*1 151 accident, in event of render insurer “all Co-opera- tion and assistance The power”. his insured made false statements the accident concerning ground which “laid the * * work for collusive suits which followed necessi- tating the defense such suits insurance by the company. Under the facts of that case it clear breach of the condition was prejudicial to the defendant. far
So as disclosed this record the insured testified and fully cooperated on with defendant the trial of the action judgment wherein the against Chadwick was rendered. This action could have been prosecuted same court through substituted service. Therefore dowe not think that the insurance company prejudiced by Chadwick, the actions of and hold that the facts in this case do not establish breach referred provisions to herein which would warrant in avoiding defendant liability under the policy. It follows court lower erred in directing a verdict in favor of defendant. judgment of of Wayne Circuit Court is County reversed, the verdict aside set is awarded plaintiff new trial. reversed;
Judgment aside; verdict set new trial awarded. rel. ex et al. Floyd State Taylor, S.
v. Harry C. Devore (No. 10168) Submitted January 1950. Decided March 1950. *2 Riley, dissenting. Judge, Gibson, plaintiff & in error.
Marcum Greene, Morgan, Edward H. C. M. for defendants error. Judge:
Given, found Harry guilty C. Devore was The defendant contempt County. the Common Pleas Court of Cabell by against him, a fine of Judgment imposing was entered $250.00, This jail thirty days. judg- and a sentence by County, was affirmed the Circuit Court of Cabell ment a error and granted supersedeas. this Court writ of 8,1947, an order entered the Court On December chancery in a cause County of Common Pleas of Cabell Devore from den- enjoining practicing therein pending contained in the allegations Devore denied the bill tistry. he en- unlawfully to the effect of complaint, but announced to dentistry, gaged practice and contend that he “did not desire contest court he willing further and that this matter as permanent injunction, grant plaintiffs court bill, practice him from the restraining for in said prayed * * dental dentistry hygiene or offer to practice of the order reads: pertinent part THEREFORE, ADJUDGED, “IT IS ORDERED AND DECREED that the are plaintiffs entitled to a permanent bill, injunction prayed as for in said defendant, and that Harry C. is here- by from restrained enjoined, and inhibited perpetually or practicing offering practice dentistry or hygiene dental Virginia, state of West as defined Article Chapter 30 of the Code Virginia, West practice until he may acquire license from the dentistry Board of Dental Ex- of the aminers state of Virginia.” West Pursuant to the prayer petition filed the plain- below, tiffs Floyd Taylor, West, S. B. D. R. Parsons and J. F. Gawthrop, who were plaintiffs also the chan- cery cause, and who sued for the benefit of themselves all others practicing profession dentistry sim- ilarly situated, and for and on behalf of the Huntington Dental Society, Court, Common Pleas on September 10,1948, entered an order that a rule directing against issue *3 Devore commanding appear *him to at a place time and certain and cause he why show should not held in con- tempt for disobeying the order. injunction Devore de- rule, murred to the petition and the of principal grounds the demurrer being that the petition did not show that the injunction order was ever served on and that alleged the acts to have been done Devore did not come the within definition of practice dentistry of or dental Code, as hygiene defined 30-4-2. The court overruled the demurrer thereupon Devore filed his answer to petition the that he denying injunction violated the alleging that the entered into an petitioners unlawful conspiracy criminal intent of with the defend- entrapping ant into violation of the injunction order. trial, court, the
Upon plaintiffs the had before below witnesses, Webb, Tackett, introduced five Iva Wandell Betty Gunderson, E. Workman and Thomas Carr. Iva 27, 1948, testified Webb to the effect that on or May about she was that good informed Devore “made teeth and made them that she cheap”; teeth; was need of that she went to the office of Devore in the Huntington purpose for obtaining teeth; that Devore looked at her gums healed sufficiently not gums that her were her
advised that she back to impression; went taking the from him and received subsequently times his office two teeth in payments she for the two teeth; that her from the office payments for the receipt and received in chief In her examination “at Mr. Devore’s office.” girl that Mr. Devore was the she positive she was not office, thought he was the at the stated that she saw but took only also that the man the She testified who person. girl at the office. On cross- and the office impression examination, “Are that you positive she asked: I and made false teeth? your impression your man took “I him, at the am pointing am table.” She answered: the same positive. not He doesn’t look like man.” the she accom- Tackett testified to effect that Wandell sister, Webb, to the office of Devore on panied her Iva occasions; H. on the that the name C. Devore was two door; that she did not see one waiting office room, “next”; came to the door but that some one and said her to the office purpose going that sister made; to have that her sister the teeth there got teeth wearing time the trial. them Betty Gunderson testified to effect that about July, middle of she Devore’s office went that having made; teeth she made three trips teeth; first office; to the she needed that on the trip Mr. made impression gums; Devore of her she second time the office he “tried them on in went finish,” mouth, my rough it was a and the “third time he * * them in and also put fitted them She testified lady she in the office of Mr. Devore *4 $15.00 trip, first and the second and that when she trip, $50.00 he the pay lady offered to Devore said “to the pay that the receipts desk” and she received for payments. June, The in witness Workman testified that he office and “told he lady went Devore’s the that wanted to see about teeth made and she said k. and she getting o. saw Mr. he me Devore and came in and told to come on office, and I into office he the went the and taken the im- teeth; for both the pression” upper the lower that a teeth; he his days got paid later that he at the few $15.00 the was impression time made and he got when $50.00 teeth; he the that offered to Devore but that pay Devore to pay girl told witness the in the office and that he got the receipts payments for from the girl. Carr, sixteen, to the age
Thomas testified effect that office on he went with Workman to the of Devore two of to by Workman; the occasions testified that Devore asked wanted; they their names and what that Devore them took the for and fitted the impression teeth; Workman that lady the Workman the front office. Gunderson, is that
It not the Work- questioned witnesses employed by Lloyd Worden, private man and Carr were detective; that these went to office of witnesses the Devore at the instance of for the purpose obtaining Worden evidence as whether Devore was practicing dentistry; for they Worden or that services turn employed plaintiffs Worden was below evidence; also Mrs. obtaining such Gun- Devore Workman falsely represented derson was Mr. being daughter. as his fully evidence in the case has been out for the
The set defendant that it is sufficient reason contends not below, support finding the court and because of contention of the defendant that evidence of Gun- derson, by entrapment. and Carr obtained Workman defendant; behalf of
Two testified on witnesses he, the effect Lloyd acting Worden who testified to below, Workman plaintiffs employed indicated, Carr, as Abra Lou Adkins who above de- door, nied that name of Devore on his office but “H. Dental sign Laboratory” testified that C. attached above his door. defendant did not tes- and offered no on the main tify his behalf own issue.
156 contempt proceed- criminal is a
It clear that this seems 6, it is stated: Jur., Contempt, Section In 12 Am. ing. classes— contempt are of two for “Proceedings contempt Criminal criminal and civil. namely, preserve to brought are those proceedings of the court dignity power and vindicate Civil of its orders. punish disobedience pre- instituted to are those contempt proceedings parties to rights private and enforce the of serve suits orders de- compel obedience to parties. The made for the benefit of such crees nature, in their punitive criminal and former are courts, people and the government, and the are interested are in their The latter prosecution. nature, civil, remedial, and coercive in their interested in their conduct and chiefly the parties for the enforce- are those individuals prosecution ment suits and remedies rights private whose * * instituted. applicable on a trial of a criminal Rules action Jur., 4 proceeding. Va., in such a Michie’s Va. & W. apply There some confusion Contempt, appears Section 3. of the Court as to a of error in the decisions whether writ contempt this Court lie in a criminal proceeding. from will Bittner, 677, 136 202, 102 State W. Va. S. E. 49 A.L.R. See v. Smith, 968; 199, 81 95 E. 8 Smith v. W. Va. S. A.L.R. guilty a defendant has been found not 1149. Where this Court has no contempt, jurisdiction criminal review 148. Craig McCullough, the decision. v. 20 W. At Va. Bittner time of the decision of the case there was statute 160, Code, 1923) (Section in force which-im Chapter of error to a right judgment of writ pliedly withheld of a circuit court for the contempt nonperformance (That of or to a or order. section has disobedience decree 1931.) Notwithstanding omitted from the Code since been statute, of that held that Court where provisions of a is involved the writ lies. We the freedom Constitution, VIII, Article think conclusion correct. 3; Code, 51-1-3. Section in the defendant’s contention that he
We see no merit order. He copy injunction not served awith agreed entry petition to the of that order and the alleging violation of the order so injunction states.
The defendant contends the evidence did not estab- lish that he engaged practice dentistry. statute, Code, 30-4-2, pertinent part reads: *6 person practicing be as “Any regarded shall dentistry article, of this meaning within who diagnose shall or to or or profess diagnose treat profess treat, to of or any the diseases malforma- teeth, tions or of the oral lesions or cavity, gums, ** * bones, or maxillary artificial supply teeth as * * for teeth, substitutes natural From it clear this seems the examination of the mouth, and the of the taking impression thereof, and the fitting supplying and of artificial dentures are acts falling within the definition of of practice dentistry. Is the finding of the lower court the defendant was engaged in the practice dentistry of by established the evidence? This a criminal being proceeding, guilt must contempt be beyond established a reasonable doubt. State Bittner, v. supra. This brings us to contention of the defendant that the the witnesses Workman by and Carr entrapment was obtained can- therefore not considered the Court. In Jarvis, State v. 105 W. Va. 143 S. this E. Court stated: “Entrapment may be defined as inducement to contemplated of one commit a crime not by him instituting
for the mere criminal pros Wray, ecution U. against (2d) him. S. v. 8 Fed. In order 429. for a defendant to in successfully doctrine, it must appear voke this inal intent —‘the that the crim genesis the idea’—was con entrapping ceived accused, person, the the the to prior without intention commit crime, inveigled was into its commission entrapper. evidence here does “The not sustain the defense entrapment. The defendant was not plastic clay in hands of She entrappers. was not coerced, or importuned even persuaded by them. asked, promised No favors or bestowed. No only The confidence was violated. inducement buy. It is not shown willingness offered tempt as to that the was so exorbitant price sale do unusual. transac- something defendant Her ordinary tion one of barter sale. act volun- impulse, was not one but of the conference with tary and deliberate result surrounding her The circumstances confederate. the inference that she would sale warrant sale other apply- have made a like ing, her mind a informer. probable not to particular “Of course this sale would not have But of the officers. except trap occurred that artifice portunity ling op- defendant an simply afforded the evidently to do what she was both wil- fur- to do. While officers prepared law, they nished her the to violate the opportunity her responsible possession were not apparent willing- nor for her liquor she delivered possession voluntary ness to That and the sell it. sufficiently prior sale intention on her indicate upon which violate the occasion. It is part not thus law *7 public of criminal decoy policy the condemns, implanting germ the of the crim- but of inality, no matter how favorable the culture. A clear tion ates crime. The obviously is to decep- distinction be drawn between a to detect practiced crime and one cre- which deception of the here was an primarily offense, not to incite but to ascertain in an be the defendant engaged whether was This purpose unlawful business. is held the argument sufficient answer that the of the the instigation agent act was done at of an U. S. v. Pappagoda, 214, Government. 288 Fed. 220; L., 8. R. C. sec. 129.” p. Bierce, 113 State v. 169 S. See Va. E. 478. of the are the majority opinion Court of the of in the plaintiffs the below use of private conduct the of obtaining evidence in man- investigator the out condemned, set should be ner hereinbefore and that therewith, in connection under circum- their conduct the case, entrapment, of this constitute and that such stances not considered the determining should defendant. The writer of is not opinion of the guilt no view, special since he of that believes inducements of the to fur- any offered the defendant witnesses teeth; having merely the to De- gone nish the witnesses office, wants, made their price known the vore’s service, being merely asked for transaction one of However, “barter and sale.” ordinary majority case, also of the the evidence in Court are view of than the evidence the witnesses other fully and Carr of support finding guilt Workman be- as made yond any doubt the lower court. reasonable fully been Undoubtedly This evidence has detailed above. place defendant maintained an office or His business. says witness so states and further that there own sign Laboratory” C. Devore Dental over “H. the door. an office him in kept employed girl He to assist his busi- his ness. The witness Webb went to office for the purpose her obtaining teeth Devore examined ad- gums, her to come back later for the impression. vised Later impression, Devore took the made the teeth and furnished her, them to office girl she teeth. This witness corroborated witness Tackett. It seems only maintaining office, clear that Devore was not but himself in readiness to keeping furnish teeth at time. It is true that the witness Webb was not positive defendant, her identification of the but his identity cannot other be doubted view facts present the case.
The other errors do assigned not merit consideration here. The judgments Circuit Court of Cabell and of County the Court Common Pleas of Cabell County are affirmed.
Affirmed. Riley, Judge, dissenting:
With I deference dissent the from result reached by the majority the Court. In reaching this position, I am impressed by (1) the facts at the time the Hun- tington Dental Society, acting through representatives, its employed and professional investigator, Lloyd Wor- den, who, in turn, employed witnesses, the State’s Betty
Gunderson, Workman, W. E. and Thomas go Carr to defendant, the office Devore, C. Harry at various for the purpose times of obtaining partial or plates com- plete teeth, sets of false the cost of which was financed indirectly through Worden by Huntington the Dental So- contempt the ciety, proceeding had not instituted, been and solicitation on part the the of these witnesses was nec- essarily the of causing the violation of the (2) and the injunction; proceeding is one of crim- instant inal and all the contempt, rules of criminal procedure, including rule the the defendant’s guilt must be proved beyond doubt, a reasonable applicable were and applied by should have trial been court.
I am fully strictly aware Court criminal held proceedings has admissible the testimony wit by who a method nesses obtained evidence similar to that by investigating agency used the Worden to the effect engaged that a of a defendant was in the violation crim law, inal the criminal intent was not provided conceived “entrapping” accused “without prior inveigled intent to commit the crime was into its Jarvis, entrapper.” commission State v. 105 W. Va. 499, 143 S. made by E. 235. The distinction this Court in sound, case, may admittedly the Jarvis it is hard while apply, involving follow and case the cir every aby has been obtained per cumstances which evidence committed it, is at the seeking the crime instance son in its as I think the person. Dangerous application such late, is, case it is too perhaps rule in the Jarvis view cases, from for this Court to adjudicated deviate Jarvis quoted as enunciated in the case rule opinion. majority indicated, at the time the evidence
But, as heretofore investigating the three employees was obtained society, defendant, instance of the dental agency, and this rec- injunction, under Harry C. witnesses, the three Work- clearly ord shows by Carr, Hunting- employed man on its whose through representatives, Society, Dental ton
161 entered, and injunction sought behalf to cause defendant, Harry Devore, C. to violate that injunction. prior All of this was to the time contempt pro- ceeding was or could have been instituted. So these par- ties their in a activities were court of equity. Generally, party “The instance issued, whose an injunction cannot the party have in a enjoined punished contempt proceed- ing for breach of the injunction, when breach was committed his with consent or acquiescence, or where provoked J., breach was him.” 32 C. Injunctions, 859, Section 493. In page Foundry Canada Emmett, Co. v. 2 1102, Ont. R. “However, the Court said: such meth- may ods be regarded law, criminal it is not desirable encourage them in a court of equity. get equitable To * * * relief one must come into court clean with hands and a suitor cannot expect the extraordinary power the court by way exercised of injunction and committal favor, to be directed in his if he himself procures or prompts the acts complained of.” See also Reed, Reed v. 352, 1028, 149 Wash. 270 P. involving protection of a private right; Sparkman v. Higgins, C.C.S.D. Y.N. 22 Cas., 13,209, Fed. p. No. involving injunction restraining infringement of a short, In patent. my opinion, witnesses, Gunderson, Carr, Workman and employed by the investigator, Lloyd Worden, who, turn, plaintiffs in the injunction employed proceeding, defendant, have Harry C. vio- late the court’s injunction thus flout the jurisdiction the dignity of the Common Pleas Court of Cabell County, and in that court they should not be heard to complain of defendant’s violation of the court’s injunc- tion induced their activity. own It I necessarily follows that agree position with the attributed to the majority the Court in the majority opinion testimony Workman Carr should be disregarded.
I however, do not agree, there is in this record sufficient evidence independent of the testimony of Gun-
derson, Workman and Carr to sustain the conviction for “It a contempt. being contempt, quasi This criminal is rules of in criminal proceeding, criminal and the In such trial the of the accused apply guilt trials thereto. State ex beyond reasonable doubt.” proved [must] Bittner, rel. Continental Coal Co. v. Van A. 102 W. Va. *10 2, syl., 136 S. E. 49 A. L. R. Besides the pt. 968. wit- employed by investigating agency, nesses Iva Webb Tackett only and Wandell were the other witnesses who State, and, testified for the testimony unless their estab- doubt, guilt lishes beyond defendant’s reasonable cannot judgment of conviction and sentence be sustained. Webb, discloses, Iva office on the record went Devore’s initiative, her no connection having own with investi- gating agency. She testified she had set of upper made, later, teeth girl the office ten dollars and teeth, when she received the she the office girl thirty- however, witness, five dollars. This identify was unable to her, did the Devore as the who work so that court, acting jury, the trial lieu of a could not have her alone a rea- testimony beyond found on the basis of sonable that defendant made and furnished the set doubt teeth to the in violation of the in- upper false witness On cross-examination the witness was asked: junction. man you positive your impression “Are that this took table,” I am to him the your pointing made false teeth? “I am not replied, positive. the witness He which (Italics doesn’t look like the same man.” supplied.) Tackett, sister, witness, testi- State’s Wandell Iva Webb’s accompanied had her sister to office which fied she door; that some- “Harry had name C. Devore” on the said, “Next”; came to the door and that her sister’s one made; teeth going to the office was to have a set of teeth there and that she got and that her sister Likewise, of the trial. them at the time wearing defendant. identify and did not unable to witness was tending Therefore, opinion I am of the the evidence satisfy the rules may while it guilt, to establish Devore’s up not measure does procedure, of civil practice Clearly in a criminal case. high required standards beyond has failed its case a reasonable prove State doubt. the judgment
For reasons I reverse foregoing would County, dismiss the the Circuit Court of Cabell contempt proceedings.
Thomas Saunders v.
Edgar Virginia B. Auditor State West Sims,
(No. 10215) March 1950. January 11, Submitted 1950. Decided *11 Fox, Judge, dissenting. Lovins, President, P. Hendricks, for petitioner. Koslow,
Milton S. for defendant. Judge:
Haymond, This is an original mandamus which proceeding