French v. Commonwealth

• Citation: 97 S.W. 427
• Parties: FRENCH v. COMMONWEALTH.
• Decision Date: 21 November 1906
• Court: Court of Appeals of Kentucky

97 S.W. 427

FRENCH v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 21, 1906

Appeal from Circuit Court, Clark County.

"To be officially reported."

B. F French was adjudged guilty of criminal contempt, and he appeals. Affirmed.

J. M Stevenson, J. J. C. Bach, J. Smith Hays, and J. Tevis Cobb for appellant.

Byrd & Jouett, B. A. Crutcher, N. B. Hays, C. H. Morris, and S. A. Jeffries, for the Commonwealth.

SETTLE J.

At the December term, 1904, of the Clark circuit court a rule was issued by order of the judge thereof against A. H. Hargis, Ed. Callahan, and the appellant, B. F. French, for contempt. The rule is as follows: "Clark Circuit Court, December Term, January 31st, 1905. Commonwealth of Kentucky, Plaintiff, v. A. H. Hargis, Ed. Callahan, and B. F. French, Defendants. Rule and Order of Arrest. Whereas, it appears from the affidavits of Abrelia Marcum and M. B. Feltner, filed in this court on the 7th day of December, 1904, that there are reasonable grounds for believing that A. H. Hargis, Ed. Callahan, and B. F. French have committed, and are guilty of, the offense of contempt of this court, and of its authority, committed as follows, to wit: That said A. H. Hargis, Ed. Callahan, and B. F. French, in Clark county, Ky. did, on the 6th day of December, 1904, unlawfully, willfully, and corruptly, and with the intent to hinder and obstruct the administration of justice in this court, induce, persuade, entice, and procure, by giving money and bribes, and by threats of violence and personal injury, and other unlawful means, Mose Felnter, Sam Fields, and Ruck Cottongame, witnesses for the plaintiffs in the action of Abrelia Marcum and others, plaintiffs, against James Hargis and others, defendants, then pending in this court, and which case was then about to be called for trial in this court, to absent themselves from this court, and leave and depart from the city of Winchester, and from Clark county, and from the state of Kentucky, and go beyond and out of the jurisdiction of this court, although said witnesses, and each of them, had been duly summoned to attend this court as witnesses for plaintiff in said action, and were, at the time of the said conduct on the part of the said A. H. Hargis, Ed. Callahan, and B. F. French, in attendance upon this court as such witnesses, all of which was well known to the said A. H. Hargis, Ed. Callahan, and B. F. French, and to each of them. Wherefore, it is ordered that a rule and order of arrest be, and it is hereby, awarded against said A. H. Hargis, Ed. Callahan, and B. F. French, returnable on the first day of the next April term of this court, to show cause, if any they can, why they should not be punished by the imposition by a jury of a fine or imprisonment, or both such fine and imprisonment in the discretion of a jury, for said contempt. It is further ordered that any peace officer of this state, who receives a copy of this order, shall be authorized to execute same by delivering a copy of same to A. H. Hargis, Ed. Callahan, and B. F. French, or any one of them, and arresting and taking them into custody, and delivering them to the jailer of Clark county. Any peace officer of this state who executes this rule and order of arrest is hereby authorized to admit each of said parties to bail in the sum of $2,000, with good security, to be approved by the officer taking same, for the appearance of the defendant so arrested in this court on the first day of the next April term. The clerk of this court is directed to issue a copy of this order, with as many duplicate copies as may be desired, to the sheriffs or other peace officers of such counties as the judge of this court, the commonwealth's attorney for this district, or the county attorney for his county, may direct." The rule was duly executed upon the persons against whom it was awarded and each gave bond for his appearance at the April term, 1905, of the Clark circuit court, to answer the charge of contempt therein preferred. At the April term the defendants were granted a continuance to a special term of court called for the fourth Monday in May, 1905. At the special term, beginning on the fourth Monday in May, the appellant, French, filed a general demurrer to the rule, and entered motion to strike out certain parts thereof. The demurrer and motion were both overruled, to which he excepted. He then asked another continuance of the rule, and filed his affidavit in support of the motion. The court granted the continuance, but again ordered that appellants' trial under the rule be had at a special term of the court to begin on the first Monday in September, 1905. Upon the calling of the rule at the September special term, the appellant, French, demanded a separate trial, which was granted. He then objected to being tried before the regular judge of the Clark circuit court, and filed his affidavit to require him to vacate the bench. The objection and affidavit were overruled, as was a subsequent motion, also based upon appelant's affidavit, for a third continuance of the rule. The trial of appellant then followed, resulting in his conviction, the jury by their verdict finding him guilty of the contempt charged, and fixing his punishment at a fine of $5,000. His motion for a new trial was overruled, and he has appealed.

During the same term of the court at which appellant, French, was tried, the rule for contempt, as to A. H. Hargis, was filed away, with leave to reinstate, and continued as to Ed. Callahan. It does not appear from the record in this case what disposition was finally made of the rule as to these defendants. If, as insisted for the commonwealth, there is no right of appeal from a judgment of conviction for contempt, consideration of the errors assigned by appellant as constituting grounds for a reversal would be unnecessary. But we are unwilling to hold that there is no right of appeal. The offense of which appellant was convicted is a criminal contempt, and the punishment inflicted beyond what the court, without the intervention of a jury, had the power to inflict. Section 1291, Ky. St. 1903, provides: "A court shall not, for contempt, impose upon the offender a fine exceeding $30.00, or imprisonment exceeding thirty hours, without the intervention of a jury." This limited, yet arbitrary, power of the court, it is argued, was intended to be preserved to it free from interference or control on the part of an appellate court by section 950, Ky. St. 1903, which provides: "No appeal shall be taken to the Court of Appeals from a judgment for the recovery of money or personal property if the amount in controversy be less than $200.00, exclusive of interest and cost, nor from a judgment granting a divorce or punishing a contempt. * * * In all other civil cases the Court of Appeals shall have appellate jurisdiction over the final orders and judgments of all courts." We think it the object of section 950 to prevent interference from a court of revisory power in the matter of reversing a judgment for contempt on the ground that the offender was improperly found guilty of the contempt, for the judgment must be treated as conclusive of that question; but, while this court cannot retry the question of contempt or no contempt, still, it has, in our opinion, power to revise and correct illegal sentences, or excessive or cruel punishments. In Wages v. Commonwealth, 13 Ky. Law. Rep. 925, the superior court stated the distinction between civil and criminal contempts as follows: "Civil contempts are those quasi contempts which consist in failure to do something which the contemnor is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court, while criminal contempts are all acts in disrespect of the court or its process which obstruct the administration of justice, or tend to bring the court into disrepute. * * * A criminal contempt is a misdemeanor, and an appeal from a judgment imposing a fine for such contempt must be taken as in other misdemeanor cases. * * * Rapalje on Contempts, § 21.

It is contended by counsel for appellant that, if the foregoing distinction is sound, and a criminal contempt is a misdemeanor, the right of appeal from a judgment imposing a penalty for criminal contempt is necessarily regulated by section 347, Crim. Code Prac., which provides: "The Court of Appeals shall have appellate jurisdiction in penal actions and prosecutions for misdemeanors, in the following cases only, viz.: If the judgment be for a fine exceeding $50.00, or for imprisonment exceeding thirty days; or if the judgment be for the defendant, in cases in which a fine exceeding $50.00, or confinement exceeding thirty days, might have been inflicted." But independently of the above provision of the Code, and notwithstanding the language of section 950, Ky. St. of 1903--which is but a repetition of a similar provision found in both the General and Revised Statutes of the state--this court has decided that an appeal will lie from judgments imposing erroneous or illegal sentences in proceedings for contempt. In Turner v Commonwealth, 59 Ky. 619, it is said: "It is contended that an appeal does not lie in this case because the charges of which appellant has been adjudged guilty by the circuit judge are but contempts of the court of which the judge of said court can alone take cognizance or punish, and that his action in the premises is not, nor ought to be, subject to the revision of any other tribunal, and that, if this court ever had jurisdiction in such cases--which is denied--it has been divested of the same by the Criminal Code, section 342. In reply to the first point, it may be said that, conceding, for the present, the charges against appellant to be within that class of offenses...