Com. ex rel. Davis v. Malbon

• Decision Date: 30 November 1953
• Citation: Com. ex rel. Davis v. Malbon, 78 S.E.2d 683, 195 Va. 368 (1953)
• Parties: COMMONWEALTH OF VIRGINIA, AT RELATION OF J. E. C. DAVIS, AND OTHERS v. C. ROGER MALBON, SHERIFF OF PRINCESS ANNE COUNTY
• Court: Virginia Supreme Court

Page 683

78 S.E.2d 683

195 Va. 368

COMMONWEALTH OF VIRGINIA, AT RELATION OF J. E. C. DAVIS, AND OTHERS v. C. ROGER MALBON, SHERIFF OF PRINCESS ANNE COUNTY.

Supreme Court of Appeals of Virginia

November 30, 1953.

James G. Martin & Sons, M. Earl Woodhouse and Robert Lee Simpson, for the plaintiff in error.

William L. Parker and Richard B. Kellam, for the defendant in error.

Present, Hudgins, C.J., and Spratley, Buchanan, Miller, Smith and Whittle, JJ.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

J. E. C. Davis, and thirteen other citizens of Princess Anne county, filed a complaint, under Code sec. 15-501, in which it was alleged that, 'C. Roger Malbon is Sheriff of Princess Anne county, Virginia, and during his present term of office as such Sheriff he has been and is guilty of malfeasance, misfeasance, incompetency and gross neglect of official duty in his office as said Sheriff, and has knowingly and wilfully neglected to perform duties enjoined upon such Sheriff by law of this State, and should be removed from said office on the following grounds and for the following reasons, occurring during his present term of office as said Sheriff, to wit:

'1. He has permitted and allowed open and notorious gambling and sale of intoxicating liquor contrary to law and gambling and sale of intoxicating liquor which could have been easily prevented by him had he performed his duties during the months of July and August, 1952, at the following places in said county.'

The complaint then enumerated twelve designated places in Virginia Beach and in Princess Anne county. The prayer of the complaint was 'that said C. Roger Malbon be removed from said office pursuant to law.'

On this complaint a rule was issued requiring the sheriff to show cause, if any he could, why he should not be removed from office. The case was docketed under the style of the Commonwealth of Virginia at relation of J. E. C. Davis and others, vs. C. Roger Malbon, Sheriff, defendant. A judgment was entered on the verdict finding defendant not guilty. From that judgment this writ of error was allowed.

The resident judge, Honorable Floyd E. Kellam, disqualified himself from presiding and thereupon Honorable R. Watson Sadler, judge of the Corporation Court of the city of Charlottesville, was designated to preside at the trial. Paul W. Ackiss, Attorney for the Commonwealth of Princess Anne county disqualified himself from prosecuting and thereupon M. Earl Woodhouse was appointed to represent the Commonwealth.

There is no substantial conflict in the testimony though there is sharp difference of opinion as to the inferences that may be drawn therefrom. The Commonwealth introduced twenty-seven witnesses, each of whom testified that on several occasions in July and August, 1952, he or she visited one or more of the twelve establishments named in the complaint and observed flagrant violations of the gambling laws and the illegal sale of intoxicants. Some of the witnesses participated in the gambling games and some bought and drank intoxicants by the glass. None of the witnesses had any trouble getting into the different establishments or in drinking and gambling therein. Indeed, several of the witnesses said they saw a number of people, variously estimated at ten to fifty persons, in various rooms participating in, or observing others playing roulette, dice, bingo, skillo or fortune.

Many of the establishments named in the complaint are within the corporate limits of Virginia Beach, a city of the second class. Others are outside the city in the county of Princess Anne. However, under the statute, Code sec. 15-94, Virginia Beach must be considered, for the purpose of this case, as a part of the county and within the jurisdiction of the sheriff of the county.

Virginia Beach has a normal population of approximately 5,500, but during the summer months this population is increased by fifty to one hundred thousand visitors. It has a city manager under whose supervision there is a police department with a chief of police and nineteen police officers who work on eight hour shifts, twenty-four hours a day.

The population of Princess Anne county is between fifty and sixty thousand. The board of supervisors employs an executive secretary and has created a police department with a chief of police and twelve full time employees, all of whom are appointed upon request and recommendation of the board. Each is subject to removal for cause. 'All police officers appointed under this act, including the chief of the department shall be conservators of the peace in the county, and shall be charged with the enforcement throughout the confines of the county of all criminal laws of the State and all local ordinances. ' Chapter 21, Acts of 1944, Code sec. 15-574.

The sheriff is an officer of the court subject to its orders and directions. He is also a conservator of the peace and charged with the enforcement of all criminal laws within his jurisdiction. It is his duty, as well as the duty of the other police officers of the county and city, to investigate all violations of law and to serve criminal warrants.

C. Roger Malbon, as sheriff, employs eight deputies, four of whom are jailers and radio dispatchers; another is investigator for the Attorney for the Commonwealth. He and his deputies are charged with serving all civil processes for the circuit and trial justice courts. Ninety-five percent of his time and his deputies' time is consumed in attending court, executing orders of the court and serving civil process. While he and his deputies cooperate with the police officers of the county and city, he has no supervision or control over their activities.

The creation of two separate and distinct police departments in his county, one in Virginia Beach and the other in the county, does not relieve the sheriff of his duty to enforce the criminal laws of the State within his county. However, in the absence of evidence to the contrary, he has a right to assume that the regular police officers of the police departments are performing their duties in enforcing the criminal laws. 80 C.J.S., Sheriffs and Constables, sec. 42(c) p. 213. On the other hand, if he knows that any such officer is deliberately ignoring or permitting violations of law, it is his duty to take proper steps to prevent and suppress such violations and prosecute the violators.

There are five military establishments in Princess Anne county with a military population exceeding twenty thousand. Each of these establishments has its own military police.

The sheriff testified, and his testimony is not contradicted, that he actively cooperated not only with the local police officers but with the military police, with inspectors of the Alcoholic Beverage Control Board, and with the State police in efforts to enforce the criminal laws within his jurisdiction. Numerous arrests had been made both in the city and in the county, but it was difficult to get convictions of illegal sales of intoxicants unless definite proof of a consummated sale was obtained. Neither he nor the other officers received any cooperation or help from the parties who frequented gambling places and nip joints. These establishments usually maintained 'spotters' on the outside who warned the operators of the approach of policemen, so that frequently when the police entered, the whiskey had been destroyed and gambling paraphernalia had been removed or hidden.

The sheriff further testified that in his efforts to obtain evidence against the violators of the criminal laws, numerous search warrants had been issued but even then some delay had been encountered in gaining entrance to the different establishments; and that in order to reduce such delays to a minimum, the board of supervisors, at his request, had adopted an ordinance prohibiting the various clubs and establishments from the use of locked doors. Notwithstanding this fact, many of the establishments maintained 'spotters' who gave warning of an officer's approach so that it was still difficult to obtain sufficient evidence to secure convictions.

J. E. Moore, chief of police of Princess Anne county, testified he had sometime employed undercover men to investigate violations of law in the various nip joints in the county, but it was difficult even then to get sufficient evidence to make arrests or obtain convictions, since the 'spotters' soon learned the identity of the undercover men and gave warning of an officer's approach or presence in the vicinity. He said, 'It is quite a problem to police those places. If you concentrate on one place it will close for a while and maybe open under different management or maybe move, and then you have trouble to locate them again. ' This officer said that from June 19th to August 20th, his force investigated in the county 1,424 complaints, made 424 arrests and issued 158 summons for violations of law.

Reeves E. Johnson, chief of police of Virginia Beach, testified that in July and August, 1952, his department in Virginia Beach investigated 1,556 complaints and made 926 arrests. Most of the arrests were for violation of the traffic laws and other laws of the Commonwealth. Between forty and fifty arrests were made for violation of the gambling laws and twenty-two were for illegal sale of intoxicants.

J. Wilcox Dunn was the only one of the twenty-seven witnesses who testified that he gave the sheriff any information about violations of the law known to have occurred at any of the establishments named. This witness said he informed defendant that a friend of his had lost a considerable sum of money gambling at Piney Point. He stated that his language to the sheriff was: 'Frankly, it had to do with two $500.00 checks and three $200.00 chips which had not been collected. The checks were paid out, but whether they were cashed or not, I could not tell you. The party came from Richmond down to Piney Point on Saturday night of...