Evers v. State

• Decision Date: 12 June 1961
• Docket Number: No. 41960,41960
• Citation: 241 Miss. 560,131 So.2d 653
• Parties: Medgar EVERS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 653

131 So.2d 653

241 Miss. 560

Medgar EVERS v. STATE of Mississippi.

No. 41960.

Supreme Court of Mississippi.

June 12, 1961.

Jack H. Young, Jackson, R. Jess Brown, Vicksburg, Robert L. Carter, New York City, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

The appellant, Medgar Evers, was convicted of constructive contempt of court, by publishing a statement criticizing a conviction of another for burglary, after the jury's verdict and sentence had been rendered. We hold the State's evidence wholly failed to show beyond a reasonable doubt that the publication had a reasonable and substantial tendency to corrupt or hinder the administration of justice in the courts. Hence the conviction is reversed and appellant is discharged.

The regular term of the Circuit Court of Forrest County began on November 14, 1960. On November 21 Clyde Kennard, a Negro, was tried before a jury on an indictment charging him with burglary. He was convicted and given a sentence of seven years in the state penitentiary. The conviction was affirmed by this Court. Kennard v. State, Miss.1961, 128 So.2d 572.

On November 25, 1960, during the same term, the district attorney filed a petition for constructive contempt of court. It alleged that Evers was present in court during the Kennard trial, and heard and observed the entire proceedings. On Tuesday, November 22, Evers, who is Field Secretary for the National Association for the Advancement of Colored People of the State of Mississippi, caused to be placed in a newspaper a statement, printed in the Hattiesburg 'American', dealing with the Kennard trial, in which Evers said:

'The greatest mockery (to judicial) justice took place Monday, Nov. 21 in the Forrest County courthouse when despite the overwhelming evidence in Clyde Kennard's favor, he was convicted and sentenced to seven years in the state penitentiary for alleged burglary.

'In a court room of segregationists apparently resolved to put Kennard 'legally away', the all-white jury found Kennard guilty as charged in only 10 minutes.'

The petition charged that this was done with the intent 'contumaciously to impede, degrade, obstruct, embarrass, interrupt, defeat or corrupt the administration of justice' in the Circuit Court of Forrest County, 'said statement being an expression of contempt for this honorable court;' and Evers should be cited to appear and show cause why he should not be adjudged guilty of constructive contempt of court. The circuit court issued a fiat thereon, and there was a hearing on December 2. Evers moved to dismiss the petition, alleging that it failed to state a case of contempt of court, defendant merely expressed an honest opinion of a particular case, the petition did not charge interference with the conduct of the trial of Kennard or any other person, and defendant's comments were protected free speech, and their publication an exercise of the right of freedom of the press, both protected by the due process clause of the 14th Amendment, U. S. Constitution.

Three witnesses testified for the State, none for the defendant. Douglas Starr is a new reporter for the Associated Press. The Hattiesburg 'American' is a subscriber to the AP service. Starr had known Evers about five years. On November 22, 1960, Evers telephoned him in Jackson. It was an unsolicited call from Evers to him. The witness read an article from the Hattiesburg 'American', and stated it contained a verbatim quote of what Evers said to him. Thereafter, Starr placed the story on the teletype to the New Orleans Bureau of AP, from which it was sent to the Hattiesburg paper along with other AP outlets, including television and radio stations.

Ed Jenkins, manager of a Hattiesburg radio station, knew Evers by sight, and testified that he was present in the courtroom during the Kennard trial, hearing and seeing everything that happened. Jack H. Young, an attorney of Jackson who was defense counsel for Kennard, admitted that, after Kennard's trial, he expressed to the court and jury his appreciation for the fair, courteous and impartial manner in which he had been received and treated, and for the similar treatment accorded his client. Defendant's motion for a directed verdict was overruled.

The judgment recited that the Kennard case was the first criminal case tried during the November 1960 term. Kennard's co-indictee, Roberts, had entered a plea of guilty, and had not been sentenced when the statement was published. Evers was present during the Kennard trial and Kennard's counsel expressed his appreciation of the fair trial given his client. Evers was aware of these circumstances, 'but regardless thereof, said Medgar Evers expressed contempt for said Court and the officers thereof in the issuance of said contemptuous statement to the Associated Press.

'That the conduct on the part of the defendant, Medgar Evers, was contemptuous and a conscious effort to embarrass, impede, degrade, obstruct, interrupt, defeat and corrupt the administration of justice and therefore he is in contempt of this Court.' Hence the court sentenced defendant to pay a fine of $100 and to serve 30 days in the county jail.

I.

In considering this case, certain basic principles must be kept in mind. Appellant was convicted of constructive contempt of court. That is defined as any act calculated to impede, embarrass, obstruct, defeat or corrupt the administration of courts of justice, when the act is done beyond the presence of the court. Sullens v. State, 1941, 191 Miss. 856, 869, 4 So.2d 356. This is a criminal charge, which the State must prove beyond a reasonable doubt. 12 Am.Jur., Contempt, Sec. 75; Brannon v. State, 1947, 202 Miss. 571, 583, 29 So.2d 916.

Further, in determining whether the evidence is sufficient to support a conviction, Miss.Code 1942, Rec., Sec. 1152, provides for an independent determination by this Court of that issue. Section 1152 deals with appeals from judgments for contempt, and, after making certain provisions for procedure and bond, it states: 'and on such appeal the question shall be whether the appellant was guilty of contempt; and the sentence or decree or order of the court below may be affirmed, reversed, annulled, or modified, according to the judgment of the appellate court.' Brannon v State, 202 Miss. at page 584, 29 So.2d at page 920, held that this statute 'directs that we shall decide if there were contempt'. Brannon was followed in Ballew v. Case, 1957, 232 Miss. 183, 187, 98 So.2d 451, 453, in which it was observed that 'the Supreme Court has a right to decide from the record whether the appellant was actually guilty of contempt.' We are not held to the rule that we will not reverse unless the chancellor is manifestly wrong, 'but we are empowered to review the case and decide for ourselves whether there had been an actual contempt of court.'

A contempt charge must also be considered in the light of basic constitutional guaranties. Miss. Constitution, Sec. 13, states: 'The freedom of speech and of the press shall be held sacred; * * *' U. S. Constitution, First Amendment, provides: 'Congress shall make no law * * * abridging the freedom of speech, or of the press; * * *' The 14th Amendment applied this as a limitation upon state power.

The general statute referring to contempt of court, Miss.Code 1942, Rec., Sec. 1656, states that the courts of record shall have power to fine and imprison any person guilty of contempt of the court while sitting. There appears to be no specific statute on constructive contempt of court. In Melvin v. State, 1950, 210 Miss. 132, 145, 48 So.2d 856, 860, 49 So.2d 837, it was held that, while Sec. 1656 refers only to direct contempt, it does not exclude the power to punish for constructive contempt. This power is inherent and implied in the judicial function. It was said: 'This Court has always examined carefully contempt convictions.'

II.

The statement for which appellant was convicted was made by him as Field Secretary for the NAACP of Mississippi and as an individual. The jury had previously rendered its verdict and the court had sentenced defendant. The State does not deny the statement in appellant's brief that the court had overruled his motion for a new trial, although the record in Kennard v. State does not reflect any such order. The jury and the court had already decided the case. Appellant made the statement on his own volition to a press service reporter, and it was thereafter put on the wire service and distributed to its subscribers, including the Hattiesburg newspaper.

The statement was intemperate and false in several respects. It correctly said that Kennard was convicted and sentenced to seven years in the penitentiary for burglary. It was false in its statement that this conviction was 'despite the overwhelming evidence in Clyde Kennard's favor.' This Court held that it was amply supported by the evidence. Kennard v. State, 128 So.2d 572. The statement was false in saying this was 'The greatest mockery (to judicial) justice * * *' We have held the conviction was supported by substantial evidence. The statement refers to 'an all-white jury.' This is correct in that the particular jury which tried this case was composed of white persons. However, the evidence in Kennard showed there had been no systematic exclusion of Negroes from juries in Forrest County. The Kennard opinion discussed this issue in some detail. The statement was false in saying that the jury was 'in a courtroom of segregationists apparently resolved to put Kennard 'legally away'.' The record in the Kennard case and here reflects that Kennard was given a fair trial, as his own counsel admitted.

However, we do not think that these intemperate and partly false remarks made and published by appellant after the case was decided had any reasonable tendency to impede, embarrass, obstruct, defeat or corrupt the...