Burdett v. Commonwealth

Decision Date23 November 1904
Citation103 Va. 838,48 S.E. 878
PartiesBURDETT v. COMMONWEALTH.
CourtVirginia Supreme Court

contempt — libel of court — concerning criminal prosecution—libel after termination of cause—power to punish—liberty of press.

1. Where one who had been convicted of selling liquor without a license published in a newspaper an article charging that the indictments were found under the influence of the judge, and that defendant had been forced to compromise, and charging the judge with vicious motives, it amounted to a libel.

2. On proceedings to punish one for contempt, consisting of the publication of a libelous article concerning the conduct of the judge in a prosecution against the publisher, a defense that, if the term of court had not ended when the publication was made, the court had directed an adjournment and ordered a proclamation to that effect, was of no merit

3. A prosecution ends when a judgment imposing a fine has been rendered and satisfied.

4. In dealing with contempts not committed in the presence of the court, the offender must be brought before the court by a rule or some sufficient process.

¶ 4. See Contempt, vol. 10. Cent Dig. §5 151-113.

5. A court may punish for a contempt without issue or trial in any form.

6. Where one convicted on a criminal prosecution published a libelous article concerning the conduct of the judge in the case, the court had power to punish him for a contempt, though the cause had ended by entry of judgment and satisfaction thereof.

7. The power of a court to punish one for contempt, consisting of a libelous article published in a newspaper, is no invasion of the liberty of the press.

Error to Circuit Court, Nelson County.

Proceedings against J. M. Burdett and another to punish them for a contempt. Judgment of the circuit court affirming a judgment of the county court adjudging defendant Burdett guilty of contempt, and he brings error. Affirmed.

S. B. Whitehead, for plaintiff in error.

Wm. A. Anderson, Atty. Gen., for the Commonwealth.

KEITH, P. On the 30th of October, 1903, the county court of Nelson county caused a rule to be issued against J. M. Burdett and M. J. Webb, "to show cause, if any they can, why they shall not be fined and imprisoned for contempt of this court." On November 6th Burdett filed his demurrer and answer, and a motion to have the case heard and determined by a Jury; but the court overruled his demurrer and motion, adjudged the defendant guilty of a contempt of court, and sentenced him to pay a fine of $50, and to be confined in jail for a period of 10 days. To this judgment the defendant obtained a writ of error from the circuit court, where it was affirmed, and to the judgment of the circuit court a writ of error was awarded by one of the Judges of this court.

It appears that Burdett was an apothecaryin Nelson county, and that 12 indictments were found against him for selling at retail ardent spirits and malt liquors without a license. To these indictments he pleaded guilty, and a fine was entered up against him in one case of $40, and costs in the other cases, amounting in the aggregate to $75.51, which was paid to the sheriff of Nelson county on October 27, 1903.

On October 30, 1903, an article appeared in the Nelson County Times newspaper, signed by Burdett, in which he arraigns the conduct of the judge of the county court in a most severe and offensive manner. He charges substantially that the grand jury which found the indictments acted under the dictation and constraint exercised over them by the Judge; that under his influence twelve indictments were found, when the question of guilt or innocence could have been established by making one offense a test case; that he had wished to vindicate himself before the public, but had been forced to compromise the prosecutions against him, and to pay the fine and costs which had been imposed. He charges the judge with not only having acted towards him in a harsh and arbitrary manner, but that his conduct was actuated by vicious and corrupt motives.

There can therefore be no doubt that the plaintiff in error was guilty of a gross and insulting libel, and it remains for us to consider whether in the judgment rendered by the county court, punishing the act as a contempt, there was any error of law for which it should be reversed.

The contention of the plaintiff in error is that at the time of the publication the term of the county court of Nelson county had ended; that, if it had not ended, the court had directed an adjournment, and had ordered the sheriff to make proclamation to that effect; and, thirdly, that the cases of the Commonwealth against J. M. Burdett were ended, and the fines paid, before the alleged contempt was committed.

With respect to the first contention, it is sufficient to say (conceding the circumstances to be material) that the term of the court had not ended, as the record proves; and, with respect to the second, that it can hardly be considered a sufficient defense to the charge against him that the plaintiff in error had made a mistake with respect to a fact which had no bearing upon his guilt or innocence of the offense charged, but only upon his immunity from punishment. It is a plea by way of confession and avoidance. "It may be true, " says the plaintiff in error, "that I was guilty of a contempt of court when I committed the act, but I thought the court had adjourned, and that under the law 1 could not be punished. I find that I committed a blunder, and I ask to be permitted to go free on that account." Such a plea could scarcely be received with favor by a court of justice. The first two assignments of error are therefore overruled.

With respect to the third, we are of opinion that the cases of the Commonwealth against Burdett had ended before the publication of the card. They had been tried, Judgments had been rendered and satisfied, and, being criminal prosecutions, could not have been reopened at the instance of the commonwealth.

The learned Attorney General properly concedes that "there are a large number of cases and authorities outside of Virginia upon which counsel for plaintiff in error can fairly rely in his advocacy of his contention" that courts are without authority to punish as a contempt of court a publication with respect to an ended cause. The law. as maintained by these cases, is thus stated in volume 7, p. 59, A. & Eng. Encyc. of Law (2d Ed.): "A slanderous and libelous publication concerning the judge in relation to an act already done or a decision rendered cannot be punished by the court as contempt. However criminal the publication may be, it lacks that necessary ingredient to constitute a contempt, of tending to prejudice the cause, or to impede its progress." But this view omits all allusion to that kind of contempt which consists of scandalizing and defaming the court itself. To ascertain the law of this state in this respect, we shall examine into the common law upon the subject.

We shall make no inquiry into the general power of courts to punish contempt summarily. That subject was fully considered in Carter v. Commonwealth, 96 Va. 791, 32 S. E. 780, 45 L. R. A. 310, and the conclusion was reached that "there is an inherent power of self-defense and self-preservation in the courts of this state created by the Constitution. This power may be regulated by the Legislature, but cannot be destroyed, or so far diminished as to be rendered ineffectual. It is a power necessarily resident in and to be exercised by the court itself, and the Legislature cannot deprive such courts of the power to summarily punish for contempts by providing for a jury trial in such case."

Coming, then, to the precise point in judgment, in Roach v. Garvan, 2 Atk. 471, known as the "St. James Evening Post Case, " Lord Chancellor Hardwicke said: "There are three different sorts of contempt. One kind of contempt is scandalizing the court itself. There may be likewise a contempt of this court in abusing parties who are concerned in causes here. There may be also a contempt of this court in prejudicing mankind against persons before the cause is heard. There cannot be anything of greater consequence than to keep the streams of Justice clear and pure, that parties may proceed with safety both to themselves and their characters."

Blackstone's Commentaries, vol. 4, p. 285, defines contempt to consist, among other things, in "speaking or writing contemptuously of the court or judges acting in theirjudicial capacity; by printing false accounts of causes depending in judgment; and by anything, in short, that demonstrates a gross want of that regard and respect which, when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people."

In the Cyc. of Law and Procedure, vol. 9, p. 6, a constructive contempt is stated to be "an act done, not in the presence of the court, but at a distance, which tends to belittle, to degrade, or to obstruct, interrupt, prevent, or embarrass the administration of justice."

Barton, in volume 2 (2d Ed.) p. 774, of his Law Practice, is to the same effect. "Contempt of court is a disobedience to the court, or an opposing or despising the authority, justice, or dignity thereof."

Wyatt v. The People, 17 Colo. 253, 28 Pac. 961; In re Dill, 32 Kan. 669, 5 Pac. 39, 49 Am. Rep. 505; Cartwrighf s Case, 114 Mass. 230.

The subject has recently been investigated by the Supreme Court of Missouri in State v. Shepherd, 76 S. W. 79. That court...

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