Summary
holding that defendant's filing of false papers with clerk could not be punished as contempt, "since it does not appear that the court was in session at the time."
Summary of this case from U.S. v. ArredondoOpinion
No. 8959.
November 5, 1941.
Appeal from the District Court of the United States for the Southern District of Ohio, Marion Speed Boyd, Judge.
Milton H. Schmidt was adjudged in contempt of court, and he appeals.
Judgment set aside and rule to show cause why appellant Schmidt should not be held in contempt of court dismissed.
Murray Seasongood, of Cincinnati, Ohio, for appellant.
James J. Waters and William W. Barron, both of Washington, D.C., for appellee.
Before HICKS, ALLEN, and McALLISTER, Circuit Judges.
This cause was heard upon the transcript of the record, briefs, and arguments of counsel. On consideration whereof, the court is of the opinion that the filing in the Clerk's office by appellant of the affidavits obtained under the circumstances set forth in the evidence was not upon the authority of Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, in the presence of the court or so near thereto as to obstruct the administration of justice, since it does not appear that the court was in session at the time.
And it further appearing that to bring the acts of appellant as an attorney within the inhibition of "misbehavior of any of the officers of said courts in their official transactions" requires a construction of the statute providing for punishment by fine and imprisonment, which under well settled rules of construction of penal statutes we are not permitted to make, it is ordered and adjudged that the judgment appealed from be and is set aside, and that the rule to show cause why appellant Schmidt should not be held in contempt of court be and the same is hereby dismissed.