
    Jonas White versus Heman Ray.
    Where m an action for a malicious prosecution it appeared that the defendant had caused the plaintiff to be twice indicted, and that the attorney of the Commonwealth had entered a nolle prosequi on the second, “ it appearing that the accused has been formerly acquitted of the offence charged against him in this indictment,” it was held, that the defendant might notwithstanding show that the second indictment was for a different offence from the one first charged, and that so there was probable cause for the second accusation.
    There is a material variance between an indictment “ for drawing and depositing in and across a highway a quantity of stones,” and one “ for building a stone-wall in and upon the same highway ; ” and in an action for a malicious prosecution brought against the prosecutor of the last-mentioned indictment, it being proved that the plaintiff was guilty of the offence therein charged, and it not appearing, upon proper averments, that the two indictments were for the same offence, it was held, that the defendant had shown probable cause for the prosecution.
    This was an action for a malicious prosecution in procuring an indictment against the plaintiff for a nuisance, in 1826.
    The supposed nuisance consisted in the plaintiff’s having put bis stone-wall in the highway, in Westminster. It was proved that the plaintiff was indicted in 1817, upon the complaint of the defendant, for having, on the 5th day of April of that year, “ drawn and deposited a quantity of large stones in and across said road,” and that he was tried and acquitted. The indictment of 1826, which was also procured upon the defendant’s complaint, alleged that on the first day of January 1825, the plaintiff “caused to be built a certain stone-wall in and upon a part of the common and public highway and town road aforesaid, to wit, upon two thousand square feet of the said common and public highway,” &c. At the December term 1827 of the Common Pleas a nolle prosequi was entered upon this indictment, “it appearing,” says the attorney of the Commonwealth, “ by a copy of a record filed in the case, and of the affidavit appended thereto, that the defendant has beer formerly acquitted of the offence charged against him in this indictment.”
    It was proved that the wall stands about eighteen inches within and upon the highway ; and that the foundation of it remained in 1826, and ever since, as it was in 1817, having been erected by the defendant previously to the year 1817 ; but the defendant, after he was acquitted in 1817, brought stones into the road and laid them upon the old foundation, and built the wall higher than it was, but did not make it project, further into the road ; and the defendant has repaired it since the year 1817, by laying up the stones which have fallen from time to time.
    The jury were instructed, that these facts did not prove a jjrobable cause for the last prosecution. The instruction was with a view to have the opinion of the jury upon the question of malice, and of damages if they should find malice ; it being considered that the want of probable cause was evidence of malice, but not conclusive evidence ; and the defendant relied upon various facts to disprove malice.
    The jury found a verdict for the plaintiff. But if the whole Court should be of opinion that the facts proved did amount to probable cause for the prosecution of the last indictment, the plaintiff was to become nonsuit.
    Merrick, for the defendant.
    Entering the nolle prosequi does not show a want of probable cause. Commonwealth v, Wheeler, 2 Mass. R. 172 ; 2 Hale’s P. C. 346. Where a nuisance continues, it may be the subject of a new indictment, and an acquittal on an indictment for the same nuisance at a former period, will not be a bar. The King v. Wandsworth, 1 Barn. & Ald. 63; Rex v. Burbon, 5 Maule & Selw. 392; Rex v. Reynell, 6 East, 316; 1 Stark. Ev. 223; 3 Stark. Ev. 672; 1 Chit. Cr. L. 452, 457; 2 Chit. Cr. L. 607, note a; 2 Hale, 241; Rex v. Taylor, 3 Barn. & Cressw. 502; Standish v. Parker, 2 Pick. 20; [2d edit. 22, notes ;] Bac. Abr. Nuisance, D.
    
    
      Kendall, for the plaintiff,
    contended that a person once indicted for a nuisance and acquitted, cannot be indicted lor the continuance of the nuisance ; for it is the same offence. A person stealing goods in one county and carrying them into another, might as well be indicted of larceny in this last county after an acquittal in the first. 4 Bl. Com. 335; 2 Hawk. P. C. c. 35; Rex v. Cohen, 1 Stark. R. 516; Rex v. Mann, 4 Maule & Selw. 337; The King v. Wandsworth, 1 Barn. & Ald. 63; Commonwealth v. Goddard, 13 Mass. R. 455; 1 Starx. Ev. 222, 224.
    
      
      Oct. 3d
    
    
      Oct. 6th.
    
   Parker C. J.

delivered the opinion of the Court. It was proved in this case, that the plaintiff erected and maintained a stone-wall, which lay eighteen inches within the highway, for obstructing which he was indicted by the procurement of the defendant. A nolle prosequi was entered upon the indictment, in 1827, by the county attorney for the Commonwealth, because^ as he says, it appeared that the defendant had been formerly acquitted of the same offence.

The defendant in this action has a right, notwithstanding this entry, to show that there was probable cause for the last prosecution ; and he does it, by showing the existence of the nuisance ; unless the acquittal in the former prosecution is a bai to any subsequent indictment. And it can be no bar certainly, unless the offences in the two prosecutions are identical.

If the former acquittal had been pleaded in bar, it must have been averred, that the obstruction, for which he stood indicted, was one and the same with that of which he had been acquitted. Indeed some of the authorities cited maintain, that a second prosecution may be supported for the very same offence. But this we do not affirm.

Now by recurring to the indictment of 1817, and comparing it with that of 1826, it will appear, that there is a substantial difference between them. The charge in the former is, that the plaintiff drew and deposited in and across the said road a quantity of large stones. In the latter the charge is, that he caused and procured to be erected and built a certain stonewall in and upon a part of the common and public highway aforesaid. There is a material variance between the two ; and he might well have been acquitted of the former, and convicted of the latter offence. It does not appear, nor could it, except by pleading with proper averments, that drawing and depositing large stones in and across the road, was the same act as the building a stone-wall on the road.

It being proved then, that the plaintiff actually built a wall upon the road, there was probable cause for the prosecution ; and therefore the verdict must be set aside and a nonsuit enured.  