Noe v. Gully

• Decision Date: 22 January 1940
• Docket Number: 33958
• Citation: 193 So. 36,189 Miss. 1
• Court: Mississippi Supreme Court
• Parties: NOE et al. v. GULLY, TAX COLLECTOR

193 So. 36

189 Miss. 1

NOE et al. v. GULLY, TAX COLLECTOR

No. 33958

Supreme Court of Mississippi, Division B

January 22, 1940

Suggestion Of Error Overruled February 19, 1940.

APPEAL from chancery court of Coahoma county HON. R. E. JACKSON Chancellor.

Suit in equity by J. B. Gully, State Tax Collector, against Joe Noe and others to recover statutory penalties for unlawful possession and sale of whisky at named defendant's place of business, attach defendant's property in his debtors' possession, suppress and abate such place as nuisance, and enjoin operation thereof. Judgment for complainant, and defendants appeal. Affirmed.

Affirmed. Suggestion of error overruled.

Brewer & Sisson and F. H. Montgomery, for appellants.

There is no competent evidence connecting Noe with violation of law. There was a failure to connect defendant with the alleged sale of liquor. The proof shows that the witness Ross, Deputy Tax Collector, did purchase a half-pint of Paul Jones at a place thought to be owned by defendant, although the question of the ownership of the place where the whiskey was purchased was not clear or definite. The whiskey was not purchased from defendant, but another person who was not identified by testimony.

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 10 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. This section condemns the keeping and having in one's possession alcoholic, spirituous, and intoxicating liquor. According to his own testimony, Ross deliberately procured a violation of the criminal laws, for the sole purpose of making testimony to compel payment of a penalty alleged to be owing by defendant to the State of Mississippi and Coahoma County.

The evidence of general reputation is incompetent.

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; Rosetto v. Bay St. Louis, 97 Miss. 409.

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 the place alleged to be the property of defendant bore the reputation of being a place where liquor might be bought. This is the substance of complainant's case.

Rosetto v. Bay St. Louis, 97 Miss. 409, 52 So. 785.

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.

Sec. 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 defendant's place of business 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. 295.

If the place of business was owned and operated by Noe, 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 Noe operated the place of business.

The proof showed the general reputation of the place as belonging to the defendant and was an expression of the opinion of the witness 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 every day 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.

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, Secs. 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.

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 other 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.

In connection with this matter it will be noted that the chancellor in entering his decree issued his injunction against the handling of liquor and did not suppress the place of business as such.

Pigford v. State ex rel. Broach, 183 So. 295.

There seems to be a conflict between the Malouf case in principle and the Pigford case. 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 being an appropriate way to suppress a nuisance, the court being given power by Section 2001, "by proper judgments and orders to punish and restrain, etc." In no respect was 2007 involved in the suit at bar. The chancellor did not require a bond, and therefore this is not ground for complaint.

General reputation of a place as one where intoxicating liquors were kept and sold is admissible.

State ex. rel. Dist. Atty., v. White, 178 Miss. 542.

OPINION

Ethridge, P. J.

J. B Gully, State Tax Collector, filed this bill against Joe Noe, a resident of Coahoma county, in the state of Mississippi, for $ 1000, $ 500 thereof being for the benefit of the state, and $ 500 for the use of Coahoma county; the action being brought under sections 2000 and 2001, Code of 1930. The bill alleged that on the 10th of January, 1939, the defendant owned and operated a business in Coahoma county, situated on Highway No. 61, near the city limits of Clarksdale; and that prior to, and on, January 10, 1939, he did unlawfully have in his possession, at said place of business, vinous and spirituous liquors, to-wit whiskey, which he sold and permitted to be sold in connection therewith; that he had in his possession federal license or permit No. 31, 214; the whiskey being sold to Deputy State Tax Collector Sam B. Ross. It was further alleged that said whiskey was sold and permitted to be sold at his place of business, contrary to the statutes of the state of Mississippi, in connection with the business he was there conducting; and that certain persons, firms and corporations are indebted to the defendant, and have in their possession and under their control goods, property and effects of the defendant; and complainant prayed for an attachment as...