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05/29/57 H. HOOVER GARABEDIAN v. COMMONWEALTH

May 29, 1957

H. HOOVER GARABEDIAN
v.
COMMONWEALTH



Suffolk. Petition for a writ of error, filed in the Supreme Judicial Court for the county of Suffolk on May 15, 1956. The case was reserved and reported by Spalding, J.

Wilkins, C.j., Ronan, Williams, Whittemore, & Cutter, JJ.

SYLLABUS BY THE COURT

Contempt. Constitutional Law, Due process of law. Witness, Contempt. Moot Question. Error, Writ of.

The opinion of the court was delivered by: Wilkins

A proceeding on writ of error to reverse a summary judgment of a court sentencing the petitioner for a criminal contempt did not become moot by reason of the fact that the petitioner served the sentence imposed. [120]

A plea of in nullo est erratum in a proceeding on writ of error admits facts well pleaded in the petition. [120]

A witness at a trial who was summarily adJudged "guilty of contempt of court because of wilful and intentional perjury" and sentenced to imprisonment therefor upon leaving the stand, without being given notice of the charge of contempt or an opportunity to secure counsel, prepare a defence and present it at a hearing, was denied due process of law under the Fourteenth Amendment to the Constitution of the United States where it appeared that the Judge based his adjudication of contempt not wholly upon what he himself observed but in part upon testimony of others, some of which was taken in the absence of the witness. [124-125]

A summary adjudication by a trial Judge that a witness was "guilty of contempt of court because of wilful and intentional perjury" was not conclusive upon the witness or his rights as to whether he was accorded due process of law respecting that charge, and allegations of the circumstances of the adjudication showing a want of due process were well pleaded in a petition by him for a writ of error to reverse the adjudication and were admitted by a plea of in nullo est erratum. [126]

This petition for a writ of error to reverse a summary judgment in contempt based upon a finding of perjured testimony in the Probate Court has been reserved and reported by a single Justice without decision upon the petition, the return of the Probate Court, and the plea, for the determination of the full court. The Commonwealth pleaded (1) in nullo est erratum; and (2) that the contempt was committed in the presence of the probate Judge, that the Probate Court had jurisdiction, and that the petitioner has served his sentence.

No contention has been made, nor could one rightly be made, that the case is moot. Although there is no way to restore time lost while serving sentence, a person is entitled to an effacement of the obloquy and stigma of an illegal conviction. Commonwealth v. Fleckner, 167 Mass. 13. See Kenworthy & Taylor, Inc. v. State Examiners of Electricians, 320 Mass. 451; Manchester v. Selectmen of Nantucket, 335 Mass. 156, 158.

The effect of the plea of in nullo est erratum is to admit facts well pleaded. Jones v. Commonwealth, 331 Mass. 169, 170, and cases cited. Procedural contentions made on behalf of the ...


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