Fisher v. McDaniel

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtPOTTER, CHIEF JUSTICE.
Citation9 Wyo. 457,64 P. 1056
Decision Date23 May 1901
PartiesFISHER v. McDANIEL, SHERIFF

64 P. 1056

9 Wyo. 457

FISHER
v.
McDANIEL, SHERIFF

Supreme Court of Wyoming

May 23, 1901


ORIGINAL proceeding on Habeas Corpus.

Belle Fisher was adjudged guilty of contempt by the district court for Carbon County, and sentenced to imprisonment for six months in the county jail, and to pay a fine of $ 500, and to stand committed until the fine be paid and the sentence served. The term of imprisonment having expired, and she remaining imprisoned for non-payment of the fine, she applied to be discharged upon habeas corpus. The facts are stated in the opinion.

Petition dismissed.

J. H. Ryckman, for plaintiff (P. L. Williams & C. E. Blydenburgh of counsel).

The acts constituting the alleged contempt are to be examined to ascertain whether in law they constitute a contempt, and, if they do not, the court was without jurisdiction to imprison, and the petitioner is entitled to be discharged on habeas corpus. Miskimins v. Shaver, 8 Wyo., 392.

There is no statute making conduct such as plaintiff is charged with, a contempt of court. The only criminal statute providing punishment for contempt and fixing a definite penalty is Sec. 5087. "The common law prevails here." Exp. Bergman, 3 Wyo. 396. If the conduct complained of was not a contempt at common law, how, when, and by what process has it become a contempt at common law, in this State, and if not a contempt at common law and not a contempt by statute, the court never had any jurisdiction of the petitioner or the subject-matter to render the judgment she is held under.

The foundation principles of contempt at common law completely fail to embrace as a contempt the crime of corruptly endeavoring to influence a witness in the discharge of his duty, or in any manner tampering with a witness out of the presence of the court, or not so near thereto as to interfere with its orderly procedure. The offense attempted to be charged against the petitioner was the attempt to bribe a witness. Now the essence of this crime is that the accused shall have corruptly attempted to have a witness give particular testimony irrespective of the truth. This was not charged against the petitioner, and was not proved. This offense was indictable at common law, but was never the subject of contempt proceedings. (2 Whar. Crim. Law, 7th ed., Sec. 2287; 3 id., 7th ed., Secs. 3432, 3442; 2 Va. 408; Neel v. State, 9 Ark., 259, 50 Am., Dec., 211; Ex. p. Wright, 65 Ind. 504; Burke v. State, 47 Ind. 528; Rapalje on Contempts, Sec. 22, 15; Androscoggin v. Androscoggin, 49 Me. 392; Laramie Nat. Bk. v. Steinhoff, 7 Wyo., 464; People v. Oyer and Terminer, 101 N.Y. 245; Ex. p., Robinson, 19 Wall., 510; In re Wilson, 75 Cal. 580; In re McKnight (Mont.), 27 P. 338; 7 Enc. L., 2d ed., 27; 4 Bl. Com., 284.)

The court was therefore without jurisdiction, and its proceedings and commitment are void. The attempt to bribe a person is a misdemeanor at common law, and generally regulated by statute. 4 Enc. L., 2d ed., 914, and cases cited; Clark's Crim. Law, Sec. 144.

Tampering with a witness, or corruptly attempting to influence him in the discharge of his duty, in the language of our statute was a misprison at common law, in this country and England, prior to the adoption of the Federal Constitution, and punishable by fine and imprisonment, but is notm entioned by Blackstone as a contempt of court, or ever punishable as such summarily. Misprisons were all such high offenses as were under the degree of capital, but nearly bordering thereon. 4 Bl. Com., 119, 126, 284, 285, 286.

The crime was a misdemeanor at common law. It was not a contempt. Prior to the law of 1890, Sec. 5088, it was punishable in Wyoming as a misdemeanor by the common law, and not otherwise. Since that time it has been punishable as a misdemeanor by statute, and not otherwise. The abstract doctrine that the fact that an act may be indictable or punishable in some other manner does not deprive the court of the essential power to punish the same act as a contempt, we do not deny. It has no application to this case. In the nature of things it can have no application to this case. If we have demonstrated anything, it is that the crime never was a contempt at common law or by statute in this State. The doctrine applies only where a contempt at common law has been made indictable by statute. The Legislature by making it indictable cannot thereby take away from the court its inherent power to punish for contempt, and this is founded in reason; but neither the Legislature, nor any court in this country, has the power to declare that crime to be a contempt which has immemorially been indictable and punishable at common law. The line of demarcation is thus seen to be clear and distinct, separating the two classes of cases, blurred and obscured though it has been, sometimes, by ill-considered dicta of the courts and careless text-writers.

We think an examination of the cases where this proposition has been sustained will disclose this situation. That all such contempts were either in facie curiae, or disobedience or disregard of an order of court, or a libelous publication relating to a proceeding then pending and tending to obstruct or interfere with the administration of justice--all of which were contempts at common law--and in all which the offense was double; i. e., an offense against the court, as an organ of public justice, and an infraction of the criminal code at the same time.

The conduct of the petitioner must clearly have been a contempt or the court acquired no jurisdiction to proceed summarily, and the sentence is void. (Miskimins v. Shaver, 58 P. 414; Fischer v. Raab, 81 N.Y. 235; Perkins v. Taylor, 19 Abb., 147; Clark v. Bininger, 75 N.Y. 35, 344.) The power of the court to punish for a contempt, though undoubted, is in its nature arbitrary, and its exercise is not to be upheld except under the circumstances and in the manner prescribed by law. It is essential to the validity of proceedings in contempt subjecting a party to fine and imprisonment, that they show a case in point of jurisdiction within the law by which proceedings are authorized, for mere presumptions and intendments are not to be indulged in their support. (Batchelder v. Moore, 42 Cal. 414; Neel v. State, 50 Am. Dec., 211; Cooley, Torts, 494; State v. Frew, 24 W.Va. 477; Carter v. Com., 96 Va. 791; 3 Whar., Cr. L., 3440; Cheadle v. State, 11 N. E., 432; Haskett v. State, 51 Ind. 176; People v. Wilson, 16 Am. R., 545; People v. Court, 101 N.Y. 245; Kingsbery v. Ryan, 92 Ga. 108; In re Brown, 4 Colo., 438; Ex p. Grace, 12 Ia. 208; Young v. Cannon, 2 Utah 560.)

If therefore attempting to bribe a witness was at common law a misdemeanor, and hence triable by a jury, and such was the status of the offense at the time of the adoption of the Federal Constitution, it is still a misdemeanor, and for that reason the accused cannot constitutionally be denied a jury. A summary conviction for the crime, denominated though it may be, a contempt, is without jurisdiction and void, and the petitioner should be discharged. The court, therefore, was attempting to exercise absolute and arbitrary power over the liberty and property of the petitioner in contravention of Art I, Sec. 7, of the constitution, and hence had no jurisdiction. (Ex p Sweeney, 1 P. 379; Rex v. Wilkes, 4 Burr., 2539; Norris v. Clinkscales, 47 S. C., 488; Miskimins v. Shaver, 8 Wyo., 392; Wightman v. Karsner, 20 Ala. 446; Ex. p., Fisk, 113 U.S. 713; Ins. Co. v. Morse, 20 Wall., 451; Brown on Jurisdiction, 110.)

The punishment inflicted is cruel and unusual, and violates Section 14, of Art I, of the constitution. (7 Enc. L., 37.) The offense charged against the plaintiff, if punishable at all, is indictable under Section 5088, and that Section is intended to furnish the sole remedy for such an offense. (Hale v. State, 55 O. St., 210; State v. Morrill, 16 Ark. 384; Wyatt v. People, 17 Colo. 261.)

We come now to a consideration of the two remaining propositions in this case:

1. The insufficiency of the affidavit or information upon which the contempt proceeding was professed to be founded, and--

2. The proposition that judgment and commitment are informal, insufficient, vague, uncertain, indefinite, and illegal, and therefore void.

It must be conceded that the offense for which the petitioner is imprisoned is not a contempt by statute. Therefore, if a contempt at all it must be by the common law, and if by the common law, the procedure, the sentence and punishment must be by the common law, if not provided for by statute. We take it there is no statute regulating the procedure, limiting the punishment, or providing for the payment of fines in contempt proceedings. The procedure, therefore, is substantially as laid down in 4 Bl. Com., 287. The affidavit must give the judge sufficient ground to suspect that a contempt has been committed. If the contempt was not committed in the presence of the court, the affidavit must show it, and must contain a statement of the facts constituting the offense. In constructive contempt proceedings the affidavit or information on which the warrant of attachment issues must always set out the matters claimed to constitute the alleged contempt, and must be sworn to, or the court acquires no jurisdiction. (In re Nickell, 28 P. 1078; State v. Henthorn, 46 Kan. 613; State v. Vincent, 26 P. 939; Cooper v. People, 22 P. 790; Batchelder v. Moore, 42 Cal. 412; Bk. v. Schermerhorn, 38 Am. Dec., 551.)

The information in this case was wholly insufficient, and so fatally defective as to be equivalent to no information as required by law, and that the court was therefore without jurisdiction, and the procedure and commitment are void.

The petitioner urges that the judgment is illegal and void because it does not contain a recital as required by law of the acts and conduct constituting the alleged contempt, nor does it indicate how or to whom the...

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21 practice notes
  • Smith v. State, No. 94-245
    • United States
    • United States State Supreme Court of Wyoming
    • 31 Agosto 1995
    ...at the time of the assault. Smith asserts, at that time, Minick was not a "witness in the discharge of his duty." In Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056 (1901), this court noted the similarity of our statute to the statute in Ohio. In State v. Crider, 21 Ohio App.3d 268, 487 N.E.2d 9......
  • State v. O'Neil
    • United States
    • United States State Supreme Court of Iowa
    • 16 Mayo 1910
    ...66 N. W. 754;Martin v. Blattner, 68 Iowa, 286, 25 N. W. 131, 27 N. W. 244;State v. Huff, 76 Iowa, 204, 40 N. W. 720;Fisher v. McDaniel, 9 Wyo. 457, 64 Pac. 1056, 87 Am. St. Rep. 981;Luton v. Palmer, 69 Mich. 610, 37 N. W. 701;Commonwealth v. Hitchings, 71 Mass. 482;Blydenburgh v. Miles, 39 ......
  • Hopkinson v. State, No. 5268
    • United States
    • United States State Supreme Court of Wyoming
    • 2 Julio 1981
    ...punishments," (emphasis added) In re MacDonald, 4 Wyo. 150, 33 P. 18, 21 (1893); cf. Trop v. Dulles, supra. See also Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056, 1061 (1901); Owens v. State, Wyo., 398 P.2d 556 (1965); Cavanagh v. State, Wyo., 505 P.2d 311 Is Death Cruel? In People v. Anderso......
  • State v. O'Neil
    • United States
    • United States State Supreme Court of Iowa
    • 16 Mayo 1910
    ...97 Iowa 458, 66 N.W. 754; Martin v. Blattner, 68 Iowa 286, 25 N.W. 131; State v. Huff, 76 Iowa 200, 40 N.W. 720; Fisher v. McDaniel, 9 Wyo. 457 (64 P. 1056, 87 Am. St. Rep. 981); Luton v. Palmer, 69 Mich. 610 (37 N.W. 701); Commonwealth v. Hitchings, 71 Mass. 482; Blydenburgh v. Miles, 39 C......
  • Request a trial to view additional results
21 cases
  • Smith v. State, No. 94-245
    • United States
    • United States State Supreme Court of Wyoming
    • 31 Agosto 1995
    ...at the time of the assault. Smith asserts, at that time, Minick was not a "witness in the discharge of his duty." In Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056 (1901), this court noted the similarity of our statute to the statute in Ohio. In State v. Crider, 21 Ohio App.3d 268, 487 N.E.2d 9......
  • State v. O'Neil
    • United States
    • United States State Supreme Court of Iowa
    • 16 Mayo 1910
    ...66 N. W. 754;Martin v. Blattner, 68 Iowa, 286, 25 N. W. 131, 27 N. W. 244;State v. Huff, 76 Iowa, 204, 40 N. W. 720;Fisher v. McDaniel, 9 Wyo. 457, 64 Pac. 1056, 87 Am. St. Rep. 981;Luton v. Palmer, 69 Mich. 610, 37 N. W. 701;Commonwealth v. Hitchings, 71 Mass. 482;Blydenburgh v. Miles, 39 ......
  • Hopkinson v. State, No. 5268
    • United States
    • United States State Supreme Court of Wyoming
    • 2 Julio 1981
    ...punishments," (emphasis added) In re MacDonald, 4 Wyo. 150, 33 P. 18, 21 (1893); cf. Trop v. Dulles, supra. See also Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056, 1061 (1901); Owens v. State, Wyo., 398 P.2d 556 (1965); Cavanagh v. State, Wyo., 505 P.2d 311 Is Death Cruel? In People v. Anderso......
  • State v. O'Neil
    • United States
    • United States State Supreme Court of Iowa
    • 16 Mayo 1910
    ...97 Iowa 458, 66 N.W. 754; Martin v. Blattner, 68 Iowa 286, 25 N.W. 131; State v. Huff, 76 Iowa 200, 40 N.W. 720; Fisher v. McDaniel, 9 Wyo. 457 (64 P. 1056, 87 Am. St. Rep. 981); Luton v. Palmer, 69 Mich. 610 (37 N.W. 701); Commonwealth v. Hitchings, 71 Mass. 482; Blydenburgh v. Miles, 39 C......
  • Request a trial to view additional results

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