The detective then, without any warrant having been issued, took plaintiff to the municipal building to talk with a police official, and from there he was taken to the police station. The book of arrests at police headquarters contains an entry that Freeman was arrested April 3, 1913, on a charge of petit larceny' of a necktie, and that “the charge had been nolle pressed’.’ After he was taken to the police station plaintiff communicated with his employer, who became .surety for his appearance when wanted, but no bond appears to have been executed. The next morning the plaintiff, with his attorney, appeared in the police court, and the matter was continued until April 9th. ITe again appeared on the latter date, when “the case was ended.” The assistant United States attorney testified “that there was no record of the Freeman ease in the police court because no papers were ever filed/’ that the defendant “said that he had no charge to make; that he did not.- care to swear to any papers, and that left witness without any case and without any record. There was no warrant in the case; ” that the charge discussed with the detectives related to the larceny of a necktie; that there was also some discussion about raincoats, but that the defendant did not care to press any charge. The plaintiff’s evidence further tended to show that, after his arrest on April 3d for the larceny of the tie, the defendant devoted some time to locating the raincoats, and that when he learned they had not been stolen he requested that nothing further be done “in the case.” In other words, the defendant, until he was satisfied the plaintiff was not guilty of the larceny of the raincoats, was unwilling to ask the abandonment of the charge upon which he had been arrested. It is unnecessary to review the evidence for the defendant. At the close of all the evidence, counsel for the defendant asked for an instructed verdict upon each of the counts of the declaration, which request was overruled.
    
      Mr. John Ridout for the appellant.
    
      Mr. Edward L. Gies for the appellee.
   Mr. Justice Robb

delivered the opinion of the Court:

The question with which we are confronted is whether there was any basis for this action. According to Bouvier, malicious prosecution or malicious arrest import a wanton prosecution or arrest, made without cause, “by a regular process and proceeding. which the facts did not warrant, as appears by the result.” There is a difference between a false imprisonment, which means an imprisonment made without any process whatever, or under color of process wholly illegal. Newell on Malicious Prosecution, p. 8; says: “The terms ‘malicious prosecution’ or ‘malicious arrest’ always in law suppose regular process and proceedings, but that the facts did not warrant their issuing, and which is to be decided by the result.” In Hicks v. Brantley, 102 Ga. 264, 29 S. E. 459, malicious prosecution was defined as a judicial proceeding instituted by one person against another, from wrongful or improper motives, and without probable cause to sustain it. In Burt v. Smith, 181 N. Y. 1, 73 N. E. 495, 2 Ann. Cas. 576, it was defined as a “prosecution begun in malice, without probable cause to believe that it can succeed, and which finally ends in failure.” In Lewin v. Uzuber, 65 Md. 341, 4 Atl. 285, an action for malicious prosecution, a magistrate, at the instigation of the defendant, issued a paper upon which the plaintiff was arrested, and which the court of appeals was unable to recognize “as a warrant or writ,” holding its illegality to be so apparent upon its face that it afforded one making the arrest no protection. “That being so,” said the court, “it follows very clearly, we think, that the plaintiff cannot maintain this action. The distinction between an arrest by an officer under a warrant legally issued and coming to his hands in a lawful manner, and one made without wavrant, or Tinder process from a court having no authority to issue it, is clearly drawn. * * * Hence the distinction at common law between the action for false imprisonment and that for malicious prosecution. The former is a suit for trespass, and the latter an action on the case. ’The first can be maintained only when the arrest is made without legal process; and the latter, when the process of the law has been perverted and improperly used without probable cause and for a malicious purpose.”

In the present case, according to the evidence for the plaintiff, the arrest was for a petit larceny and without a warrant having been issued. In other words, under the facts stated, it was entirely without legal justification. No complaint was ever filed against the plaintiff, and there are no papers on file in the police court relating to the matter. IIow, then, can it possibly be contended that there has been a prosecution of the plaintiff ? He has been arrested, it is true, and threatened with prosecution, but that is not enough to form the basis of this action. The machinery of the law must be set in motion in the regular way, or no prosecution has been instituted. In Simmons v. Sullivan, present term [42 App. D. C. 523], it was ruled that in an action for malicious prosecution it is incumbent upon the plaintiff to allege and prove “a discharge and termination of the criminal proceeding.” Here no criminal proceeding was instituted, and therefore there has been no prosecution, malicious or otherwise.

Judgment reversed, with costs- Be versed.  