Supreme Court of Mississippi, Division BFeb 12, 1951
210 Miss. 824 (Miss. 1951)
210 Miss. 82450 So. 2d 398

No. 37546.

February 12, 1951.

1. Appeal — decree — opinion of chancellor.

On appeal from a decree adjudging appellant guilty of contempt the Court is concerned with the result shown in the decree and the record evidence to support it, not with the course of the legal reasoning by which the chancellor reached his conclusion, the appeal being from the decree and not the opinion.

2. Criminal law — limitations of time in the enforcement of the law.

In the absence of unusual circumstances wherein high prejudice, or other equitable considerations or a limiting statute are brought into play, the State is not limited in its right to enforce its laws.

3. Intoxicating liquors — statute authorizing abatement as a nuisance — bond to abstain from further violations — limitations of time.

The statute which authorizes the abatement as a nuisance of place where intoxicating liquor is sold and the requirement of a bond by the owner or operator to guarantee that he will not violate the prohibition laws for a period of two years places no limitation upon the prosecution for such violations but the two-year limitation covers only the extent of liability under the bond and begins when the bond is executed and approved.

4. Contempt — intoxicating liquors — appeal — record.

On appeal from a decree sentencing appellant for contempt for the violation of a previous decree abating appellant's place as a nuisance and enjoining him from there violating the prohibition laws, it is unnecessary to make all the original proceedings a part of the record; an exhibit of the decree which forms the basis of the contempt proceedings was sufficient.

Headnotes as approved by Alexander, J.

APPEAL from the chancery court of Holmes County; M.B. MONTGOMERY, Chancellor.

P.P. Lindholm, for appellant.

I. A proceeding for contempt to preserve the power and vindicate the dignity of the court and to punish for disobedience of its orders, wherein the punishment is for a past offense, and is meted out by imposing a fine, or imprisonment, or both, is quasi-criminal, and the contemnor enjoys all the protection afforded a defendant in a strictly criminal trial, and he is presumed to be innocent until proved guilty beyond a reasonable doubt, and it is reversible error to adjudge appellant guilty of contempt and impose a Five Hundred ($500.00) Dollar fine on him for such, on a mere preponderance of the evidence, as was expressly done by the chancellor in this case. Ramsey v. Ramsey, 125 Miss. 715, 88 So. 280; 12 Am. Jur. p. 441, Sec. 75; Evans v. Evans, 193 Miss. 468, 9 So.2d 641.

II. Where it was undisputed that after attempting to procure a bond, conditioned upon not violating the prohibition laws, the defendant was unable to do so, the court was without power to commit defendant to jail for contempt, under this statute, which provide, that failure to make such bond, should be contempt of court for which contemnor should be confined in jail. Handsborough v. State, ex rel. Pittman, County Attorney, 193 Miss. 461, 10 So.2d 170.

III. Where a judgment, or decree of the chancery court, as in the case at bar, is relied on as a basis of a new suit, the proceedings and the decree in the former suit should be properly proved and introduced in evidence, and generally the trial court cannot judicially notice the former decree, even though it is in the same court. Goddard v. John Long, 5 S. M. 782; Bridgeman v. Bridgeman, 192 Miss. 800, 6 So.2d 608; Viator v. Stone, 201 Miss. 487, 29 So.2d 274; Armstrong v. Jones, 198 Miss. 627, 22 So.2d 7.

IV. The taking of a cash bond by a sheriff, clerk or other approving officer is unauthorized and illegal. Cooper v. Rivers, 95 Miss. 423, 48 So. 1024.

Joe T. Patterson, Assistant Attorney General, for appellee.

Cited the following cases: Horton v. State, 175 Miss. 687, 166 So. 753; Alexander v. State, 49 So.2d 387; P.G. "Pink" Callicott v. State, ex rel. Chatham, 49 So.2d 730; Gerard v. Gill, 195 Miss. 726, 15 So.2d 478.

Proceedings for injunction against appellant were instituted under Code 1942, Section 2646 to abate as a nuisance his establishment known as Rainbow Inn. Decree was rendered January 14, 1942, declaring and abating as a nuisance this property and requiring bond in the sum of five hundred dollars to guarantee against the violation of the prohibition laws within the space of two years from the date thereof.

On March 1, 1946, contempt proceedings were instituted against appellant, alleging subsequent violations at such place and a failure to furnish the required bond. From a decree adjudging such violation and imposing a fine as for contempt, and further remanding him to jail until the required bond should be furnished, Weems appeals.

A former employee of the Rainbow Inn, allegedly under a new ownership, testified to repeated deliveries of whiskey by appellant in substantial quantities to that place. Appellant denied such acts. It was shown without dispute that Weems had paid to the State under the so-called "black market tax" for the period between April 1944 and February 1946 the sum of $24,674.16, covering intoxicating liquors purchased and handled by him.

The chancellor found as a fact that such violation had occurred, and we concur in such finding. (Hn 1) Point is made that the chancellor indicated in his opinion that the burden of proof was measured only by a preponderance rather than conviction beyond a reasonable doubt. See Evans v. Evans, 193 Miss. 468, 9 So.2d 641. We deem it immaterial to analyze the statements of the chancellor ex cathedra or to scrutinize the nature or force of the impulses by which he was actuated. The appeal is not from the opinion, but from the decree. Our concern is with the result shown in the decree, and the record evidence to support it. Yazoo M.V.R. Co. v. Adams, 81 Miss. 90, 107, 32 So. 937; Griffis v. Martin Oil Co., 127 Miss. 606, 90 So. 324; Carr v. Miller, 162 Miss. 760, 767, 139 So. 851; Carter v. State, 167 Miss. 331, 342, 145 So. 739; Lee v. Memphis Pub. Co., 195 Miss. 264, 278, 14 So.2d 351, 152 A.L.R. 1428; Winfield v. Winfield, 203 Miss. 391, 35 So.2d 443.

The fine here imposed was for violation of the prohibition laws by the same person at the same place theretofore declared a nuisance. The contention is made that the cited statute provides for abstention by the contemnor for a limited period of two years. (Hn 2) In the absence of unusual circumstances wherein high prejudice, or other equitable considerations or a limiting statute are brought into play, the State is not limited in its right to enforce its laws. No such exceptional factors exist here. For an extended period the appellant was absent from the jurisdiction. (Hn 3) The two-year limitation in the statute covers only the extent of liability under the bond and begins when the bond is executed and approved.

Regardless of the effect of a physical or financial inability to make bond promptly, as to which see Hansbrough v. State ex rel. Pittman, 193 Miss. 461, 10 So.2d 170, the appellant was at the time of the decree herein well established as an outstanding and successful violator of the prohibition laws, as evidenced by the "tax" paid the State and the readiness with which he perfected his appeal herein with supersedeas under a bond in twice the amount of the bond required by the decree under the statute. In this matter it was unnecessary to make all the original proceedings part of the record. (Hn 4) The decree whose violation is the basis of these proceedings, was exhibited. It is sufficient

We find no vitiating error in the proceedings here.