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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 Commonwealth may be more conveniently considered later.

The facts which we hold to be well pleaded in the petition are as hereinafter set forth. The petitioner was admitted to the bar of this Commonwealth on October 17, 1955. In the preceding September he was employed as a clerk in the law office in Worcester of Aram Garabedian, Esquire (hereinafter called Mr. Garabedian), to whom he was not related. On September 3, 1955, Mrs. Rollande T. Bonnet, a stranger to the petitioner, entered the office of Mr. Garabedian, who was on vacation, and told the petitioner that she wanted a divorce. The petitioner advised her that he was not a member of the bar, but would make a memorandum of the facts to present to Mr. Garabedian upon his return. Mrs. Bonnet in response to questions by the petitioner stated that she resided in Leicester in this Commonwealth; that she was married at San Diego, California, to Fred A. Bonnet of Southton, Texas, while both were in the naval service; that they resided in California until after they were both discharged from the service; that they lived for a short time with his mother in Southton and then in Leicester; that while they lived in Leicester her husband was guilty of acts of cruel and abusive treatment toward her; and that he left her there. A libel stating these facts was then typed and held in the office until Mr. Garabedian's return. Thereafter the libel, dated October 31, 1955, was filed, and notice by publication was given.

No appearance being entered for the libellee, there was an uncontested hearing before a Judge of the Probate Court for the county of Worcester at which the libellant was represented by Mr. Garabedian. Neither a stenographer nor the petitioner was present. The libellant and her mother, Mrs. Daigneault, testified that the Bonnets last resided together as husband and wife at Leicester. After direct examination of Mrs. Daigneault conducted in English, the Judge interrogated her for about ten minutes in French, a language not understood by Mr. Garabedian. At the termination of her testimony the Judge said in substance in English, "That is all," and the witnesses and Mr. Garabedian left the court room. At that time there was offered no certificate of the marriage, and Mr. Garabedian informed the Judge that he would send one to the Judge, an arrangement to which the Judge assented. Mr. Garabedian filed the certificate in court and later, being at the court on other business, advised the Judge that he had done so. The Judge then for the first time informed Mr. Garabedian that he doubted that the Bonnets had resided in Leicester, and that he had asked the State police to investigate.

On April 5, 1956, Mr. Garabedian received a telephone call from the registry of probate informing him that his client would be in court on the following morning and asking him to be present. He was given no reason for a second hearing. Upon arriving at the court room Mr. Garabedian found Mrs. Bonnet there with her mother and a lieutenant of the State police. There was no stenographer, and those ...


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