La Grange v. State

• Citation: 238 Ind. 689,153 N.E.2d 593
• Decision Date: 31 October 1958
• Docket Number: No. 29627,29627
• Parties: , 69 A.L.R.2d 668 Gene LA GRANGE, whose true name is Jean LaGrange, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 593

153 N.E.2d 593

238 Ind. 689, 69 A.L.R.2d 668

Gene LA GRANGE, whose true name is Jean LaGrange, Appellant, v. STATE of Indiana, Appellee.

No. 29627.

Supreme Court of Indiana.

Oct. 31, 1958.

Albert H. Gavit, Gary, John Anderton, LaPorte, for appellant.

Edwin K. Steers, Atty. Gen., Frank E. Spencer, Asst. Atty. Gen., Donald M. Mosiman, Deputy Atty. Gen., for appellee.

ACHOR, Judge.

Appellant was convicted upon a charge of direct contempt of court and sentenced to pay a fine of $250 and be imprisoned for 45 days. The alleged contemptuous conduct consisted of a certain radio newscast reporting an interview with a defendant in a criminal case then pending in LaPorte Circuit Court, in which the defendant was allegedly offered a suspended sentence in return for a plea of guilty to a lesser offense. The pertinent part of the newscast is as follows:

'* * * A most startling and blatant development has been uncovered in the Johnson murder trial by your reporter. Acting on an impulse to get the reaction of a man who is being tried for the fourth time, on a murder charge, and who has been in jail for eight and a half years, awaiting for a final verdict, I went to see Mr. Johnson last Wednesday evening in his cell at the LaPorte County Jail, and I learned that he has been offered a proposition, a proposition, that if he would plead guilty to a charge of manslaughter he would receive a suspended sentence.

* * *

* * *

'This development, of course, in our belief, is completely and astonishingly improper. We have been advised that no one, absolutely no one, is legally permitted to offer a compromise, or deal, to a man charged with murder. We have been further advised that the impaneled jury, and only the jury, can return a verdict, otherwise there would be no need for a jury, and only the judge of said trial is legally permitted to impose the sentence. Collusion between the defense attorneys, the prosecution, and the judge, in any case, whether this, or any other, is not ethical, yet that is what is being suggested in connection with the Johnson murder trial presently being conducted for the fourth time in the LaPorte Circuit Court. A man's life, his freedom, and the State's privilege of receiving retribution and justice for the life of one of its citizens who has been murdered is being toyed with. With this in mind we question the ethics of those involved in even suggesting such a deal. * * *' (Pp. 10-11, 13-14 Appellant's Br.)

Following the newscast both the state and the defense joined in a motion for mistrial, which motion was granted. The special judge trying the case thereupon filed a charge for direct contempt against appellant, setting out the facts concerning the newscast and stating that appellant had the unlawful and corrupt purpose of bringing the attorneys, the court and officers thereof, into disrepute and 'embarrassing the administration of justice in the case * * * which was then and there pending.' The court then and there issued a warrant and a rule to show cause, after which appellant filed a motion to discharge the rule or, in the alternative, to proceed with the case as for indirect contempt, pursuant to § 3-911, Burns' 1946 Replacement, which requires the appointment of a special judge. These motions were overruled and appellant then tendered his verified answer, which the court refused to receive. The judge then held a brief summary hearing in which he interrogated appellant concerning the statements in his answer. The judge permitted questioning of appellant by his attorney but refused to permit the calling of any witnesses. Appellant, during said questioning, admitted making the newscast substantially as set out in the judge's charge, but denied any disrespect or intent to impute corrupt or improper conduct to the court or to the attorneys, and also denied any intent to interfere with the administration of justice in the pending criminal trial.

As cause for a new trial, appellant asserts that his conduct, if contemptuous at all, was indirect contempt at most, and that in the trial of the case he was denied the procedural safeguards which are guaranteed to him by statute.

The power to punish for contempt is inherent in every court of superior jurisdiction in Indiana. This power is essential to the existence and functioning of our judicial system, and the legislature has no power to take away or materially impair it. Little v. State, 1883, 90 Ind. 338; Holman v. State, 1886, 105 Ind. 513, 5 N.E. 556; Cheadle v. State, 1887, 110 Ind. 301, 11 N.E. 426. However, the legislature may regulate the exercise of the inherent contempt power by prescribing rules of practice and procedure. Little v. State, supra; Rucker v. State, 1908, 170 Ind. 635, 85 N.E. 356; Mahoney v. State, 1904, 33 Ind.App. 655, 72 N.E. 151; Hiner v. State, 1932, 204 Ind. 7, 182 N.E. 245.

For procedural purposes, the Indiana Legislature has classified actions for contempt generally into two categories--direct, under §§ 3-901 and 3-902, and indirect under §§ 3-903, 3-904 and 3-905. The Legislature has also provided for two distinct and different forms of trials in such actions. Section 3-907 prescribes the practice and procedure for direct contempt, ¹ and §§ 3-908 to 3-912, inclusive, prescribes the practice and procedure for indirect contempt. ²

Direct contempt, as defined in §§ 3-901 and 3-902, supra, in general, means conduct directly interfering with court proceedings while court is in session, including creation of noise or confusion, disrespectful conduct and refusing to take the witness stand in a trial. It has been stated in the cases defining such contempt that such conduct must take place in or immediately adjacent to the courtroom and while court is in session, so that the judge has personal knowledge of such conduct in his official capacity. See Whittem v. State, 1871, 36 Ind. 196; Ex parte Wright, 1879, 65 Ind. 504; Holman v. State, supra; Snyder v. State, 1898, 151 Ind. 553, 52 N.E. 152; State ex rel. Stanton v. Murray (Stanton v. State), 1952, 231 Ind. 223, 108 N.E.2d 251.

However, in other cases courts have held that, under the inherent power theory, the above statutory definitions of contempt are not so all-inclusive as to exclude other acts or conduct which may constitute contempt. For example, contemptuous statements in pleadings or official reports filed in court but not read in open court have also been held by this court to constitute direct contempt as analogous to oral statements made in open court. See Kerr v. State, 1923, 194 Ind. 147, 141 N.E. 308; Coons v. State, 1922, 191 Ind. 580, 134 N.E. 194, 20 A.L.R. 900. Also, it has been held that an assault upon a judge by a litigant, away from the court, after the judge refused to discuss the case with him, constituted direct contempt. Turquette v. State, 1927, 174 Ark. 875, 298 S.W. 15, 55 A.L.R. 1227. In each instance where misconduct was within the personal knowledge of the judge and was directly applied or communicated to him in a manner different than the general public. Indirect contempt on the other hand, is generally characterized by the act as disobeying process (§ 3-903, supra), resisting process or intimidating a witness out of the presence of the court (§ 3-904, supra), or making any false or grossly inaccurate report of any proceeding while the same is pending before the court (§ 3-905, supra).

The question which this court must determine is whether, on the basis of the statute and prior decisions, which have defined direct contempt of court, appellant's conduct, although reprehensible, constituted direct contempt, for which he was tried in the manner prescribed by the statute for direct contempt.

In support of his position that the conduct of the appellant constituted direct contempt, for which he was tried, appellee relies heavily upon the case of Dale v. State, 1926, 198 Ind. 110, 150 N.E. 781, 49 A.L.R. 647, in which a conviction of contempt for publication of an article imputing corruption and favoritism to a grand jury, was upheld. In that case the only procedural holding was that the defendant had no right to a change of venue from the judge. [In 1926 there was no right to such change of venue in any case of contempt.] The opinion in the Dale case, supra, does contain language which indicates the case could properly be treated as one of direct contempt. It is not clear from the opinion just what procedure was followed. It does appear that a verified answer was filed denying any contemptuous intent, which procedure is contemplated only in indirect contempt proceedings. However, apart from the case of Dale v. State, supra, to our knowledge every Indiana case, in which the publication of a newspaper report or comment was charged as contituting contempt, the contempt has been treated as indirect or constructive, and the action has followed the procedure of verified information, rule to show cause and answer. Cheadle v. State, supra, 110 Ind. 301, 11 N.E. 426; Fishback v. State, 1892, 131 Ind. 304, 30 N.E. 1088; Rucker v. State, 1908, 170 Ind. 635, 85 N.E. 356; Ray v. State, 1917, 186 Ind. 396, 114 N.E. 866; Kilgallen v. State, 1922, 192 Ind. 351, 132 N.E. 682, 137 N.E. 178; Nixon v. State, 1935, 207 Ind. 426, 193 N.E. 591, 97 A.L.R. 894. Cf. State v. Shumaker, 1927, 200 Ind. 623, 157 N.E. 769, 162 N.E. 441, 163 N.E. 272, 58 A.L.R. 954. (Contempt of Supreme Court not under statute. See § 3-910, supra.)

In the recent case of Stanton v. State, 1952, 231 Ind. 223, 108 N.E.2d 251, in which this court viewed the publication of a newspaper article as the underlying basis of the charge, a convition of direct contempt was reversed. Also, in cases from other jurisdictions involving contempt by publication, the procedure followed was for indirect or constructive contempt under the law of those jurisdictions. See Bridges v. Superior Court, 1939, 14 Cal.2d 464, 94 P.2d 983; times-Mirror Co. v. Superior Court, 1940, 15 Cal.2d 99, 98...