Opinion
39410 Record No. 4123.
November 30, 1953
Present, Hudgins, C.J., and Spratley, Buchanan, Miller, Smith and Whittle, JJ.
Public Officers — Proceeding to Remove — Trial Court's Finding for Officer Upheld.
Defendant chief of police of the city of Virginia Beach was cited to show cause why he should not be removed from office on complaint of citizens alleging that he had knowingly and wilfully neglected to perform his duty in that he had allowed open and notorious gambling and sale of intoxicating liquor. Since no error was committed at the trial and the finding of the trial court for defendant on the facts was proper, judgment for defendant was affirmed.
Error to a judgment of the Circuit Court of Princess Anne county. Hon. R. Watson Sadler, judge designate presiding.
Affirmed.
The opinion states the case.
James G. Martin Sons, M. Earl Woodhouse and Robert Lee Simpson, for the plaintiff in error.
William L. Parker and Richard B. Kellam, for the defendant in error.
The same J. E. C. Davis and thirteen other citizens of Princess Anne county who filed a complaint praying for the removal of C. Roger Malbon as sheriff of the county, for neglect of official duty, filed a similar complaint in this case making the same charges against Reeves E. Johnson as chief of police of the city of Virginia Beach and praying that he be removed from office. This writ of error was granted to review the judgment finding the defendant not guilty of the charges and dismissing the rule.
The testimony for the Commonwealth in this case is practically the same and in most instances given by the same witnesses as in the Malbon case, except that the testimony concerning gambling and illegal sales of intoxicants was limited to the establishments located in the city.
Defendant denied the charges and stated that he had used his honest efforts to prevent violations of law and to obtain evidence to convict all such violators known by or reported to him. He introduced evidence tending to show how active he and the police officers under him had been in arresting and prosecuting violators of the criminal laws. He put his character in issue by introducing a large number of respectable citizens who said that his reputation for truth and veracity was good as was his reputation for honesty in enforcement of the law. This good reputation was not challenged.
The chief of police of the city of Virginia Beach is an appointive officer, hence, the court without a jury determined the issues of fact as required by Code sec. 15-503. While there is no substantial conflict in the testimony, reasonable men might draw different inferences therefrom; this being true, the finding of fact by the trial court is as binding upon this court as is a verdict of a jury.
The Commonwealth makes the same contentions in this case, as it made in Commonwealth v. Malbon, the opinion in which case is announced at this session of the court. For the reasons therein stated, these contentions are rejected and the judgment of the trial court is affirmed.
Affirmed.