Melvin v. State

• Decision Date: 27 November 1950
• Docket Number: No. 37611,37611
• Citation: 210 Miss. 132,48 So.2d 856
• Parties: MELVIN et al. v. STATE.
• Court: Mississippi Supreme Court

Page 856

48 So.2d 856

210 Miss. 132

MELVIN et al. v. STATE.

No. 37611.

Supreme Court of Mississippi, Division A.

Nov. 27, 1950.

Suggestion of Error Overruled Jan. 15, 1951.

See 49 So.2d 837.

Melvin & Melvin, Laurel, W. W. Pierce, Jackson, for appellants.

J. P. Coleman, Atty. Gen., Geo. H. Ethridge, Asst. Atty. Gen., for appellee.

ETHRIDGE, Commissioner.

This case requires the application of old and well established principles of the law of constructive contempt of court to an unusual statute and factual situation. The appellants were adjudged by the Chancery Court of Rankin County of constructive or indirect contempt of that court and sentenced to thirty days each in the county jail, and the court imposed a fine of $250.00 on L. G. Melvin and of $100.00 on K. Wayne Melvin.

In 1946 a group of citizens of Rankin County, Mississippi, organized an informal association known as the Rankin County Christian Citizens' League. The purpose of that organization was to undertake to eliminate numerous alleged illegal establishments selling intoxicating liquors in that County, and in other respects to participate as citizens in eliminating undesirable conditions which might affect the morals of that community. In December, 1947, the appellant, L. G. Melvin, was elected chairman of the Christian Citizens' League and in that capacity chairman of the Executive Committee of the League. Some time in the early part of 1948 L. G. Melvin and other members of the Executive Committee went to a firm of lawyers in Meridian, Lauderdale County, Mississippi, and discussed with them the filing of some so-called padlock proceedings against illegally operated whisky stores in Rankin County. The attorneys advised them that they would have to obtain some evidence by the purchase of intoxicating liquors from the establishments sought to be closed before such proceedings could be filed. They also advised the Executive Committee that the League should appoint one man as its representative to deal with the attorneys in the filing and handling of such suits. L. G. Melvin, the chairman, was designated as the League's representative for that purpose. However, nothing was said in the authorization about L. G. Melvin having the power to settle or compromise the suits out of court.

Appellant K. Wayne Melvin, who was not a member of the League, and is a brother of appellant, L. G. Melvin, at the request of his brother proceeded to purchase whisky from six different places in Rankin County. He then turned this evidence over to L. G. Melvin.

In accordance with the plan of the League, six suits were filed in the Chancery Court of Rankin County on September 1, 1948 against various defendants. One of the defendants in one of the suits was Guysell McPhail. The bills were filed under the authority of Sections 2639 and 2640 of the Mississippi Code of 1942. Section 2639 provides that any person who sells or allows to be sold at his place of business intoxicating liquors is subject to pay to the state and the county where the offense is committed the sum of $500.00 for the county and $500.00 for the state. The state or county or any taxpayer thereof may bring said suit in the name of the state or county. Section 2640 gives the chancery court concurrent jurisdiction with courts of law under Section 2639 in suits brought by the state, county, or by any taxpayer in the name of the state or county. In addition, it gives the chancery court power to suppress as a nuisance any place of business where Section 2639 is violated and by proper judgments and orders to punish and restrain the violators. These statutes were first passed as Chapter 134 of the Mississippi Laws of 1910, and there has been a considerable amount of litigation involving their application.

All of the bills of complaint which were filed on September 1, 1948, were filed in the name of L. G. Melvin as complainant and as a taxpayer. They recited that he brought these six suits in the name of Rankin County and of the State of Mississippi 'for the use and benefit of Rankin County, Mississippi, and the State of Mississippi. * * *' The bills charged the several defendants with selling or permitting to be sold intoxicating liquors on their premises, and requested a temporary injunction against the operation of the stated place of business owned or operated by the defendant, a final injunction, and a judgment against the defendants in 'the sum of $500.00 thereof for the use and benefit of Rankin County, Mississippi, and the sum of $500.00 thereof for the use and benefit of the State of Mississippi. * * *' A temporary injunction was granted in each of these cases, but in was dissolved on September 30, 1948. In the meantime, on or about September 25, 1948, special demurrers and answers to the bills were filed by the defendants denying the allegations of the bills. This was the status of these six suits at the time the events took place which are the subject of this appeal. They were all pending for trial.

Several days before Christmas Eve, December 24, 1948, K. Wayne Melvin called Guy McPhail, one of the defendants in these suits, and arranged an appointment with him. The said appellant advised McPhail that his brother, L. G. Melvin, had spent quite a bit of time and money on these six suits already, and that the League seemed not to be interested in them. He further said that L. G. Melvin in fact was going to have to give up his home, but that if McPhail and the other defendants in these suits could get up enough money to settle them, he, L. G. Melvin, would withdraw the cases. K. Wayne Melvin then asked McPhail if he would contact the other defendants in the six cases with reference to settling them, and if he would then meet with him and L. G. Melvin and discuss a settlement, to which McPhail agreed. The meeting was scheduled for 5 o'clock on the afternoon of December 24, 1948, at Room 525 of the Heidelberg Hotel in Jackson. Prior to the meeting, McPhail had employed a private detective to place a microphone under a pillow in the room where the meeting would be held, and to run a wire to the room immediately below, No. 425, in which the detective had a loudspeaker and a wire recorder. Present in the room in which the recorder was located was the detective and the Sheriff of Rankin County, along with two other men. At the appointed time the appellants met McPhail in Room 525. The recording device was operating during the entire conversation, as was the loudspeaker over which the occupants in Room 425 could hear the conversation.

The talk extended over a period of about an hour, and during that time L. G. Melvin made the proposition to McPhail that if McPhail and the defendants in the five other suits would pay him, L. G. Melvin, $1,000.00 a suit or the total sum of $6,000.00, he would destroy the evidence and drop the suits. As the chancellor pointed out, L. G. Melvin does not deny that the proposition was made, but in fact admitted it. The other appellant, K. Wayne Melvin participated in the conversation with McPhail, but it appears that L. G. Melvin advanced the proposition itself. McPhail testified that L. G. Melvin told him that he had a relative who was a lawyer and that he thought he could arrange through him for the dismissal of the suits. L. G. Melvin also admitted this. He also admitted that he advised McPhail during this conference that he had spent a lot of time and money on these suits, that he was tired of them and would settle them for $6,000.00 McPhail further testified that L. G. Melvin said that if he could not dismiss the suits in any other way he would get so mixed up on the witness stand that his testimony would be of no value. L. G. Melvin denied that he made this statement. At this point there is very little conflict in the testimony. However, L. G. Melvin, as well as K. Wayne Melvin, stated that his intention was to settle the suits and turn the money over to the state and county.

L. G. Melvin testified that his lawyers had told him that they had settled some of the suits in Lauderdale County. This was confirmed by the attorney, but he had not discussed any settlement of the six suits in Rankin County with appellants, and the first the attorney heard of any proposed settlement of these suits was about two months after the appellants' conversation of December 24th with McPhail. The evidence in these cases, consisting of several bottles of whisky, was stored in the office of L. G. Melvin in Jackson, and on February 28, 1949, the building where it was located was destroyed by fire, also destroying the evidence. However, we do not think that this affects this case, inasmuch as the offense, if any, had been committed on December 24, 1948.

At the February, 1949, term of court the chancellor by order appointed three attorneys practicing before the court to make an investigation of charges against the appellants of constructive contempt of the court, and directed these attorneys to prepare an information accordingly. This was done, and the charges and information against appellants were tried at the September, 1949, term, at the end of which the chancellor adjudged appellants guilty of constructive contempt of the court, and sentenced them as stated at the beginning of this opinion.

The information charged that the appellants, while these six suits were pending, 'did wilfully, unlawfully, and corruptly enter into a conspiracy to obtain certain moneys from the defendants in said causes in return for...