{ "id": 1369442, "name": "Nichols v. State", "name_abbreviation": "Nichols v. State", "decision_date": "1926-10-18", "docket_number": "", "first_page": "987", "last_page": "994", "citations": [ { "type": "official", "cite": "171 Ark. 987" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "45 S. E. 569", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "133 N. C. 250", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657055 ], "opinion_index": 0, "case_paths": [ "/nc/133/0250-01" ] }, { "cite": "116 N. W. 459", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "152 Mich. 505", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1556731 ], "opinion_index": 0, "case_paths": [ "/mich/152/0505-01" ] }, { "cite": "92 N. E. 543", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "174 Ind. 525", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1652659 ], "opinion_index": 0, "case_paths": [ "/ind/174/0525-01" ] }, { "cite": "130 Pac. 248", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "17 N. M. 290", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "147 N. Y., 41", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": 0 }, { "cite": "214 Fed. 936", "category": "reporters:federal", "reporter": "F.", "opinion_index": 0 }, { "cite": "28 N. W. 548", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "69 Iowa 177", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2051350 ], "opinion_index": 0, "case_paths": [ "/iowa/69/0177-01" ] }, { "cite": "47 N. W. 888", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "97 Pac. 862", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 1104068, 1104101 ], "opinion_index": 0, "case_paths": [ "/kan/78/0211-01", "/kan/78/0680-01" ] }, { "cite": "19 Pac. 380", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "77 Cal. 198", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2325504 ], "opinion_index": 0, "case_paths": [ "/cal/77/0198-01" ] }, { "cite": "25 N. J. L. 209", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 409218 ], "opinion_index": 0, "case_paths": [ "/njl/25/0209-01" ] }, { "cite": "65 Ind. 504", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1516659 ], "opinion_index": 0, "case_paths": [ "/ind/65/0504-01" ] }, { "cite": "52 Conn. 147", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 519658 ], "opinion_index": 0, "case_paths": [ "/conn/52/0147-01" ] }, { "cite": "74 N. E. 677", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "188 Mass. 443", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 835431 ], "opinion_index": 0, "case_paths": [ "/mass/188/0443-01" ] }, { "cite": "159 S. W. 197", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 0 }, { "cite": "109 Ark. 179", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1341189 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/109/0179-01" ] }, { "cite": "240 S. W. 5", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "153 Ark. 202", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362230 ], "opinion_index": 0, "case_paths": [ "/ark/153/0202-01" ] }, { "cite": "184 S. W. 459", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "123 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1556249 ], "opinion_index": 0, "case_paths": [ "/ark/123/0180-01" ] } ], "analysis": { "cardinality": 588, "char_count": 13947, "ocr_confidence": 0.5, "pagerank": { "raw": 2.1471670164081693e-07, "percentile": 0.7679785578232553 }, "sha256": "ff3c7fd107549eddb015e36fbc14fc9ca8faacf3805108ad1742b72da4c6ece1", "simhash": "1:c2be5ec06c9e47d9", "word_count": 2348 }, "last_updated": "2023-07-14T23:00:35.231048+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Nichols v. State." ], "opinions": [ { "text": "Hart, J.\nLillie Nichols filed a petition for a- writ of certiorari in this court to quash, a judgment of contempt against her in the circuit court.\nThe record shows that, on the 14th day of April, 1926, the circuit court, on the relation of the prosecuting attorney, found that a building occupied by Lillie Nichols was a public nuisance. The record recites that the State was represented by the prosecuting attorney, and that the defendant appeared in person and by attorney, and that the court found, upon the oral evidence introduced, that the place occupied by the defendant was a public nuisance and that said nuisance should be abated. It was adjudged that the defendant be restrained from further using said premises for the purpose of selling liquor or for storing liquor therein.\nOn the 8th day of July, 1926, the circuit court entered of record an order directing the circuit clerk to issue a citation to the defendant to appear'in court on July 12, 1926, to show cause why she should not be punished for contempt. The record recites that the prosecuting attorney asked for the citation for contempt against the defendant because she had refused to comply with the order of the court enjoining her from further engaging in the sale of liquor or for storing liquor in a certain-building occupied by her as a dwelling-house and store on the Mount Ida-Hot Springs Highway, in Garland County, Arkansas.\nAn order of the circuit court of July 17,1926, recites that the State of Arkansas appeared by the prosecuting' attorney, and the defendant in her own proper person, and the court proceeded to hear the testimony of-witnesses on the citation for contempt. The order further recites that the case is continued for further testimony.\nOn the 13th day of August, 1926, the prosecuting attorney caused to be filed by the circuit clerk, in the- case of State of Arkansas v. Lillie Nichols, in the Garland Circuit Court, the following:\n\u201cNotice of Citation for Contempt. You are hereby-notified that the undersigned, as prosecuting attorney of the 18th Judicial District, will on this day present: evidence to the Garland Circuit Court showing a violation of the permanent injunction heretofore granted against the place now occupied by you,' and against yourself, showing that you have violated the liquor law of this State, and therefore are in contempt of said court. You are notified to be present and show cause, if any, why you should not be punished in accordance with the laws for such contempt. \u00a5m, G. Bouic, Pros. Atty.\u201d\nThe return of the sheriff shows that the citation was served on the 13th day of August, 1926, -by bringing Lillie Nichols before the circuit court of Garland County. On the same day the circuit court, in the case of the State of Arkansas v. Lillie Nichols, entered of record the following order or judgment: \u2018 \u2018 On this day is presented to the court the citation of the prosecuting attorney of the 18th Judicial District, charging the defendant with being guilty of contempt of court for having violated an injunction issued against the defendant heretofore on the 14th day of April, 1926, wherein the defendant was enjoined from the further engaging in the sales of intoxicating liquors on the premises where she resides, in Garland County, Arkansas; and comes the defendant in \u2022 proper person and enters\u2019 her denial to the facts alleged in said citation; thereupon the court proceeds to hear the testimony of witnesses on behalf of the State and defendant, and, after the conclusion thereof and due consideration of same, the court finds as follows: That heretofore, on the 14th day of April, 1926, the premises now occupied by the defendant was declared to be a nuisance, and the defendant was then perpetually enjoined from further engaging in the sales of intoxicating liquors, and that, since said order was issued, the defendant has violated said judgment of the court, and has- been engaging in the sales of intoxicating liquors on said premises; and it is thereupon by the court considered, ordered and adjudged that the defendant is in contempt of court; and it is further by the court considered, ordered and adjudged that the punishment of the defendant be fixed at confinement for a period of six months in the county jail of Garland County, to which she is committed.\u201d\nAt the outset, in the discussion of the principles of law involved, it may be stated that the circuit court had jurisdiction to grant the restraining order of April 14, \u25a0 1926, referred to above, and to adjudge the defendant guilty of contempt for disobedience of the order.\nUnder \u00a7 6196 of Crawford & Moses\u2019 Digest, the carrying on or engaging in the illegal sale of intoxicating liquors in any building is declared to be a public nuisance, which may be abated.\nSection 6197 confers jurisdiction upon the circuit court, upon the relation of the Attorney General or prosecuting attorney, to abate such nuisance.\nSection 6201 provides that if, upon the trial of a case under the act, .the existence of the nuisance be establisted, the judgment of the court shall perpetually enjoin the defendant from conducting, continuing or maintaining such nuisance.\nSection 6202 provides that, if any person shall violate any permanent injunction under the provisions of the-act, he shall be subject to punishment for contempt, and upon conviction shall be imprisoned in the county jail for not less than thirty days nor more than six months, and may also be fined in any sum not exceeding $50. x\nIn Hickey v. State, 123 Ark. 180, 184 S. W. 459, it was held that a defendant may be restrained from maintaining a public nuisance in violation of the provisions of the act. In Adams v. State, 153 Ark. 202, 240 S. W. 5, it was held that the circuit court had jurisdiction, under the act, to restrain a person from selling intoxicating liquors in his home, and that disobedience to the order subjected the guilty party to proceedings for contempt and punishment thereunder. It follows that the circuit court had jurisdiction of the subject-matter and the authority to make the particular order or judgment now complained of, upon obtaining jurisdiction of the person of the defendant.\nIt will be noted that, under the provisions of the statute above cited, proceedings for contempt, in cases, of this sort, are criminal in their nature, and the prosecuting attorney is one of the officers who may conduct proceedings for the State under the act. The contempt complained of was not committed in the presence of the court, and, under the ancient rule of reason and natural justice, the offending party should be proceeded against upon the affidavit of some one with knowledge of the facts, or upon information of the prosecuting attorney who instituted the proceedings for the State in the first place. Where information is filed by the prosecuting attorney, his official oath is sufficient, and no further verification is necessary. Poindexter v. State, 109 Ark. 179, 159 S. W. 197.\nOther cases holding that a formal presentation by a sworn prosecuting officer is a sufficient verification to justify judicial action are the following: Hurley v. Commonwealth, 188 Mass. 443, 74 N. E. 677, 3 Am. Cas. 757; Welch v. Barber, 52 Conn. 147; Ex parte Wright, 65 Ind. 504; and State v. Ackerson, 25 N. J. L. 209.\nBut it is contended that no written information was filed by the prosecuting attorney upon which to base a citation for contempt. On July. 8, 1926, an order was spread upon the records of the circuit court, in a case styled. State of Arkansas v. Lillie Nichols, in which the circuit clerk was directed to issue a citation to the defendant commanding her to appear on July 12, 1926, to show cause why she should not be punished for contempt of court in failing and refusing to comply with the previous orders of the court. \u2022\n\u25a0 This record recites that the citation is asked by the State of Arkansas upon the relation of the prosecuting attorney, and is directed to Mrs. Lillie Nichols, to show cause why she. should not be punished for refusing .to comply with the former order of the court restraining her- from further engaging in sales of liquor or using her premises for. the purpose of selling liquor or storing it.\nThe .building occupied by the defendant is described as a dwelling-house and a store building, located on the Mount Ida-Hot Springs Highway, in G-arland County, Arkansas.\n. Thus we see that the acts done, which are charged to constitute the contempt, are that Lillie Nichols violated a permanent order , of the court restraining her from, using her house in the illegal sale of intoxicating liquors. The acts constituting the contempt complained .of were spread upon the record of the circuit court at the instance of and in the name of the prosecuting attorney, acting in his official capacity. The defendant was brought before the court and given an opportunity to defend herself. The spreading upon the record of the circuit court the acts charged to have constituted a violation of the order of injunction at the instance of and in the name of the prosecuting attorney, amounted substantially to the filing of an information by him. The appearance of the defendant waived any irregularities in the issuance of the process. Ex parte Ah Men, 77 Cal. 198, 19 Pac. 380; State v. Walker, 78. Kan. 680, 97 Pac. 862; Silvers v. Traverse, (Iowa), 47 N. W. 888; Jordan v. Wapello Co., 69 Iowa 177, 28 N. W. 548; and Sona v. Aluminum Castings Co., 214 Fed. 936, and cases cited.\nTestimony was heard, and the, case was continued for further testimony.. No definite date was set..for .the - resumption of the hearing, and, if it be considered that the court lost jurisdiction of that particular proceeding-upon that account, still jurisdiction was.again obtained by what is called a notice of citation for contempt, filed on August 13, 1926, with the circuit clerk. This, paper was signed by the prosecuting attorney, and is set out, in our statement of facts. .\nIn specific terms it notified the defendant that she had violated the provisions of the permanent injunction by offending against the liquor laws of the State. The defendant was actually taken before the circuit court and given an opportunity to defend herself. '\nUnder these circumstances, if the facts are as represented, they show an irregularity merely in the obtaining \u2022 of jurisdiction, and do not show such a want of jurisdiction as to warrant the discharge of the defendant. She was entitled to .a reasonable time within which to prepate her defense, but the record does not. show that she asked for further time. On the contrary, it affirmatively show.s that she voluntarily entered her appearance and entered \u25a0 her denial of the facts alleged in the citation. This constituted a waiver of her right-to further-time within which to make'her defense. Poindexter v. State, 109 Ark. 179, 159 S. W. 197.\nAs we have already seen, the court had jurisdiction to enjoin her from selling intoxicating liquors in .her home in the-first instance, and obedience to. the injunction order was imperative upon her so long- as it. remained in force. Upon the complaint of the prosecuting attorney of a violation of the order of injunction by the defends ant, she. was brought into court, and entered her denial of the facts alleged against her. The record affirmatively shows these facts, and that the court found her guilty, upon evidence introduced, of a violation of the injunction.\nUnder this state of the record, the\u2019 defendant must be deemed to have consented to the trial and to have waived her right to further time in which to have prepared her defense. People v. Court of Sessions, 147 N. Y., 41 N. E. 700; Ex parte Canavan, 17 N. M. 290, 130 Pac. 248; McCulloch v. State, 174 Ind. 525, 92 N. E. 543; In re McHugh, 152 Mich. 505, 116 N. W. 459; In re Odum, 133 N. C. 250, 45 S. E. 569; and 13 C. J., p. 65, \u00a7 89.\nIt follows that the judgment of the circuit court was correct: Therefore the writ of certiorari will be quashed, and the judgment of the circuit court will be affirmed.", "type": "majority", "author": "Hart, J." } ], "attorneys": [ "BerryM. 'Randolph, for appellant.", "H. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee." ], "corrections": "", "head_matter": "Nichols v. State.\nOpinion delivered October 18, 1926.\n1. Intoxicating liquors \u2014 sale in building \u2014 injunction.\u2014Under Crawford & Moses\u2019 Dig., \u00a7 6196, declaring engaging in the sale of intoxicating liquors in a building to be a nuisance, a.nd .\u00a7 6201, providing that such nuisance may be enjoined, held that the circuit court has jurisdiction to restrain the sale of intoxicating liquor in defendant\u2019s home and to punish disobedience of such order.\n2. Intoxicating liquors \u2014 sufficiency of information. \u2014 Where an information for contempt, under Crawford & Moses\u2019 Dig., \u00a7 6202, is filed by the prosecuting attorney, his official oath is a sufficient verification.\n3. , Intoxicating liquors \u2014 contempt citation. \u2014 An order of the circuit court for the issuance of a citation for contempt as authorized hy Crawford & Moses\u2019 Dig., \u00a7 6202, at the instance of \u2019the \u2022 prosecuting attorney, reciting acts in violation of an injunction \u25a0' against engaging in the sale of liquors in defendant\u2019s home,-held a substantial equivalent of filing an information.\n4. Criminal law \u2014 irregularity in process \u2014 waiver by appearance. \u2014 Any irregularities in the issuance of process , are waived-by defendant\u2019s appearance in response to a citation for contempt in violating an injunction against the sale of intoxicating liquors issued under Crawford & Moses\u2019 Digest, \u00a7 6202.\n5. Criminal law \u2014 time to make defense \u2014 waiver.\u2014Where defendant, accused of violating an order restraining her from selling liquors at 'her home, voluntarily entered her appearance and denied the facts alleged in the citation for contempt, without asking for further time to prepare her defense, she will be held to . have waived her right to further time.\nAppeal from Garland Circuit Court; Earl Witt, Judge;\naffirmed.\nBerryM. 'Randolph, for appellant.\nH. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee." }, "file_name": "0987-01", "first_page_order": 1003, "last_page_order": 1010 }