Opinion
No. 32978.
February 7, 1938.
CONTEMPT.
Where defendant, having sold whisky to certain minors, and knowing that they had been summoned to testify before the grand jury, suggested to them, at a time when the court was not in session, that they "stick to him," and testify that they drank beer instead of whisky, defendant's attempt to suppress the truth before the grand jury constituted a "constructive contempt."
APPEAL from the circuit court of Lamar county. HON. HARVEY McGEHEE, Judge.
E.F. Coleman, of Purvis, and Hall Hall, of Columbia, for appellant.
According to the authorities there are two classes of contempt. One is a direct contempt which must be committed in the presence of the court while sitting judicially. The other is a contempt which is not committed in court but which is intended and designed to obstruct or prevent the due administration of justice, and is sometimes called an indirect contempt and sometimes called a constructive contempt. Authority is granted to our courts by legislative enactment to punish for a direct contempt, and is found in Section 741 of the Mississippi Code of 1930. Authority to punish for an indirect or constructive contempt is derived from the common law.
6 R.C.L., pages 487, 488 and 489.
Certain standards have been laid down by this court for determining whether a conviction for contempt will be upheld. One standard is that mere circumstances suggesting guilt are not sufficient to uphold a conviction but that there must be clear and convincing proof sufficient to show beyond a reasonable doubt that the accused is guilty as charged.
Magee v. State, 99 Miss. 83, 54 So. 802.
We most earnestly insist that there was absolutely no testimony upon which the judgment of conviction can be sustained on the charge that appellant asked these witnesses to testify wrongfully or corruptly.
The third charge in the information was to the effect that the appellant mixed, mingled and conversed with the witnesses in the corridor of the court house before and after they appeared before the grand jury with the intention of wrongfully influencing their testimony. There is absolutely no proof of anything being said or done on this occasion to influence any of the witnesses.
We submit that it was perfectly legitimate for the appellant to make a memorandum as to what witnesses had been summoned. Possibly he might be indicted and possibly six witnesses had appeared before the grand jury with only three listed to testify against him, and it would be material in his behalf, in the event he should be indicted, that he know what witnesses had appeared and had failed to give damaging testimony against him, for it might be that those witnesses would be in possession of testimony favorable to his defense, and he would be entitled to know who they were so that he could properly defend himself, in the event of an indictment. Consequently, we submit that there was no element of contempt in the act of the appellant in making a memorandum as to the names of the witnesses who had been summoned, especially when he did not use this memorandum in seeking these witnesses or in trying to establish contact with them.
Russell Wright, Assistant Attorney-General, for the State.
In a long line of cases, this court has defined constructive contempt. Constructive contempt has been defined as "any act calculated to impede, embarrass, obstruct, defeat, or corrupt the administration of courts of justice."
Knox v. State, 160 Miss. 494, 135 So. 206.
In 13 C.J., page 38, we find the general rule to be that it is contempt to use either persuasive or threatening language to a witness for the purpose of inducing him to testify falsely, or not to testify.
It was clear to the learned trial judge that Sammons did use persuasive language in order to get the witnesses to say they had bought beer from him instead of whiskey.
Rickett v. State, 111 Tenn. 380, 77 S.W. 1076; U.S. v. Carroll, 147 Fed. 947; State v. Keyser, 181 P. 278; Taylor v. State, 112 Neb. 259, 199 N.W. 509.
The district attorney of Lamar county filed a proceeding in contempt in this case brought against Bill Sammons at the July, 1937, term of the circuit court of Lamar county. In the information it was charged that certain witnesses had been subpoenaed to appear before the grand jury at that term, and the summons had been issued and served on certain witnesses who were boys under age. These boys had bought intoxicating liquors from Sammons, to-wit, whisky. Having no means of conveyance to attend court, they went to see Sammons with a view of having him take them. He had a list of the witnesses for whom summons had been issued and served, including these boys.
The boys discussed with him the matter of what statements it would be advisable for them to make in reference to such sales. One asked him if he could say that they bought beer instead of whisky. One boy testified: "He said to tell we went out and drank beer around once and awhile and never had bought any whisky. He said we could tell it if we wanted to, but he didn't tell us to tell it, but he said we could if we wanted to." Another testified that Bill Sammons told him that he had their names before they got the summons, "and knew we were going to get them." Another testified: "He said we could say we drank beer out there, and never had bought any liquor;" that Sammons knew before they got their summons that they were going to get it; that he noticed the list that Sammons had. Another witness testified that he suggested to Sammons that the boys could say that they bought beer instead of whisky. This was on Saturday before the grand jury met on Monday, being the day on which the three boys went to see Sammons. On this occasion Sammons told witnesses Branton and Hartfield that "We could say we drink beer."
It was further testified that Sammons conveyed the boys to the courthouse, free of charge, and sat around the courthouse while they were before the grand jury. One of the witnesses testified that he had not intended to tell the grand jury the truth, but that they "got close after him;" that, if they had testified that they drank beer instead of whisky, they would have told that which was false.
Several of the witnesses introduced testified to the same effect — that they drank whisky and not beer.
It was manifestly the purpose of this conversation between appellant and these witnesses to prevent the latter from telling the grand jury that they had bought whisky from Sammons, when, in fact, they had bought it. It was testified that Sammons said they could "stick to him;" also that on the way to the courthouse one of the boys suggested that if they were going to stick to him they thought they ought to have a "handout;" but that Sammons said "he wasn't giving out anything," and they could do as they pleased.
At the time of the conversation above set forth, the boys had been summoned as witnesses, which was known to Sammons, and his suggestion that they stick to him and say they drank beer instead of whisky was manifestly for the purpose of preventing an indictment by withholding the truth.
Although the court was not in session at the time the conversation took place, the witnesses had been summoned to attend and testify before the grand jury impaneled for that term. The witnesses were lawfully summoned, and it was plainly contempt of the court to attempt to interfere with the function of the court by suppressing the truth before the grand jury. This is a constructive contempt. See Knox v. State, 160 Miss. 494, 135 So. 206; Sellers v. State, 127 Miss. 748, 90 So. 716, 21 A.L.R. 238.
The judgment of conviction is therefore affirmed.
Affirmed.