Barbee v. Murphy

• Decision Date: 19 January 1928
• Parties: BARBEE v. MURPHY, ETC.
• Court: Virginia Supreme Court

Page 406

149 Va. 406

BARBEE v. MURPHY, ETC.

Supreme Court of Virginia, Richmond.

January 19, 1928.

Absent, Burks, J.

1. APPEAL AND ERROR — Proceeding to Remove Sheriff from Office — Conviction Under One Specification of Charges Equivalent to Acquittal Under the Other Specification. — The rule against a sheriff in a proceeding for his removal contained two specifications: The first specification charged the sheriff with appearing in a public place in a state of intoxication; the second specification charged the sheriff with unlawfully, wilfully, and tacitly neglecting and refusing to enforce the prohibition law. The jury found the sheriff "guilty of the second specification."

Held: That a conviction under the second specification only was an acquittal of the charge of being intoxicated in a public place. And this being true, the defendant was not prejudiced by any ruling of the court touching the introduction of testimony tending to prove that the sheriff was guilty of being intoxicated in a public place.

2. APPEAL AND ERROR — Suspension of Judgment on Appeal — Discretion of Trial Court. — Code of 1919, section 6338, requires that, at the instance of any person desiring to present a petition to the Supreme Court of Appeals for an appeal or writ of error, the trial court shall suspend the execution of its judgment, decree or order for a reasonable time, which shall be stated in the order. The statute leaves it to the sound judicial discretion of the trial court, or judge thereof, to determine what is a "reasonable time" under the circumstances surrounding the particular case, and the Supreme Court of Appeals will not reverse the action of the trial court unless that discretion has been abused to the prejudice of the petitioner.

3. APPEAL AND ERROR — Suspension of Judgment on Appeal — Discretion of Trial Court — Case at Bar. — In the instant case, an appeal from a judgment removing a sheriff from office, a suspension of the execution of the judgment was granted for thirty days by the trial court. While the thirty days suspension seemed to be rather short, it did not appear that the rights of the sheriff were in any way prejudiced by lack of time in which to secure the necessary copies of the record and present to one of the judges of the Supreme Court of Appeals his petition for a writ of error. Therefore, an assignment of error to the action of the trial court in allowing defendant only thirty days suspension of the judgment was without merit.

4. SHERIFFS AND CONSTABLES — Removal of Sheriff — Petition for Removal Failing to Allege that the Offenses Charged Occurred During the Sheriff's Present Term of Office. — In the instant case, a proceeding to remove a sheriff from office, the petition for removal nowhere alleged that at the time of the grievances complained of defendant was sheriff of the county.

Held: That as it should have alleged that the grievances occurred during his present term of office as sheriff, the petition was demurrable.

5. SHERIFFS AND CONSTABLES — Removal of Sheriff — Petition for Removal Failing to Allege that the Offenses Charged Occurred During the Sheriff's Present Term of Office — Harmless Error. — When in a proceeding for removal of a sheriff the petition for his removal failed to state that the offenses charged against the sheriff occurred during his present term of office as sheriff, the error is cured where the court permitted the filing of the "Specifications of Amended Rule" in which the grounds of removal were limited to two charges, which were stated therein with reasonable accuracy and detail.

6. APPEAL AND ERROR — Amendments — Party not Injured by the Amendments. — Case at Bar. — In the instant case, a proceeding for the removal of a sheriff, defendant objected to the filing of amendments to the rule after the Commonwealth had completed its evidence in chief and some testimony had been introduced by the defendant. The defendant was not taken by surprise and did not ask for a continuance when the amendments were filed and failed to show how his rights were prejudiced. He was in fact benefited by having the inquiry limited to two charges.

Held: That defendant had no right to complain as he could not show that his rights were violated.

7. AMENDMENTS — Policy of the Law. — It is the policy of the law in this State, in order to attain the ends of justice, to allow amendments to pleadings at any time before final judgment, upon such terms as may be necessary to protect the rights of the parties.

8. SHERIFFS AND CONSTABLES — Proceeding to Remove Sheriff — Charge that Sheriff "Wilfully, Tacitly, Neglected" to Enforce the Prohibition Law — Surplusage — Case at Bar. — In a proceeding against a sheriff for his removal from office it was charged that the sheriff "wilfully, tactily, neglected" to enforce the prohibition law. Defendant objected that this specification charged the sheriff with a "vague dereliction of duty not covered by the statute," because it contained the word "tacitly." The statute (section 2705 of the Code of 1919) provides that any officer who shall knowingly or wilfully neglect to perform any duty enjoined upon such officer by any law of this State may be removed from office.

Held: That the word "tacitly" did not enlarge the scope of the offense charged. It simply described the manner in which the sheriff neglected and refused to enforce the law, and might be treated as surplusage.

9. SHERIFFS AND CONSTABLES — Removal of Sheriff from Office — Failure to Enforce the Prohibition Law — Evidence Held Sufficient to Support Verdict of Guilty Against Sheriff. — The instant case was a proceeding for the removal of a sheriff under section 2705 of the Code of 1919, for nonfeasance in failing to enforce the prohibition law. From the evidence the jury were well warranted in believing that the sheriff knew the prohibition law was being outrageously violated in his county; that he admitted that he was exceedingly inactive in its enforcement; and that he did not claim to have made any effort to enforce it.

Held: That the evidence warranted a verdict of guilty.

10. INTOXICATING LIQUORS — Sheriffs and Constables — Duty of Sheriff under Section 46 of the Prohibition Law. — Under section 46 of the prohibition law (Code of 1924, section 4675(46)) it is the duty of a sheriff to enforce the law. This duty is not discharged by simply executing warrants which are placed in his hands. He must not shut his eyes, or close his ears, to what he might see and hear. He must be active and vigilant, and pursue those who he has cause to believe are violating the law, and, if guilty, use all proper efforts to secure their conviction.

11. APPEAL AND ERROR — Error in Giving or Refusing Instructions, or in the Admission of Evidence, where no other Verdict could have been Found by the Jury. — Where under the evidence properly admitted no other verdict could have been found by the jury than that found against defendant, defendant was not prejudiced by the action of the court in giving or refusing instructions, or in the admission of evidence, and the appellate court will not consider assignments of error as to these matters.

Error to a judgment of the Circuit Court of Prince William county, in a proceeding for the removal of the sheriff of the county. To a judgment removing the sheriff from office defendant assigned error.

The opinion states the case.

H. Thornton Davies and Robert A. Hutchison, for the plaintiff in error.

John R. Saunders, Attorney-General, and Leon M. Bazile and Edwin H. Gibson, Assistant Attorneys-General, and Thomas H. Lion, for the defendants in error.

WEST, J., delivered the opinion of the court.

This is a writ of error to a judgment of the Circuit Court of Prince William county, removing Charles A. Barbee from the office of sheriff of the county.

On October 4, 1926, J. J. Murphy, president of the Law Enforcement League, and R. H. Duvall filed a petition of complaint and motion, in writing, in the Circuit Court of Prince William county, under section 2705 of the Virginia Code, asking that Charles A. Barbee be removed from the office of sheriff of Prince William county.

The grounds upon which his removal was asked are as follows:

"1. That the said C. A. Barbee, sheriff aforesaid, has been seen in public places under the influence of ardent spirits on numerous occasions, in this, that during the fall of 1925, at Agnewville, in said county, the said Barbee had to be removed or helped from his machine and remain at the home or upon the premises of G. C. Russell for a sufficient length of time to recover from the effects of said spirits so as to make his way home. That on or about January 16, 1926, the said C. A. Barbee, while attending a sale at French Simpson's, in said county, was highly intoxicated and under the influence of ardent spirits. That on or about the 11th day of September, 1926, the said C. A. Barbee operated an automobile along the public highway while under the influence of ardent spirits in said county, to such an extent that it was unsafe for other users of said highway along that portion thereof between Lowe's corner and the village of Hoadley.

"2. That the said C. A. Barbee had openly and frequently stated that he would not do anything to enforce the prohibition laws of the State unless proper papers were placed in his hands directing that he do so from proper officers, and has otherwise failed and refused to help to enforce said law in the following particulars, to-wit:

"a. That in and around the vicinity in which the said C. A. Barbee resides for several years past illicit distilling and handling of ardent spirits has been openly notorious; that the said C. A. Barbee has failed absolutely to lend assistance or make any effort to curb or stop the illegal traffic in ardent spirits in the said county of Prince William.

"b. That his sympathies and acts have been in favor of, and he has done all possible within his power to mitigate the...