Tucker v. Com. ex rel. Atty. Gen.

• Decision Date: 26 January 1945
• Citation: 299 Ky. 820,187 S.W.2d 291
• Parties: TUCKER et al. v. COMMONWEALTH ex rel. ATTORNEY GENERAL
• Court: Kentucky Court of Appeals

187 S.W.2d 291

299 Ky. 820

TUCKER et al. v. COMMONWEALTH ex rel. ATTORNEY GENERAL

Court of Appeals of Kentucky

January 26, 1945

Rehearing Denied May 25, 1945.

Appeal from Circuit Court, Campbell County; John L. Vest, Special Judge.

Petition in equity by the Commonwealth on the relation of the Attorney General against Samuel A. Tucker and others for an injunction to abate a nuisance and to seize the gambling paraphernalia and to compel the officers to enforce the laws against gambling.From a judgment finding named defendant and Julius L. Plummer, the Chief of County Patrolmen, guilty of contempt of court and ordering them confined in the jail until they purged themselves by producing to the clerk of court the slot machines which had been taken into custody by police officers upon raiding a gambling resort, such defendants appeal.

Affirmed.

Rogers & Rogers, of Covington, Daniel W. Davies, of Newport, and Sawyer A. Smith, of Covington, for appellants.

Eldon S. Dummit, Atty. Gen., and Elmer Drake and M. J. Sternberg Asst. Attys.Gen., for appellee.

SIMS Justice.

This appeal is from a judgment entered by Hon. John L. Vest, as Special Judge of the Campbell Circuit Court, finding Samuel A. Tucker and Julius L. Plummer guilty of contempt of court and ordering them confined in the county jail until they purge themselves of such contempt by producing and delivering to the Clerk of the Campbell Circuit Court 41 slot machines which had been taken into custody by police officers upon raiding a gambling resort known as the 'Beverly Hills Country Club', which will be hereinafter referred to as the Club.

On Sept. 17, 1943, Hon. Hubert Meredith, then Attorney General of Kentucky, verified a petition in equity which three days later, on Sept. 20th, was filed in the Campbell Circuit Court.The Commonwealth on relation of the Attorney General was named as plaintiff and a large number of operators of alleged gambling resorts in Newport and in Campbell County and practically all officials of the city and county were named as defendants.The petition is rather long and describes with particularity each alleged gambling resort and names the persons operating it and the games of chance indulged in on the premises, and avers that evil disposed persons of both sexes congregate on the premises, engage in gambling and drinking which constitutes a public nuisance.The Club is described in the petition and it is averred that Samuel A. Tucker, John Croft and others operate a gambling resort there.Among the officers named in the petition are Julius L. Plummer, Chief of County Patrolmen and two highway patrolmen, George Benz and Robert L. Rickels.The petition further alleges that Hon. Ray L. Murphy, the regular Circuit Judge of the Campbell Circuit Court, was then absent from the county and the Commonwealth and there was no judge of similar jurisdiction in Campbell County.An injunction was asked abating the nuisance and seizing the gambling paraphernalia and compelling the officers to enforce the laws of the Commonwealth against gambling.

Immediately after the petition was filed on Sept. 20th, attorneys representing the Commonwealth took it before Hon. C. D Newell, Circuit Judge of the Nineteenth Judicial District, and obtained a temporary restraining order from him upon the verified allegations of the petition that the regular circuit judge was out of the State.The restraining order enjoined Tucker and others from conducting games of chance and ordered Plummer, Benz and Rickels and other officers to enforce the laws of the Commonwealth against gambling and to seize all gaming equipment in the Club forthwith and deliver it to the Clerk of the Campbell Circuit Court.

At 1:30 A. M. on Sept. 21st, this restraining order was placed in the hands of Kenneth Collins, a policeman of the City of Newport.About 30 minutes later he, with two county patrolmen, George Benz and Robert Rickels, executed it by delivering a copy thereof to John Croft, manager of the Club, and by taking into custody all gambling paraphernalia in the Club, including 41 slot machines located in the bar room which was leased and operated by Tucker, who received a percentage of the earnings of the slot machines as compensation for permitting them to be operated in his bar room.

Collins left the slot machines and other gambling equipment at the Club in the custody of the two county patrolmen, Benz and Rickels, and returned to Newport.One of these patrolmen telephoned their chief, Plummer, who arrived at the Clubat 3 A. M. and left at 5 o'clock, telling the two patrolmen to guard the paraphernalia.About 5 o'clock Tucker went from the Club to his home, leaving the slot machines in the custody of the officers, and did not return to his bar until noon.Benz and Rickels were night patrolmen and before going off duty at the usual hour of 6:30 A. M., Benz telephoned Walter Sweeney, another county patrolman, who went on duty at 6:30 in the morning.Sweeney came to the Club to relieve Benz and Rickels, who left him in charge with instructions to guard the gambling devices and to call Chief Plummer at 7:30 A. M., and report his whereabouts, as was customary.

Sweeney telephoned his chief at 7:45 and Plummer inquired if Sweeney had received any orders except from the two patrolmen he relieved, or if he had received any papers.Upon Sweeney replying that he had not, Plummer directed Sweeney to meet him at his office at the usual time, which was between 8 and 8:30, when he would meet the Chief to make reports and receive orders.Sweeney met Plummer at the latter's office around 8:15 that morning, turned in his mileage report and remained with Plummer until 9:30 A. M., when Plummer sent him back to the Club, at which place he arrived at about 9:45.Plummer testified he did not ask Sweeney about the seized gambling devices, saying he assumed the raiding officers had by then carried them in town.

Herbert Lukens, a newspaperman, went out to the Club around 9:30 that morning to take pictures of the gambling paraphernalia caught in the raid.Just as the drove up he met a large truck leaving the grounds containing the paraphernalia but, thinking that it was being hauled in by the officers, he did not get the license number of the truck.When Lukens got to police headquarters he inquired of Plummer if the latter had the equipment removed.Upon receiving a negative reply, he informed Plummer that it had been taken from the Club by some one.Plummer then got in touch with Sweeney at the Club by telephone, directing him to check on the equipment which the latter immediately did and reported to Plummer that none of it was in the Club.Sweeney in guarding the equipment remained outside the building near his car so that he might receive police calls by a radio with which his car was equipped.

Subsequent to learning of the removal of the gambling equipment from the Club, the court, upon motion and affidavit of attorneys representing the Commonwealth, issued rules against Tucker and Plummer to show cause why they should not be punished for contempt in violating the restraining order in removing, or permitting to be removed, the 41 slot machines from the Club.

Defendants moved to quash the capias upon which they were arrested on the ground that the restraining order which they were charged with violating was void due to the lack of authority of Judge Newell to grant it.This motion was overruled and responses were filed denying that defendants, or either of them, owned or had any interest in the slot machines or that they had any part, directly or indirectly, in removing same from the Club or that they knew who did remove them or their present whereabouts.Replies were filed controverting the responses and considerable proof was taken and the court made the rules absolute and held both defendants in contempt.

The judgment recites...