Ex parte Holbrook

• Decision Date: 04 February 1935
• Citation: 177 A. 418
• Parties: Ex parte HOLBROOK.
• Court: Maine Supreme Court

177 A. 418

Ex parte HOLBROOK.

Supreme Judicial Court of Maine.

Feb. 4, 1935.

Exceptions from Supreme Judicial Court, Kennebec County at Law.

Habeas corpus proceeding by Earl G. Holbrook to secure release from jail after commitment for contempt To review an adverse decision, he brings exceptions.

Exceptions sustained. Writ of habeas corpus to issue.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

William H. Niehoff, of Waterville, for petitioner.

PATTANGALL, Chief Justice.

On exceptions. Petitioner, having been adjudged guilty of contempt by a justice of the superior court, was committed to jail for the term of four months. While so imprisoned, he unsuccessfully sought liberation through habeas corpus proceedings and now comes to this court for the relief denied him below.

"An application for the writ [of habeas corpus] is addressed to the sound discretion of the court; and the writ will not be granted unless the real and substantial justice of the case demands it" O'Malia v. Wentworth, 65 Me. 129; Ex Parte Sweetland, Petitioner, 124 Me. 58, 126 A. 42. And in Knowlton v. Baker, 72 Me. 202, Stuart v. Smith, 101 Me. 397, 64 A. 663, and Wyeth v. Richardson, 76 Mass. (10 Gray) 240, it was decided that exceptions will not lie to the discharge of a prisoner upon habeas corpus.

Whether or not exceptions lie to the refusal to discharge has never been ruled upon, or even discussed, in any opinion of this court. Our law court is a statutory court. Its jurisdiction is limited and defined in section 9, chap. 91, Rev. St 1930, the provisions of which have not been materially changed since 1857. Prior to that time, no specific mention of habeas corpus appeared. As the law then stood, it was in substance similar to the Vermont statute under which it was held that exceptions would lie to refusal to discharge. In re Jesse Cooper, 32 Vt. 253. In the 1857 revision, there was added the following clause: "Questions arising on writs of habeas corpus, mandamus, and certiorari, when the facts are agreed or ascertained and reported by a judge." Section 17, chap. 77, Rev. St 1857. This provision is identical in substance with that appearing in the Massachusetts statute. We find no reported case in t hat state in which the court refused to consider a case coming before it on exceptions to the refusal of a discharge.

But in Re Bishop, Petitioner, 172 Mass. 35, 51 N. E. 191, the court said: "It is doubtful if exceptions will lie in a hearing upon a petition for the writ [habeas corpus], or, after the writ has issued, in a hearing upon the question of remanding or discharging the party. * * * 'In recent cases questions of law arising on habeas corpus have been reserved or reported or adjourned into the full court by a single justice.'"

And in Chambers' Case, 221 Mass. 178, 108 X. E. 1070, 1071: "Habeas corpus is a proceeding at law. No appeal lies from a decision or order of a justice of this court made at common law. Channell v. Judge of Central District Court, 213 Mass. 78, 99 N. E. 769, and cases there collected. * * * It is doubtful whether exceptions lie to rulings made in a hearing on a petition for a writ of habeas corpus. * * * Wyeth v. Richardson, 10 Gray [Mass.] 240; King's Case, 161 Mass. 46, 36 N. E. 685; In re Bishop, Petitioner, 172 Mass. 35, 51 N. E. 191. The usual course has been for the presiding justice to reserve, report or adjourn cases into the full court where its determination ought to be had."

Pish v. Baker, 74 Me. 107, came to the law court on exceptions which were not considered because not seasonably filed, and the opinion notes that the case is not "reported by the presiding judge, within Rev. St c. 77, § 13," a method of procedure provided for by the amendment referred to above.

But in O'Malia v. Wentworth, supra; Tuttle v. Lang, 100 Me. 123, 60 A. 892; Ex Parte Sweetland, Pet'r, supra; Cote v. Cummings, 126 Me. 330, 138 A. 547; and Rafferty v. Hassett 130 Me. 241, 154 A. 646, our court considered and decided cases on exceptions to refusal to discharge, expressing no doubt as to the procedure being correct in view of this sustained and uniform practice, notwithstanding the amendment to the statute, we may safely assume jurisdiction and regard as established the practice of bringing forward, on exceptions, cases such as that which we have before ns.

The mittimus on which petitioner was committed and held read as follows:

"Whereas on this 16th day of October, 1934, being the twelfth day of this October Term of said Court, in open Court and in the presence of Herbert T. Powers, the Presiding Justice thereof, and while said court was engaged in hearing and determining a cause then and there pending before it, in which said cause the said Earl G. Holbrook was then and there one of the defendants,

"And whereas the said Earl G. Holbrook offered himself as a witness in said action and gave testimony therein,

"And whereas the said Earl G. Holbrook by clear evidence was shown to be guilty of the crime of perjury committed while giving his testimony as aforesaid,

"Now therefore, it is ordered and adjudged by this Court, that the said Earl G. Holbrook, by reason of said act, was and is guilty of contempt of the authority of this Court committed in its presence on this 16th day of October, 1934.

"And it is further ordered that the said Earl G. Holbrook be punished for said contempt by imprisonment in the county jail in said County of Kennebec for the term of four months.

"And it is further ordered that a certified copy of this Order, under the seal of this court, be process and warrant for executing this Order. * * *"

Petitioner claims that his imprisonment was unlawful for these reasons:

"First: The Court was without authority to adjudge the Petitioner in contempt for the reason that he was shown to be guilty of the crime of perjury.

"Second: The Court was without authority to adjudge the Petitioner guilty of the crime of perjury.

"Third: The constitutional rights of the Petitioner were violated when the Court adjudged him guilty of the crime of perjury.

"Fourth: The mittimus does not state what particular statements were false or upon what facts the Court adjudged the Petitioner guilty of the crime of perjury.

"Fifth: The mittimus does not state that the Petitioner had been duly sworn or affirmed or that he gave testimony under oath.

"Sixth: That section 3 of chapter 133 of the Revised Statutes of Maine abrogated any right or authority the Court may have had in punishing for contempt based upon perjury committed in the presence of the Court.

"Seventh: The mittimus ordered that a certified copy of the order under the seal of the Court be process and warrant for executing the order while the process upon which the Petitioner is being held in jail is but a true copy of the order attested by the Clerk."

No serious consideration need be given the fourth, fifth, and seventh reasons.

The clear issue presented is whether or not a justice presiding at a nisi prius trial has authority to commit for contempt a party testifying in his own behalf when "by clear evidence" the witness "was shown to be guilty of perjury" while so testifying. The question is one of first impression in this jurisdiction.

"The power to commit for contempt is incident to all" courts of record. Morrison v. McDonald, 21 Me. 550. It has been by our statutes especially extended to boards of registration, state assessors, disclosure commissioners, and department of public welfare.

Contempt has been generally defined as "any act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice or to lessen its authority or dignity." People v. Cochrane, 307 Ill. 126, 138 N. E. 291, 298. "Conduct as tends to bring the authority of the court and the administration of the law into disrespect or to defeat, impair, or prejudice the rights of witnesses or parties to pending litigation." Snow v. Hawkes, 183 N. C. 365, 111 S. E. 621, 622, 23 A. L. R. 183. "To obstruct the administration of justice." U. S. v. Craig (D. C.) 266 F. 230. "Refusal of a witness to answer any question which he may be lawfully required to answer is a contempt" Dixon v. People, 168 Ill. 179, 48 N. E. 108, 110, 39 L. R. A. 116; Rudd v. Darling, 64 Vt. 456, 25 A. 479. An evasive answer constitutes contempt when it is in effect a refusal to answer. Becker v. Gerlich, 72 Misc. 157, 129 N. Y. S. 614.

It has been frequently held both in this country and In England that perjury may, under certain circumstances, be punished as contempt. Some authorities have assumed that it may be so punished in every case.

"Where defendant, without regard for oath he had taken, and without consideration or respect for authority, justice, or dignity of court, gave testimony which he knew was false, he purposely demeaned himself as to retard court proceedings, and was guilty of direct contempt." Young v. State, 198 Ind. 629, 154 N. E. 478.

"Willfully false evidence in court's presence regarding material fact * * * is obstructive of justice and constitutes a 'criminal contempt' of court." Murray Transportation Company v. Dunnigan et al. (D. O.) 53 F.(2d) 502, 503.

"Preparing, verifying, and securing the presentation of a false affidavit, intended to influence the action of a court constitutes an obstruction to the administration of justice, punishable as a criminal contempt." In re Steiner et al. (D. C.) 195 F. 299, 300.

Where the perjury of petitioner is clearly demonstrated and admitted, "the court would be remiss in its duty if it failed to punish such perjury as contempt" Backer v. A. B. & B. Realty Co., 107 N. J. Eq. 246, 152 A. 241, 242.

In many jurisdictions the authority of the court has been qualified and an attempt made to distinguish the cases in which perjury may properly be punished as contempt and those in which such action would be inappropriate.

"Courts will not ordinarily, when the facts are in dispute,...