Creekmore v. United States, 4591.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation237 F. 743
Decision Date17 October 1916
PartiesCREEKMORE v. UNITED STATES.
Docket Number4591.

237 F. 743

CREEKMORE
v.
UNITED STATES.

No. 4591.

United States Court of Appeals, Eighth Circuit.

October 17, 1916


[237 F. 744]

James C. Denton, of Muskogee, Okl., and Norman R. Haskell, of Oklahoma City, Okl. (Frank Lee, of Muskogee, Okl., and E. G. McAdams, of Oklahoma City, Okl., on the brief), for plaintiff in error.

Paul Pinson and W. P. McGinnis, Sp. Asst. U.S. Attys., of Muskogee, Okl. (D. H. linebaugh, U.S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.

SMITH, Circuit Judge.

The plaintiff in error was adjudged guilty of contempt by the District Court and sentenced to be confined a year and a day in the Leavenworth Penitentiary, and he sued out a writ of error in this case. He will be hereafter styled the defendant.

The information for contempt was against William J. Creekmore, Ben Green, J. O. Ammerman, W. B. Robinson, and J. D. Lane. The petition or information for contempt particularly and specifically charged in detail the facts constituting the alleged contempt, of which the defendant was subsequently adjudged guilty. It was verified by the United States attorney for the district to the effect that the facts stated were true and correct upon information and belief. There was no warrant of arrest issued, but the court ordered that the charge be investigated by the court, and issued a rule to the defendants to show cause. The defendant Creekmore appeared, and without waiting for the investigation ordered demurred to the petition and affidavit, because the latter was made upon information and belief. This was overruled. He then made an oral motion to quash the petition and affidavit on the same ground, which was likewise overruled. He objected to the introduction of any evidence upon the same ground, and this was also overruled, and to each of these rulings he at the time excepted.

In Merchants' Stock & Grain Co. v. Board of Trade of Chicago, 201 F. 20, 120 C.C.A. 582, we somewhat extensively considered the numerous points on which it has been held that criminal contempt cases are not crimes under the Fifth Amendment, and are not criminal proceedings under the Sixth Amendment, to the federal Constitution. It will not be necessary for us to review the decision in that case. In England, in cases of this kind, the charge could be made by the King in his courts, without any evidence and against all evidence. It is true the Fourth Amendment to the federal Constitution provides that no warrant shall issue, but upon probable cause supported by oath or affirmation. Conceding for the purposes of this case, and for it alone, that the Fourth Amendment applies to contempt cases, there never was any warrant issued, but simply a rule to show cause until after the taking of all the testimony, which was an ample compliance with the provision of the Fourth Amendment. The court specially found:

'The defendant Creekmore sought to influence the juror Seymour in his action, conduct, and vote as a juror in said cause in his (Creekmore's) favor [237 F. 745] and that this conduct on the part of defendant Creekmore amounts to misbehavior, if not in the very presence of the court, so near thereto as to obstruct the administration of justice.'

It is therefore gravely doubtful whether the court found that this was anything but a direct contempt. Let us assume, however, as most favorable to the contention of the defendant Creekmore, that, if the defendant was guilty at all, it was of a constructive contempt, rather than a direct one. It is said:

'Although statements or affidavits made on information and belief have been held sufficient, the better practice requires the material allegations to be made of personal knowledge.' 9 Cyc. 39.

And again:

'While an instance is given where an accusation was deemed sufficient, though only on information and belief, it is a rule in most jurisdictions that such an affidavit is wholly insufficient upon which to base constructive contempt proceedings, and that no jurisdiction can be acquired by the court thereunder.' 6 Ruling Case Law, 532.

In support of the first of these propositions Cyc. cites, in the original note and the subsequent ones, In re Acock, 84 Cal. 50, 23 P. 1029; Jordan v. Wapello County Circuit Court, 69 Iowa, 177, 28 N.W. 548; Hughes v. Territory, 10 Ariz. 119, 85 P. 1058, 6 L.R.A. (N.S.) 572; State v. District Court, 37 Mont. 590, 97 P. 1032. To the same effect, as applied to an information by a public prosecutor, is Emery v. State, 78 Neb. 547, 111 N.W. 374, 9 L.R.A. (N.S.) 1124.

It thus appears that California, Iowa, Nebraska, Montana, and Arizona are all committed to the theory of the sufficiency of the information in this case. It will appear that substantially all of these decisions upon this subject have been decisions in the state courts. Many of them have been governed by state statutes. Many state laws provide that the affidavits shall be evidence, and of course they cannot perform that office, if made upon information and belief; but we will now proceed to consider the cases cited in Cyc. and Ruling Case Law to sustain the converse of the last proposition considered.

The first case cited is In re Wood, 82 Mich. 75, 45 N.W. 1113. This case does not at all sustain the text. It did not involve a question as to the effect of an affidavit upon information and belief, for in that case there was no affidavit filed at all, and one was explicitly held to be necessary under two sections of the Michigan statutes. The same is true of Russell v. Mandell, Circuit Judge, 136 Mich. 624, 99 N.W. 864.

In Ludden v. State, 31 Neb. 429, 48 N.W. 61, the text is sustained, where the affidavit was filed by one not a public prosecutor; and the same is true of Herdman v. State, 54 Neb. 626, 74 N.W. 1097. The same is true of Belangee v. State, 97 Neb. 184, 149 N.W. 415, but in the last case three judges out of seven dissented, and, as already indicated, it was held by a unanimous court in Emery v. State, 78 Neb. 547, 111 N.W. 374, 9 L.R.A. (N.S.) 1124, that, where the charge of contempt of court is set forth in an information in positive and direct terms, the statement by the public prosecutor in his verification [237 F. 746] thereto 'that the allegations and charges in the within information are true, as he verily believes,' does not render such information void.

The case of State v. Conn, 37 Or. 596, 62 P. 289, did not involve the question now under consideration at all, but was a question of the construction of the Oregon statute.

In State v. Newton, 16 N.D. 151, 112 N.W. 52, 14 Ann.Cas. 1039, by a vote of two to one the Supreme Court of that state sustained the text. In State v. Heiser, 20 N.D. 357, 127 N.W. 72, the court distinguished the case of State v. Newton.

The case of Freeman v. City of Huron, 8 S.D. 435, 66 N.W. 928, measurably sustains the text, the court saying:

'Persons should not be required to answer an essentially criminal charge based merely upon the belief of a private prosecutor.'

In Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962, in the Texas Court of Criminal Appeals, in the opinion may be found an expression that the affidavit should be positive, and not on information and belief. This was clearly dictum, as there was no affidavit at all filed in that case.

In Davidson v. Munsey, 29 Utah, 181, 186, 80 P. 743, 744, the court expressly refused to pass upon the question, saying:

'Therefore the question as to whether the affidavit made by Davidson upon information and belief was sufficient to give the court authority to act in the matter becomes unimportant.'

The only two Federal cases cited are In re Judson, 3 Blatchf. 148, Fed. Cas. No. 7,563, and Parkhurst v. Kinsman, 2 Blatchf. 76, Fed. Cas. No. 10,759. Neither of these cases tends in any degree to support the text.

The plaintiff in error cites, as to the same effect, Snyder v. State, 151 Ind. 553, 52 N.E. 152; Early v. People, 117 Ill.App. 608; State v. Root, 5 N.D. 487, 67 N.W. 590, 57 Am.St.Rep. 568; In re Nickell, 47 Kan. 734, 28 P. 1076, 27 Am.St.Rep. 315; In re McKenna, 47 Kan. 738, 28 P. 1078; Thomas v. People, 14 Colo. 254, 23 P. 326, 9 L.R.A. 569; State v. Nathans, 49 S.C. 199, 27 S.E. 52, 57. None of said cases tend in any manner to sustain the proposition that informations charging criminal contempt must be verified, not upon information and belief, but absolutely.

It thus appears that, while the statement in Cyc. that 'the better practice requires the material allegations to be made of personal knowledge' may be true, it is only sustained by North and South Dakota, and possibly Texas and Nebraska, though Nebraska has squarely held that where the information is filed by the public prosecutor the form used in this case is sufficient.

The statement in Ruling Case Law that 'it is a rule in most jurisdictions that such an affidavit is wholly insufficient upon which to base constructive contempt proceedings, and that no jurisdiction can be acquired by the court thereunder,' is not sustained either by the authorities cited or by any that have been called to our attention.

There are no federal statutes on the procedure in contempt cases, except, in relation to the Court of Claims (Judicial Code, Sec. 157 (Comp. [237 F. 747]

St. 1913, Sec. 1148)) that 'it may punish for contempt in the manner prescribed by the common law. ' All other contempt cases in the federal courts are under section 268 of the Judicial Code and its predecessors. The people in this country succeeded to the sovereignty of the king, and it would perhaps be difficult to make clear, where no warrant is sought for the arrest of the defendant until after trial, why any different rule should, in the absence of statute, prevail from that which prevailed in England. See the very interesting and able opinion by Rogers, Circuit...

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27 practice notes
  • Lapides v. United States, No. 109
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 13, 1954
    ...255 U.S. 22, 34-35, 41 S.Ct. 230, 65 L.Ed. 481; Kelly v. United States, 9 Cir., 250 F. 947, 948-949; Creekmore v. United States, 8 Cir., 237 F. 743 — and continued: "I think the district court should be directed to afford relator an opportunity to prove those facts, just as in the Root Refi......
  • Green v. United States, No. 100
    • United States
    • United States Supreme Court
    • March 31, 1958
    ...F.2d 136; Warring v. Huff, 74 App.D.C. 302, 122 F.2d 641; Conley v. United States, 8 Cir., 59 F.2d 929; Creekmore v. United States, 8 Cir., 237 F. 743, L.R.A.1917C, 845. 14. The following are the major opinions of this Court which have discussed the relationship between criminal contempts a......
  • State ex rel. Attorney Gen. v. Owens, Case Number: 18081
    • United States
    • Supreme Court of Oklahoma
    • May 24, 1927
    ...it summarily, as though the words, instead of being written or read in court, had been spoken in facie curiae." ¶75 In Creekmore v. U. S., 237 F. 743, an information was filed by the United States District Attorney with the United States Court for the Eastern District of Oklahoma, setting f......
  • United States v. McDonald
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 6, 1923
    ...F. 292, 132 C.C.A. 436, L.R.A. 1915B, 651, Ann. Cas. 1917C, 524; U.S. v. Adams Express Co. (D.C.) 230 F. 531; Creekmore v. U.S.(C.C.A. 8) 237 F. 743; Simpson v. U.S.(C.C.A. 6) 241 F. 841, 154 C.C.A. 543; Abbott Bros. Co. v. U.S.(C.C.A. 7) 242 F. 751, 155 C.C.A. 339; Brown v. U.S. (C.C.A. 9)......
  • Request a trial to view additional results
27 cases
  • Lapides v. United States, No. 109
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 13, 1954
    ...255 U.S. 22, 34-35, 41 S.Ct. 230, 65 L.Ed. 481; Kelly v. United States, 9 Cir., 250 F. 947, 948-949; Creekmore v. United States, 8 Cir., 237 F. 743 — and continued: "I think the district court should be directed to afford relator an opportunity to prove those facts, just as in the Root Refi......
  • Green v. United States, No. 100
    • United States
    • United States Supreme Court
    • March 31, 1958
    ...F.2d 136; Warring v. Huff, 74 App.D.C. 302, 122 F.2d 641; Conley v. United States, 8 Cir., 59 F.2d 929; Creekmore v. United States, 8 Cir., 237 F. 743, L.R.A.1917C, 845. 14. The following are the major opinions of this Court which have discussed the relationship between criminal contempts a......
  • State ex rel. Attorney Gen. v. Owens, Case Number: 18081
    • United States
    • Supreme Court of Oklahoma
    • May 24, 1927
    ...it summarily, as though the words, instead of being written or read in court, had been spoken in facie curiae." ¶75 In Creekmore v. U. S., 237 F. 743, an information was filed by the United States District Attorney with the United States Court for the Eastern District of Oklahoma, setting f......
  • United States v. McDonald
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 6, 1923
    ...F. 292, 132 C.C.A. 436, L.R.A. 1915B, 651, Ann. Cas. 1917C, 524; U.S. v. Adams Express Co. (D.C.) 230 F. 531; Creekmore v. U.S.(C.C.A. 8) 237 F. 743; Simpson v. U.S.(C.C.A. 6) 241 F. 841, 154 C.C.A. 543; Abbott Bros. Co. v. U.S.(C.C.A. 7) 242 F. 751, 155 C.C.A. 339; Brown v. U.S. (C.C.A. 9)......
  • Request a trial to view additional results

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