                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 92-CA-01236-SCT
LILLIE STEWART
v.
SOUTHEAST FOODS, INC. D/B/A SUNFLOWER FOODS STORES

DATE OF JUDGMENT:                 11/19/92
TRIAL JUDGE:                      HON. GRAY EVANS
COURT FROM WHICH                  WASHINGTON COUNTY CIRCUIT COURT
APPEALED:
ATTORNEYS FOR                     WILLIAM A. LANIGAN III
APPELLANT:
                                  GEORGE F. HOLLOWELL JR.
                                  ERIC CHARLES HAWKINS
ATTORNEY FOR                      BRADFORD L. HENRY
APPELLEE:
NATURE OF THE CASE:  CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND
                     PROPERTY DAMAGE
DISPOSITION:         AFFIRMED - 12/5/96
MOTION FOR REHEARING 12/19/96
FILED:
MANDATE ISSUED:      3/20/97




     BEFORE PRATHER, P.J., SMITH AND MILLS, JJ.


     PRATHER, PRESIDING JUSTICE, FOR THE COURT:


                                 I. STATEMENT OF THE CASE

¶1. On August 24, 1991, Lillie Stewart ("Stewart") was arrested and charged with assault and battery
by Leroy Wiley ("Wiley"), a store security guard for Southeast Foods, Inc. ("Southeast"). Municipal
Court Judge Earl Solomon, Jr., dismissed all charges against Stewart on September 20, 1991, and
Stewart subsequently filed a suit for malicious prosecution against Southeast in the Circuit Court of
Washington County. On September 4, 1992, Southeast submitted, in support of a summary judgment
motion, an affidavit executed by Judge Solomon in which Solomon stated that he had actually
considered Stewart to be guilty of the crime in question but had dismissed the charges in order to be
lenient. Circuit Judge Gray Evans overruled the objections to the affidavit, and he granted Southeast's
motion for summary judgment based in part upon the affidavit of Judge Solomon. Stewart timely
appealed from said judgment and assigns the following issues:

                                              ISSUES


     I. WHETHER THE CIRCUIT JUDGE WAS IN ERROR WHEN HE GRANTED THE
     DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BASED IN PART ON THE
     AFFIDAVIT OF MUNICIPAL JUDGE SOLOMON.

     II. WHETHER THE ISSUE OF WHETHER WILEY ACTED WITH MALICE IN
     FILING CHARGES AGAINST STEWART SHOULD HAVE BEEN SUBMITTED TO
     THE JURY RATHER THAN BEING RULED UPON BY JUDGE EVANS IN HIS
     SUMMARY JUDGMENT RULING.

                                II. STATEMENT OF THE FACTS

¶2. The present case involves an incident in which Leroy Wiley, an employee of Sunflower Food
Store, detained Lillie Stewart, Appellant herein, and several acquaintances on suspicion of
shoplifting. Wiley led the suspected shoplifters to the back of the store, whereupon Stewart and
Wiley became involved in the physical altercation which gave rise to the present lawsuit. It is the
contention of Stewart that Wiley provoked the altercation by poking Stewart in the chest, while the
appellees claim that Stewart assaulted Wiley without provocation. At any rate, it is undisputed that
Wiley placed Stewart in handcuffs following the altercation and filed charges against Stewart for
assault and battery.

¶3. About a month later, on September 20, 1991, Washington County Municipal Court Judge Earl
Solomon, Jr. tried Stewart on the charges of assault and battery. According to an affidavit executed
several months later, Judge Solomon felt that Stewart was guilty of the crime in question, but he
nevertheless decided to dismiss the charges, given that Stewart had no criminal record and had shown
remorse over her actions.

¶4. On October 30, 1991, Stewart filed suit against Wiley's employer, Southeast, for malicious
prosecution. Following discovery, Circuit Court Judge Evans granted Southeast's motion for
summary judgment, based in part upon the aforementioned affidavit of Judge Solomon. Stewart had
objected to the admission of the affidavit on a number of grounds, including the grounds that a judge
is not allowed to impeach his verdict after the fact, as well as on the grounds that the affidavit
constituted improper hearsay and opinion evidence. In addition, Stewart contends that Judge Evans
was incorrect in ruling that Stewart had presented no evidence that the charges against her were filed
with malice, and that this issue should have been presented to a jury.

     I. WAS THE CIRCUIT COURT IN ERROR WHEN IT GRANTED SOUTHEAST
     FOOD'S MOTION FOR SUMMARY JUDGMENT BASED IN PART UPON THE
     AFFIDAVIT OF JUDGE SOLOMON?

     A. Is the affidavit hearsay ?

¶5. Stewart objects that the affidavit constitutes impermissible hearsay evidence which should have
been excluded on this basis. Clearly, most, if not all, affidavits are hearsay, but they are nevertheless
properly considered on summary judgment motions as long as they are based on personal knowledge
and set forth facts such as would be admissible in evidence.(1) M.R.C.P. 56(e). The hearsay objection
would be valid if there were hearsay statements within the affidavit itself, but the affidavit in question
contains no "out of court statements offered to prove the truth of the matter asserted." The affidavit
merely contains the factual statements of Judge Solomon regarding his true intentions and state of
mind in dismissing the charges against Stewart. Stewart makes a special objection to paragraph four
of the affidavit on grounds of hearsay, but a reading of this paragraph reveals only the observations of
Judge Solomon regarding his dismissal of charges against Stewart. To wit:

     I tried Lillie Stewart on the charge of assault and battery on September 20, 1991 in Municipal
     Court for the city of Greenville, Mississippi. I, sitting as trier of fact, dismissed the charges
     against Lillie Stewart. In my judgment, Lillie Stewart was actually guilty on the charge of
     assault and battery but, I was trying to give her a break by not convicting her due to the fact
     that she was too emotionally involved and I did not want her to have a criminal record as a
     result of this incident.

If an affiant's personal observations and recollections in an affidavit were considered to be
inadmissible, then no affidavits could be used by judges in summary judgment ruling. The hearsay
objection is without merit and was properly overruled by the trial judge.

     B. Whether Judge Earl Solomon should have been allowed to testify to impeach a verdict
     he rendered.

¶6. Stewart asserts that Judge Solomon's affidavit should not have been considered by Judge Evans in
the subsequent civil trial because M.R.E. 606(b), "Competency of Juror as Witness", does not allow a
jury to impeach its verdict. Stewart argues that this rule should be extended to a judge such as
Solomon, where he was serving as the trier of fact in a trial proceeding. Stewart makes note of cases
interpreting Rule 606(b) such as Ratliff v. Nail, 231 So.2d 798 (Miss. 1970) , which do in fact
prohibit a juror from testifying to impeach a verdict which they rendered. Stewart then asserts in her
brief that "clearly Rule 606(b) is not limited to the jury but extends to all triers of fact; judges; juries
and arbiters." This assertion by Stewart is without basis. A reading of Rule 606(b) indicates that the
Rule prohibits a "juror" from testifying during an "inquiry into the validity of a verdict or indictment."

¶7. Had the drafters of the rule wanted to use broader language such as "trier of fact," they could
have easily done so. Furthermore, M.R.E. 605, "Competency of Judge as Witness" merely states that
the "judge presiding at the trial may not testify in that trial (emphasis added) as a witness. No
objection need be made to preserve the point." Rule 605 is the counterpart of Rule 606 applicable to
the competency of judges, and Rule 605 is almost identical to Rule 606(a) in that said provisions
forbid judges and jurors from testifying at the trial in which the judge or jurors are presently serving.
Very conspicuous in its absence, however, is any language in Rule 605 which forbids a judge from
testifying in a subsequent inquiry into the verdict, as is the case with jurors in Rule 606(b). Given the
absence of such a provision, it can be inferred that the drafters of said rule understood that there were
certain extraordinary situations in which a judge may be called upon to explain his verdict or rulings
in a subsequent proceeding.

¶8. In Kitchens v. State, 179 So.2d 13 (Miss. 1965), this Court allowed the testimony of a county
court judge in a subsequent inquiry into a verdict of not guilty which he had entered by rubber-
stamping a discharge of the defendant. The judge testified that he had mistakenly entered the "not
guilty" verdict and that "he entered the rubber stamp order on the record simply to get the case off
his docket." Kitchens, 179 So.2d at 14. This Court allowed the testimony of the judge and affirmed
the conviction of the defendant in question in spite of the Judge's accidental discharge of the
defendant. Id. at 15.

¶9. Thus, there is clearly authority permitting a judge to testify as to the true nature of his verdict.
This Court held in Page v. Wiggins, 595 So.2d 1291 (Miss. 1992) that a municipal judge could not
establish a record of testimony by affidavit, but the statutory prohibition against a municipal court
being a court of record is limited to records of testimony. See: Page, 595 So.2d at 1295; §21-23-7.
Stewart argued before the trial court that the municipal court was not a court of record, and that the
docket transcript with the "dismissal" written on it should serve as the sole record of the case. This
appears to be a valid argument, but it naturally follows that a municipal judge who has statutory
authority to issue a written judgment should have the authority to clarify said judgment when the
meaning of said judgment is subject to dispute. Accordingly, this point of error is without merit.

     C. Whether the affidavit of Greenville, Mississippi Municipal Judge Earl Solomon was
     competent testimony upon which to grant the defendant's summary judgment motion.

¶10. Stewart next contends that the affidavit of Judge Solomon constitutes impermissible opinion
evidence which sets forth a legal conclusion that Stewart is guilty of the crime. Stewart asserts that
the admission into evidence of the affidavit was improper because, in the affidavit, Judge Solomon
merely asserts his opinion that Stewart is guilty of the crime in question rather than providing
information as to the facts of the case. Stewart further asserts that this testimony sets forth an
impermissible legal conclusion regarding the guilt of Stewart.

¶11. Mississippi Rules of Evidence 56(e), dealing with the use of affidavit testimony in summary
judgment motions, provides in part that:

     Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such
     facts as would be admissible into evidence, and shall show affirmatively that the affiant is
     competent to testify to the matter stated therein.

¶12. Stewart notes correctly that Judge Solomon is not competent to testify through an affidavit as to
the events that occurred in the altercation in question between Stewart and Wiley given that he did
not have personal knowledge of said events. However, as the trier of fact in the criminal case, Judge
Solomon clearly had the authority and duty to reach a legal conclusion or opinion as to Stewart's
guilt or innocence. Furthermore, it was a necessary predicate to the wrongful prosecution lawsuit that
Judge Solomon reach a decision or opinion in Stewart's favor such that the criminal proceedings
might properly be considered to have "terminated in Stewart's favor" as defined under applicable
wrongful prosecution authority. Judge Solomon dismissed the charges against Stewart, and, as will
be seen, a dismissal may or may not constitute a favorable termination of criminal proceedings such
as to permit a defendant to maintain a wrongful prosecution cause of action.

¶13. It should be noted that the circuit judge was in error in considering the affidavit with regard to
the issues relating to probable cause, given that the role of the trier of fact in a criminal case relates
solely to the issuance of the criminal verdict. The sole relevancy of Judge Solomon's opinion
regarding the guilt or innocence of the defendant is with regard to the issue of whether the criminal
proceedings terminated in favor of the defendant. It naturally follows, however, that the issue of
whether the dismissal constitutes a termination of the proceedings in favor of the defendant is very
much relevant in the subsequent malicious prosecution proceedings, and it is in this context that the
affidavit could and should have been considered by the circuit court in the subsequent civil trial.

¶14. The relevance of Judge Solomon's affidavit with regard to the issue of whether the proceedings
terminated in favor of Stewart arises from the fact that the law of malicious prosecution generally
does not consider dismissals on grounds of mercy or leniency to constitute terminations of criminal
proceedings entitling a defendant to maintain a malicious prosecution cause of action. If a prosecutor
had dismissed the charges out of leniency or mercy, as Judge Solomon did, then the Restatement
Second of Torts would not consider such a dismissal to have been a favorable termination of the
proceedings entitling Stewart to file a malicious prosecution cause of action. Restatement Second of
Torts § 660 provides that:

     A termination of criminal proceedings in favor of the accused other than by acquittal is not a
     sufficient termination to meet the requirements of a cause of action for malicious prosecution if:

     (a) the charge is withdrawn of the prosecution abandoned pursuant to an agreement or
     compromise with the accused; or

     (b) the charge is withdrawn or the prosecution abandoned because of misconduct on the part of
     the accused or in his behalf for the purpose of preventing a proper trial; or

     (c) the charge is withdrawn or the proceeding abandoned out of mercy requested or accepted
     by the accused. . . . (emphasis added).

¶15. There are apparently no Mississippi cases which have considered the issue of whether a
dismissal by a prosecutor based on considerations of mercy or leniency constitutes a termination in
favor of the accused, but the logic behind the view set forth in the Restatement is obvious. A
dismissal of minor charges based solely on considerations of mercy, in spite of a belief that the
accused is guilty, should not force the private prosecutor to pay the price for a third person's exercise
of leniency.(2)

¶16. The aforementioned Restatement provision is not precisely on point in the present case, given
that Judge Solomon, rather than a prosecutor, dismissed the charges. From the perspective of
Southeast, however, the policy considerations behind said Restatement provision are very much
applicable. The comment to clause (c) provides that:

     A charge is not withdrawn as an act of mercy if the accuser has come to believe that the
     accused is innocent. Mercy implies a belief in the guilt of the accused or at least in the
     possibility that he may be guilty. Hence a nolle prosequi entered under these circumstances is
     not a sufficient termination in favor of the accused. A private prosecutor who initiates a criminal
     prosecution should not be penalized for an act of mercy, much less for a similar act performed
     by a public prosecutor over whose conduct he has no control.
The Restatment comments thus state that "a private prosecutor who initiates a criminal prosecution
should not be penalized for an act of mercy", and the comments emphasize that the logic behind this
statement applies even more when the act of mercy is done by a third party over whom the private
prosecutor has no control. Southeast clearly had "no control" over the fact that Judge Solomon
elected to dismiss the charges against Stewart on grounds of mercy. This Restatement analysis thus
applies equally to a dismissal on grounds of leniency by Judge Solomon, given that the public policy
considerations in the present case as they relate to Southeast are identical.

¶17. With regard to the affidavit, this Court does recognize that it would be preferable that the fact
that a dismissal has been made on grounds of leniency be clearly stated in the record rather than
testified to at a later date. As noted earlier, however, a municipal court is statutorily forbidden to
make a record of testimony, and the docket form on which the record of the dismissal was scribbled
(and which serves as the only record from the criminal case) had no space for a notation regarding
the motivation for any judgment. Under these facts, it would be unrealistic for this Court to expect a
notation regarding the motivation for the dismissal to have been made on the docket form.

¶18. Nevertheless, the policy considerations against forcing Southeast to defend against a suit based
on a dismissal on grounds of leniency should apply equally to a dismissal made in municipal court. It
is arguable that the policy provisions discussed earlier should apply even more forcefully to municipal
court criminal cases, given that said courts generally handle offenses of a much more minor nature
than those in county or circuit courts. The temptation to dismiss charges on grounds of leniency is
clearly much greater in cases involving minor charges, and the inconvenience, pain, and expense of
defending against the type of charges found in municipal court is generally much less than that faced
by defendants in more serious criminal cases. In addition, the proceedings in municipal court are
much less formal than those in county and circuit courts, and the chances of an anomalous result
being reached are arguably greater.

¶19. It is clear that those courts of record which deal with more serious charges should be expected
to produce a much more thorough record of the motivations for any dismissal. Accordingly, this
Court's holding allowing the affidavit to be considered in the present case is limited to the facts of the
present case, and does not apply to dismissals made in courts of record of this State, where a record
of any merciful motivation for a dismissal should be made in the record of the case.

¶20. The fact that the Restatement Second of Torts refers to dismissals on grounds of leniency in the
context of prosecutors illustrates that it is ordinarily the province and prerogative of a prosecutor
rather than a trier of fact in a criminal case to dismiss charges on grounds of leniency in spite of a
belief in the guilt of the accused.(3) Somewhat ironically, it is Stewart herself who argued before the
circuit court that Judge Solomon overstepped his authority as the trier of fact and assumed a role of
prosecutor at her criminal trial. Stewart argued before the circuit court that "if no prosecutor was
present on September 20, 1991, then Judge Solomon performed dual roles, one as judge, the other as
prosecutor. This is a blatant act in defiance of Article I, sections 1 and 2 of the Mississippi
Constitution."

¶21. Stewart's argument begs the question: if Judge Solomon assumed an unconstitutional role during
the trial in question, why should his ruling, whatever it is, be given any effect at all ? It is Judge
Solomon's order of dismissal which gave rise to the present lawsuit, and said dismissal in spite of a
professed belief in Stewart's guilt is the very sort of prosecutorial act which Stewart asserts Judge
Solomon has no authority to perform. It is clear that it is Southeast rather than Stewart who suffered
as a result of Judge Solomon's actions on September 20, 1991, and it is thus Southeast who should
have the greater objection to the dismissal of charges by Judge Solomon.(4)

¶22. The issue of whether or not Judge Solomon had the constitutional and/or statutory authority to
dismiss the charges against Stewart on grounds of leniency or mercy is not cited as a point of error
before this Court, and we make no holding in this regard. This Court does point out the
unconventional nature of the criminal proceedings below, which take the facts of the present case
outside of the typical fact patterns involving dismissals on grounds of mercy by prosecutors.
Southeast should not be punished for the irregular nature of the proceedings below, and if, as Stewart
argued below, Judge Solomon acted unconstitutionally in assuming the role of prosecutor, then his
dismissal should not be permitted to serve as a basis for a subsequent wrongful prosecution lawsuit.
This Court wrote in State v. Turner , 319 So.2d 233, 235 (Miss. 1975) that:

     We would point out that actions for malicious prosecution are regarded by law with jealousy
     and they ought not to be favored but managed with great caution. Their tendency is to
     discourage prosecution for crime as they expose the prosecutor to civil suits, and the love of
     justice may not always be strong enough to induce individuals to commence prosecution when,
     if they fail, they may be subjected to the expenses of litigation even though they are not found
     liable for damages. . . . (A)ll proper guard and protection should be drawn around those who, in
     obedience to the mandates of duty, may be compelled to originate, carry on, aid or assist in a
     criminal prosecution which may from any cause terminate in favor of the accused.

This Court thus stated in Turner that wrongful prosecution actions are disfavored and that "all
proper guard and protection" should be drawn around those who in good faith initiate criminal
proceedings. If these words are to mean anything, then they must be given effect in cases such as the
present one, where the lawsuit in question results only from the leniency of a municipal judge and
where there is no indication that the proceedings were instituted by Southeast for any improper
purpose. Should Southeast be punished for a judicial act of mercy over which it had absolutely no
control ?

                                         III. CONCLUSION

¶23. Stewart should not be permitted to attempt to convert Judge Solomon's leniency into personal
financial gain, nor should Southeast be punished for the fact that the criminal justice system
functioned irregularly in the present case. It would be a miscarriage of justice to allow Stewart to not
only escape judicial punishment for her actions, but to also attempt to gain financially from the filing
of charges against her. This Court concludes that, even assuming that Judge Solomon had the
authority to issue a dismissal on grounds of mercy in the present case, the policy considerations set
forth in the Restatement Second of Torts are such that said dismissal should not and does not
constitute a favorable termination of the criminal proceedings entitling Stewart to bring a malicious
prosecution cause of action.

¶24. This conclusion is based in part upon the fact that the dismissal was made by a third party over
whom Southeast had no control and is not necessarily applicable to cases in which a private
prosecutor initiates charges and later dismisses said charges (as opposed to a public prosecutor
dismissing said charges on his own initiative) on allegedly merciful grounds. The circuit judge
improperly considered Judge Solomon's affidavit with regard to the issues of probable cause and/or
malice, but, in the view of this Court, the affidavit constitutes relevant and admissible evidence with
regard to the issue of whether the Municipal Court criminal proceedings terminated in Stewart's
favor. Having so held, it is unnecessary for this Court to consider whether the circuit judge properly
granted summary judgment on the issue of malice. Accordingly, judgment is affirmed.

¶25. JUDGMENT IS AFFIRMED.

PITTMAN, SMITH AND MILLS, JJ., CONCUR. BANKS, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY LEE, C.J., SULLIVAN, P.J., AND McRAE,
J. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION. ROBERTS, J., NOT
PARTICIPATING.




     BANKS, JUSTICE, DISSENTING:


¶26. I am compelled to dissent because, in my view, the majority, in relying upon the testimony of the
trial judge in the criminal proceedings, gives effect to rank hearsay or opinion in preference to the
official actions of a duly constituted court. The question whether a crime was committed and whether
the accused committed the crime is not one addressed to third party opinion in our jurisprudence but
rather to finders of fact. The majority opts to go with the opinion of a stranger to the litigation. This
is wrong and I shall endeavor to explain why.

                                                     I.

¶27. The majority begins by considering whether the affidavit from the judge was admissible, that is,
whether the judge had admissible testimony. The majority reasons that because our rules prevent
jurors from impeaching their verdict, and not judges from impeaching their judgments, it must follow
that such testimony is admissible. There are two reasons why this is wrong in the present context.

¶28. First, the judge's testimony does not and cannot remove the judgment of acquittal. The fact
remains that Stewart was acquitted, thus terminating the prosecution in her favor. That fact is the
only prerequisite to a malicious prosecution which involves the criminal court. Everything else
involves the defendant. That is, the remaining questions are whether the defendant instituted the
action, whether the defendant had probable cause and whether the defendant acted with malice.
Bankston v. Pass Road Tire Ctr., Inc., 611 So. 2d 998, 1004 (Miss. 1992); Strong v. Nicholson,
580 So. 2d 1288, 1293-94 (Miss. 1991). None of these have to do with whether the plaintiff was
actually guilty. That is a fact which the defendant need not show nor the plaintiff disprove in a
malicious prosecution case. Bankston, 611 So. 2d at 1006-07 (stating that "[t]o determine the
existence of probable cause, courts look to (1) a subjective element--an honest belief in the guilt of
the person accused, and (2) an objective element--reasonable grounds for such beliefs.") (emphasis
added). It follows then that the criminal trial judge's opinion as to the plaintiff's guilt or innocence of
the charge is irrelevant to any issue in controversy.
¶29. The second reason that the testimony is inadmissable on the question of guilt, even if that was at
issue, is that it is in fact opinion testimony which is not based upon personal perception or specialized
knowledge helpful to the trier of fact. By definition, the trial judge was not present during the
altercation. His opinion as to Stewart's actions were, of necessity, formed based upon the testimony
that he heard at the hearing. At best, then, it is a conclusion, based on evidence from which the jury is
perfectly capable of drawing its own conclusion, leaving aside the fact that it is a conclusion which is
not relevant. Affidavits relating relevant facts in support of summary judgment must be based upon
personal knowledge. This affidavit relates no facts and it relates no opinion on facts in issue. To be
sure, if Judge Solomon had relied upon his own opinion and rendered judgment accordingly, we
would not have this litigation. The fact is, however, he did not. When he failed to rely upon his
conclusion in resolving the dispute in his court, his conclusion ceased to have significance.

                                                   II.

¶30. The majority also contends that the policy considerations set forth in the Restatement (Second)
of Torts § 660 (1977) construe the dismissal granted by the lower court based on mercy as
insufficient to support a malicious prosecution cause of action. The first answer to that contention is
that this Court has never adopted this section of the restatement. Even if this section of the
restatement was an acknowledged in our jurisprudence however, it could not be imposed to bar this
action. The language of the restatement section states that a termination will not meet the
requirements of a cause of action for malicious prosecution if ". . .(c) the charge is withdrawn or the
proceeding abandoned out of mercy requested or accepted by the accused . . . ." Restatement
(Second) of Torts § 660(c) (1977) (emphasis added). I find nothing in the record that suggests that
Stewart either requested or accepted mercy or leniency from Judge Solomon. The judge does
indicate that Stewart was remorseful for her participation in the altercation at the store but there is no
evidence that a request for mercy was made by Stewart. Nor is there anything to suggest that Stewart
knowingly accepted mercy from Judge Solomon or even knew that mercy was the basis for granting
the dismissal.

                                                   III.

¶31. The final issue in dispute addresses the question of whether a dismissal, as opposed to a verdict
of not guilty, ordered at the end of the trial court proceeding was sufficient to support a malicious
prosecution cause of action. According to the record in the trial court, there was a trial before Judge
Solomon where evidence was presented after which all charges were dropped against Stewart. Thus,
Stewart was put in jeopardy and there was a disposition on the merits that resulted in a dismissal. The
majority concludes that this dismissal does not constitute a favorable termination of the criminal
proceedings entitling Stewart to bring a malicious prosecution cause of action.

¶32. The fact that a case has been dismissed rather terminated by judgment of acquittal does not
defeat the element of termination in plaintiff's favor. Strong v. Nicholson, 580 So. 2d 1288 (Miss.
1991); Pugh v. Easterling, 367 So. 2d 935 (Miss. 1979). In Strong the plaintiffs were jailed,
booked, fingerprinted, photographed, and brought before a Justice Court Judge for a preliminary
hearing. The charging parties did not appear at the hearing. The court promptly dismissed the
criminal charge of grand larceny. Thereafter, the plaintiffs filed charges for malicious prosecution.
This Court held that the prosecution had terminated in the plaintiffs favor. Strong at 1293. The same
proposition was announced in Graves v. Scott, 51 S.E. 821 (Va. 1905), where Graves was charged
with having procured goods and chattel under false pretenses. A warrant was issued, Graves was
arrested and did appear before the trial court. However, the trial judge dismissed the charges after
Scott refused to offer evidence at trial or even be sworn. Id. at 821. In holding that Graves' dismissal
was a termination is sufficient to support an action for malicious prosecution, the Virginia Supreme
Court cited the following:

     If the examining magistrate finds that there is not sufficient cause to hold the accused to answer,
     and therefore discharges him, that prosecution is thereby ended; and the consideration that
     other prosecutions may be brought against the same person on the same charge, and that the
     grand jury, on its presentation to them, may find an indictment thereon, cannot prevent the
     action of the magistrate from having its effect as a termination of the prosecution before him,
     sufficient to support the civil action. Casebeer v. Drahoble, 14 N.W. 397 (Neb. 1882).

¶33. These rulings reflect the rationale that a favorable termination should not be exclusively defined
as an acquittal. "All that is necessary is that the particular proceeding complained of shall have been
abandoned and the accused discharged . . . ." Brook v. Super Service, Inc., et al., 183 So. 484
(Miss. 1938). "To require a trial of the action on the merits resulting in an acquittal would be to
permit a prosecutor to do all the damage which a malicious prosecution can possibly effect, and then
deny the accused the opportunity to vindicate himself by a trial, by having the proceeding quashed or
dismissed . . . ." 18 R.C.L. Malicious Prosecution § 12 (1929); Bankston v. Pass Road Tire Center,
Inc., 611 So. 2d 998 (Miss. 1992). Therefore, based on the extent of the criminal proceeding to
which Stewart was subjected, the majority's contention that the dismissal granted in the case at bar is
insufficient to sustain a malicious prosecution action is unacceptable. The record clearly indicates that
the trial court dismissed all charges against Stewart, discharged her and terminated the proceedings.
There is nothing relevant to the criminal proceeding to indicate that the dismissal was inconsistent
with a termination in Stewart's favor.

¶34. For the foregoing reasons, no reliance whatever should be placed on the affidavit of Judge
Solomon. The question before the Court is whether there was probable cause to prosecute Stewart.
That question must be determined based upon the civil jury's view of the evidence, not Judge
Solomon's. The Restatement (Second) of Torts § 660(c) (1977) is inapplicable to the case at bar
because Stewart made no request for mercy, and made no willful acceptance of leniency. Therefore, I
respectfully dissent.

LEE, C.J., SULLIVAN, P.J., AND McRAE, J., JOIN THIS OPINION.

     McRAE, JUSTICE, DISSENTING:


¶35. I join Justice Banks' dissent. As the facts have been presented, a trial was held in the municipal
court; a judgment of dismissal later was entered. Since this was a judgment rendered, we should not
give credence to an affidavit explaining why or how the judge arrived at his decision. We do not
allow affidavits of jurors attacking their verdicts. A judge takes an oath to uphold the law, to be fair
and to render his decisions in accordance with the evidence and the law. In effect, this judge has
stated under oath that he violated that oath and the trust placed in him. For these reasons, as well as
those stated by Justice Banks, I dissent from the majority's decision.
1. The affiant must also be competent to testify "in the matter stated therein", and the issue of Judge
Solomon's competency to testify is dealt with later.

2. This Court has reached a holding identical to that in provision Rest. 2d 660 (a), to the effect that a
dismissal reached as a result of a voluntary settlement or compromise does not constitute a
termination in favor of the accused. Jones v. Donald, Co., 102 So. 540, 137 Miss. 602 (Miss. 1925).
This fact illustrates that, as under the Restatement, not all dismissals in this State constitute
terminations in favor of the accused for purposes of malicious prosecution actions.

3. The Restatement provision also supports the admissibility of Judge Solomon's affidavit for the
limited purpose of determining whether or not the criminal proceedings terminated in favor of
Stewart. It would obviously be contradictory to have a rule of law which holds dismissals on grounds
of mercy to not constitute terminations of criminal proceedings in favor of the defendant and yet not
allow the admission of the evidence of the intent of the dismissing party into evidence.

4. In addition to the constitutional issues, it is questionable whether Judge Solomon had statutory
authority to dismiss the charges in question. The provisions of Miss. Code Ann. §21-23-7 (1991)
clearly set forth a number of lenient sentences which a municipal judge may impose in criminal cases,
including fines, public service work, suspended sentences, and probation, among others, but nowhere
in said statute is a municipal judge authorized to dismiss criminal charges on grounds of mercy or
otherwise.
