White, In re

• Decision Date: 06 July 1954
• Docket Number: No. 91,91
• Citation: 65 N.W.2d 296,340 Mich. 140
• Parties: In re WHITE.
• Court: Michigan Supreme Court

Page 296

65 N.W.2d 296

340 Mich. 140

In re WHITE.

No. 91.

Supreme Court of Michigan.

July 6, 1954.

Frank G. Millard, Atty. Gen., Gerald K. O'Brien, Pros. Atty., Samuel J. Torina, Asst. Pros. Atty., Detroit, for the State.

Charles W. Jones, Wm. R. Coldin, George Stone, Detroit, for petitioner.

Before the Entire Bench.

SHARPE, Justice.

On March 16, 1954, Judge John P. O'Hara, one of the judges of the recorder's court for the city of Detroit, was selected and appointed to conduct a one-man grand jury to investigate police corruption in connection with gambling. On the following day he entered upon his duties, and the investigation commenced immediately.

In the course of the investigation, respondent, John White, was subpoenaed to testify before the grand jury on May 21, 1954. It was believed that John White possessed information regarding police corruption that would assist the grand jury in its investigation. John White was sworn as a witness and the following occurred:

'By Mr. Rashid: Q. Your name, witness? A. John J. White.

'Q. Do you have any other names or nicknames, are you known by anything else? A. I respectfully refuse to answer any and all questions hereafter unless my attorney is present with me here in the court from the beginning until the end.

'The Court: Your request to have your attorney here in the court room from the beginning to the end is denied, Mr. White.

'If there are any questions upon which you feel that you need the advice of your counsel, and it is done reasonably and not in such a way as to cause delays, you will be permitted to go out and talk to your attorney, but your attorney will not be permitted to be present in the court room. A. I still think I have that right, and I still respectfully refuse to answer any and all questions.

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'The Court: Mr. White, you have been asked where do you live. Would you answer the question? A. I refuse to answer.

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'Q. * * * How long have you lived in Detroit? A. I refuse to answer unless my attorney is here with me at all times.

'Q. Do you drive an automobile? A. I refuse to answer unless my attorney is here with me at all times.

'Q. What is your business? A. I refuse to answer unless my attorney is here with me at all times.

'Q. Do you have an interest in or do you own the Gotham Hotel? A. I refuse to answer unless my attorney is here with me at all times.

'Q. Are you married? A. I refuse to answer unless my attorney is here with me at all times.

'Q. Don you have a family? A. I refuse to answer unless my attorney is here with me at all times.

'Q. Do you have an attorney? A. I refuse to answer unless my attorney is here with me at all times.

'Q. Who is your attorney? A. I refuse to answer unless my attorney is here with me at all times.

'Q. Do you have a father or mother or both? A. I refuse to answer unless my attorney is here in court with me at all times.

'Q. Do you have any children? A. I refuse to answer unless my attorney is here with me at all times, from the beginning to the end.

'Q. Do you own any real estate? A. I refuse to answer unless my attorney is here with me at all times, from the beginning to the end.'

Other questions of like import were asked of the witness and like responses made.

On May 24, 1954, and order to show cause was entered requiring John White to show cause why he should not be punished for contempt for refusal to answer any and all material questions put to him as a witness before the grand jury. The order to show cause was returnable May 28, 1954 at 9:30 a. m. On the day in question, John White appeared before John P. O'Hara, as recorder's judge, in response to the order to show cause. He was represented by counsel, and it was stipulated that the transcript of the testimony given by White on May 21, 1954, before the grand jury be admitted in evidence. Counsel for respondent entered an objection to the proceedings before Judge O'Hara for the reason the Judge O'Hara, as recorder's judge, was disqualified from hearing a contempt of this nature and based his objections upon C.L.S.1952, § 767.4, Stat.Ann.1953 Cum.Supp. § 28.944, which provides in part:

'Provided, That the judge conducting the inquiry under section 3 of this act shall be disqualified from acting as the examining magistrate in connection with the hearing on the complaint or indictment, or from presiding at any trial arising therefrom, or from hearing any motion to dismiss or quash any complaint or indictment, or from hearing any charge of contempt under section 5 hereof, except alleged contempt for neglect or refusal to appear in response to a summons or subpoena.'

Judge O'Hara, as recorder's judge, overruled the objections and found respondent guilty of contempt and pronounced sentence. Upon application, leave to appeal to the Supreme Court was granted. This motion presents two questions, (1) Is a judge of the recorder's court for the city of Detroit, sitting as a judge of the recorder's court under C.L.S.1952, § 767.3, Stat.Ann.1953 Cum.Supp. § 28.943, disqualified by the provisions of C.L.S.1952, § 767.4, Stat.Ann.1953 Cum.Supp. § 28.944, from citing a witness for contempt and, thereafter, hearing the contempt proceedings himself, where the alleged contempt arose in the course of a grand jury investigation in the presence of him as the grand juror? (2) Is counsel for a witness called before a one-man grand jury entitled under C.L.S.1952, § 767.3, Stat.Ann.1953 Cum.Supp. § 28.943, to be present in the grand jury room during the testimony of his client? The answer to the first question brings into focus the status of a judge sitting as a one-man grand juror. In re Slattery, 310 Mich. 458, 17 N.W.2d 251, we held that the judge conducting a one-man grand jury proceedings is acting in a judicial capacity. Nor does the fact that the one-judge grand jury is a judge of the recorder's court of the city of Detroit and not a circuit judge change his status and authority as a judge for the reason that judges of the recorder's court were granted the same power possessed by circuit judges in so far as matters relating to crimes committed in the city of Detroit are concerned. C.L.1948, § 726.11, Stat.Ann. § 27.3561, reads as follows:

'The said recorder's court shall have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this state, for crimes, misdemeanors, and offenses arising under the laws of this state, and committed within the corporate limits of the city of Detroit, except in cases cognizable by the police court of the city of Detroit, or by the justices of the peace of said city; and shall have power to issue all lawful writs and process, and to do all lawful acts which may be necessary and proper to carry into complete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts which the circuit courts of this state within their respective jurisdictions, may, in like cases, issue and do by the laws of this state: Provided, That this section shall not be construed to prevent the grand jury for the county of Wayne from inquiring into and presenting indictments, as heretofore, for crimes and offenses committed within the limits of said city.' (Emphasis added.)

This brings us to the principal issue in the case, namely, the power of the court to punish for contempt committed in his presence as a grand juror. We held in Langdon v. Wayne Circuit Judges, 76 Mich. 358, 43 N.W. 310, that courts of record have inherent power to hear and determine all contempts of court which the superior courts of England had at the common law. In Nichols v. Judge of Superior Court, 130 Mich. 187, 195, 89 N.W. 691, 693, we said:

'The sound and reasonable rule of law is that, in the absence of express provision in the constitution itself, the courts of record, established by the constitution, are clothed by that instrument with the exclusive power over contempts,--a power which has existed from time immemorial. This rule is also established by a long line of authorities.'

In People v. Doe, 226 Mich. 5, 19, 196 N.W. 757, 762, we said:

'The power to punish for contempt is inherent in the court. It is a part of the judicial power. It is as firmly vested in the constitutional courts by the Constitution as is the exercise of any other judicial power. That the exercise of the judicial power and all of it cannot be taken away from constitutional courts by the Legislature is settled. The question is fully considered in Michols v. Judge of Superior Court, 130 Mich. 187, 89 N.W. 691. See, also, In re Chadwick, supra [109 Mich. 588, 67 N.W. 1071]; Carter v. Commonwealth, 96 Va. 791. 32 S.E. 780, 45 L.R.A. 310; Bradley v. State, 111 Ga. 168, 36 S.E. 630, 50 L.R.A. 691, 78 Am.St.Rep. 157; State v. Woodfin, 27 N.C. 199, 42 Am.Dec. 161; Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056, 87 Am.St.Rep. 971.'

We are in accord with the reasoning of the court of Arkansas as defined in State v. Morrill, 16 Ark. 384. We quoted with approval from the above case in Re Chadwick, 109 Mich. 588, 599, 67 N.W. 1071, 1075:

"The legislature may regulate the exercise of, but cannot abridge the express or necessarily implied powers granted to, this court by the constitution. If it could, it might...