Swepston v. United States

• Citation: 251 F. 205
• Decision Date: 07 May 1918
• Docket Number: 3034.,3033
• Parties: SWEPSTON v. UNITED STATES (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

251 F. 205

SWEPSTON v. UNITED STATES (two cases).

Nos. 3033, 3034.

United States Court of Appeals, Sixth Circuit.

May 7, 1918

Pugh &amp Pugh, of Columbus, Ohio, G. S. Claypool and John P. Phillips both of Chillicothe, Ohio, and James I. Boulger, of Columbus. Ohio, for plaintiffs in error.

Stuart R. Bolin, U.S. Atty., of Columbus, Ohio.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

These are contempt cases, and it is sought to have the final order made in each of them reviewed. Charles L. Dye was indicted in the court below for violation of section 16, Act Cong. Feb 8, 1875 (18 Stat. pt. 3, p. 310 (Comp. St. 1916, Sec. 5966)) and on arraignment the accused entered a plea of guilty. He was sentenced to pay a fine of $2,500 and to be confined in the county jail of Ross county, Ohio, for a period of six months. An order of commitment was entered, June 29, 1916, commanding the marshal to deliver Dye at the jail, and on the same day the order was carried into execution. Alonzo Swepston, as the sheriff of Ross county and custodian of the county jail and the prisoners there committed, received Dye as a prisoner, and of course subject to the terms of the order of commitment. Donald Swepston was at the time a deputy sheriff of Ross county and the keeper of the county jail.

Subsequently, on September 14 and 28, 1916, the United States attorney for the Southern district of Ohio filed two verified petitions, one charging Alonzo Swepston, as sheriff, and the other Donald Swepston, as deputy sheriff, with disobedience of the court's order of commitment of Dye, and with violation of their official duties, the one as custodian, and the other as keeper, of the county jail, and particularly of the prisoner, in that each respondent 'did conspire' with Dye, 'and permit and connive at and assist' him 'to escape from said jail, * * * and * * * to be at large and beyond the confines of said county jail,' for a substantial part of the time between the date of commitment and the 7th of September, praying in each petition the allowance of an order directing that respondent be arrested and required to answer for contempt of court, because of his violation of the order of commitment. At the times the petitions were presented motions were filed for rules against the sheriff and deputy sheriff to show cause why each should not be attached for contempt of the court, and for violation of the order of commitment under which Dye was placed in the custody of respondents to serve such sentence of six months in the Ross county jail. Each motion was supported by affidavit stating that Dye had not been confined in the jail, but had been 'at large upon the streets and in saloons and business houses of * * * Chillicothe and * * * Columbus, and in other villages and cities in said district, and upon the highways in Ross and Franklin counties, * * * driving about * * * in an automobile with friends and companions. * * * '

The sheriff and deputy sheriff each answered, with the usual verification, denying the charges set out in the petition against him, the sheriff alleging in his answer that the deputy marshal, who brought the prisoner to the jail and delivered the mittimus, stated that he, the deputy, had orders to ask the sheriff to give the prisoner all the liberty and good treatment he could, that the prisoner was being punished wrongfully and would soon be pardoned, and the sheriff further alleging that it was the custom to make trusties of prisoners serving simply jail sentences and to put them at work about the jail and the jail yard; and it is alleged in both answers that Dye was made a trusty and as such given the privileges mentioned, the deputy, however, alleging that as such trusty the prisoner was 'permitted to go outside of the jail and yard several times. ' It is also alleged in each answer that the respondent did not intend to disobey any order of the court, and 'did not intend to commit any contempt against the said court or its process.'

The court fixed the time and place of trial; the issues made in both proceedings as stated and the evidence adduced thereunder were presented to and heard by the court and in effect were treated as arising in a single cause. Quite a number of witnesses testified in open court in behalf of the respective parties, both respondents also testifying and presenting affidavits. The court delivered an extended opinion, finding that the charge of conspiracy was not sustained, but that both respondents were guilty of 'permitting and assisting Dye to escape. ' Alonzo Swepston was sentenced to the county jail of Delaware county, Ohio, for a period of 40 days and to pay the costs; and Donald Swepston was sentenced to pay a fine of $60 and costs, and to be committed until payment was made; execution of each judgment and sentence was stayed, upon the giving of a prescribed bond, in order to admit of proceedings in error.

It will be observed that the procedure adopted was in accordance with the usual course of contempt proceedings. The order committing the prisoner to the Ross county jail was lawfully made, and was effective to charge respondents with the duty to receive and safely keep the prisoner pursuant to the commitment. Congress at its first session, September 23, 1789 (1 Stat. 96), adopted a resolution recommending--

'to the Legislatures of the several states to pass laws, making it expressly the duty of the keepers of their gaols, to receive and safe keep therein all prisoners committed under the authority of the United States, until they shall be discharged by due course of the laws thereof, under the like penalties as in the case of prisoners committed under the authority of such states respectively,' etc.

Although provision was otherwise made later for cases where states, having once complied with this recommendation, subsequently withdrew their action (1 Stat. 225; 3 Stat. 646; R.S. Secs. 5537, 5538 (Comp. St. 1916, Secs. 10521, 10522)), yet we fail to find any repeal of the original resolution of September 23, 1789. Ohio enacted a statute many years ago, and still maintains one, requiring each sheriff to 'receive prisoners charged with or convicted of crime committed to his custody by the authority of the United States, and keep them until discharged by due course of law.' 1 O.G.C. § 3179. See, also, 2 Smith & Benedict's Ohio Rev. Stat. Sec. 7381; 57 O.L. 108, making similar provision, and repealing an earlier act to the same effect of December 20, 1806 (8 O.L. 496, 497).

The power to punish for contempt is inherent in all courts; final orders made and imposing punishment in contempt proceedings are criminal in their nature, and are subject to review in the federal Circuit Courts of Appeals on writs of error. Bessette v. W. B. Conkey Co., 194 U.S. 324, 326 336, 24 Sup.Ct. 665, 48 L.Ed. 997; Brown v. Detroit Trust Co., 193 F. 622, 623, 113 C.C.A. 490, and citations (C.C.A. 6). Counsel for respondents rightly concede applicability of the rule that on writs of error, as here, only matters of law can be considered (Bessette v. W. B. Conkey Co., supra, 194 U.S.at page 338, 24 Sup.Ct. 665, 48 L.Ed. 997; In re Grove, 180 F. 62, 64, 103 C.C.A. 416 (C.C.A. 3); Oates v. United States, 233 F. 201, 206, 147 C.C.A. 207 (C.C.A. 4); Sona v. Aluminum Castings Co., 214 F. 936, 942, 131 C.C.A. 232 (C.C.A. 6); In re Independent Pub. Co., 240 F. 849, 862, 153 C.C.A. 535, L.R.A. 1917E, 703, Ann. Cas. 1917C, 1084 (C.C.A. 9)); yet they seek to avoid the effect of this rule by insisting that, when the entire record is considered, it will be found that the evidence is more consistent with innocence than with guilt and that the judgments should be reversed for that reason (Harrison v. United States, 200 F. 662, 664, 119 C.C.A. 78 (C.C.A. 6); Union Pacific Coal Co. v. United States, 173 F. 737, 740, 97 C.C.A. 578 (C.C.A. 8...