Grace v. State, 17628

• Court: United States State Supreme Court of Mississippi
• Citation: 67 So. 212,108 Miss. 767
• Decision Date: 15 February 1915
• Docket Number: 17628
• Parties: GRACE v. STATE

67 So. 212

108 Miss. 767

GRACE
v.
STATE

No. 17628

Supreme Court of Mississippi

February 15, 1915

APPEAL from the circuit court of Sunflower county. HON. F. E. EVERETT, Judge.

M. B. Grace was convicted of contempt and appeals.

The facts are fully stated in the opinion of the court.

Case reversed.

M. B. Grace, for appellant.

The invariable rule in all cases of constructive contempt seems to be the first step taken, an affidavit, indictment or information of some character, informing the appellant of what he is in contempt for, and the nature of the charge must be filed, and citation issued on same, citing the defendant to show cause, if any he can, why he should not be dealt with for the alleged offense. Durham v. State, 97 Miss. 549, 52 So. 627; 9 Cyc. 38.

It has been held, the court may act on its own motion and make the accusation. It must be in writing, and set forth facts sufficient to constitute an offense. State v. Frew, 24 W.Va. 416, 49 Am. Rep. 257.

The statement, affidavit, indictment or information, being jurisdictional, should show on its face sufficient facts constituting the contempt. Without this information, affidavit or indictment, the court has no jurisdiction, and no right to hear any evidence at all until the defendant has been informed of what he is charged with and expected to answer. Wyatt v. People, 17 Colo. 252 28 P. 961; State v. Allen, 14 Wash. 684.

The rule to show cause should inform the defendant of the nature of the alleged contempt. It may not inform him of all the facts, but it must give him sufficient notice of what he is expected to meet. The citation in this case merely cited the defendant to appear and show cause, if any he could, why he should not be punished for contempt of that court.

It is not the policy of the law for a court to cite a man to appear before it to answer the charge of contempt, take up a motion in a civil matter and when the court has heard it, pass its sentence upon the defendant. A contempt proceeding partakes of all the requisites of a criminal proceeding, except, the court is the judge and jury. The burden is upon the state just the same as in criminal cases; that is, where the alleged offense is committed outside the presence of the court. Of course, if the offense is committed in the presence of the court, no evidence is necessary, and no indictment, affidavit or information is necessary.

When the affidavit, indictment or information has been lodged with the court, and the defendant cited according to law, the defendant has the right to answer the affidavit, indictment or information in some way, and if he does not, then the burden is upon the state to prove him guilty beyond a reasonable doubt; in other words, that the defendant wilfully, unlawfully and intentionally committed, and did the thing he is cited to answer for, and the state must prove the allegations of the affidavit, indictment or information to the satisfaction of the court. It may be the information of the court, or an affidavit filed on the motion of the court himself. Dobbs v. State, 55 Ga. 227; Ex parte Adams, 25 Miss. 883; 9 Cyc. 45.

It is obvious from the record in this case, the court did not believe the appellant wilfully amended the application after the court had passed upon it, because the court only fined the appellant twenty-five dollars for the alleged offense and entered judgment accordingly.

Ross A. Collins, Attorney-General for the state.

Appellant attacks the nature of the accusation, the jurisdiction of the court, and the competency of the evidence upon which the judgment was predicated. As to the nature of the accusation, the record shows that citation was issued to the sheriff of Leflore county, commanding him to cite the appellant personally to appear before the circuit court of Sunflower county to show cause, if any he could, why he should not be punished for contempt of said court in a certain matter pending in said court, styled, Mrs. R. A. Wilder v. F. F. Ferguson, No. 2593.

The citation was sufficient in every respect to inform the appellant of the preferred charge as in proceedings for contempt of this kind, the same particularity is not applicable as to indictments and does not apply as to the practice in such summary proceedings. See Shattuck v. State, 51 Miss. 50, and authority cited therein. The contention of appellant to the effect that the court had no authority to issue citation sua sponte is wholly without merit, for to so hold would be in fact to deprive the court of record of its inherent right to punish for contempt. To so punish parties indulging in acts constituting either direct or constructive contempt is an inherent right pertaining to a court of record independently of any statute and beyond all legislative control as far as the summary character of the proceedings are concerned. It is well doubted if exercise of this power by the court may be curtailed even by constitutional restrictions. In this case citation was issued to appellant to show cause why he should not be adjudged in contempt, and appellant was given, and availed himself of the chance to purge himself of the charge. He says that the court had no right to order the citation and that it would have to issue at the behest of some one else; if this were true, it would be depriving the court of an inherent and uncontrollable power, and...