Ex Parte Mccown.

• Decision Date: 26 September 1905
• Citation: 51 S.E. 957,139 N.C. 96
• Court: North Carolina Supreme Court
• Parties: Ex parte McCOWN.

139 N.C. 96

51 S.E. 957

Ex parte McCOWN.

Supreme Court of North Carolina.

Sept. 26, 1905.

1. Habeas Corpus—Contempt—Review.

On a writ of habeas corpus to determine the legality of petitioner's confinement for contempt, the only question presented for consideration is the jurisdiction or power of the judge to proceed as he did, since such writ cannot be made to perform the office of a writ of error or of an appeal.

[Ed. Note.—For cases in point, see vol. 25, Cent. Dig. Habeas Corpus, §§ 20-95.]

2. Constitutional Law—Courts—Powers— Legislative Restriction.

The power of the superior courts to punish for contempt being derived from their very constitution, without express statutory aid, the Legislature is without authority to restrict such power as it existed at common law.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 84.]

3. Same—Misconduct.

Where a judge of a superior court, after having sentenced a person convicted of an offense before him, adjourned his court to meet again at his call, and then retired to his living apartments, where petitioner went and complained to the judge in an angry manner for not having imposed a more severe sentence, and, in addition, committed an assault upon the judge, such acts constituted a contempt, as defined by Code, §§ 648-654.

4. Same —Punishment—Summary Proceedings.

Where, pending an adjournment, petitioner resorted to the dwelling house of a judge of the superior court, and there committed an assault on him because of the judge's official action, petitioner was properly punished for contempt by attachment in summary proceedings.

M. E. McCown was attached and convicted for contempt, and he brings habeas corpus. Writ denied.

The petitioner was attached for contempt by his honor, Judge Ward, at the last term of the superior court of Durham. He was adjudged in contempt and ordered to be imprisoned in the county jail for 30 days and fined $200. Having no right to appeal from the decision (State v. Mott, 49 N. C. 449; In re Davis, 81 N. C. 72), he applied to the writer of this opinion as a justice of this court for a writ of habeas corpus, which was issued and made returnable before him on Monday, the 4th day of September, 1905. At the hearing, as counsel wished to avoid the necessity of two arguments of the case, and it was also desired, owing to the great importance of the question and the peculiar circumstances of the case, that when the matter was heard in the Supreme Court all the justices should sit, it was agreed that argument should be waived, and the matter should be decided upon the papers, and an appeal entered, so that the case could be heard at once in this court by a full bench; all defects and irregularities in the manner of bringing the case before this court for review being waived. An order was thereupon made remanding the petitioner to the custody of the sheriff in further execution of Judge Ward's sentence, and the whole matter has been brought into this court by exception and appeal for full hearing and consideration; argument of counsel being made here for the first time. If a direct contempt was committed, it is conceded that the respondent was properly committed and fined, and that the final judgment is unassailable. Judge Ward's findings of fact are as follows:

"On Friday, September 1, 1905, one Allen Haskins was put on trial for murder in the second degree in the superior court of Durham county, over which the undersigned judge was presiding. The jury, on Saturday afternoon in the same week, rendered a verdict finding the defendant guilty of manslaughter, and at the same time recommended the defendant to the mercy of the court. Judgment was prayed by the solicitor. It appeared to the court that the defendant had already been confined in the common jail of Durham county for more than 10 months awaiting trial. After due and careful consideration of the case, the court, in view of all the evidence, the recommendation of the jury, and the length of time that the prisoner had already been imprisoned in jail, sentenced the prisoner to 15 months at hard labor upon the public roads of Durham county. There being still unfinished business of the court, the court, between 4 and 5 o'clock p. m., announced that it would not adjourn court sine die, as there was other business to transact, and told the court crier to announce that the court was adjourned until further notice from the judge, which the crier accordingly did, and the court was left open for the transaction of further business. The judge then left the courtroom and went to his room at his boarding house near by. In a short while thereafter, to wit, about 6 o'clock p. m., the respondent, M. E. McCown, came to the room of the judge and called him out on a porch adjoining his room. The judge responded, and went on the porch to meet the respondent, whom he found perfectly rational, and who at once accosted him in a very angry and menacing manner, complaining of the judgment rendered in the case of State v. Allen Haskins, and demanded that the court at once should impose a longer term than the one already announced or turn the prisoner out of jail. The court listened to the statement, and respectfully considered it, as the respondent stated that he was there to see him about this case. The court then asked the respondent in a quiet and mild manner if he was accustomed to speaking to the court in that way, adding that in the course of the case the court had exercised its best judgment and discretion in the matter. Whereupon the respondent began to curse the judge violently, using most offensive language, and following it up with an assault on the person of the judge. The minutes were not signed, and the judge intended to return and sign the same, and did sign them later. The court was a one-week term, and for the trial of criminal cases only, and all of the jurors had been discharged before the assault by respondent was committed. The judge had transacted no other business after the adjournment as above stated, before taking up this matter with the respondent on the porch, except to change the sentence of one defendant, and adjust a matter of costs in another case, which he did before he left the courtroom, but after the crowd had left. The respondent was present in court in person, and represented by attorneys, Messrs. Guthrie & Guthrie and Fuller & Fuller, and the state was represented by the solicitor. The respondent filed no answer in writing; his counsel waiving the same after suggesting to the court other facts, which it included in the findings above."

The Attorney General and A. L. Brooks, for the State.

Fuller & Fuller and Guthrie & Guthrie, for respondent.

WALKER, J. (after stating the case). This matter, as now presented to us, really involves the correctness of the ruling of Judge Ward in the proceedings which resulted in the commitment of the respondent and the imposition of a fine upon him for contempt of court. If upon the facts, as found by the judge, a contempt was committed within the meaning and intent of the law upon that subject—or, to express the same idea in somewhat different words and as it is usually stated, if the judge was in the exercise of a rightful jurisdiction in the particular case— his decision cannot be reviewed in a collateral way by the writ of habeas corpus. This court is bound by the judge's findings of fact, which were spread upon the record as required by the statute. In re Deaton, 105 N. C. 59, 11 S. E. 244; Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77, 32 L. Ed. 405. We cannot decide whether there was any merely erroneous ruling of the court or any irregularities in respect to judgment and procedure, as the writ of habeas corpus can never be made to perform the office of a writ of error or of an appeal. We are confined in our investigation to the question of jurisdiction or power of the judge to proceed as he did, and cannot otherwise pass upon the merits of the controversy. There must have been a want of jurisdiction over the person or the cause, or some other matter rendering the proceedings void, as this is the only ground of collateral attack. The law in this respect has been definitely settled, we believe, by all the courts. Ex parte Terry, supra; Ex parte Savin, 131 U. S. 2G7, 9 Sup. Ct. 699, 33 L. Ed. 150; Rapalje on Contempts, § 155. In Ex parte Reed, 100 U. S. 13, 25 L. Ed. 538, the doctrine is thus clearly and concisely stated: "A writ of habeas corpus cannot be made to perform the functions of a writ of error. To warrant the discharge of the petitioner, the sentence under which he is held must be, not only erroneous, but absolutely void." The range of our inquiry, therefore, is narrowed to the question of jurisdiction and the validity of the order of Judge Ward. That the court had general jurisdiction of the subject of contempt cannot be denied; but do the facts stated in the record constitute a contempt within the meaning of the law? This is precisely the question now before us.

We would have had less difficulty in deciding this case, if by the act of 1871 (Code, §§ 648-657) the Legislature had not defined contempts of court and declared that no other acts or conduct not mentioned therein should be "the subject of contempt, " and repealed the common law, in so far as it recognized as contempts other acts or conduct not specified in the statute. We are satisfied that at common law the acts and conduct of the petitioner, as set out in the case, constituted a contempt of court, and if the statute does not embrace this case, and in terms repeals the common law applicable to it, we would not hesitate to declare the statute in that respect unconstitutional and void, for reasons which we will now state. That courts have inherent power to punish summarily for any direct contempt has unquestionably been settled by the authorities. 4 Bl. Comm. c. 283, says that the method of punishing contempts by attachment has been immemorially...