Brewer v. State

• Decision Date: 09 November 1936
• Docket Number: 32470
• Citation: 170 So. 540,176 Miss. 803
• Court: Mississippi Supreme Court
• Parties: BREWER v. STATE

170 So. 540

176 Miss. 803

BREWER v. STATE

No. 32470

Supreme Court of Mississippi

November 9, 1936

Division B

1 CONTEMPT.

Personal contact with juror whom contemnor seeks to influence is not necessary requisite to contempt.

2 CONTEMPT.

Contemnor who offered bribe to juror through juror's father held guilty of contempt notwithstanding that father failed to communicate offer to juror.

3 CONTEMPT.

"Contempt" is complete when there is deliberate purpose to corrupt administration of justice, accompanied by definite overt act on part of contemnor, designed to carry purpose into effect, notwithstanding failure of design.

4. CONTEMPT.

Prosecution for constructive contempt must be instituted within two years unless delay of that length of time would be unjust.

HON. J. F. GUYNES, Judge.

APPFEAL from the circuit court of Pike county, HON. J. F. GUYNES, Judge.

Contempt proceeding by the State against I. C. Brewer. From a judgment of conviction, I. C. Brewer appeals. Affirmed.

Affirmed.

L. H. McGehee and F. D. Hewitt, both of McComb, and Green, Green & Jackson, of Jackson, for appellant.

There is no contempt shown by this record. The charge in this case is at most that of a constructive contempt as contrasted with a direct contempt. It is necessarily a criminal contempt as compared with a civil contempt.

13 C. J., pages 4, 5 and 7.

The court will note that in order to constitute constructive contempt the acts complained of must directly tend to obstruct, interrupt, prevent or embarrass the administration of justice and that it is not the policy of the law to extend the proceedings to cases not coming with the established rule.

We, therefore, respectfully submit that the acts committed by Mr. I. C. Brewer according to the undisputed proof, had no tendency to influence, and did not influence or obstruct or interfere with the administration of justice in any manner whatsoever, and that no one can make of this record contempt by a mere use of general legal terms.

Ex parte Redmond, 125 So. 833, 156 Miss. 431, 8 R. C. L., page 277, sec. 295; 2 Bishop on Criminal Law, page 149, sec. 214; Ex parte Hickey, 4 S. & M. (12 Miss.) 751; Ex parte Adams, 25 Miss. 883.

It is incumbent upon the state to prove the contempt beyond a reasonable doubt.

Ramsey v. Ramsey, 125 Miss. 715, 99 So. 280; Prine v. State, 143 Miss. 231, 108 So. 716.

In the case of Knox v. State, 160, Miss. 494, 135 So. 206, the general principle which we here urge is largely approved, to the effect that there must be some actual carrying out of the effort made to contaminate the jury before there is any criminal contempt such as to justify conviction, although the acts may be such as to appear subject to condemnation on the part of the court. The charge here is denied under oath.

O'Flinn v. State, 9 L. R. A. (N. S.) 1119; 13 C. J., page 22, sec. 27; Neely v. State, 98 Miss. 816, 54 So. 315.

The juror McCullough had no knowledge of the efforts made by Brewer to contaminate said juror, and there is no testimony in this record to show that the conduct of the said Brewer in any way obstructed or interfered with the usual course of justice and the business of the court, and therefore, under the foregoing authority, there was no actual or constructive contempt for which there may be a conviction.

U. S. v. Carroll, 147 F. 947; 61 F.2d 701; Ex parte Kemper, 86 Tex. Cr. Rep. 251, 216 S.W. 172; In re Ellison, 256 Mo. 378, 165 S.W. 987; Gandy v. State, 13 Neb. 445, 14 N.W. 143; Ex parte Wright, 64 Tex. Cr. Rep. 171; 141 S.W. 971; 9 Cyc. 16, par. 2; Haskett v. State, 51 Ind. 176; State, on inf. of Kimbrell v. Clark, 114 S.W. 536; U. S. v. Rittinger, 24 Fed. Cas. 1149; Poindexter v. Arkansas, 46 L. R. A. (N. S.) 517.

Delay in beginning proceedings indicates no contempt.

The mere fact that the district attorney permitted this matter to rest for more than twelve months indicates almost conclusively that the acts alleged to have been committed by Mr. Brewer had no relations whatever to the administration of justice.

Matheson v. Hanna-Schoelkopf Co., 122 F. 836; DeLossy v. DeLossy, 62 L. T. (Pa.) 704; Snowball v. Sullivan, 42 N. B. 318; 6 R. C. L. 529, sec. 42.

Wm. H. Maynard, Assistant Attorney-General, for the state.

Counsel for appellant has competently gathered and skillfully presented the cases in his client's behalf. His brief is exhaustive and able, but presents no adjudicated cases from Mississippi which would indicate the proper decision in this case. It is apparent, from an examination of the facts here presented, that this court has an opportunity to formulate a Mississippi rule by which subsequent cases of this nature may be governed.

We earnestly insist that a decision that appellant could not be convicted of contempt would be a stunning blow to the protection to which courts are entitled in contempt proceedings. Likewise, it would offer a ready defense to the most common type of contempt. It is seldom that a person has the audacity to approach a juror in a pending case. The method generally employed is that of having a third party convey the offer of bribery. Thus, the party accused of contempt could argue that his action did not constitute contempt, because he had never personally contacted the juror. As this is a question of first impression in Mississippi, we respectfully submit that this honorable court should enunciate the rule that appellant's action constituted contempt.

Appellant's action constituted an insolence to justice and should be punished as such. No attempt is made to justify nor excuse this insolence, but appellant argues that the judge of the lower court was powerless to protect itself.

The fact that appellant's action did not serve to influence the juror, Fred McCullough, is not important.

Prine v. State, 143 Miss. 231.

It cannot be denied by appellant that he did attempt to obstruct justice. This being true, under the authority of the Prine case he is guilty of contempt.

Little v. State, 90 Ind. 338, 46 Am. Rep. 224; Sinclair v. U.S. 279 U.S. 749, 73 L.Ed. 938; Prine v. State, 143 Miss. 231, 108 So. 717.

Appellant discusses, in his brief, the proposition that the delay in commencing the contempt proceedings should prevent a conviction of appellant. We do not attempt to explain why this delay occurred, but certainly such delay would not free appellant from any contempt of which he might be guilty.

The record does show that immediately after the information charging appellant with contempt was filed that appellant was placed on trial. Thus, he cannot complain that he was not granted a speedy hearing.

13 C. J., Contempt, sec. 84.

OPINION

Griffin, J.

The evidence supports the following finding of facts: One Thomas had been indicted for murder and his trial was set for the first Monday, the first day of April, 1935. There had been a mistrial at a former term of the court. A special venire had been drawn on Friday, March 29, 1935, and had been promptly served. One of the jurors on this venire was Fred McCullough who resided with his father, J. R. McCullough. Appellant was a friend of the accused; they had served together on the police force in the city of McComb. On Saturday afternoon, March 30, 1935, appellant went to the home of J. R. McCullough and stated that he was looking for the son Fred, and upon being told by the father that the son Fred was absent, appellant then stated to the father that he (appellant) wanted to talk to the son "about tying up the jury on the Thomas case." Appellant further stated that Thomas was financially helpless but that the officers of the town and county, including the sheriff, were putting up the money to fight the case, and for that reason there would not be very much in it for tying up the jury, but there would be some. The testimony of the father is further that he said to appellant. "Brewer, reckon you can do that," and that appellant replied: "I have done it before and we are going to do it this time." . . . "He (referring to appellant) asked me to tell Fred just what he said; that there would be something in it to tie it up, and I told...