Opinion
29893.
DECIDED MARCH 19, 1943.
Rule for contempt; from Fulton superior court — Judge Pomeroy. April 11, 1942.
H. A. Allen, Morgan Belser, Hal Lindsay, Howard, Tiller Howard, for plaintiff in error.
James A. Branch, John A. Boykin, solicitor-general, E. A. Stephens, contra.
The court erred in adjudging the defendant in contempt of court.
DECIDED MARCH 19, 1943.
This is a contempt of court proceeding against Mrs. M. S. Vines, instituted by the solicitor-general of Fulton superior court on behalf of the State. She was adjudged guilty by the court, and that judgment is assigned as error. The evidence disclosed the following facts: On February 25, 1942, the defendant was served with a subpoena duces tecum, directing her to produce before the grand jury on the following day certain documents to be used as evidence in a criminal case then under investigation by the grand jury. On February 26, 1942, she filed a motion to quash the subpoena, on several grounds. A rule nisi was served on the solicitor-general, requiring him to show cause, on March 2, 1942, why the subpoena should not be quashed. Subsequently to the serving of the rule nisi, and on February 26, 1942, five other subpoenas duces tecum were served on Mrs. Vines, directing her to produce before the grand jury the same documents called for in the first subpoena duces tecum. Mrs. Vines, on February 27, 1942, filed motions to quash the five subpoenas, and the motions were set for a hearing on March 2, 1942, but the hearing was delayed until a later date. On March 9, 1942, she filed an amendment to the motions to quash. On March 10, 1942, she was served with another subpoena duces tecum, directing her to appear before the grand jury on March 17, 1942, and to produce certain documents therein enumerated. She filed her response thereto on March 17, 1942.
On the hearing of the motions to quash the subpoenas duces tecum the judge reserved his decision to a later date. Subsequently the State filed its petition alleging, that after the original subpoena duces tecum was served on the defendant she had parted with possession of the documents called for in that subpoena, and that such conduct on her part constituted contempt of court; and the petition prayed that Mrs. Vines be required to show cause why she should not be adjudged in contempt of court, and why she should not be required to restore said documents to her possession, and why a custodian for the documents should not be appointed by the court and the documents impounded. Mrs. Vines filed her response, denying that she was in contempt of court, and alleging that the documents were not in her possession or control, and that they had been removed from her office by Mrs. Hiram Evans, in her absence and without her consent or knowledge. On the hearing of the petition, after introduction of evidence, the court rendered its decision, holding, that the subpoena duces tecum of February 25 was "too vague and indefinite" and should be quashed; that under the subpoena of February 26 the court could require the production of the documents against the sole objection that the subpoena was too vague and indefinite; and that the court had authority to order production of the papers called for by the subpoena of February 26, but had no power to impound the documents, The court, however, adjudged that Mrs. Vines was in contempt of the court, and sentenced her to pay a fine of $50 or to serve ten days in jail.
It appears from the opinion of the judge rendered in the case that his judgment finding Mrs. Vines guilty of contempt of court was bases solely or mainly on the fact that in her amendment of March 9, which was filed after she had learned that the documents in question had been removed from her office by Mrs. Evans, Mrs. Vines failed to inform the court of such removal. It must be kept in mind that said amendment was an amendment of her motion to quash the subpoenas duces tecum as defective and invalid. In other words, her original motion to quash the subpoenas and her amendment thereto were based solely on the ground that the subpoenas were defective and invalid and should for that reason be quashed. The fact that she knew, after the filing of her original motion and before the filing of her amendment of March 9, that Mrs. Evans had removed the documents, had no proper place in the amendment. Such a fact was material to a response to a subpoena duces tecum, but not to a motion to quash the subpoena; and Mrs. Vines, on March 17, in her response to the subpoenas, informed the court that the documents had been removed from her office, without her consent or knowledge, by Mrs. Evans.
We are aware of the ruling in Cobb v. State, 187 Ga. 448 ( 200 S.E. 796, 121 A.L.R. 210), that the power of constitutional courts to define and punish contempts is inherent, and that this authority is not limited by the Code, § 24-105. However, in the case at bar the record fails to disclose any evidence authorizing a finding that the defendant was in contempt of court. The undisputed evidence discloses that Mrs. Evans removed the documents without the consent or knowledge of Mrs. Vines, and that when Mrs. Vines was served with defective (and probably invalid) subpoenas duces tecum, she promptly moved that the court quash them, instead of ignoring them; and that in her response to the subpoenas she clearly and fully informed the court how, when, and by whom, the documents in question were removed from her possession. This is a case charging criminal contempt, and criminal contempt involves some "disrespectful or contumacious conduct towards the court." Davis v. Davis, 138 Ga. 8 (1-b) ( 74 S.E. 830). In our opinion the judgment finding the defendant in contempt of court was error.
Judgment reversed. MacIntyre and Gardner, JJ., concur.