Dodson v. Commonwealth

• Decision Date: 22 April 1946
• Citation: 37 S.E.2d 744,185 Va. 57
• Court: Virginia Supreme Court
• Parties: DODSON et al. v. COMMONWEALTH.

37 S.E.2d 744

185 Va. 57

DODSON et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 22, 1946.

Error to Circuit Court of Campbell County; Chas. E. Burks, Judge.

Aubrey S. Dodson, Jr., and another were convicted of unlawfully operating a public nuisance and they bring error.

Judgments reversed and remanded..

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Basil G. Watkins, of Lynchburg, and L. H. Shrader, of Amherst, for plaintiffs in error.

Abram P. Staples, Atty. Gen., and V. P. Randolph, Jr., Asst. Atty. Gen., for Commonwealth.

HOLT, Justice.

Separate warrants issued against Aubrey S. Dodson, Jr., and Arthur G. Dodson. In them it is charged that they did on the 6th day of April, 1945, unlawfully operate a public nuisance on Rt. 29, known as the Old English Tavern, violating section 55 of A. B.C. Act, Code 1942, § 4675(55).

Their cases came on to be heard by the Trial Justice, who on June 8, 1945, found each of them guilty. They appealed to the Circuit Court of Campbell County; their cases came on to be heard on September 12, 1945. There was there pending against them in some manner not made entirely clear four separate warrants. In addition to the public nuisance charge, each was charged with the possession of illegal whiskey. A jury was impaneled and evidence heard. On motion of the defendants the charges of possessing illegal whiskey were dismissed. On the nuisance charges these verdicts were returned: "We the jurors do find A. S. Dodson, Jr., guilty of operating a house of nuisance as charged in the warrant and fix punishment and fine at $100. Dollars & 60 days in jail. (Signed) W. L. Burton, Foreman", and "Sept. 12, 1945. We the jurors do find Arthur Dodson guilty of operating a house of nuisance as charged in the warrant and fix punishment and fine at $100. Dollars fine & 60 days in jail. (Signed) W. L. Burton, Foreman".

To these judgments the Court adds: "The defendants having indicated their intention to appeal, execution is suspended for thirty days in order to enable the said defendants to apply to the Supreme Court of Appeals of Virginia for a writ of error and supersedeas. It is further ordered that the said term in jail be served on the State Convict Road Force, if said defendants are physically fit for road work; but if not, then on the State Farm for Defective Misdemeanants."

On October 26, 1945, we granted a writ of error and supersedeas.

The Dodsons are brothers. They purchased a building known as the Old English Tavern near Lynchburg in Campbell County on Route 29 and operated a tavern there. Shortly after their purchase, Aubrey S. Dodson, Jr., enlisted in the Navy and served as a commissioned officer until January, 1945.

Aubrey, at that time, had a license to operate a business in this Tavern which authorized him to sell soft drinks and food. During his absence it was in charge of one Norman Mayberry, supervised by the brother, Arthur, who lived nearby.

On April 6, 1945, Aubrey, who had been discharged from the Navy, was at home andwent to Lynchburg to see his mother who was sick in a hospital there, leaving May-berry in charge. It was then that Arthur, who lived in the country, came to the Tavern to inquire by telephone as to his mother's condition.

At this time the Sheriff of Campbell County, who had reason to believe that in the operation of this Tavern the law was being violated, secured the services of one Pete Johnson to secure the necessary evidence. He with his deputies and Johnson, went to the Tavern and sent Johnson in to buy whiskey. For that purpose he gave him a $10 bill and a $5 bill, both marked for identification. This was 10 o'clock at night on April 6th. They stood on the outside to watch. Johnson bought a one-fifth quart of whiskey, price $7, and tendered in payment this $10 marked bill. About this time Arthur came into the Tavern and at May-berry's request gave to Johnson the $3 in change due to him. The $5 which Johnson had he still has unless he has spent it. Aubrey, upon his return from Lynchburg, found the Tavern door locked.

Among errors assigned it is said that the presiding judge appears to have been of the opinion that the defendants were guilty, and in various ways, inadvertently perhaps, in the course of the trial conveyed this impression to the jury.

While the Sheriff, J. L. Miles, was being examined, he said that Johnson told him that he had previously bought whiskey at this Tavern. Objection was made to this and counsel asked that the jury disregard this statement. The Court said: "Oh, yes, the jury will disregard what Pete Johnson told him."

The Tavern register was offered in evidence. Objection was made to its introduction on the ground that a particular offense was charged to have been made on a certain date. The Court said: "Under the statute the time is not limited. If you want to amend the warrant to show how the register was kept from the beginning you can do that". And later said to the jury: "I think the warrant is broad enough to cover and the register may be introduced for the purpose of showing he failed to keep a proper register on that day. Of course you can make such cross examination as you may deem proper as to any of the evidence introduced."

Afterwards the jury was told not to consider this register for the time being.

While Pete Johnson was being examined, this register was again brought into question and the same objection was made to it This then occurred:

"By the Court: All right, gentlemen of the jury, go back in your room. We will be here the balance of the week."

Aubrey was questioned as to his service in the Navy and as to the date of his discharge. This then occurred:

"By the Court: What has that got to do with the case?

"By Mr. Watkins: It has some bearing on the running of the business.

"By the Court: What kind of discharge doesn't make any difference.

"By Mr. Watkins: I want the jury to know the facts of the case.

"By the Court: It has no relevancy at all."

Mayberry testified before the Trial Justice when these cases were first heard. He was questioned as to his evidence then and was...