Carter v. Commonwealth

• Decision Date: 16 March 1899
• Citation: 96 Va. 791,32 S.E. 780
• Parties: CARTER. v. COMMONWEALTH.
• Court: Virginia Supreme Court

32 S.E. 780

(96 Va. 791)

CARTER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 16, 1899.

Continuance—False Grounds—Contempt—Disclaimer—Constitutional Law.

1. It was contempt of court for a party, on being wired by his counsel that his case was for trial, and to come at once, to falsely answer, to obtain a continuance, that he was sick of typhoid fever, and could not come, and this, though he disclaimed any purpose to commit a contempt.

2. Acts 1897-98, p. 548, providing for punishment for contempt of court, is unconstitutional in so far as it attempts to provide for jury trial for contempts of courts created by the constitution; the power to punish for contempt being inherent in such courts.

Error to circuit court of city of Lynchburg. One Carter was adjudged guilty of contempt of court, and he brings error. Affirmed.

Jas. E. Edmunds and E. W. Saunders, for plaintiff in error.

The Attorney General, for the Commonwealth.

KEITH, P. At its November term, 1897, the circuit court of the city of Lynchburg issued a rule against Carter, plaintiff in error, to appear before it on the first day of the next term to show cause why he should not be fined and attached for contempt, by attempting to obtain a continuance of the action of Grubbs against Carter by means of false telegrams. In answer to this rule, he appeared and stated that he is a resident of the county of Nottoway, and that, having received a telegram from his attorney, J. Emory Hughes, that his case was pending, and that he must come to Lynchburg on the next train, he wired in response, "Sick with typhoid fever, and can't come;" that this statement as to his health was false, and made without due consideration; that he had no idea of interfering with or impeding the course of justice; that he did not make the statement for the purpose of obtaining a continuance, and nothing was further from his mind; that no disrespect to the court was intended; and he prays that his fault may be overlooked.

When the matter came up for trial, Carter asked to be tried by a jury, which motion the court overruled, and, deeming his answer insufficient, entered a judgment against him for a fine of $25 and costs, and that he be imprisoned for the term of two days in the jail of the city of Lynchburg, and afterwards, until he pays bis fine and costs: provided, that this latter period shall not exceed two months. To this judgment, Carter obtained a writ of error from one of the judges of this court, and the errors assigned by him are: First, that upon the facts as shown in the record he was not guilty of a contempt; secondly, that the court erred in refusing to have a jury impaneled for his trial.

We are of opinion that, upon the facts shown, Carter was guilty of a contempt. The effort to obtain a continuance of his cause by means of a statement as to his health, which he knew to be false, tended directly to impede and obstruct the administration of justice. It is true that with respect to conduct or language, where the intent with which a thing is said or done gives color and character to the act or words, a disclaimer of any purpose to be guilty of a contempt, or to destroy or impair the authority due to the court, is a good defense (Rap. Contempt, § 115); but this is true only of language or acts of doubtful import, and which may reasonably bear two constructions. In the case before us there could have been but one motive, and that to influence the action of the court with respect to a case before it by means of a statement known and admitted to be false. We pass, therefore, to the consideration of the next error assigned. This presents a question of the utmost gravity, which has been argued with the ability which its importance demands, and has received from us our best consideration.

By an act of assembly passed in 1830-31 (see Sess. Acts, p. 48), the legislature undertook to enumerate and to classify contempts of court, and to prescribe the manner in which they should be punished. This act appears in the Code of 1849 as sections 24 and 25, c. 194, as follows:

"Sec. 24. The courts and the judges, and justices thereof, may issue attachments for contempts, and punish them summarily, only in the cases following:

"First, misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice.

"Secondly, violence or threats of violence to a judge, justice or officer of the court, or to a juror, witness or party going to, attending, or returning from, the court, for or in respect of any act or proceeding had, or to be had, in such court.

"Thirdly, misbehavior of an officer of the court, in his official character.

"Fourthly, disobedience or resistance of an officer of the court, juror, witness or other person, to any lawful process, judgment, decree or order of the said court.

"Sec. 25. No court shall without a jury, for any such contempt as is mentioned impose a fine exceeding fifty dollars, or imprison more than ten days. But in any such case the court may empanel a jury (without an indictment, information or any formal pleading) to ascertain the fine or imprisonment proper to be inflicted, and may give judgment according to the verdict."

This act was continued in force, without amendment, until the session of 1897-98, p. 548, when it was amended so as to read as follows:

"1. Be it enacted by the general assembly of Virginia, that section three thousand seven hundred and sixty-eight of the Code of Virginia be amended and re-enacted so as to read as follows:

"Sec. 37C8. The courts and judges may issue attachments for contempt, and punish them summarily, only In the following cases, which are hereby declared to be direct contempts, all other contempts being indirect contempts.

"First Misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice.

"Second. Violence or threats of violence to a judge or officer of the court or to a juror, witness or party going to, attending or returning from the court, for or in respect of any act or proceeding had or to be had In such court.

"Third. Misbehavior of an officer of the court in his official character.

"Fourth. Disobedience or resistance of an officer of the court, juror or witness to any lawful process, judgment, decree or order of the said court

"When the court adjudges a party guilty of a direct contempt It shall make an entry of record, in which shall be specified the conduct constituting such contempt and shall certify the matter of extenuation or defense set up by the accused, and the evidence submitted by him and the sentence of the court.

"Subsection.

"Proceedings in Cases of Indirect Contempt Upon the return of an officer on process, or upon an affidavit duly filed, showing any person guilty of indirect contempt, a writ of attachment or other lawful process may issue, and such person may be arrested and brought before the court, and thereupon a written accusation, setting forth succinctly and clearly, the facts alleged to constitute such contempt shall be filed, and the accused required to answer the same, by an order which shall fix the time therefor and also the time and place for hearing the matter. A copy of this order shall be served upon the accused, and upon a proper showing the court may extend the time so as to give the accused a reasonable opportunity to purge himself of such contempt.

"After the answer of the accused, or if he fail or refuse to answer, the court may proceed at the time so fixed to hear and determine such accusation upon such testimony as shall be produced. If the accused answer, the trial shall proceed according to the rules governing the trial of criminal cases, and the accused shall be entitled to compulsory process for his witnesses and to be confronted with the witnesses against him.

"Such trial shall be by the court, or upon the application of the accused, a trial by a jury shall be had, as in any case of a misdemeanor.

"If the jury find the accused guilty of contempt they shall fix the amount of his punishment by their verdict.

"The testimony taken on the trial of any case of contempt shall be preserved on motion of the accused, and any judgment of conviction therefor may be reviewed on writ of error from the circuit court having jurisdiction, if the judgment is by a county court, or on writ of error from the supreme court of appeals, if the judgment is by a circuit or corporation court. In the appellate court the judgment of the trial court shall be affirmed, reversed, or modified as justice may require. If the writ of error to the judgment of a county court is refused by the circuit court having jurisdiction, application may then be made to the court of appeals.

"2. All acts and parts of acts, so far as they conflict with this act, are, to that extent, hereby repealed."

Being of opinion that the defendant was guilty of contempt we shall not attempt any classification of it as a direct or indirect contempt. If it were a direct contempt, then its punishment was without doubt to be ascertained and fixed by the court, without the intervention of a jury, by the terms of the law which the plaintiff in error himself invokes. If it were a contempt not within that classification, then it is incumbent upon us to consider whether it was within the power of the legislature to deprive the court of jurisdiction to punish it without the intervention of a jury.

Counsel for plaintiff in error insist that the question has already been decided by this court in the case of Com. v. Deskins, 4 Leigh, 685, and again in Wells v. Com., 21 Grat. 500.

The latter case may be disposed of by the statement that this court reversed the judgment of the circuit court upon the facts, and held that the acts proved against Wells did not constitute a contempt of court.

With respect to the case of Deskins v. Com., it appears that it arose and was decided under the constitution of 1829-30. In the fifth article of that...