Durham v. State

• Decision Date: 20 June 1910
• Docket Number: 14611
• Court: Mississippi Supreme Court
• Parties: WILLIAM L. DURHAM v. STATE OF MISSISSIPPI

52 So. 627

97 Miss. 549

WILLIAM L. DURHAM v. STATE OF MISSISSIPPI

No. 14611

Supreme Court of Mississippi

June 20, 1910

FROM the circuit court of Lamar county.

HON WILLIAM H. COOK, Judge.

Durham appellant, was convicted of being in contempt of court and appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed.

Scott &amp Parker, and Flowers, Fletcher & Whitfield, for appellant.

In Harwell v. State, 78 Tenn. 544, it was held that "An inquiry of a grand juror as to what had taken place in relation to a certain case was not contempt."

In McConnell v. State, 46 Ind. 298, it was held that until a party has been subpoenaed to attend before the grand jury, or a subpoena had been issued for him, it is not contempt of court for a person to induce such person to absent himself in order that he be not subpoenaed.

In such cases the witness is under the direction of the court, or its charge, and persuading him or hiring him to leave would not show any disposition or disobedience to the mandates of the court at all, especially when the man procuring the witness' absence has reasons to believe that such witness is debating the subject as to whether he will purchase immunity for his own admitted, numerous crimes at the cost of that other's liberty and freedom. Self-preservation is the first law of nature and what would any man do under the circumstances, conceding the truth of all that Rodgers says, which we do only for the sake of argument, then his conduct shows that he wanted to know if he was being used in settlement of another's crime, and if he had not, then to prevent it. The record shows that when he saw that it was too late to protect himself from this kind of trade, he did nothing further toward learning the status of affairs from this man or desiring his absence.

Under Code 1906, § 39, providing that on appeals in contempt cases that the question shall be "Was the defendant guilty of contempt," we believe that the court will not be able to find sufficient cause in this record for the court to say that the defendant was guilty of contempt.

This case presents an instance of the mischief that may result from the exercise on the part of the trial court of the power to punish for constructive contempt. Such a procedure is not favored by the law. The result in nearly every case is that the person accused of contempt is tried by the court without the benefit of a jury trial for conduct which constitutes a violation of criminal statutes, and for which he could be indicted, tried and punished in the regular manner. The case at bar is an illustration of this fact. The conduct charged in the information filed in this case and shown by the proof is perfectly covered by section 1298 of the code which makes it a misdemeanor for any person to "obstruct or impede the administration of justice in any court.

Carl Fox, assistant attorney-general, for appellee.

The testimony was ample to sustain the court's finding that Durham had attempted to bribe Rodgers to disclose the secrets of the grand jury room, and to absent himself from the jurisdiction of the court so that he could not be a witness against Durham.

The question remains, therefore, whether or not the facts found by the judge to be true constituted a contempt of court. In 19 Cyc. p. 5, the following definitions are given:

"A contempt is a wilful disregard or disobedience of a public authority."

"A contempt of court is disobedience to the court, by acting in opposition to the authority, justice and dignity, thereof. Contempts may be direct, constructive, criminal or civil."

"A direct contempt is an open insult in the presence of the court to the person of the presiding judge, or a resistance or defiance in his presence to its powers and authority."

"A constructive contempt is 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."

"A criminal contempt is conduct that is directed against the dignity and authority of the court."

"Civil contempt consists in failing to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein."

Argued orally by R. V. Fletcher, for appellant.

OPINION

MCLAIN, C.

At the January term, 1910, of the circuit court of Lamar county,...