Freedman v. State

• Decision Date: 16 May 1939
• Docket Number: 13.
• Citation: 6 A.2d 249,176 Md. 511
• Parties: FREEDMAN v. STATE.
• Court: Maryland Court of Appeals

6 A.2d 249

176 Md. 511

FREEDMAN v. STATE.

No. 13.

Court of Appeals of Maryland

May 16, 1939

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

Robert Freedman was convicted of contempt of court, and he appeals.

Order modified, and case remanded.

Edward L. Ward, of Baltimore, for appellant.

William C. Walsh, Atty. Gen., and Paul C. Wolman, Asst. State's Atty., of Baltimore (H. Vernon Eney, Asst. Atty. Gen., J Bernard Wells, State's Atty., and Stewart Lee Smith Asst. State's Atty., both of Baltimore, on the brief), for the State.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

JOHNSON Judge.

This appeal reaches us under the provisions of Chapter 357, Acts of 1927, and is from a judgment and sentence of the Criminal Court of Baltimore City, finding appellant guilty of contempt of Court, and imposing a fine of $100 and imprisonment for three hours in the Baltimore City Jail.

The alleged contempt was constructive, being based upon a letter written by appellant to the presiding Judge of the Criminal Court concerning the case of Leroy J. Hennigan scheduled for trial before him three days later.

Hennigan, an employee of Sun Cab Company, had been indicted by the Grand Jury for the crime of transportation for immoral purposes, Code, Art. 27, Sec. 514. His trial was scheduled for Tuesday, December 27, 1938. Robert Freedman, who had lived in Baltimore for four years, was the Manager of the Sun Cab Company and had under him 750 employees of the Company, including Hennigan. The latter had asked Freedman to appear in the Criminal Court on the date of his trial to testify for him as a character witness and Freedman had agreed to do so, but on December 24 he recalled that on the date of the trial fourteen automobile sedans and three automobile trucks were to be sold at 11 A. M. at the Mid-City Garage in Baltimore City under a chattel mortgage held by his employers who were out of the City. It was therefore necessary for him to attend the sale, inspect the vehicles and represent his employers. In order to do this, his presence was required at the garage at 10:30 A. M., December 27.

On December 24, when he realized the necessity for his presence at the sale, he dictated to his secretary, who mailed to the trial Judge at his residence, the following letter upon the stationery of Sun Cab Company:

'Honorable Sir:

'On Tuesday, one of our drivers by the name of Leroy J. Hennigan will be brought before you on a charge of solicitation for immoral purposes. I hope that you will not consider it presumptious on my part in writing you on this subject before the case is formally presented to you, but since this is the first time in the four years that I have managed the affairs of the Sun Cab Company, that I have ever come to the aid of any of our drivers for any offences that they are charged with, I trust you will forgive me.

'Hennigan has been in our employ since June, 1937, and I have considered him to be one of the best men in our employ. He has always conducted himself like a gentleman, has been solicitous of the welfare of the Sun Cab Company and its patrons and we have never had a complaint against him of any form. In fact, I have always considered him to be a gentleman, moral and honest. He told me exactly what had occurred and in view of my past experience with him, I believe what he told me to be true.

'Sun Cab Company has no time for any man accused or involved in any immoral or dishonest activities and has invariably not only discharged such men against whom accusations have been made, but has also notified all other companies for the welfare of the taxicab industry as a whole and would or will do the same in this case, if satisfied that he is guilty. We feel we have this moral obligation to our patrons and we put this before the individual welfare of our drivers.

'Yours very truly,

'Sun Cab Company,

'Signed: Robert Freedman

'Robert Freedman.'

Shortly after receipt of this letter, the Judge delivered it to the State's Attorney, who, in a petition addressed to the same Judge, charged that Freedman in writing the letter and therein discussing the case and particularly 'the character and reputation of the said Leroy J. Hennigan' was guilty of improper conduct and in contempt of that Court and prayed that he be required to show cause why he should not be so adjudged. Upon that petition a citation was issued, and in response thereto, on December 29, appellant appeared with counsel, answered the petition, and at the hearing thereon, testified under questioning of his counsel and was cross-examined by counsel for the State.

It is not contended that the proceedings under which Freedman was found guilty were not conducted regularly and within the preview of the Act of Assembly. No such contention could have successfully been made in view of what this Court held in Ex Parte Bowles, 164 Md. 318, 165 A. 169; In re Lee, 170 Md. 43, 183 A. 560; and Hitzelberger v. State, 173 Md. 435, 196 A. 288. But in support of his contention that the judgment appealed from should be reversed, appellant advances two propositions, viz: (1) That the letter under consideration is not per se contemptuous; (2) that even if this be not accepted, inasmuch as the contempt was constructive, his answer to the petition denying any improper or ulterior motive in writing the letter had the effect of purging the contempt.

Respecting the second of these contentions, it is sufficient to state that the only legitimate effect of a denial of any improper purpose or motive is to mitigate the punishment, for as was said by Judge Digges, speaking for this Court, in the case of Ex Parte Bowles, supra, 164 Md. at page 333, 165 A. at page 175, concerning a constructive contempt: 'In such cases one must be held to intend what he does, and the language indicating that intention be construed according to its usual ordinary import. It can never be that one could be guilty of acts which constitute contempt, and subsequently relieve himself by saying that, 'although it was contempt, I did not intend it.' The only legitimate effect of a subsequent denial of intention, if such denial be sincere and bona fide, is to mitigate the punishment. 6 R.C.L. 534; Merrimack River Savings Bank v. Clay Center, 219 U.S. 527, 31 S.Ct. 295, 55 L.Ed. 320, Ann.Cas.1912A, 513; In re Duncan, 83 S.C. 186, 65 S.E. 210, 24 L.R.A.,N.S., 750, 18 Ann.Cas. 657; In re S, 83 N.J.Eq. 607, 91 A. 801. In 13 C.J. 45, § 61, it is said: 'Disclaimer of intentional disrespect or design to embarrass the due administration of justice is no excuse, especially where the facts constituting the contempt are admitted or where the contempt is clearly apparent from the circumstances surrounding the commission of the act.''

See, also, Hitzelberger v. State, supra, and cases there cited; 12 Am.Jur., page 439.

Upon those authorities, it must be held that if the letter written by appellant is by fair and ordinary import contemptuous, his answer denying an intention improperly to influence the Court does not have the effect of purging the contempt.

This brings us to the principal question presented, which is whether the letter itself is contemptuous. The answer to that inquiry must depend, (1) upon a consideration of the essential elements of contempt, and (2) upon the usual and ordinary meaning of the language used by appellant in the letter.

'It is a grave contempt of Court to communicate with or to seek in any way to influence a Judge upon the subject of any matter, which he has to determine. * * * The contempt is the same whether the communication be accompanied by abuse or by a bribe or not'. Oswald on Contempt, 3 Ed., page 48.

In re Dyce Sombre [1849], 1 Macn. & G. 116, 41 Eng.Reprint 1207, it was said by the Lord Chancellor: 'Every private communication to a judge, for the purpose of influencing...