Gordon v. Commonwealth

• Decision Date: 06 January 1911
• Citation: 141 Ky. 461
• Parties: Gordon v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 461

141 Ky. 461

Gordon v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 6, 1911.

Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).

W. W. CRAWFORD for appellant.

JAS. BREATHITT, Attorney General, T. B. BLAKEY, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE LASSING — Reversing.

Hugh Gordon was brought before the Judge of the First Division of the Common Pleas Court of Jefferson county to answer for contempt committed under the following circumstances: On October 6, 1910, he was called to testify in the said court in the case of Eddleman v. Louisville Railway Co., and while upon the witness stand testified in substance that certain testimony which he had given in said court on May 7, 1909, in the case of Hord's Admr. v. Louisville Railway Co., was false in every particular, and that, as a matter of fact, he was not present at the time of the accident out of which the suit grew, and knew nothing about it. He stated that he was induced to so testify by one J. S. Minor, the owner of the automobile which was hit by the car and in which the injured people were, and that he had given this testimony under a promise on the part of the said Minor that he would not have to be sworn; that in furtherance of that plan and arrangement with Minor the testimony which he should give was prepared for him by Minor; that he was kept out of the court house until after the other witnesses were sworn, and was then brought in and out on the stand and testified without being sworn.

Following this disclosure the Judge of the Division of the Circuit Court in which the Eddleman case was tried issued an attachment for Gordon, returnable October 10, 1910, in which he required the witness to appear and show cause why he should not be punished for contempt. Upon being brought into court he informed the court that he was without friends or money with which to employ counsel, and the court appointed William W. Crawford to defend him. Thereafter the County attorney filed an affidavit setting up the facts, and this affidavit was used as the basis of the prosecution.. To this affidavit or statement of facts a general demurrer was filed by the defendant. He also pleaded the statute of limitations, as more than one year had elapsed between the date of the commission of the acts which were made the basis of the contempt proceedings and the date upon which he was cited to appear and answer therefor. Both his demurrer and plea were overruled; whereupon the defendant admitted the facts as charged in the affidavit. A jury was impaneled to fix the punishment, and, under proper instructions from the court, found the defendant guilty, and fixed his punishment at six months imprisonment in the county jail.

The sole question raised upon this appeal is, whether or not the prosecution was barred by the statute of limitations, it being admitted that the acts of the defendant which formed the basis for the prosecution were committed on May 7, 1909, and the defendant not proceeded against until October 10, 1910, or more than one year and five months after the acts were committed.

In the case of French v. Commonwealth, 30 Rep. 98, this court had under consideration an appeal from a judgment of the Clark Circuit Court, punishing the appellant, French, for contempt, and, after reviewing all of the authorities upon this question in this State, the extent to which this court would entertain appeals from judgments in contempt cases was thus summarized:

"We think, therefore, that the rule prevailing in this State permits us to entertain the appeal in the case at bar, not for the purpose of re-trying the question of whether appellant is, or is not guilty, of the contempt charged, but to determine whether the punishment declared by the judgment complained of was illegally imposed and whether such punishment is excessive as claimed."

In the case at bar there is no question but what the defendant was guilty of such misconduct on May 7, 1909, according to his own admission, as warranted the punishment imposed by the jury; and his counsel, acting without pay or reward of any kind, simply in an effort to discharge a duty imposed upon him by the court, in no wise seeks to have the judgment imposing that punishment inquired into if the court shall be of opinion that it was legally imposed. We are asked to pass upon the question as to whether or not the Commonwealth, by reason of the lapse of time, had not lost its right to punish the defendant at all for the offense. Clearly, if the twelve months statute of limitations applies to contempt proceedings as to other misdemeanors, the court erred in refusing to sustain this plea, and it could not be said that the punishment imposed under such circumstances would be legal.

All violations of law are by legislative enactment divided into two classes, felonies and misdemeanors. Such offenses as are punishable with death or confinement in the penitentiary are classed as felonies; all other offenses, whether at common law or such as were made so by statute, are misdemeanors. Kentucky Statutes, 1127. Under subdivision 6 of chapter 36, Kentucky Statutes, which deals with the subject of crimes and punishments, contempts are classified as misdemeanors. Contempts are either civil or criminal. To the first class belong those which consist in the failure of one to do something under order of court for the benefit of a party litigant; and to the second class belong those which consist of conduct on the part of one which amounts to an obstruction of justice and which tends to bring the court into disrepute. This classification was expressly recognized by the Superior Court in the case of Wages v. Commonwealth, 13 Rep. 925, and was later adopted by this court in the case of French v. Commonwealth, 30 Rep. 98. The contempt with which we are dealing clearly falls within the class denominated criminal.

Sec 1138, Kentucky...