Hughes v. Territory of Arizona

• Decision Date: 30 March 1906
• Docket Number: Criminal 225
• Citation: 85 P. 1058,10 Ariz. 119
• Parties: L. C. HUGHES, Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Arizona Supreme Court

85 P. 1058

10 Ariz. 119

L. C. HUGHES, Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 225

Supreme Court of Arizona

March 30, 1906

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. John H. Campbell Judge.

From a judgment imposing a fine and from an order denying a new trial, appellant appeals. Affirmed.

Worsley & Van Dyke, and John T. Hughes, for Appellant.

Appeal is the proper method of review from a judgment in criminal contempt proceedings where the court has exceeded its jurisdiction. Gandy v. State, 13 Neb. 445, 14 N.W 143, and cases cited; Ex parte Rowe, 7 Cal. 176; Ware v Robinson, 9 Cal. 108; Whittem v. State, 36 Ind 196; In re Spofford, 62 F. 443; Burke v. Territory, 2 Okla. 499, 37 P. 829; Wyatt v. People, 17 Colo. 252, 28 P. 961; In re Millington, 24 Kan. 214; Stuart v. People, 3 Scam. 395; Shannon v. State, 18 Wis. 604; McCredie v. Senior, 4 Page, 378; Buel v. Street, 9 Johns. 443; Ex parte Thatcher, 2 Gilm. (Ill.) 170; Stoke's Case, 5 S.C. 71; In re Hackley, 24 N.Y. 74; Tyler v. Hamersley, 44 Conn. 393, 26 Am. Rep. 471; Sessons v. Gould, 63 F. 1002, 11 C.C.A. 550. At common law appeal and review were not allowed, but the court would look into the charge and see if it was such an offense as gave the court jurisdiction. See, Gandy v. State, supra; In re Hackley, supra; and Tyler v. Hamersley, supra. An examination of the authorities discloses a decided tendency, independent of statutory enactments, toward an extension of the privilege of appeal and writ of error. See cases cited under first heading and 4 Ency. of Plead. & Prac., pp. 811-813, and cases cited; 2 Ency of Plead. & Prac., p. 129.

Contempt of court is a specific criminal offense and the imposition of the fine (in contempt proceedings) was a judgment in a criminal case. New Orleans v. Steamship Co., 20 Wall. 392, 22 L.Ed. 357; In re Acker, 66 F. 292; Ex parte Crittenden, 62 Cal. 534; In re Buckley, 69 Cal. 1, 10 P. 69; McClatchey v. Superior Court Sacramento Co., 119 Cal. 413, 39 L.R.A. 691, 51 P. 696; State ex rel. v. Civil District Court Judges, 32 La. Ann. 1256-1262.

The proceedings should have been commenced in the name of the territory of Arizona. 9 Cyc. 36, and cases cited. Criminal contempt of court is a specific criminal offense and the imposition of the fine was a judgment in a criminal case. New Orleans v. Steamship Co., 20 Wall. 392, 22 L.Ed. 357; Hummell's Case, 9 Watts, 421; In re Buckley, 69 Cal. 1, 10 P. 69; Ex parte Crittenden, 62 Cal. 534; McClatchey v. Superior Court Sacramento Co., 119 Cal. 413, 39 L.R.A. 691, 51 P. 696. And should be brought in the name of the state. State v. Nathans, 49 S.C. 204, 27 S.E. 54; Durant v. Washington Co., 1 Woolf (U.S.) 377, Fed. Cas. No. 4191; In re Ellerbe, 13 F. 530, 4 McCrary (U.S.) 449; Lester v. People, 150 Ill. 408, 41 Am. St. Rep. 375, 23 N.E. 387, 37 N.E. 1004; Arnold v. Commonwealth, 80 Ky. 300, 44 Am. Rep. 480; McDermott v. Clary, 107 Mass. 501; Nelson v. Ewell, 2 Swan (Tenn.) 271; Haight v. Lucia, 36 Wis. 355; and the order must be entitled in the name of the territory, as well as the whole proceedings. The proceeding is governed by the analogies of a criminal prosecution. 1 McLain on Criminal Law, 9; 4 Ency. of Plead. & Prac., p. 770. Criminal contempt must be brought either in the name of the state or must be entitled in the name of the case out of which the contempt arose.

The proceeding was an attempt to prosecute the accused in a criminal action upon a petition, material portions of which were sworn to on information and belief. An affidavit upon information and belief is insufficient and does not confer jurisdiction. State ex rel. Jones v. Conn, 37 Or. 596, 62 P. 289; Works' Courts, 492; Wyatt v. People, 17 Colo. 252, 28 P. 961; Batchelder v. Moore, 42 Cal. 412; McConnell v. State, 46 Ind. 298; Ludden v. State, 31 Neb. 429, 48 N.W. 61; Rapalje on Contempts, secs. 93, 94; Ex parte Peck, 3 Blatchf. 113, Fed. Cas. No. 10,885; Freeman v. City of Huron, 8 S. Dak. 435, 66 N.W. 928. Malice is an essential element of a criminal offense, and by the statute of Arizona is not to be implied by the publication alone. Ariz. Crim. Code, 226; State v. McClaugherty, 33 W.Va. 250, 10 S.E. 407. The court had no jurisdiction to try the offense or offenses alleged, as the various statutory enactments in regard to contempt proceedings annulled the common law on the subject, and limited the power of the courts to punish for only such classes of contempt as are enumerated in the statutes. Citing authorities on the question of whether the territorial legislature had power to regulate and limit the inherent power of the courts to punish for contempt.

It was error not to sustain defendant's motion for the reason that malice is an essential part of every criminal offense, and the publications themselves did not disclose malice and the answer disclaimed it. Guilt of the accused in criminal contempt, like in any other criminal offense, must be established beyond a reasonable doubt. In re Buckley, 69 Cal. 1, 10 P. 68; New Orleans v. Steamship Co., 20 Wall. 392, 22 L.Ed. 357; Ex parte Crittenden, 62 Cal. 534; State v. Ralphsnyder, 34 W.Va. 352, 12 S.E. 720; State v. Cunningham, 33 W.Va. 607, 11 S.E. 76; 9 Cyc. 45; 4 Ency. of Plead. & Prac., p. 767. Every presumption and intendment of innocence is made in favor of the party charged. 4 Ency. of Plead. & Prac., p. 769, and cases in note. By the Arizona statute, malice is not inferred from the publication only, but must be proved. Crim. Code, sec. 226. The refusal by the court to allow appellant the right to make his defense by introducing evidence to establish the truth of the statements made in the publications was not a mere irregularity, but the deprivation of a fundamental right. McClatchey v. Superior Court of Sacramento Co., 119 Cal. 413, 39 L.R.A. 691, 51 P. 696; State ex rel. v. Civil District Court Judges, 32 La. Ann. 1256, 1262; Rapalje on Contempts, sec. 11; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215; Gilpin v. Page, 18 Wall. 350, 21 L.Ed. 959. Where the publication is capable of two meanings, one libelous and the other innocent, a disclaimer of evil intent is conclusive. Fishback v. State, 131 Ind. 304, 30 N.E. 1088; Allen v. State, 131 Ind. 599, 30 N.E. 1093.

E. S. Clark, Attorney-General, Eugene S. Ives, and Benton Dick, for Respondent.

The question of title to the proceeding in contempt is immaterial; it is sufficient if it contains enough to really inform the parties. Beck v. State, 72 Ind. 250. It is frequently left to the discretion of the parties seeking redress. 4 Ency. of Plead & Prac., p. 774. As there is no uniform practice, it cannot be irregular to entitle the proceedings in either way. Stafford v. Brown, 4 Paige Ch. 362. It is strictly regular to entitle them in the name of the people, but they may be and usually are entitled in the original suit, and the latter is the more convenient practice.

That no affidavit is necessary when the publication, as in this case, is made during the trial in a newspaper having circulation where the trial is being held. See Telegram etc. Co. v. Commonwealth, 172 Mass. 294, 70 Am. St. Rep. 280, 52 N.E. 445, 44 L.R.A. 161, 162. Whether regular or irregular, the matter comes directly within the purview of section 834 of the Penal Code and paragraph 1293 of the Civil Code.

OPINION

KENT, C.J.

-- The record shows that it was brought to the attention of the court below by the verified petition of one Albert Steinfeld, that in connection with certain proceedings in that court in Tucson, both criminal and civil, relating to one Harcourt and one Bartlett, the appellant had published in a newspaper in Tucson belonging to him four editorial articles which it was claimed were in contempt of court, in that they tended to influence the proceedings in said cases and to obstruct justice. Upon this petition an order to show cause was issued against the appellant, who appeared and made answer admitting the publication of the articles, but denying that they were published with intent to obstruct justice. The court below heard evidence in the case, and adjudged the appellant guilty of criminal contempt, and imposed a fine.

It is claimed by the appellant that the district court was without jurisdiction in the matter, and that its judgment should therefore be set aside. The appellant contends that, even though the rule be that the legislature may not abridge the power of a court created by the constitution to punish for contempt, the rule is otherwise where the court is the creature of the legislature. He contends that the district court of the territory is a creature of the legislature of this territory, and that therefore the legislature of the territory has the right to abridge its power to punish for contempt, civil or criminal. He further contends that by section 3 of the Penal Code the legislature has exercised such power, and that by virtue of the provisions of that section all common law offenses have been abolished, and with them the inherent power of the court to punish for contempt except as prescribed in the Civil and Criminal Codes, and that, as this offense is a criminal contempt, it can only be punished as provided in section 162 of the Penal Code. These provisions of the Penal Code are as follows: --

"Sec 3. This code shall take effect at 12 o'clock, noon, on the first day of September, 1901. No act or omission commenced after 12 o'clock, noon, of the day on which this code takes effect as a law, is criminal or punishable, except as prescribed or authorized by this code, or by some of the statutes which it specifies as continuing in force and as not affected by its provisions, or by some ordinance, municipal,...