Ex parte Hartley

• Citation: 317 Mich. 441,27 N.W.2d 48
• Decision Date: 17 April 1947
• Docket Number: Motion No. 342.
• Parties: Petition of DOHANY. Ex parte HARTLEY.
• Court: Supreme Court of Michigan

317 Mich. 441

27 N.W.2d 48

Petition of DOHANY.

Ex parte HARTLEY.

Motion No. 342.

Supreme Court of Michigan.

April 17, 1947.

Proceeding in the matter of the petition of William F. Dohany for a writ of habeas corpus and certiorari on behalf of Leo Hartley.

Petitions dismissed and petitioner remanded to custody by a divided court.

Before the Entire Bench.

William F. Dohany, of Pontiac, for petitioner.

Foss O. Eldred, Atty. Gen. of Michigan, and Edward J. Fallon, Sp. Asst. Atty. Gen., for respondent.

DETHMERS, Justice.

The Honorable George B. Hartrick is one of the circuit judges of the sixth judicial circuit duly assigned to conduct, under the provisions of 3 Comp.Laws of 1929, §§ 17217 to 17220, Stat.Ann. §§ 28.943 to 28.946, a so-called one man grand jury investigation of alleged gambling and corruption of public officials in Oakland County.

In the course of the investigation it was discovered that the plaintiff, Leo Hartley, was the owner of certain pinball machines operated throughout the County of Oakland, which were suspected of having been used for gambling purposes. It was further discovered that one C. A. Mitchell, doing business under the registered, assumed name of Midwest Bonding Company, had sold to Hartley a number of ‘bonds,’ a specimen of which reads as follows:

‘Exhibit ‘A’

‘Midwest Bonding Company

‘(Operating and existing under and by virtue of the Laws of the State of Michigan, Act No. 101, Public Acts for the year One Thousand Nine Hundred Seven.)

‘Bond To Guarantee Legal Performance

‘Know all men by these presents, that Midwest Bonding Company hereinafter designated as ‘Company’ is hereby held and firmly bound unto Oakland County, Michigan in a sum not to exceed Two Hundred Dollars lawful money of the United States of America.

‘The condition of this obligation is such, that the said Company agrees to reimburse said Oakland County, Michigan, for all moneys expended as actual costs to prosecute and convict any person or persons violating the conditions hereinafter set forth under Paragraphs (a)(b)(c) and (d); said costs shall not exceed the sum above set forth; it being hereby expressly understood and agreed that upon a conviction being had for any default in this bond that this obligation shall terminate and be null and void in so far as any subsequent violation is concerned.

‘Paragraph (a) The company warrants that the certain Skill Game Machine bearing ‘Midwest Tag No. ........:’ owned by ........ located on the premises of ........ at ........ will not be played or operated by any person or persons who have not attained the age of Eighteen years.

‘(b) That no player of said machine shall receive any prize, reward or gain from or on account of having played said machine.

‘(c) That no player, while playing said machine, shall enter into any agreement or wager to receive any prize, reward or gain from the results obtained.

‘(d) That said machine shall be operated and played for amusement and skill purposes only.

‘This bond shall take effect at 12 o'clock noon of the 1st day of September A.D. 1945 and continue in effect until 12 o'clock noon of the 1st day of September 1946 unless cancelled prior thereto as above provided for its automatic termination, or by written notice delivered to Oakland County, Michigan, and such cancellation shall be without prejudice to any claim originating prior thereto.

Midwest Bonding Company

By C. A. Mitchell'

Judge Hartrick examined the bonds, deemed them worthless and illegal, and suspected that Mitchell had in that connection obtained money under false pretenses. Hartley was thereupon subpoenaed before the grand jury and questioned concerning his purchase of the bonds. He gave answers which, in the opinion of Judge Hartrick, were false and evasive. Stating that he was acting not only in the capacity of grand jury, but as circuit judge, the judge thereupon adjudged Hartley in contempt of court and sentenced him to serve sixty days in the county jail.

Plaintiff has filed a petition for a writ of habeas corpus and ancillary writ of certiorari. He urges that his sentence for contempt and subsequent detention are illegal because:

1. Due process of law under both the federal and state constitutions requires the filing of charges, a notice to the accused and a hearing in all contempt cases not committed in open court.

2. It is a denial of due process of law for a judge summarily to adjudge one guilty of contempt of court upon the basis of alleged false swearing, except where the court has personal knowledge of the falsity of the testimony.

3. A one man grand jury does not act as a court; therefore, contemptuous misbehavior toward a grand juror is not a direct contempt of court and is not punishable summarily.

4. The plaintiff was not in fact guilty of contempt of court.

The first three grounds may appropriately be considered together as all three are directed to the same general question of the right of the judge, under the circumstances here presented, to summarily adjudge one guilty of contempt without filing of charges, notice and hearing thereon.

In conducting a so-called one man grand jury investigation, a circuit judge acts in a judicial capacity. Mundy v. McDonald, 216 Mich. 444, 185 N.W. 877, 20 A.L.R. 398;In re Slattery, 310 Mich. 458, 17 N.W.2d 251 (certiorari denied, 325 U.S. 876, 65 S.Ct. 1553,89 L.Ed. 1993). This court has previously upheld the power of a circuit judge, acting as a one man grand jury, to punish summarily for contempt. People v. Wolfson, 264 Mich. 409, 250 N.W. 260;In re Cohen, 295 Mich. 748, 295 N.W. 481.See also In re Slattery, supra, 310 Mich. at page 467, 17 N.W.2d 251 and cases cited therein. While, in the Slattery case, the judge adjourned the one man grand jury proceeding and then reconvened as a circuit court before adjudging the witness guilty of contempt, in effect he was still acting as the grand jury. He made an adjudication based on his personal knowledge of what had transpired before him as a one man grant jury. No record of the pertinent grand jury proceedings was transcribed and presented to him as a circuit judge. That, we held, would have been an idle gesture. It would be an equally idle gesture to require such adjournment of the grand jury and its reconvening as a circuit court. The circuit judge, while acting as a one man grand jury may, in appropriate cases, summarily adjudge a witness testifying before him guilty of contempt and impose sentence forthwith.

Plaintiff's contempt, if any, was committed in the fact of the court and required no extraneous proofs as to its occurrence. It was direct and there was, therefore, no necessity for filing of charges, notice to accused and hearing as provided in 3 Comp.Laws of 1929, § 13912, Stat.Ann. § 27.513. It was properly dealt with summarily. 3 Comp.Laws 1929, §§ 13910, 13911, Stat.Ann. §§ 27.511, 27.512.

‘A circuit judge may take cognizance of his own knowledge of contempts committed during the sitting of the court, and in its ‘immediate view and presence,’ and may proceed to punish summarily persons guilty of such contempts, basing his action entirely upon his own knowledge.' In re Wood (syllabus), 82 Mich. 75, 45 N.W. 1113.

Was plaintiff, in fact, guilty of contempt? As aptly stated in defendant's brief:

‘A mere glance at Exhibit A. promptly challenges the attention of anyone to its total lack of value and to its purpose. For instance, the so-called bond does not run to petitioner. It affords him no protection whatever. His name nowhere appears in it. It would be physically impossible for Mitchell to perform the ‘warranties' contained therein.

‘Yet when called as a witness to explain his purchase of the bonds and his investigation of their legality, he answered as follows * * *:’

There follows portions of plaintiff's testimony, included in defendant's return to the writ of certiorari, of which we deem pertinent here the following:

‘Q. Did you know Carman Mitchell prior to the time he approached you to sell you these bonds? A. I didn't know, only met him. I had met him a couple of times. I didn't know him to speak to. * * *

‘Q. Did you notice the name of the Bonding Agency on the bond? A. I didn't pay any particular attention to the name until you gentlemen explained to me in court. I noticed Mid West. He told me Mid West, but I don't believe I made the check out to Mid West.

‘Q. Didn't you investigate the Mid West Bonding Company to see who was operating it? A. No.

‘Q. Did you ask Mitchell who was operating it? A. I didn't ask him who was operating it.

‘Q. Didn't you care? A. Why, I should have investigated, but-* * *

‘Q. But you never went to the prosecutor's office or any lawyer in private practice, to have these bonds examined, did A. No, I didn't.

‘Q. You knew, Mr. Hartley, that he had no way of protecting you or your machines when you gave him this money, didn't you? A. Well, I didn't, I didn't know too much about it, the only thing the other fellows had bought them and just seemed like the thing to do to buy them.

‘Q. Do you want us to understand that you just gave him the, this money each time you gave it without knowing what you were giving it to him for? Now, wasn't it a fact, Mr. Hartley, that you were afraid if you didn't buy these bonds or give Mitchell this money, something would happen to your machines? A. It isn't that I was afraid something would happen to them, but different times that I know, in 1937 we had games, we had to take them out because they ruled against them, or something.

‘Q. Well, did you think when you gave Mitchell this money he could keep your machines in operation for you? A. No, it was that, it was to, well anything that would like it would keep them in operation, not that they were illegal or something, but always trying to pass laws, one thing and another, but the main reason I bought them was because other operators had got them and the big operators, so I thought it was the thing for me to do. * * *

‘Q. Now, as a...