Hitzelberger v. State

• Citation: 196 A. 288,173 Md. 435
• Decision Date: 13 January 1938
• Docket Number: 83,84.
• Parties: HITZELBERGER v. STATE.
• Court: Maryland Court of Appeals

196 A. 288

173 Md. 435

HITZELBERGER v. STATE.

Nos. 83, 84.

Court of Appeals of Maryland

January 13, 1938

Appeals from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

Edward L. Hitzelberger was convicted of constructive contempt in interfering with a member of grand jury when pursuing an investigation in which accused was interested, and he appeals.

Affirmed.

Milton H. Talkin, of Baltimore (Bernard Manekin, of Baltimore, on the brief), for appellant.

Hilary W. Gans, Deputy Atty. Gen., and William H. Maynard, Deputy State's Atty., of Baltimore (Herbert R. O'Conor Atty. Gen., on the brief), for the State.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

PER CURIAM.

This appeal was taken from the verdict, and the appeal is therefore dismissed, with costs. The appeal in No. 84, in which an opinion has been filed, is from the judgment in the same case.

SLOAN Judge.

This appeal is from a sentence of fine and imprisonment imposed on Edward L. Hitzelberger, a lieutenant of police of Baltimore, charged by the state's attorney of Baltimore city, with interference by the officer with a member of the grand jury then pursuing an investigation in which Hitzelberger was interested.

The charge was of constructive contempt, and the procedure was in conformity with the provisions of the Acts of 1927, c. 357, 1935 Supp. to Code, art. 5,§ 105. The charge preferred by the state's attorney, whose duty it was to prosecute the charge under the act of 1927, was (1) that on the 15th day of July, 1937, at the May term, 1937, the grand jury began an investigation of the vice conditions and their ramifications in the city of Baltimore, and that among the members of the grand jury was G. Frederick Fluegel; (2) that on the evening of July 22, 1937, the said Hitzelberger and the said Fluegel, met at a certain lodge of which both were members, and that the said Hitzelberger 'then and there attempted to obstruct justice and interfere with the processes' of the criminal court 'by interfering with the said G. Frederick Fluegel, and discussing with him the said investigation by the grand Jury in regard to vice conditions and their ramifications in Baltimore City, and suggested ways and means of producing before the said Grand Jury evidence favorable to the said Edward L. Hitzelberger'; and (3) that said acts and conduct of the said Edward L. Hitzelberger were improper and in contempt of said court. Attached to and made part of the petition or information was an affidavit of Mr. Fluegel, which contained a repetition of the facts already stated, and, in addition, the appellant 'approached the said G. Frederick Fluegel and discussed with him the charges then under investigation against him, the said Edward L. Hitzelberger before the said Grand Jury.' The judge of the criminal court thereupon passed an order on Edward L. Hitzelberger to appear one week later, July 30, 1937, with the privilege of counsel, and show cause why he should not be adjudged in contempt.

A motion to quash the petition was thereupon filed by the appellant, the reasons alleged being: (1) That the acts charged did not constitute contempt of court; (2, 6) vagueness and indefiniteness of petition and affidavit; (3) that they 'do not allege or state facts sufficient to constitute a contempt of court within the purview of article 26, section 4, of the Public General Laws of Maryland'; (4, 5) that the acts alleged did not constitute misbehavior in the presence of the court or so near thereto as to obstruct the administration of justice.

The third reason will be taken up first, because it questions the jurisdiction of the court to hear the complaint. The appellant contends that it cannot be entertained because the charge does not come within the terms of section 4, article 26, of the Code. That section provides that 'the power of the several courts of the State to issue attachments and inflict summary punishments for contempt of courts shall not be construed to extend to any cases except the following: (1) the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice' and six other kinds of misconduct for which the courts can inflict summary punishment, but none of them resemble the offense with which the appellant is here charged. This is the Acts of 1898, c. 31, and is an enlargement of the Acts of 1853, c. 450, § 1, which contained the first three offenses provided for in the Act of 1898. What the appellant asks this court to do, is to have it say that, unless the charge is included among the offenses enumerated in section 4 of article 26, he cannot be charged with contempt. The power to punish for contempt is a power inherent in courts under the common law. Ex parte Maulsby, 13 Md. 625, 635, appendix; Kelly v. Montebello Park Co., 141 Md. 194, 205, 118 A. 600, 28 A.L.R. 33. Whether the Legislature has the power to limit, extend, or declare contempts has not been decided in this State, and it is not necessary in this case that it be decided, as, in our opinion the question does not arise. In 6 R.C.L. 524, Contempt, § 37, it is said, 'as a general principle, if the court obtains its powers from the constitution then its power to punish for contempt can be taken away only by constitutional provision, but if it obtains its powers from the legislature, the legislature may restrict it in this respect as well as in others,' and it has been held that the Legislature 'cannot deprive the courts of the right to punish summarily even constructive contempts; although it may regulate the practice in proceedings for contempt.' We say the question does not arise here because section 4 of article 26 defines the seven offenses constituting contempt under that section as direct, otherwise there was no occasion for the Legislature to say 'the power' of the courts 'to issue attachments and inflict summary punishments for contempt of courts shall not be construed to extend to any cases except' the seven offenses therein defined. Summary proceedings, however, by section 105, article 5, Code 1935 Supp., Acts of 1927, c. 357, are confined to 'direct contempt, alleged to have been committed in the presence of the Court, or so near to the Court as to interrupt its proceedings,' and the section prescribes the procedure in case of constructive contempt, which was strictly followed in this case. There is no need to reconcile these statutes, or to express an opinion of the power of the Legislature in the matter of contempts until presented in a proper case. What we say now is that this is a case of constructive contempt, which the Legislature has not undertaken to construe, define, or forbid. It did, however, prescribe the procedure in cases of constructive contempt, and in doing so merely followed the law as already existing and generally observed. In Rapalje on Contempts it is said: 'Direct contempt may be summarily punished by order of the presiding judge, after such a hearing as he may deem just and necessary; but constructive contempts, though equally punishable, yet require a different and less summary process.' 13 C.J. 64; 6 R.C.L. 501, § 13, Contempt; In re Lee, 170 Md. 43, 183 A. 560, and the cases therein cited.

The substantial change in the law made by the Legislature in the Acts of 1927, c. 357, was to provide for an appeal in all cases of contempt, recognized and not questioned in the cases of Ex parte General News Bureau, 162 Md. 643, 648, 161 A. 259, and Ex parte Bowles, 164 Md. 318, 165 A. 169.

The first, second, and sixth reasons may be considered together, and they are, Is the offense as charged sufficiently clear and definite, and, if so, is it a contempt for one who is not a member of a grand jury or one who is under investigation by it to attempt to influence its action?

That the grand jury is an important function of the court in the administration of the criminal law cannot be debated; its members are selected by the court in the manner provided by law, are sworn in the presence of the court, and the results of its deliberations reported to the court in the forms of presentments and indictments; during their sessions they are free to call upon the court for guidance and advice, and they can only be relieved of their duties and discharged by the court. Commonwealth v. McNary, 246 Mass. 46, 140 N.E. 255, 29 A.L.R. 483. In the able opinion of the late Judge Digges, In re Report of Grand Jury, 152 Md 616, 621, 137 A. 370, 372, its importance was expressed when he said: 'the grand jury has been continued and preserved as an institution necessary for the preservation of the peace, good order, and dignity of the state in bringing to trial those guilty of violations of law, and in protecting people from being put on trial upon frivolous, unfounded, or false accusations'; and quoting from Blaney v. State, 74 Md. 153, 156, 21 A. 547: 'However restricted the functions of grand juries may be elsewhere, we hold that in this state they have plenary inquisitorial powers, and may lawfully themselves, and upon their own motion, originate charges against offenders though no preliminary proceedings have been had before a magistrate, and though neither the court nor the state's attorney has laid the matter before them. The peace, the government and the dignity of the state, the well-being of society, and the security of...