Summary
In Ex Parte Bankhead, 200 Ala. 102, 75 So. 478 (1917), the Court held that in order to punish for constructive contempt the offending party should have notice of the nature and character of the charge and be given an opportunity to answer.
Summary of this case from In re TarpleyOpinion
6 Div. 483.
April 26, 1917. On Rehearing, May 24, 1917.
Appeal from the Circuit Court, Lamar County; Hon. A. S. Vandegraaf, Judge.
Bankhead Bankhead, of Jasper, for appellant. W. L. Martin, Atty. Gen., and Perry W. Turner, Asst. Atty. Gen., for appellee.
Independent of the inherent power of courts to punish for contempt, and notwithstanding the restriction and limitation attempted to be placed thereupon by the statute, the trial court had jurisdiction and power in the case at bar under the statute (section 4630 of the Code of 1907).
It appears to be the recognized rule that, in order to punish for a constructive contempt, as distinguished from a direct contempt, the offending party should have notice of the nature and character of the charge and be given an opportunity to answer and defend himself, and this is generally done by a rule to said offending party to appear and how cause, and which was done in the instant case. United States v. Shipp, 203 U.S. 568, 27 Sup. Ct. 165, 51 L.Ed. 319, 8 Ann. Cas. 265; In re Fellerman (D.C.) 149 Fed. 244; Aaron v. United States, 155 Fed. 833, 84 G. C. A. 67; Schwartz v. United States, 217 Fed. 866, 133 C.C.A. 576; 9 Cyc. 38; State v. Frew, 24 W. Va. 416, 49 Am. Rep. 257; Latimer v. Barmore, 81 Mich. 592, 46 N.W. 1; People v. Oyer, 27 How. Prac. (N.Y.) 14.
It has been customary, and seems to have been necessary in some jurisdictions, to propound interrogatories to the accused in order that he may purge himself of the contempt by a denial in his answer of any intent to commit a contempt, but this rule is not universal, and under the modern authorities this procedure is treated as a mere matter of practice, and the court may dispense with an examination upon interrogatories. 9 Cyc. 43; In re Savin, 131 U.S. 267, 9 Sup. Ct. 699, 33 L.Ed. 150; Hummell's Case, 9 Watts (Pa.) 416.
It is urged that the petitioner's denial was conclusive of his innocence, but this rule does not now obtain, and never did in many jurisdictions where the contempt charged was of such a nature as could not be cured or atoned for by a disclaimer of any intention to commit a contempt. The rule as to a discharge upon answer generally operates as an excuse rather than an acquittal, and relates to contempts of a trivial nature or conduct which is capable of two constructions, one of which would be a contempt, and the other would not, such as publications, pleadings, etc., wherein the accused has been excused and discharged upon a sworn denial of any intent to commit a contempt. Shipp's Case, supra; Fellerman's Case, supra; O'Flynn v. State, 89 Miss. 850, 43 So. 89, 9 L.R.A. (N.S.) 1119, 119 Am. St. Rep. 727, 11 Ann. Cas. 530; Coleman v. State, 121 Tenn. 1, 113 S.W. 1045.
The judgment in the case at bar is sufficient. Easton v. State, 39 Ala. 551, 87 Am. Dec. 49; Ex parte Hardy, 68 Ala. 303; Ex parte Pearce, 111 Ala. 102, 20 So. 343.
As the record in this case shows that the trial court was clothed with jurisdiction in the matter, and committed no error of law apparent upon the record, the writ must be denied; as this court will not review or revise the conclusion and judgment of the trial court upon the facts under the writ of certiorari. Dickens' Case, 162 Ala. 272, 50 So. 218; McAllilley v. Horton, 75 Ala. 491; Miller v. Jones, 80 Ala. 93; Stanfill v. Board of Revenue, 80 Ala. 290; McCulley v. Cunningham, 96 Ala. 585, 11 So. 694; Taliaferro v. Lee, 97 Ala. 102, 13 So. 125.
As the sentence of the circuit court was suspended pending the consideration of this matter, and as the time fixed has expired, the petitioner is here resentenced to serve said sentence pronounced by the trial court commencing on Monday, June 11, 1917.
Writ denied.
McCLELLAN, SAYRE, and GARDNER, JJ., concur.
On Rehearing.
We laid down the rule in the foregoing opinion that, in order to punish for a constructive contempt, the offending party should have notice of the nature of the charge against him and be given an opportunity to answer and defend himself, and that this was generally done by a rule to show cause.
The record shows a rule in this case, giving the nature of the charge, the service of same upon the accused, and his answer thereto, and a judgment by the court adjudging him guilty. This was sufficient to give the trial court jurisdiction. It is true the rule does not recite that the accused had knowledge of the fact that Armstrong was a witness, and this averment could well have been made, but the omission of same did not defeat the jurisdiction of the trial court. It is generally sufficient if the rule gives the defendant notice of the nature of the contempt, unless the statute or rules of the court require that the facts constituting the contempt be set out. 9 Cyc. 38, 39. We have no statute or rule requiring that the facts be set out.
In dealing with the sufficiency of a charge or complaint to support jurisdiction, as distinguished from an attack upon the same by a demurrer, all reasonable inferences must be indulged in favor of the sufficiency of same to support the judgment. Werten v. Koosa Co., 169 Ala. 258, 53 So. 98.
The application for rehearing must be overruled.