Robertson v. Commonwealth

• Decision Date: 26 April 1943
• Citation: 25 S.E.2d 352,181 Va. 520
• Parties: ROBERTSON. v. COMMONWEALTH.
• Court: Virginia Supreme Court

25 S.E.2d 352

181 Va. 520

ROBERTSON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 26, 1943.

Rehearing Denied June 15, 1943.

[COPYRIGHT MATERIAL OMITTED.]

Error to Law and Equity Court of City of Richmond, Part 2; Frank T. Sutton, Jr., Judge.

Archibald G. Robertson was held to be in contempt of court, and he brings error. Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, BROWNING, EGGLESTON, and SPRATLEY, JJ.

E. Randolph Williams and T. Justin Moore, both of Richmond, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Edwin B. Jones, Asst. Atty. Gen., for the Commonwealth.

EGGLESTON, Justice.

This writ of error granted under the authority of Code, § 4932, brings under review a judgment whereby Archibald G. Robertson, an attorney duly qualified and licensed to practice in the lower court, was held to be guilty of contempt for refusing to obey an order of the court, while testifying in a case therein pending, and was fined the sum of $100.

The incident which led to the judgment under review arose in this manner: Benjamin F. Goodson, while a passenger on a street car owned and operated by the Virginia Electric and Power Company, in the city of Richmond, was injured when the car was in collision with an automobile driven by Francis X. Thompson. Goodson instituted suit in the court below against the Virginia Electric and Power Company and Thompson, seeking damages for his personal injuries sustained in the collision. The case came on for a jury trial in which Archibald G. Robertson represented the defendant, Virginia Electric and Power Company. After the plaintiff had completed his testimony, and while O. A. Whitlow, the operator of the street car, was testifying on behalf of the Virginia Electric and Power Company, he was asked on cross-examination by the attorney for the plaintiff whether he had given his employer a written statement or report as to the circumstances of the collision. Upon answering in the affirmative, he was requested by counsel for the plaintiff to produce the statement. At this point Mr. Robertson interrupted by saying that he (Robertson) had the statement and that it would not be produced. Robertson was then called as a witness on behalf of the plaintiff, and while he admitted that the desired statement was in his file in the courtroom, he again declined to produce it.

The jury was then excluded and counsel for the respective parties argued before the court whether the statement was admissible in evidence and whether Robertson should be required to produce it.

Counsel for the plaintiff took the position that while the statement had "no probative value, " he desired its production for the purpose of contradicting the motorman.

At this time Robertson took the position that opposing counsel had no right to demand an inspection of his (Robertson's) file for the purpose of proving the plaintiff's case. The court overruled this con-tention and directed that the statement be produced. Robertson refused to obey this ruling, stating that he did so "with the greatest deference and greatest respect" because he considered that his duty to his client compelled him to take that course. Thereupon the court ruled that he was guilty of contempt in refusing to comply with its order, and imposed a fine of $100 upon him. An order to this effect was entered on the order book of the court.

Moreover, due to Robertson's disobedience of its order, the court struck out the defenses of the Virginia Electric and Power Company, and, in effect, instructed the jury that their only duty with respect to that defendant was to assess the amount of the damages due by it to the plaintiff.

Later during the progress of the trial of the civil suit the admissibility of the statement and whether it should have been produced by Robertson were further argued and considered by the court. Robertson then urged upon the court these additional reasons why he should not be required to produce the document: (1) That under the express terms of Code, § 6216, such statement was not admissible in evidence to contradict the motorman; and (2) that it was a privileged communication which had been disclosed in confidence to him as counsel for the Virginia Electric and Power Company, and that hence he should not be required to divulge its contents. During this course of the argument the statement was produced by Robertson and handed to the court for its inspection. Upon reading the document the court ruled that its contents were not privileged, and that it was admissible in evidence. It adhered to its former ruling that Robertson was guilty of contempt for disobeying its order, and that for his disobedience the Virginia Electric and Power Company should be penalized in the manner stated. In view of the court's ruling a verdict and judgment in favor of the plaintiff against the Virginia Electric and Power Company necessarily followed. In the companion case of Virginia Electric & Power Co. v. Bowers, Adm'r, 25 S.E.2d 361, this day decided, we have dealt with the validity of that judgment.

The present opinion deals with the validity of the judgment for contempt entered against Robertson.

The first contention of the plaintiff in error is that the court's power to punish him summarily for contempt is limited by the provisions of Code, § 4521; ^* that the court had the power to punish him, if at all, under the fifth subdivision of the statute which authorizes punishment for "Disobedience or resistance * * * to any lawful process, judgment, decree, or order of the said court"; and that the oral direction or command of the court to Robertson to produce the document in his possession was not such an "order of the said court" as is required by the statute.

As a corollary to this argument the plaintiff in error contends that the production of the statement could have been compelled only by the issuance and service of a subpoena either on him under Code, § 6219, or on the proper official of the Virginia Electric and Power Company under Code, § 6237.

In the first place, we can not agree with the contention that it was the purpose of the fifth subdivision of this statute, in providing for summary punishment by a court for "Disobedience or resistance * * * to any lawful * * *.order of the said court", to limit or confine such "order" to one which has been reduced to writing, and thereby exclude and leave unpunishable in summary contempt proceedings the verbal commands, directions or orders of the court.

Section 63 of the Constitution, in prescribing the "Powers of the general assembly and limitations thereon", provides that, among other things, it "may regulate the exercise by courts of the right to punish for contempt."

Pursuant to this provision the General Assembly amended and reenacted section 3768 of the Code of 1887, as theretofore amended, enumerating the cases in which courts and judges may punish summarily for contempt. Acts of 1904, ch. 194, p. 309. Except for a slight change in the third subdivision, which is not here material, this statute was carried by the revisors into section 4521 of the present Code. See Revisors' Note; Judge Burks' Address on Code of 1919, 5 Va.Law Register, N.S., 97, 101, 102.

In Yoder v. Commonwealth, 107 Va. 823, 829, 57 S.E. 581, 583, this court, speaking through Judge Keith, said: "The Constitution did not intend, we think, to clothe the Legislature with absolute power over the subject, but meant to confer upon the Legislature authority to bring the subject of contempts within reasonable regulations, not inconsistent with the exercise by the courts, with vigor and efficiency, of those functions which are essential to the discharge of their duties."

And continuing, he said (107 Va. at pages 830, 831, 57 S.E. at page 584): "Taking section 3768 [Code 1919, § 4521] as it stands, we are of opinion that, on the whole, it is a reasonable regulation of the exercise by the courts of the power to punish for contempt. It may at least be said that it does not so far abridge or impair the powers of the courts established by the Constitution, that it does not so far. diminish their authority, and that it is not a regulation so unreasonable, as to render them incapable of the efficient exercise of their functions."

To hold, as contended by the plaintiff in error, that it was the purpose of the statute to confine summary punishment for disobedience of a court's "lawful orders" to those which have been reduced to writing, and thereby leave unpunishable in summary contempt proceedings the verbal commands, directions and orders of the court, would, we think, deprive the courts of their "inherent power of self-defense and self-preservation, " and would "so far diminish their authority * * * as to render them incapable of the efficient exercise of their functions", and would, therefore be entirely incompatible with our holding in Yoder v. Commonwealth, supra, that the statute is constitutional. Indeed, it would compel us to hold to the contrary.

In the trial of a case the court gives many orders and commands which are not reduced to writing or directed in writing to the person who is bound to obey them. Such orders are lawful orders and directions of the court, the disobedience of which would tend to embarrass or defeat the administration of justice. For instance, to say that a court could not compel a recalcitrant witness to answer a proper question which had been propounded to him without first interrupting the proceedings and reducing its command to writing and entering the same on its order book, would not only seriously delay and embarrass the proceedings but would require the diversion of the court's attention to collateral matters. The same would be true of an improper argument of counsel.

Statutes similar to section 4521 are quite common, and in the few instances in which the question has arisen the courts have, without exception, held that a "lawful order", the disobedience of which may be punishable as contempt,...