Cornett v. State

• Decision Date: 06 June 1952
• Docket Number: No. 33137,33137
• Citation: 155 Neb. 766,53 N.W.2d 747
• Parties: CORNETT v. STATE.
• Court: Nebraska Supreme Court

Page 747

53 N.W.2d 747

155 Neb. 766

CORNETT v. STATE.

No. 33137.

Supreme Court of Nebraska.

June 6, 1952.

Syllabus by the Court.

1. The Supreme Court of the state has the sole power to punish for contempt a person assuming to practice law within the state without having been licensed to do so.

2. In determining the sufficiency of an information, the test is whether or not enough remains after rejecting all unnecessary averments thereof to satisfy the requirements of a sufficient information.

3. If the conduct charged is contemptuous of the district court and of the Supreme Court at the same time, the wrongdoer may be proceeded against in the district court for so much of the conduct that constitutes a constructive contempt of that court.

4. If the facts pleaded in an information in contempt clearly show that the act complained of was willful, the information is not fatally defective for failure to use the word 'willful.'

5. The issuance of an order to show cause as a means of obtaining jurisdiction of the person of the defendant does not have the effect of shifting the burden of proof from the state to the defendant.

6. A proceeding for a constructive contempt must be instituted in the court toward which the contempt is directed.

7. When the facts pleaded in an information charging a constructive criminal contempt show that the contempt was directed toward the court in which the proceeding was filed, the information is sufficient to confer jurisdiction upon that court.

8. Where a person, for the purpose of securing money for himself, falsely pretends or insinuates to another who is interested in pending litigation that he can corruptly influence the course of the suit by approaching officers of the court with money, his conduct is contemptuous of the court toward which it is directed.

9. Where the purpose of an act is to create in the mind of another a belief that courts or their officers, are dishonest and that justice can be bought, it constitutes a hindrance to the due administration of justice which the court toward which it is directed may punish to vindicate the dignity and majesty of the court and to preserve its authority and integrity.

10. The judgment and the proceedings upon which it is based are not violative of Article 1, sections 3 and 11, Constitution of Nebraska, nor of Article 14, section 1, Constitution of the United States, commonly referred to as the due process provisions of the state and federal Constitutions.

Eugene D. O'Sullivan, Eugene D. O'Sullivan, Jr., Warren C. Schrempp, David S. Lathrop, Ernest S. Priesman, Omaha, for plaintiff in error.

Clarence S. Beck, Atty. Gen., William T. Gleeson, Ass't Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

Defendant was proceeded against for a constructive criminal contempt. The trial court found the defendant guilty and sentenced him to serve 60 days in the Douglas County jail and pay a fine of $1,000 and costs. Defendant seeks a review in this court by petition in error.

Defendant is a professional bondsman at Omaha, Nebraska. This proceeding grew out of the following state of facts: One Dwight Miller, Jr., a resident of Council Bluffs, Iowa, was charged with the commission of the crime of grand larceny in Douglas County, Nebraska. He was arrested in Council Bluffs on August 29, 1951, and immediately admitted his guilt. He waived extradition and was removed to Douglas County, Nebraska, where he expressed a desire to plead guilty. An information was thereupon filed in the district court for Douglas County on August 30, 1951, but defendant, being apprised of his rights by the assistant public defender of Douglas County and after consultation with his wife and parents, decided not to plead guilty immediately and sought his release on bond. The parents of Dwight Miller, Jr., Mr. and Mrs. Dwight Miller, Sr., also being residents of the State of Iowa and owning no property within the State of Nebraska, were advised that the defendant, Bob Cornett, would be the 'best bet' for obtaining an appearance bond. They, together with the wife of Dwight Miller, Jr., thereupon contacted the defendant and entered into negotiations and agreements with him out of which the present charge of constructive criminal contempt arose.

The evidence shows that Mr. and Mrs. Dwight Miller, Sr., called at defendant's office on the same day but were advised that defendant was out and would not return until the next morning. They had learned that the appearance bond had been fixed at $5,000 and that defendant charged $10 per $100 for furnishing an appearance bond. They offered to leave $500 with one George Vanous with whom they talked at defendant's office. He refused to accept it and advised them to see the defendant at 8:30 a. m. the next day. The wife and parents of Dwight Miller, Jr., came to defendant's office the next morning. Defendant inquired about the case, whether or not Miller had pleaded guilty, and impressed them with the seriousness of the situation. He advised them that he would see what could be done and that they should return to his office at 11:30 a. m. On their return to the office they were advised by defendant that he could 'take care of the case,' that the expense would be 'about a thousand dollars,' and that he could get Dwight Miller, Jr., out of jail 'with no strings attached' for the above-named sum. Dwight Miller, Sr., thereupon paid defendant $500 in cash and agreed to pay a further sum of $500 within a few days. Defendant then advised the Millers to keep quiet about the transaction and to talk to no one. He advised them also to inform Dwight Miller, Jr., that he should 'keep his mouth shut and just tell only his name.' The record shows also that defendant visited Dwight Miller, Jr., in the city jail, discussed the case and informed him that 'it would cost a lot of money,' and that he was not to talk to anybody unless he sent them up to see him. Defendant thereupon engaged one Philip Abboud, an attorney, to represent Dwight Miller, Jr. On September 1, 1951, Dwight Miller, Jr., upon the advise of Abboud, entered a plea of guilty to the charge of grand larceny. Sentence was deferred. The parole officer investigated the case and reported to the court. On September 12, 1951, the district court for Douglas County suspended sentence and paroled Dwight Miller, Jr. After meticulously pleading the foregoing facts in Count One of the information, the concluding paragraph thereof states: 'That the said defendant, L. S. 'BOB' CORNETT, is not licensed or authorized to practice law in the State of Nebraska; that such conduct by the said defendant, L. S. 'BOB' CORNETT, constitutes the practice of law in the State of Nebraska and is illegal and was and is a hindrance to the administration of justice in proceedings had or proceedings pending before the courts of this state; and that by reason of the foregoing the said defendant, L. S. 'BOB' CORNETT, is in contempt of court.' The second count of the information was dismissed by the State and consequently presents no issue here.

The defendant has set out numerous alleged errors in bringing the case here for review. We think, however, that they involve essentially three questions. Did the court have jurisdiction of the action? Is the information sufficient to state a cause of action against the defendant? Is the evidence sufficient to sustain the judgment of the trial court?

It is the contention of the defendant that the information charges him with a constructive criminal contempt in that he was practicing law without a license to do so and that such an offense is within the exclusive jurisdiction of the Supreme Court of this state. It cannot be questioned that the Supreme Court has the exclusive power to determine the qualifications of persons who may be permitted to practice law in this state and possesses the exclusive power to disbar licensed attorneys who have violated the trust reposed in them as such. It also has the inherent power to punish by contempt proceedings those persons who engage in the practice of law without a license to do so. Where the Legislature has not made the unauthorized practice of law a statutory crime, the Supreme Court has the exclusive power to punish those who practice law without a license. This is so because the contempt is directed at the court having the exclusive power to define the practice of law, to determine the qualifications of persons to be admitted to the practice of law, and to disbar those admitted to the practice of law who have violated their trust. These conclusions are supported by the following cases: State ex rel. Wright v. Barlow, 131 Neb. 294, 268 N.W. 95; State ex rel. Wright v. Barlow, 132 Neb. 166, 271 N.W. 282; In re Integration of Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265, 114 A.L.R. 151; State ex rel. Wright v. Hinckle, 137 Neb. 735, 291 N.W. 68; State ex rel. Johnson v. Childe, 139 Neb. 91, 295 N.W. 381; State ex rel. Johnson v. Childe, 147 Neb. 527, 23 N.W.2d 720, 723. In the last case cited this court specifically held: 'The power to define what constitutes the practice of law is lodged with this court. The sole power to punish any person assuming to practice law within this state without having been licensed to do so also rests with this court.'

We necessarily hold that the district court for Douglas County was without jurisdiction to try the defendant on the charge of committing a constructive criminal contempt by engaging in the practice of law without having been licensed to do so.

The Attorney General insists, however, that the information before us charged not only that defendant was practicing law without a license, but that, in addition thereto, defendant's conduct 'was and is a hindrance to the administration of justice in proceedings had or proceedings pending before the courts of this state.' It will...