Bryant v. Com., 4533
| Decision Date | 18 June 1956 |
| Docket Number | No. 4533,4533 |
| Citation | 198 Va. 148,93 S.E.2d 130 |
| Court | Virginia Supreme Court |
| Parties | RICHARD CARR BRYANT v. COMMONWEALTH OF VIRGINIA. Record |
Hudson Branham and Daniel F. Terry, for the plaintiff in error.
Thomas M. Miller, Assistant Attorney General, (J. Lindsay Almond, Jr., Attorney General, on brief), for the Commonwealth.
The appellant, Richard Carr Bryant, complains of an order of the trial court adjudging him guilty of contempt, and imposing on him a sentence of twelve months in jail.
It is stipulated by the appellant and the Commonwealth that the incidents leading to the judgment complained of are these:
On September 20, 1954, appellant's wife, Rose Marie Bryant, upon her plea of guilty, was convicted, in the Circuit Court of Hanover County, of housebreaking. The court, before fixing punishment or imposing sentence, directed its probation officer to thoroughly investigate and report upon any and all facts relating to the case.
On November 16, 1954, the probation officer presented his written report to the court in open session, in the presence of Mrs. Bryant. The court, taking into consideration the evidence in the case, the report of the probation officer, and the request of the appellant that Mrs. Bryant be placed on probation, suspended the imposition of sentence and placed her in charge of a probation officer for a period of twenty years from that date. Relying upon the promise of the appellant to use his best efforts to have Mrs. Bryant obey the terms of her probation, the court verbally ordered and directed the appellant to assist in the probation of his wife.
On April 21, 1955, the trial court issued a rule against appellant to show cause why he should not be held in contempt of court for 'failing to assist' his wife in obeying the terms of her probation. On the same day a capias was issued against Mrs. Bryant to show cause why she should not be held in contempt for violation of the terms of probation. Both proceedings were heard together on May 16, 1955, at which time the following testimony was presented:
Mrs. Bryant testified that her husband had not supported her since November 16, 1954, and had bought her only one dress during that period, which he destroyed one night after an argument; that she and the probation officer had learned that he was running around with another woman; and that on one occasion they had seen a woman sitting on the bed in a room occupied by him, and did not see him, but because they were denied admittance, they 'believed' that Bryant was hiding on the premises; that he would stay away nights, and often she did not know where he was; that Bryant 'had suggested to her that he would procure men for her for prostitution purposes, as he knew a lot of sailors and would get sailors or soldiers for the purpose, charging each $5.00 or $10.00;' and that her husband had told her he was tired of supporting her and 'had made the prostitution suggestion as a means for her to support herself.'
W. R. Thayer, II, Probation Officer, testified that Mrs. Bryant had told him that her husband had 'suggested' that he procure men for her for prostitution purposes. He further said that appellant had reported to him on several occasions the absence of his wife from their home, and that Mrs. Bryant had admitted to him that she had committed adultery with one, Thurman Williams. Thurman Williams had also been convicted on September 20, 1954, along with Mrs. Bryant for housebreaking, in the Circuit Court of Hanover County. On November 16, 1954, he was also placed on probation to 'stay away from and have no conversation or correspondence with' Mrs. Bryant. On the day of the hearing, May 16, 1955, he was sentenced to five years in the penitentiary after he had been found guilty of violating the terms of his probation. Bryant, in answer to a question from the court, admitted that he made the statement with reference to prostitution, as alleged by his wife; but explained that he 'did not mean it the way it sounded,' and that it was made in anger because his wife had been absent for several days.
After hearing the evidence, the trial court entered an order adjudging the appellant guilty of contempt 'in interfering with the probation of his wife,' and imposed on him a sentence of twelve months in jail. At the same time, the court ordered that Mrs. Bryant 'continue on probation under the terms and conditions of the order of November 16, 1954.'
It was further stipulated that appellant was not represented by counsel on May 16, 1955, and that the trial court refused the motion to set aside and vacate the judgment of contempt against him, stating that appellant was not guilty of contempt because he failed to supervise the probation of Rose Marie Bryant; but because he had suggested that his wife commit prostitution, and 'that under Sub-section 5 Section 18-255, Code of Virginia, 1950, this was contempt of Court since adultery was a crime in Virginia and that defendant's act interfered with the probation of Rose Marie Bryant.'
Appellant contends that his conviction for contempt is void because the trial court was without authority or jurisdiction to order him to assist in the probation of his wife, and that, moreover, the judgment is contrary to the law and the evidence, and without any evidence to support it.
The Commonwealth, on the other hand, argues that the trial court had ample authority to order the defendant to assist in the probation of his wife, and that his suggestion that she engage in prostitution was such a personal interference with the order of the court as to render him liable for contempt.
In this State the power to suspend the imposition or execution of sentences and the appointment and duties of probation officers are regulated by statute. Code, 1950, §§ 53-266 to 53-280. Code § 53-266 provides for the appointment of probation officers; § 53-272 for the suspension of the execution or the imposition of sentences and for the probation of a defendant under the supervision of a probation officer; § 53-275 for the revocation of such suspension and probation; and §§ 53-278 and 53-278.1 for the duties and powers of probation officers. No provision is made for probation of a defendant under the supervision of any person except a probation officer.
It is clear that the court was without power or jurisdiction to order appellant to supervise and assist in the probation of his wife. The order transcended its authority. The only authority it had to place Mrs. Bryant under the supervision of any person is conferred by the Code sections above referred to. The...
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