Ex parte Bankhead

• Decision Date: 26 April 1917
• Docket Number: 6 Div. 483
• Citation: 75 So. 478,200 Ala. 102
• Parties: Ex parte BANKHEAD.
• Court: Alabama Supreme Court

75 So. 478

200 Ala. 102

Ex parte BANKHEAD.

6 Div. 483

Supreme Court of Alabama

April 26, 1917

On Rehearing, May 24, 1917

Petition by Gid Bankhead for certiorari or other remedial writ to be directed to Hon. A.S. Vandegraaf, as Judge of the Circuit Court of Lamar County, to review the order of the court committing said Gid Bankhead for contempt. Writ denied. Application for rehearing overruled.

The facts made by the petition are that at the regular fall term of the circuit court of Lamar county held in September, 1913 there was pending an indictment against one Will Bankhead brother of petitioner, charging him with a felony; that Gid Bankhead was summoned as a witness and attended court on September 5th and 6th, when the case was called; that an attachment was issued for one Henry Armstrong, a witness for the state, and he was arrested and brought into court, and upon examination by the trial judge said Armstrong made some statement about the cause of his absence, which caused the trial judge to issue an order for a citation to petitioner to show cause why he should not be adjudged guilty of contempt. The order follows in the petition, but is not deemed necessary to be here set out. Upon being served with the citation, Bankhead answered and stated under oath that he was not guilty of the contempt charged against him, denied the facts stated in the citation to be true, and demanded that written interrogatories be propounded to him as provided by law. The judge declined to propound the interrogatories, but set the case for hearing and directed that witnesses be summoned pro and con, which was done on November 30th. Here follows evidence taken. After examination of witness the court entered an order adjudging him guilty, and sentencing him to five days' imprisonment in the county jail, and to pay a fine of $50.

Bankhead & Bankhead, of Jasper, for appellant.

W.L Martin, Atty. Gen., and Perry W. Turner, Asst. Atty. Gen for appellee.

ANDERSON C.J.

Independent of the inherent power of courts to punish for contempt, and notwithstanding the restriction and limitation attempted to be placed thereupon by the statute, the trial court had jurisdiction and power in the case at bar under the statute (section 4630 of the Code of 1907).

It appears to be the recognized rule that, in order to punish for a constructive contempt, as distinguished from a direct contempt, the offending party should have notice of the nature and character of the charge and be given an opportunity to answer and defend himself, and this is generally done by a rule to said offending party to appear and show cause, and which was done in the instant case. United States v. Shipp, 203 U.S. 568, 27 Sup.Ct. 165, 51 L.Ed. 319, 8 Ann.Cas. 265; In re Fellerman (D.C.) 149 F. 244; Aaron v. United States, 155 F. 833, 84 C.C.A. 67; Schwartz v. United States, 217 F. 866, 133 C.C.A. 576; 9 Cyc. 38; State v. Frew, 24 W.Va. 416, 49 Am.Rep. 257; Latimer v. Barmore, 81 Mich. 592, 46 N.W. 1; People v. Oyer, 27 How.Prac. (N.Y.) 14.

It has been customary, and seems to have been necessary in some jurisdictions, to propound interrogatories to the accused in order that he may purge himself of the contempt by a denial in his answer of any intent to commit a contempt, but this rule is not universal, and under the modern authorities this procedure is treated as a mere matter of practice, and the court may dispense with an examination upon interrogatories. 9 Cyc. 43; In re Savin, 131 U.S. 267, 9 Sup.Ct. 699, 33 L.Ed. 150; Hummell's Case, 9 Watts (Pa.) 416.

It is urged that the petitioner's denial was conclusive of his innocence, but this rule does not now obtain, and never did in many jurisdictions where the contempt charged was of such a nature as could not be cured or atoned for by a disclaimer of any intention to commit a contempt. The rule as to a discharge upon answer generally operates as an excuse rather than an acquittal, and relates to contempts of a trivial nature or conduct which is capable of two constructions, one of which would be a contempt, and the other would not, such as publications, pleadings, etc., wherein the accused has been excused and discharged upon a sworn denial of any intent to commit a contempt. Shipp's Case, supra; Fellerman's Case, supra; O'Flynn v. State, 89 Miss. 850, 43 So. 82, 9 L.R.A. (N.S.) 1119, 119 Am.St.Rep. 727, 11 Ann.Cas. 530; Coleman v. State, 121 Tenn. 1, 113 S.W. 1045.

The judgment in the case at bar is sufficient. Easton v State, 39 Ala. 551, 87 Am.Dec. 49; Ex parte Hardy, 68 Ala. 303; Ex...