Summary
In Jordan v. State, 216 Miss. 542, 62 So.2d 886 (1953) we held that where the facts show the contempt to be constructive contempt rather than direct contempt a judgment entered without specifications, notice and a hearing is a nullity.
Summary of this case from Wood v. StateOpinion
No. 38630.
February 16, 1953.
1. Contempt — witnesses — failure to attend court — constructive contempt.
A witness who has been subpoenaed, but was absent when case was called for trial is guilty, if guilty at all, of a constructive contempt, not of a direct contempt.
2. Contempt — constructive contempt, defined.
Constructive contempt is any act done which tends to impede, degrade, obstruct, embarrass, interrupt, defeat or corrupt the administration of justice when the act is done beyond the presence of the court.
3. Contempt — direct contempt, defined.
A direct contempt consists of words spoken or acts done in the presence of the court which tend to embarrass or prevent the orderly administration of justice.
4. Contempt — constructive contempt — proceeding involving.
In a proceeding involving constructive contempt there must be an affidavit or information setting out the facts alleged to constitute the offense and due notice thereof must be served upon the accused with the right and opportunity to him to refute the charges on a hearing thereof, and if these essentials are not complied with the judgment of conviction is a nullity.
5. Contempt — constructive contempt — conviction without notice or hearing — motion to set aside judgment, effect of.
When a conviction of a constructive contempt has been had without affidavit or information and without notice, a subsequent motion by the accused to set the judgment aside will not operate as a waiver of the necessity of an original information, notice and hearing, and has no retroactive effect of validating the former illegal proceedings and the entire proceedings remain null and void; but this does not preclude the institution of a new prosecution begun and carried forward under the proper procedure.
Headnotes as approved by Roberds, P.J.
APPEAL from the circuit court of Marion County; SEBE DALE, Judge.
Hammond Pope, for appellant.
The Court has promulgated the rule in no uncertain terms in the case of Ramsey v. Ramsey, 125 Miss. 715, sustaining suggestion of error, 125 Miss. 185. In that case Chief Justice Smith speaking for the Court laid down the rule that "in a proceeding for contempt, the defendant is entitled to be informed by the petition, motion, or information by which the proceeding was begun of the nature and cause of the accusation. He cannot be compelled to testify against himself, and should be presumed innocent until proved guilty beyond a reasonable doubt." See also the case of Grace v. State, 108 Miss. 767, which follows the above rule. "In constructive contempt there must be a proper foundation laid before process issues, and the application or foundation of contempt must contain a statement of that which constitutes the contempt." See also McKee v. McKee, 192 Miss. 668, which held that a citation for contempt was void when it did not apprise defendant of the charges against him, even though the defendant might be presumed to know that contempt proceeding arose from his failure to obey a court order by making payments for support of his child.
Contempt of court is divided into two categories. First, direct contempt. Second, constructive contempt. The alleged contempt complained of herein is of a constructive nature, even though the court below undertook, and did, adjudicate appellant guilty of direct contempt in disregard of appellant's rights.
"Constructive contempt is any act calculated to impede, embarrass, interrupt, defeat or corrupt the administration of courts of justice when the act is done beyond the presence of the court." 13 C.J., Contempt, pp. 5, 17; C.J.S., Contempt, p. 6; Sullens v. State, 191 Miss. 856.
"Direct contempt is language, or conduct, which interferes with orderly administration of justice, and may be an open insult in the presence of the court, or defiance or resistance of the courts' authority." Neely v. State, 97 Miss. 816.
"Direct contempt consists of words spoken, or acts committed in the presence of the court, or during its intermissions, which tend to subvert, embarrass, or prevent justice." 12 Am. Jur. 390, Sec. 4.
From the record in this case, it is clearly apparent that the appellant was not guilty of direct contempt, and when the court made its finding and its adjudication of direct contempt of the appellant, it did so in violation of the law of this state.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
If the appellant had appealed from the fine and imprisonment first imposed direct to this Court, the order would probably have been reversed, but the judge instead of doing so fixed a future date, as shown in the order, with the full right to both the State and the defendant to make a full showing in reference to the said matter. I submit to the Court that the order made by the judge, fixing a date for the hearing and giving full right to the appellant and to the State to show any matter affecting the said matter that they might desire, constituted a sufficent hearing and notice to the appellant to be present and offer any matter pertaining to the contempt proceedings. Under the law of this State, it was the duty of the appellant, when the motion came up before the judge, to present proof to substantiate the allegations of the motion to set aside the judgment.
"A motion is at issue without further pleading and movant to sustain his motion must introduce proof on such issue." Reed v. State, 143 Miss. 686, 109 So. 143. Shaw v. State, 188 Miss. 549, 195 So. 581.
It seems to have been the practice largely in this State that when a witness was summoned to appear in court on a certain day or time and failed to do so the judge would enter an order fining him for contempt, or imposing imprisonment for disobedience to the court's orders, and have the appellant brought before the court to show cause why said fine and imprisonment, if any, should not be made final. The order of the court imposing the fine for the absent witness being absent made the witness guilty of contempt, unless he had a legal showing to be made before the judge to show cause why he was not in contempt of court. The appellant appeared in court by his counsel and submitted himself to the jurisdiction of the court by making said motion to set aside said order, and it was his duty at that time to present any matter showing the court had erroneously fined him, or imprisoned him, for disobedience to its orders. Certainly, when he appeared and sought to set aside the judgment, whether it was void or not, it was his duty to show why the judgment was not valid, and it devolved upon him to go forward and offer evidence, with the right of the State to be heard and cross-examine the witness and introduce proof in refutation of the witness' testimony, if any was introduced. It seems to be frequently thought that application to set aside a judgment verified by an ex parte affidavit is sufficient to show prima facie the right to set the judgment aside. But such is not the case. The witness who made the affidavit, or any other witness having knowledge of the application and matter to set the judgment aside, should be put on the witness stand, and the district attorney in such cases as this given the right to cross-examine the witness for the appellant, with the right in the State to introduce contradictory or explanatory evidence, or any other matter that is properly germane to the proceeding. When the appellant appeared and announced that he stood on his rights under the motion and affidavit, without offering any proof, he submitted to the judge the right to adjudicate the preceding fine to be just and right, and no error can be availed of if that was not done in the court so as to give the court the testimony by witnesses and not by ex parte affidavits, and by failing to go forward in accordance with the above cases to sustain his motion, he thereby let the judgment become final and cannot on appeal avail himself of any evidence that was not offered at the time of the trial and during the term of the court when the matter was heard.
Under the common law, appellant could answer a contempt proceeding by presenting an affidavit that he was not subject to punishment, or that the facts on which the contempt proceedings proceeded were not sufficient to punish him for his contempt, but it has long been settled in this state that this common law proceeding does not bind the court, but that evidence may be received to contradict the affidavit so made, or to produce other proof going to the merits of the proposition. See O'Flynn v. State, 89 Miss. 850, 43 So. 82, 9 L.R.A. (N.S.) 1119, 119 Am. St. Rep. 727, 11 Anno. Cas. 653, in which it was held that, "The sworn answer of contemnor does not preclude the court from receiving evidence to establish the contempt."
This is an appeal from an order adjudicating appellant in contempt of court and imposing a fine of fifty dollars and a jail sentence of ten days.
He urges here that the judgment adjudicating him in contempt was void, because no information, or affidavit, charging him with the acts alleged to constitute contempt was made, nor was any notice given him of such proceeding, or any hearing had thereon.
The order adjudging him in contempt was made under these circumstances:
At the June Term, 1952, of the circuit court of Marion County Stanley Barnes was indicted for the unlawful possession of whiskey.
On June 14, 1952, subpoena was served upon appellant commanding him to appear before that court Monday June 16th as a witness in the Barnes case. He duly appeared as such witness. The case was called for trial but was continued to Wednesday, June 18th, of the same week because of the absence of another witness. Announcement was made in open court that all witnesses should be present Wednesday. When the case was called Wednesday Jordan was not present. Barnes made application for a continuance on the ground that Jordan was a necessary witness and was absent. The court sustained that motion and in the same order found that Jordan was in contempt of court by his absence, and imposed said fine and imprisonment. The order specifically recites, as a ground for finding Jordan in contempt, ". . . the said Paul Jordan is disregard of his subpoena to be here has by his disregard and contempt of court caused the said cause to be continued for the term because of his absence in disrespect and in contempt of court; and the court specifically holds that Paul Jordan is in contempt of court for failure to appear as ordered by his subpoena and has given no cause for his failure to appear." It will be noted that no affidavit, or information, setting out the facts alleged to constitute contempt was made; no notice was given Jordan of any charge against him, and no hearing was had upon any charge. It appears from the record that the trial judge construed the action of Jordan to be in direct contempt of the court. (Hn 1) That was an erroneous conclusion. If an offense was committed it was constructive contempt. (Hn 2) "Constructive contempt is any act done which tends to impede, degrade, obstruct, embarrass, interrupt, defeat or corrupt the administration of justice when the act is done beyond the presence of the court." Brannon v. State, 202 Miss. 571, 20 So.2d 916.
(Hn 3) "A direct contempt consists of words spoken or acts done in the presence of the court which tend to embarrass or prevent the orderly administration of justice." Ex Parte Redmond, 159 Miss. 449, 132 So. 328.
The following cases contain definitions of, or point out the distinctions between, direct and constructive contempt: Knox v. State, 160 Miss. 494, 135 So. 206; Sullens v. State, 191 Miss. 856, 4 So.2d 356; Jones v. State, 208 Miss. 762, 45 So.2d 576. They demonstrate conclusively that Jordan's failure to appear as a witness was a constructive contempt if any offense at all.
(Hn 4) In proceedings involving constructive contempt there must be an affidavit or information setting out the facts alleged to constitute the offense; due notice thereof served upon the accused with the right and opportunity in him to refute the charges on a hearing thereof. Grace v. State, 108 Miss. 767, 67 So. 212; Ex Parte Redmond, supra, and Brannon v. State, supra.
These essentials not having been complied with in the case at bar the judgment of the court was a nullity.
(Hn 5) Later in the term Jordan made a motion to set aside this judgment, and, as one ground thereof, set up a reason for his non-appearance as a witness. There was a hearing upon this motion and testimony was taken explaining his reason for not appearing. The court overruled the motion to set aside the former judgment. The State says this was a waiver by Jordan of the necessity for an information, notice and hearing precedent to the prior order adjudicating him in contempt. We do not think so. The former order was void. The trial court proceeded upon the assumption this was a direct contempt and no information, notice or hearing was necessary. The later motion was simply to set the former judgment aside and the court refused to set it aside. There was no new adjudication of contempt. The court simply let the former void order stand. The later hearing had no retroactive effect as validating the former illegal proceedings. And no charge was ever preferred at either hearing. This was in the nature of a criminal action and affidavit or information, setting out the alleged acts constituting the offense, was necessary to its validity.
The disposition we have made of the case does not preclude another prosecution of Jordan, by requisite proceedings, if the proper officials see fit to so proceed.
Reversed and appellant discharged.
Hall, Kyle, Holmes and Lotterhos, JJ., concur.