Nicholas v. Commonwealth

Decision Date21 April 1947
Citation186 Va. 315,42 S.E.2d 306
PartiesNICHOLAS. v. COMMONWEALTH.
CourtVirginia Supreme Court

Error to Circuit Court, Cumberland County; Joel W. Flood, Judge.

Robert Nicholas was found guilty of contempt for violation of an injunction, and he brings error.

Affirmed.

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

A. L. Pitts, Jr., of Dillwyn, and John B. Boatwright, of Buckingham, for plaintiff in error.

Abram P. Staples, Atty. Gen., and G. Stanley Clarke, Asst. Atty. Gen., for Commonwealth.

BUCHANAN, Justice.

Nicholas has been found guilty of contempt of court and sentenced to twelve months in jail for violating a decree of the court enjoining him from having alcoholic beverages on his premises. He seeks reversal of the judgment of conviction on the ground that the evidence was not sufficient to establish his guilt.

The injunction decree was entered October 19, 1942, on a bill for that purpose filed by the Commonwealth under section 56 of the Alcoholic Beverage Control Act, Acts 1934, chap. 94, p. 100 et seq., Code 1942, Michie, sec. 4675(56). That section pro-vides that a suit in equity may be maintained in the name of the Commonwealth "to abate and perpetually to enjoin" a nuisance, as defined in section 55 of the Act, Code, Michie, sec. 4675(55), which provides in its first sentence that "all houses, boat-houses, building's * * * and places of every description including' drug stores, where alcoholic beverages are manufactured, stored, sold, dispensed, given away or used contrary to law by any scheme, or device whatever, shall be held, taken and deemed common nuisances."

Robert Nicholas and his wife and children were made parties defendant to the injunction suit, a guardian ad litem was appointed for the children and an answer filed by him, and the injunction decree recites that the cause was heard on the pleadings, ' and upon the appearance of the respective parties by their attorneys, and upon oral evidence; and it was thereupon ordered that Robert Nicholas and the other defendants, and their servants, agents and employees, be "perpetually enjoined and restrained from manufacturing, storing, selling, dispensing, giving away, or using alcoholic beverages upon the premises described in the said bill of complaint, * * *."

February 27, 1946, a search warrant was issued for the premises of Robert Nicholas, which resulted in finding thereon and seizing a quantity of alcoholic beverages. The Commonwealth thereupon filed a petition in said equity suit setting forth the granting of the injunction and the subsequent finding of alcoholic beverages in violation thereof, and asking for a rule against Robert Nicholas and Leroy Wilson, his agent and servant, to show cause why they should not be dealt with for contempt.

An order was entered requiring Nicholas and Wilson to appear on March 18, 1946, to answer the rule. Service was had on Wilson, who appeared, and the matter was continued for service on Nicholas. At the calling of the case on June 25, 1946, counsel for Nicholas and Wilson moved to continue for the absence of Wilson, which was overruled and the case was thereupon heard by the court ore tenus on the evidence of witnesses for the Commonwealth and defendant. Upon the hearing the court held that Nicholas and Wilson had violated the injunction and were guilty of contempt and fixed their punishment at confinement in jail for twelve months. From that judgment this writ of error was granted to Nicholas.

There were three witnesses, two for the Commonwealth and the defendant for himself. The two witnesses for the Commonwealth were Duggan and Gaulding, officers of the A. B. C. Board. They testified that they and Wood, another A. B. C. officer, procured the search warrant and searched the premises of Robert Nicholas, consisting of a combined store and restaurant, a separate dwelling and a stable and garage combined. In the restaurant they found two bottles of beer in an icebox. In the stable-garage Wood found hidden under a plank two bottles, one containing a small quantity of whiskey and the other a small quantity of wine. In the residence of Robert Nicholas they found on the dining room table a bottle about half full of gin, which was claimed by Leroy Wilson who was there on the premises and said he was an employe of Robert Nicholas. Duggan and Gaulding then went upstairs and found six or seven one-half pints of whiskey stored in the ceiling of a closet, which was in the room occupied by Robert Nicholas. They testified they did not find Nicholas or his wife on the premises and that they did not see them that day, but Wilson told them Nicholas had gone to Baltimore after his wife. That night after the search the officers went to the bus terminal in Richmond in an effort to apprehend Nicholas, but did not see him.

Nicholas, the defendant, testified that he was not at home at the time of the search, but was in Baltimore where he had gone to get his wife who had been there for eight weeks; that when he got back home he found the premises had been searched and the ceiling in his wife's room had been torn down. He denied that he was the owner of the whiskey, beer, wine or gin, and said he had left Wilson in charge when he went to Baltimore; that he knew nothing about the said spirits or beer, "but that he was responsible for any ardent spirits found in his room."

He said that there were frequently as many as fifty guests in his restaurant at one time in the evening and it was not unusualthe next day to find hidden about the premises bottles of wine or whiskey partly consumed; that he served meals, sold soft drinks and had a juke box by which the guests danced.

He testified that sometime previous to the search he had gone to Baltimore after his wife and had come home on the evening of February 27, but did not see any of the officers; that Leroy Wilson, who was in the place when it was searched, had been at court at the April term but had since got in trouble with a woman and he did not know where Wilson was on the day of the trial; that Wilson had not been at his place for several days and he thought he had left the State.

The power of the court to issue the injunction of October 19, 1942, is clear. It was authorized, as we have seen, by section 4675(56) of the Code. The court had jurisdiction of the subject matter and of the parties. Nicholas was before the court when the injunction was granted. It was suggested in oral argument, but not in defendant's brief, that section 4675(56) of the Code is in conflict with section 4675(61) (c), which permits possession of lawfully acquired alcoholic beverages by a person in his residence for the personal use of himself, his family, servants or guests. The two sections are, of course, to be read together and there is no conflict between them. Section 4675(61) (c) permits alcoholic beverages lawfully acquired to be lawfully used. Section 4675(56) provides a means to prevent alcoholic beverages, whether lawfully or unlawfully acquired, from being unlawfully used, and to abate the nuisance caused by such unlawful use. But if the argument were valid, it would not help the defendant here. His relief would have had to come by appeal from the injunction decree, or afterwards by motion to dissolve the injunction if he could show a proper cause for it under the terms of the section.

As pointed out in Robertson v. Commonwealth, 181 Va. 520, at page 537, 25 S.E.2d 3'52, 359, 146 A.L.R. 966, there is a vast difference between a judgment that is void and one that is merely erroneous; and in the opinion in that case it is said:

" 'Obviously the power to decide includes the power to decide wrong, and an erroneous decision is as binding as one that is correct until set aside or corrected in a manner provided by law.' Freeman on Judgments, 5th Ed, § 357, p. 744.

"Consequently, the authorities are in accord that where the court has jurisdiction of the parties and of the subject matter of the suit and the legal authority to make the order, a party refusing to obey it, however erroneously made, is liable for contempt. Such order, though erroneous, is lawful within the meaning of contempt statutes until it is reversed by an appellate court." And see Deeds v. Gilmer, 162 Va. 157, 174 S.E. 37; 12 Am.Jur, Contempt, pp. 407-408; United States v. United Mine Workers, 67 S.Ct. 677.

The power of courts to punish for contempt is inherent...

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    ...the trial judge could properly reject as unreasonable the hypothesis of innocence advanced by Butcher. See Nicholas v. Commonwealth , 186 Va. 315, 324, 42 S.E.2d 306 (1947) (holding that the Commonwealth is not required to prove the negative by establishing the nonexistence of an improbable......
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    ...decision is as binding as one that is correct until set aside or corrected in a manner provided by law." Nicholas v. Commonwealth, 186 Va. 315, 320, 42 S.E.2d 306, 309 (1947) (citation Having determined that the statutory authority of the divorce court does not include the authority to modi......
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    ...decision is as binding as one that is correct until set aside or corrected in a manner provided by law." Nicholas v. Commonwealth, 186 Va. 315, 320, 42 S.E.2d 306, 309 (1947) (citation The distinction between a void decree and a voidable decree, in the initial appeal, permitted us to leave ......
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