In re Independent Pub. Co.

• Decision Date: 13 February 1917
• Docket Number: 2740.
• Citation: 240 F. 849
• Parties: In re INDEPENDENT PUB. CO. et al. v. UNITED STATES. INDEPENDENT PUB. CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

240 F. 849

In re INDEPENDENT PUB. CO. et al.

INDEPENDENT PUB. CO. et al. v. UNITED STATES.

No. 2740.

United States Court of Appeals, Ninth Circuit.

February 13, 1917

Information charging the Independent Publishing Company and Will A Campbell, its managing editor, with misbehavior in obstructing the administration of justice in publishing matter concerning and prejudicial to the defendant then on trial. From a judgment holding respondents to be guilty of contempt of court, as alleged in the information, and imposing a fine therefor, respondents bring this writ of error.

During a special term of the United States District Court for the District of Montana, held in the city of Helena, in November 1915, an information under oath was filed in the court by the United States District Attorney for the District of Montana from which it appeared that on November 26, 1915, there came on for trial the issue joined upon an indictment then pending in that court against one William T. Poe, charging the defendant with having wrongfully, unlawfully, and feloniously devised an artifice or scheme to defraud certain parties named, and, in furtherance of said scheme, had used the United States mails by placing, or causing to be placed, in the post office of the United States at Harlem, Mont., a letter, contrary to the statute in such case made and provided. A jury was impaneled to try the case, and, when the time for the adjournment of the court for the day had arrived, the cause was still pending, undetermined. The court thereupon duly admonished the jury as to its conduct during the adjournment, and adjourned the court and the trial of the cause until 10 o'clock in the forenoon of the following day; the jury separating and going to their respective places of abode in the city of Helena.

There was at that time published in the city of Helena a daily newspaper, named The Helena Independent, published by the Independent Publishing Company, a corporation, with Will A Campbell as its manager and editor. This paper was the only morning newspaper published in Helena, and it had a large circulation in that place and elsewhere. On the morning following the adjournment of the court mentioned above, the Independent contained the following article, to wit:

"Slick' Mr. Poe is Now on Trial.

'Former Auditor of North Dakota City, Ex-Convict,

'Charged with Fraud.

'Was Sentenced to 32 Years for Embezzlement in North Dakota and Gets in Trouble Shortly After He is Paroled from Prison.

'W. T. Poe, former city auditor of Williston, North Dakota, ex-convict, homesteader and alleged forger, was placed on trial in the federal court yesterday to answer an indictment charging him with using the mails to defraud. The government got under headway with its presentation of the evidence against the defendant yesterday afternoon and the case is expected to go to the jury some time today.

'Poe is charged with using the United States mails to defraud E. C. Carney and company of Williston, North Dakota. It is alleged in the indictment that Poe, under the alias of J. C. Cross, secured a loan from Carney and company of $300, giving a mortgage on the farm of Alf Larson. Poe, it is alleged, forged the name of Larson to the checks sent him by the Carney Company.

'Juggled City Funds.

'Poe was city auditor of Williston, North Dakota, for nearly four years. A little more than two years ago he was caught in a number of forgeries and embezzlements, it is said, and was sentenced to an aggregate of 32 years in

the penitentiary of North Dakota. His sentences would have been in part concurrent and would have given him a total of 12 years in prison. One embezzlement of which Poe was convicted was the raising of a $1.50 check to $1,500. North Dakota officials who are here to testify for the government say that Poe destroyed many of the records of his office before his peculations were uncovered.

'After Poe had been in the North Dakota penitentiary for two years he was given a parole after his wife had worked incessantly in his behalf. His wife had previously come to Montana and taken up a homestead and he was allowed to leave North Dakota under his conditional pardon on condition that he was to come to the Montana homestead and live a quiet life with his wife.

'Other Alleged Wrongs.

'Other alleged shady acts on the part of Poe are now under investigation in the eastern part of the state, say the officials. It is also stated that Poe, who is a young man, comes of good people in North Carolina, but escaped prosecution in his native state on his promise to leave North Carolina and remain away for good.

'In the present trial Poe is being defended by Attorney W. W. Patterson. United States Attorney B. K. Wheeler and Deputy Attorney Homer G. Murphy are prosecuting the case.

'The jurors are John Pearson, H. M. Ogden, F. H. Dean, George W. Hart, W. S. marshall, Frank A. Fellows, John Dorfler, E. L. Fiske, W. H. Ogle, V. L. Hagman, R. G. Dixon and W. D. Nield.'

The information charged that this article was not based upon the facts introduced in evidence on the trial of the case, but was written and published for the purpose of giving to the public generally, and to all persons who should read said newspaper and the said article, certain facts relating to the past life of the defendant, and to inform the jury, and the members thereof who might read the newspaper and the article, of certain facts concerning the defendant which were highly prejudicial to his character and reputation, and would, when read by the jury, or any members thereof, tend to bias and prejudice them against the defendant and prevent the jury, and the members thereof who had read the article, from giving the defendant a fair and impartial trial, for the reason that it brought to their attention certain facts concerning the life of the defendant which were not material to the issues of the cause and could not be proven on the trial of the cause against the defendant unless on the trial of the cause he had taken the witness stand in his own behalf, or placed his good character in issue.

When the court convened on the following day pursuant to the adjournment, it appeared to the court that certain members of the jury had read the article so written and published, and by reason thereof had been informed and advised of the alleged facts so published about the defendant and his life and reputation, and it further appeared to the court that the defendant, by reason of the facts stated, could not have a fair and impartial trial by the jury; and, by reason thereof, the court, upon the request and consent of the defendant, was compelled to discharge the jury from a further consideration of the cause, continue the trial thereof, and remand the defendant to the custody of the United States marshal until the case could thereafter be tried.

The court thereupon cited the Independent Publishing Company and Will A. Campbell, its manager and editor, to show cause why they should not be punished for contempt for publishing said article, which said article, it was charged, was calculated to excite prejudice against the said defendant and prevent him from having a fair and impartial trial, thus obstructing and interfering with the due administration of justice in the said court and the cause on trial. In response to this citation, the Independent Publishing Company and Will A. Campbell appeared and filed their answer to the information and citation, in which the ownership and management of the Independent newspaper and the publication of the article in question, as charged in the information, was admitted. It was admitted that Campbell was charged with the editorial supervision of the paper, and alleged that he exercised reasonable care in the selection and employment of editors and reporters. It was also admitted that the article was not based on facts admitted in evidence at the trial. It was alleged that Campbell, as editor and manager, exercised reasonable care in excluding from the paper articles reflecting upon the courts or in any manner tending to interfere with the administration of justice. The answer recited the circumstances connected with the publication of the article, and it was alleged that it was prepared by W. H. Perkins, one of the reporters of the paper, and published without editorial supervision; that Perkins received the data for the article from a reliable source, and that he wrote and published the article in good faith, without intending to interfere with the administration of justice. It was also alleged that neither Campbell, nor any officer of the corporation, had any knowledge of the contents of the article until after publication. It was not denied that the publication of the article was an obstruction of and an interference with the due administration of justice, as charged in the information.

The matter was thereupon submitted to the court upon the information and answer, no evidence being introduced at the hearing, and thereupon the court recited the facts as stated in a written opinion (In re Independent Pub. Co. (D.C.) 228 F. 787), and found as a fact that the article in question was calculated to influence the jury and judge and prevent a fair and impartial trial, that the article was calculated to obstruct the due administration of justice, and that the misbehavior of the respondents was so near to the court as to obstruct the due administration of justice therein.

E. C. Day and Walsh, Nolan & Scallon, all of Helena, Mont., for plaintiffs in error.

Burton K. Wheeler, U.S. Atty., of Butte, Mont., Homer G. Murphy, of Helena, Mont., and Frank Woody, Asst. U.S. Attys., of Butte, Mont.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

MORROW Circuit Judge ...