Hawkins v. United States, 6301.

• Citation: 190 F.2d 782
• Decision Date: 23 July 1951
• Docket Number: No. 6301.,6301.
• Parties: HAWKINS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

190 F.2d 782 (1951)

HAWKINS v. UNITED STATES.

No. 6301.

United States Court of Appeals, Fourth Circuit.

Argued June 26, 1951.

Decided July 23, 1951.

I. C. Crawford and George Pennell, Asheville, N. C., (Robert R. Reynolds, Asheville, N. C., on brief), for appellant.

Thomas A. Uzzell, Jr., U. S. Atty., Asheville, N. C., for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

In the District Court of the United States for the Western District of North Carolina, Annie Hawkins was adjudged guilty of contempt of court by the District Judge, sitting without a jury, and sentenced to imprisonment for five months. She has appealed to us. The opinion of the District Judge, with findings of fact and conclusions of law, is not yet reported. We think the judgment below must be reversed.

The incidents out of which the contempt proceedings arose were connected with the trial of Fred Simpson, a Negro man, for conspiracy to violate the Internal Revenue Laws of the United States. Appellant, a Negro woman had been very friendly with Simpson, then their friendship cooled. Before the trial, however, these relations were again upon a very friendly basis. Appellant had given written statements to federal agents concerning the charges against Simpson. On the strength of these statements, which were far from favorable to Simpson, she was subpoenaed as a Government witness at his trial.

At this trial, however, she was introduced as a witness, not for the Government but for Simpson. In her testimony, she repudiated in almost every essential particular, the statements she had previously given to the federal agents.

On the morning of May 17, during the trial of Simpson, appellant sat in the court room next to, and talked with, Mrs. Kempton Mills, wife of Kempton Mills, a Negro man, who was a member of the jury trying Simpson. At the Noon recess, a number of Negroes attending the trial, including appellant, Juror Mills and Mrs. Mills, went for lunch to a small grocery store on Patton Avenue the main street of Asheville, very close to the federal court building. After lunch these parties returned to the court room and appellant sat with Mrs. Mills during the afternoon session. At the Noon recess on the following day, appellant and the juror Mills met at the grocery store, walked back to the court building and were observed sitting together and talking in the corridor just outside the court room.

During the conversation in the grocery store on May 18, appellant related to Mills how nice his wife had been to her and asked Mills whether or not his wife would mind the appellant walking up the street with him, to which Mills replied: "I am a man capable to take care of myself." The members of the jury had been instructed by the District Judge to allow no one to discuss the case with them.

In the contempt proceeding, appellant testified that at the time of her conversation and association with Mills, she did not know that he was a member of the jury trying Simpson. She denied that any act, deed or word of hers was in any way intended to influence Mills as a member of the jury and asserted that her walks back to the court room, and her association and conversation with Mills were merely the natural and casual consequences of the facts that they met at the grocery store and were returning to the court room at the same time.

What is much more important, appellant vigorously denied that, in her conversation with Mills, any mention whatever was made of the case on trial. In this she was supported by Mills who testified that neither he nor appellant ever mention the case or trial and that no word concerning the trial ever passed between them. From the bench, the District Judge stated: "It is an unfortunate sort of thing. We will never know, as I recited in these findings of fact, what it was that was actually said between these parties, because what was said is only known between the two of them."

Appellant is an educated woman, about thirty-eight years old, who has taught in the public schools of the State of South Carolina. Apparently, however, she had little knowledge of familiarity with court proceedings, or just what is required or expected of jurors and witnesses.

There is much in the Government's brief before us, and something is said in the opinion below, to indicate that the appellant was guilty of perjury. While this charge might figure in the background of the proceedings before us, we are here concerned with the charge of contempt, on which appellant was adjudged guilty and sentenced. Cf. United States v. McGovern, 2 Cir., 60 F.2d 880. We do not think the record sustains this charge.

We agree with the Government's contention that if the words or acts were spoken or done with the intent to influence the juror and had such a tendency, it is not necessary for the Government to show that the juror was actually influenced by these words or acts. Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186; Conley v. United States, 8 Cir., 59 F.2d 929, 935; Kelly v. United States, 9 Cir., 250 F. 947. True it is, too, that the environment here is admissible and that we cannot reverse, if the findings below are supported by substantial evidence, merely because we might draw from this evidence a conclusion at variance with that reached by the trial judge. Burneson v. United States, 6 Cir., 19 F.2d 780.

Counsel for the Government rely heavily upon the well known case of Gridley v. United States, 6 Cir., 44 F.2d 716. From the opinion in that case, 44 F.2d at page 744, we quote:

"The evidence heard was the testimony of one of the two women jurors concerned and that of the appellant Roen. As to what took place there was not much difference in their testimony. According to the testimony of the woman juror, what took place was this: She and her co-juror, on the second day of the trial, at the noon recess, went to a certain hotel in Detroit about four blocks from the government building for lunch. Before going to lunch they went into the washroom and as they were about ready to leave the appellants came in. She heard a voice behind her when she saw came from appellant Wright saying, `Perhaps I ought to say I am Mrs. Wright so that you won't be talking about the case.' She saw them come in, and this statement was made as quick as they entered. She did not make answer, but her co-juror said, `Well, I guess we know who Mrs. Wright is.' Appellant Roen then spoke up and said: `I do not know that it would be proper, but I would like to introduce you to Mrs. Wright. She has been a very dear friend to me and just like a mother.' Appellant Wright then spoke up and said, `Well, anyway, whether we are introduced or not, we want you to know that we have a very intelligent jury.' This was all that was said. She testified that before appellant Wright started that conversation she and her co-juror were not talking about the case. * * *

"In so far as there was misbehavior on the part of the appellant Roen, it was in telling the jurors how dear appellant Wright was to her. And as to the appellant Wright it was in complimenting the jury."

Mrs. Wright was on trial for using the mails to defraud, while Mrs. Roen, her very good friend, was constantly in her company. That case is readily distinguishable from the case before us. There it is clear that appellants Wright and Roen did talk about the case to the two women jurors and the fair inference is that what was said by Wright and Roen was said with the intention of influencing the jurors in their verdict. The same is true in Higgins v. United States, 81 U.S.App.D. C. 372, 160 F.2d 223. From that case, 160 F.2d at page 224, we quote:

"One of the women jurors left the court room, and was in the hallway some thirty feet from the...