Opinion
38935.
DECIDED SEPTEMBER 8, 1961.
Contempt. McDuffie Superior Court. Before Judge Kennedy from Augusta Circuit.
Stevens Stevens, B. J. Stevens, for plaintiff in error.
Kenneth E. Goolsby, Solicitor-General, contra.
The evidence in this case is insufficient to prove the allegations of contempt as set out in the petition.
DECIDED SEPTEMBER 8, 1961.
Mrs. Beatrice Kent Renfroe was cited by Judge F. F. Kennedy of the Superior Court of the Augusta Judicial Circuit, sitting in place of Judge Earle Norman of the Superior Court of McDuffie County, to appear before said court and show cause why she should not be adjudged in contempt, said rule setting out that during the March term of the Superior Court of McDuffie County, Ga., and on the 21st day of March, 1961, while the case of State of Georgia v. W. G. (Buck) Kent was being tried, John F. Watson was sworn as a witness for the State, as to the charge of forgery; "Thereafter, and while the case was still in progress, said Mrs. Beatrice Kent Renfroe approached the said John F. Watson and excoriated and criticized the said witness for giving testimony against her brother (the defendant) having for her purpose the intimidation of said witness, and to prevent his giving truthful testimony in the event he should be recalled to the witness stand during said trial, and all of which is contumacious and contemptuous conduct, and in effect obstructed the orderly processes of this Honorable Court, and takes away from witnesses the protection of law to which they are entitled"; and that "the aforesaid contemptuous conduct should be punished in order that the respect due this court and the protection due its witnesses be safe-guarded and upheld."
Mrs. Renfroe did not reduce her defense to writing but pleaded innocent of the charge alleged and requested an immediate hearing which was granted and the matter was heard on March 22, 1961.
The Honorable John F. Watson, Ordinary of McDuffie County, was sworn and testified as follows: "I am ordinary of this county. I was sworn yesterday as a witness for the State in the case of The State of Georgia versus Buck Kent, charged with forgery, that was on the 21st day of March, 1961. No, I have not read this petition. I was approached by Mrs. Beatrice Kent Renfroe after I testified in this case yesterday.
"This took place: Well, yesterday afternoon about — well, after court adjourned, I presume, Mrs. Renfroe came into the office and said that she has always had a high opinion of me, that she thought I was a man of fair mind and all, but that she had learned differently, she had learned my true self, that the idea of coming up here and testifying against Buck. And I only did I told her — testified what I saw. And she said, `Well, you could have told about seeing somebody else out there on the road.' And I said, `Yes'm, but Buck is the only one that I saw parked there, he and, I thought, two other fellows, and recognized it being Buck's car, and it was just unusual to see somebody parked on the side of the road and driving slow on an old bumpy road, I just noticed it.' And she said, `Well, you didn't have to say it was Buck; you could have said you saw other people out there.' I said, `Well, Mrs. Renfroe, I just told what I saw, and if they call me up there, I'll tell it again.' And she said, `Well, I just see that you are like the rest of the ones here in McDuffie County, you are prejudiced against Buck, and Buck cannot get a fair trial in the county,' and says, `He's guilty before he even goes upstairs or goes before a jury.' And said, `I have talked with Dan Brewster, the Methodist preacher over here about different ones in the church that aren't doing right, by the way they are doing,' and says, `You are just like them.' So, I don't know, that's the whole gist of the conversation. She just raked me over the coals for coming up here and testifying against Buck." On cross-examination, he testified that "Oh, no, there was no animosity involved," and ". . . the worst thing which she said, that I was prejudiced against him."
Mrs. Renfroe was sworn and testified that "he [Watson] had already testified, and I didn't think he hurt my brother. And that I thought there were things about my brother that he didn't know, that he would feel different toward him, and a lot of other people would, too, if they just knew really the inside, not just the hearsay, and the idle gossip, and what's in the newspapers and what's on the radio." On cross-examination Mrs. Renfroe stated: ". . . I went to see Mr. Watson after he testified in court. As to whether I knew he would be called back or not, well, I thought it was all over."
After hearing the testimony of the above two witnesses, Mrs. Renfroe was adjudged to be in contempt, and error is assigned to this final judgment. The plaintiff in error contends that the judgment is erroneous for the following reasons: that it is contrary to the evidence in that there was no evidence upon which to base such judgment of contempt; that the alleged conduct was not in the presence of the court or so near thereto as to obstruct the administration of justice; and that the alleged conduct took place after the court had adjourned for the day and after the witness had returned to his office.
"The powers of the several courts to issue attachments and inflict summary punishment for contempt of court shall extend only to cases of misbehavior of any person or persons in the presence of said courts or so near thereto as to obstruct the administration of justice." Code § 24-105. However, this statute, "in so far as it seeks to limit the jurisdiction of a constitutional court to punish contempts to certain specified acts, is not binding upon such courts. They may go beyond the provisions of the statute in order to preserve and enforce their constitutional powers by treating as contempts acts which clearly invade them." Atlanta Newspapers v. State of Ga., 216 Ga. 399, 402-403 ( 116 S.E.2d 580); Bradley v. State, 111 Ga. 168 ( 36 S.E. 630, 50 LRA 691, 78 ASR 157); Cobb v. State, 187 Ga. 448 ( 200 S.E. 796); In re Fite, 11 Ga. App. 665 (2) ( 76 S.E. 397). But even constitutional courts are limited to the extent that there must be a "clear and present danger to the administration of justice." McGill v. State of Ga., 209 Ga. 500, 504 ( 74 S.E.2d 78); Wood v. State of Ga., 103 Ga. App. 305, 320 ( 119 S.E.2d 261).
It is generally held that it is contempt of court to threaten or to endeavor to intimidate a witness in a pending action. Herring v. State, 165 Ga. 254 ( 140 S.E. 491); Powell v. State of Ga., 152 Ga. 81 ( 108 S.E. 464); Burge v. State, 38 Ga. App. 690 ( 145 S.E. 463); Morgan v. State, 26 Ga. App. 83 ( 105 S.E. 449); Herring v. State of Ga., 37 Ga. App. 594 ( 141 S.E. 89). "Any interference or attempt to interfere with witnesses by means of bribery, intimidation, inducements, or other unlawful means, in order to induce them to testify falsely, or to change or modify their testimony, or to suppress facts, constitutes contempt, which it is the duty of the courts to guard against zealously and to punish. Thus it is contempt to attempt to bribe a witness, or to use either persuasive or threatening language to a witness for the purpose of inducing him to testify falsely or not to testify, or to attempt by unlawful means to procure a witness to testify in a case contrary to his previous testimony, even though the testimony so sought is the truth . . ." 17 C.J.S. 46, § 31. See also 12 Am. Jur. 402, § 19; 52 A.L.R. 2d 1297. It is also true that while the prevailing rule in the United States is that the rule of reasonable doubt should be applied in criminal contempt cases, the rule in Georgia is contra and requires only a preponderance of evidence to find a respondent guilty of criminal contempt under Code §§ 24-105 and 24-2615. Pedigo v. Celanese Corp. of America, 205 Ga. 392 ( 54 S.E.2d 252), cert. denied, 338 U.S. 937 ( 70 SC 346, 94 LE 578). As to the function of a reviewing court, it has no discretion in the matter, and the trial court's adjudication of contempt will not be interfered with unless there is a gross, enormous, or flagrant abuse of discretion. Cabot v. Yarborough, 27 Ga. 476; Remley v. DeWall, 41 Ga. 466; Hayden v. Phinizy, 67 Ga. 758; Warner v. Martin, 124 Ga. 387 ( 52 S.E. 446, 4 AC 180); Beebe v. Smith, 76 Ga. App. 391 ( 46 S.E.2d 212); Burge v. State, supra; Mays v. Willingham, 37 Ga. App. 478 ( 140 S.E. 789). It has been said that the judgment of the trial court will not be disturbed "unless it appears that there is no evidence to support the finding." (Emphasis supplied). Greenway v. Greenway, 147 Ga. 503 ( 94 S.E. 885). In 1949, the Supreme Court of Georgia held that if there is any substantial evidence authorizing a finding that the party charged was guilty of contempt, and the trial judge so finds, his judgment must be affirmed insofar as the sufficiency of the evidence is concerned. Pedigo v. Celanese Corp. of America, supra.
Here the gist of the allegation against the plaintiff in error is that while a case was in progress, she "excoriated and criticized" a witness "for giving testimony against her brother . . . having for her purpose the intimidation of said witness and to prevent his giving truthful testimony in the event he should be recalled to the witness stand during said trial. . ." (Emphasis supplied). The only witness for the State was the person the defendant allegedly attempted to intimidate. His testimony formed the basis of this case. The substance of this testimony was that there was "no animosity involved"' in defendant's conduct and that the "worst thing which she said" was "that I was prejudiced against him." We are of the opinion that the evidence in this case is insufficient under the above authorities to prove the allegations as set out in the petition in this case.
Defendant in error cites as authority for its position the case of Morgan v. State, 26 Ga. App. 83, 85 ( 105 S.E. 449), which held: ". . . Where a court is in session, and a witness has been sworn and is leaving the court-house, he is entitled to the same protection as if he were going into the court-house to be sworn, and should not be abused, harassed, browbeaten, or insulted because of his testimony. When a witness is thus approached by a person who says to him, `Old boy, you were God damned crooked to-day,' `If a damned son of a bitch was to swear a lie against me, I would kill him,' thus referring to the evidence of the witness, whether this occurred on the first floor of the court-house or in the yard as the witness was leaving, this misbehavior was in the presence of the court or so near thereto as to obstruct the administration of justice."
The gist of the citation in the Morgan case, supra, was the abusing, harassing, browbeating or insulting a witness while a court was in session and the witness was leaving the courthouse. As stated above, this is not the gist of the present citation. In addition, in the present case the court was not in session and the witness had left the courtroom and returned to his office.
Judgment reversed. Felton, C. J., and Bell, J., concur.