Appeal of Verdon

• Decision Date: 10 May 1916
• Citation: 97 A. 783,89 N.J.Law 16
• Parties: Appeal of VERDON.
• Court: New Jersey Supreme Court

97 A. 783

89 N.J.Law 16

Appeal of VERDON.

Supreme Court of New Jersey.

May 10, 1916.

Appeal from Court of Quarter Sessions, Hudson County.

William P. Verdon was convicted of contempt of court, and he appeals. Reversed.

This is an appeal under the provisions of the act of April 17, 1884 (2 Comp. Stat. p. 1736), providing for the review by this court of summary convictions for contempt.

The appellant, William P. Verdon, was by the Hudson county court of quarter sessions adjudged guilty of a contempt of that court by reason of certain newspaper publications, and was sentenced to pay a fine of $250, and to serve a term of 30 days in the county jail.

The proceeding, which was instituted by the court of quarter sessions resulted in the issuance by it of a rule to show cause requiring William P. Verdon and others to show cause why they should not be adjudged guilty as of a contempt of the court of quarter sessions of Hudson county.

At the hearing upon the return of this rule Verdon appeared by counsel, who moved the court to proceed against his client by the filing of interrogatories and not by the taking of testimony to try the question of contempt, citing the case of "In re Conxales," not at that time officially reported. The motion of Verdon's counsel was overruled, and witnesses were called and examined by the assistant prosecutor over the objection of counsel for Verdon, who stated that his client stood mute as to any participation in such trial, excepting to say, "That we now offer to purge ourselves or to attempt to purge ourselves of contempt of court upon the exhibition to us of written interrogatories, in accordance with the course of the common law," which offer was renewed when Verdon was called to the bar of the court for judgment. At no time were interrogatories exhibited to Verdon whose conviction of contempt rested wholly upon the testimony of witnesses. The present appeal challenges the legality of the conviction thus had.

Argued February term, 1916, before GARRISON, TRENCHARD, and BLACK, JJ.

Harlan Besson, of Hoboken, and Merritt Lane, of Jersey City, for appellant. George T. Vickers, of Jersey City, for the State.

GARRISON, J. The power of the court of quarter sessions to punish contempts of court is derived wholly from the common law, which has been neither altered nor enlarged by statute in this state.

What the common law of England was at the time at which we derived it from the parent country is thus stated by Blackstone, who wrote at about that period:

"If the contempt be committed in the face of the court the offender may be instantly apprehended and imprisoned at the discretion of the judges without any further proof or examination. But in matters that arise at a distance and of which the court cannot have so perfect a knowledge unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him or in very flagrant instances of contempt the attachment issues in the first instance, as it also does if no sufficient cause be shown to discharge; and thereupon confirms and makes absolute the original rule. This process of attachment is merely intended to bring the party into court; and when there he must either stand committed or put to bail in order to answer upon oath to such interrogatories as shall be administered to him, for the better information of the court with respect to the circumstances of the contempt. These interrogatories are in the nature of a charge or accusation, and must by the course of the court be exhibited within the first four days, and if any of the interrogatories are improper, the defendant may refuse to answer it, and move the court to have it struck out. If the party can clear himself upon oath he is discharged, but if perjured may be prosecuted for the perjury."

Blackstone then alludes to the totally different procedure in courts of equity where—

"after the party in contempt has answered the interrogatories such, his answer may be contradicted and disproved by affidavits of the adverse party, whereas," he continues, "in courts of law the admission of the party to purge himself by oath is more favorable to his liberty, though perhaps not less dangerous to his conscience; for, if he clears himself by his answers, the complaint is totally dismissed." This "method of examining the delinquent himself upon oath with regard to the contempt alleged." he concludes, "has by long and immemorial usage now become the law of the land." 4 Bl. Com. p. 287.

This accurately states the common law of England just prior to the American Revolution, That this immemorial usage underwent no change in its transplanting to the American States is shown by a decision of the Supreme Court of New York while Kent was still Chief Justice. The court said:

"The attachment, by virtue of which he had been arrested, was nothing more than a process to bring him into court, to answer the interrogatories which, upon the return of it, were to be exhibited against him. This is necessary to be done in every case, before a party can be convicted of a contempt. If the answers to the interrogatories show that no contempt has been committed, the party is entitled, * * * to his discharge; but if the contempt be admitted, the court proceed to pronounce such judgment as the circumstances of the case may require." Jackson v. Smith, 5 Johns, (N. Y.) 117.

To the same effect is the decision of all courts that proceed according to the course of the common law.

Before leaving the common-law rule, it may be well to advert to a matter that must occur to every one who considers the subject, viz., the mildness, not to say ineffectiveness, of the manner in which contempts were dealt with in the law courts of England as compared with the severity of its criminal law in other respects. That this arose from any special sympathy with this particular offense is not to be thought of; on the contrary, of all criminal offenses, this is probably the very one that the judges have liked to punish in the most effective manner. The course pursued by the common-law judges was evidently, therefore, not from choice, but from compulsion, and the nature and sources of such compulsion are not far to find. Contempt was a criminal offense, and Magna Charta expressly forbade that any person should be tried for a criminal offense unless upon the indictment of the grand inquest. In the face of this prohibition there could be no trial by the court. The unwritten constitution of England likewise provided that no man could be compelled to give testimony against himself, and it likewise prohibited one accused of crime from testifying in his own behalf. The net result of these fundamental restrictions was that in the summary proceeding for contempt there could be no trial, and hence no witnesses, from which it followed that if the defendant was to be convicted in such summary proceeding, it must be upon facts admitted by his own oath, the taking of which was justified upon the somewhat...