Malvezzi v. Gully
| Decision Date | 22 January 1940 |
| Docket Number | 33961 |
| Citation | 189 Miss. 20,193 So. 42 |
| Court | Mississippi Supreme Court |
| Parties | MALVEZZI v. GULLY, TAX COLLECTOR |
Suggestion of Error Overruled February 19, 1940.
APPEAL from the chancery court of Coahoma county HON. R. E. JACKSON Chancellor.
Suit in equity by J. B. Gully, State Tax Collector, against A Malvezzi, to recover statutory penalties for unlawful possession and sale of intoxicating liquors at defendant's place of business, attach defendant's property, suppress such place as nuisance, and enjoin operation thereof. Judgment for complainant, and defendant appeals. Affirmed.
Affirmed. Suggestion of error overruled.
F. H Montgomery and Brewer & Sisson, all of Clarksdale, for appellant.
There is no competent evidence connecting Malvezzi with violation of law. There was a failure to connect defendant with the alleged sale of liquor. The proof shows that witness Ross, who was employed by the state tax collector, did purchase a half-pint of Paul Jones at a place called "Cocomo" Grove, a short distance north of Clarksdale on Highway 61; but there is not a scintilla of competent testimony as to who owned or operated Cocomo Grove. Ross purchased the liquor from a "white man." This is too indefinite to remotely identify any particular white man.
It is manifest that the chancellor erred in entering a decree convicting defendant of the unlawful sale of liquor. The testimony fails to raise a respectable suspicion that defendant sold the whiskey to Ross.
The fact testimony offered by complainant is tarnished.
In procuring the alleged sale of a half-pint of Paul Jones and the keeping of the same in his possession from January 11 of some undisclosed year to the time of the trial in April, 1939, witness Ross convicts himself out of his own mouth of a violation of Section 1974, Code of 1930.
The Supreme Court has held more than once that on a trial of a person charged with the maintenance of a public nuisance the general reputation of the house or place of business in question is not competent evidence.
Handy v. State, 63 Miss. 207; State ex rel. Dist. Atty. v. White, 178 Miss. 542, 173 So. 456; State v. Ingram, 179 Miss. 485.
It is submitted here that there is no direct evidence that the defendant operated a place where intoxicating liquors were sold.
Rosetto v. Bay St. Louis, 97 Miss. 409, 52 So. 785.
In the case at bar a sale of a half-pint of Paul Jones, not by defendant, but by an unnamed man, was proven. The witness Longino testified that Cocomo Grove bore the reputation of being a place where liquor might be bought. This is the substance of complainant's case.
The evidence must be directed to general reputation as it existed at the time of the occurrences rendered important by the evidence, or at a time sufficiently near thereto to be relevant, remoteness, if not too great, going to the weight, rather than the admissibility of the evidence. It is also necessary that the reputation should be that which existed before the occurrence of the circumstances out of which the litigation arose.
22 C. J. 480, sec. 575; Lockhart v. State (Tex.), 13 S.W. 1013; Moore v. State (Tenn.), 33 S.W. 1046; Smith v. State, 72 So. 316.
The state tax collector is without power to prosecute suit to abate nuisance. The state tax collector is a fiscal officer, and not a peace officer. He is concerned with making collection of revenues which are owing to the state and political subdivisions thereof. The abatement of a place as a public nuisance falls within the purview of peace officers.
Section 2007, Code of 1930, expressly provides that only the Attorney-General, or any district or county attorney whose duty requires him to prosecute criminal cases on behalf of the state, may maintain an action to abate as a nuisance any place where intoxicating liquors are kept. And even then, the suit must be filed in the name of the state. In no event may the decree of the court which undertakes to padlock Cocomo Grove as a nuisance be upheld.
W. W. Venable, of Clarksdale, and Denman & Everett, of Greenwood, for appellee.
This action is brought under Sections 2000 and 2001 of the Code, and the action is civil in character.
State v. Marshall, 100 Miss. 626.
Since the action is civil in its nature, the rules governing the burden of proof are those which are applied in civil cases, namely, that the complainant has only the burden to establish his case by a preponderance of the evidence.
State ex rel. Dist. Atty. v. White, 178 Miss. 542; Pigford v. State, 183 So. 259.
If the place of business was owned and operated by Malvezzi, there is a presumption in the absence of other evidence that he knew what was going on at his place of business and what is in his store.
City of Jackson v. Gordon, 119 Miss. 325.
The proof is sufficient in the absence of any further testimony that Malvezzi operated Cocoanut Grove.
The proof showed the general reputation of the place as belonging to the defendant and was an expression of the opinion of the witnesses as to who owned the place based on such information.
That such proof has rational probative value and is therefore relevant goes without saying because the entire business world acts everday upon such repute. If such testimony is subject to the objection of being hearsay, the defendant cannot take advantage of this rule because he did not object.
State ex rel. Dist. Atty. v. Ingram, 179 Miss. 485, 176 So. 392; Palmer v. Fair Co., 140 Miss. 294; Railroad Co. v. Mauldin, 103 Miss. 244.
Oral testimony as to ownership is admissible. A witness may testify as to his opinion as to who was owner, or in possession of premises, or who owned a business.
Potts v. Buckley, 115 A. 727; Wolfe v. Williams, 69 N.Y. 621; Pichler v. Reese, 171 N.Y. 577; Hawley v. Bond, 20 S.D. 214, 105 N.W. 464.
In proving the fact of ownership, tenancy, or sale, a document of title need not be produced unless in the circumstances its specific terms are material.
Wigmore, Sections 1246, 1374; 3 How. 205 (Miss.).
Since in a chancery court it is a duty of a defendant to answer according to conscience and to make discovery in his answer, this being true whether answer under oath is waived or not, an evasive denial will be construed more strongly against the pleader. He must answer directly and positively, without equivocation, ambiguity or evasion. Every material allegation of the bill, not so denied, is to be taken on the hearing as admitted, and no evidence will be heard to the contrary.
Austin Clothing Co. v. Posey, 105 Miss. 727; Tarpley v. Wilson, 33 Miss. 467; Nixon v. Jullian, 72 Miss. 573; Reynolds v. Wilkinson, 119 Miss. 590; Colbert v. Henley, 64 Miss. 370.
Section 2000 authorizes in expressed terms the state tax collector and others to bring suit for the penalty. Section 2001 grants specific jurisdiction to the chancery court for the suits authorized in Section 2000 and provides "and the chancery court shall have authority to suppress as a nuisance any place of business where the preceding section is violated and by proper judgments and orders to punish and restrain the violators thereof."
In as clear language as possible, Sections 2000 and 2001 authorize the suit by the state tax collector in the chancery court for the penalty with the further provision that in such suit the chancery court may suppress as a nuisance any place of business where liquor is sold, or given away, or possessed, or permitted to be sold, or given away, or possessed in connection with the business.
Certainly an injunction is the only way by which the chancery court could suppress the nuisance of the sale of liquor in connection with the business.
An action brought under Section 2000 must be distinguished from an action brought under Section 2007.
Section 2007 deals with the possession of liquor by any person, anywhere, and provides simply for the abatement of the nuisance by injunction, no penalties being involved. Sections 2000 and 2001 deal with possession and sale of liquor in connection with a specific business and declare the business so conducted to be a nuisance. The two statutes deal with different situations and for different purposes.
State v. Ingram, 179 Miss. 485, 176 So. 392; State v. White, 178. Miss. 542.
There seems to be a conflict in principle between the case of Malouf v. Gully, 187 Miss. 331, 192 So. 2, and the case of Pigford v. State, 183 So. 295. There does not seem to be enough difference in the language of the two sections to warrant a difference in principle. It is submitted that for the information of the bar it might be well for the court to reconcile these cases, or if there be conflict, to expressly overrule the one which is to be set aside as precedent.
We call the court's attention to the fact that in the case at bar no bond was required by the court. A bond was asked for not under Section 2007 but as...
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