In Re Deaton Et Al.

• Decision Date: 31 March 1890
• Citation: 11 S.E. 244
• Parties: In re Deaton et al.
• Court: North Carolina Supreme Court

11 S.E. 244

In re Deaton et al.

Supreme Court of North Carolina.

March 31, 1890.

Contempt—Procedure—Appeal—Judgment.

1. Alternative judgments are not allowed, either in civil or criminal cases; hence it is error to sentence a party to "pay a fine of $40, and in default thereof be imprisoned 30 days."

2. By inherent right, as well as by statute, every court has the power to punish contempts committed in its presence, or so near as to interfere with the transaction of its business, and in such cases no appeal lies to any other court.

3. Where the contempt is not committed in the presence of the court, —as here, by the willful disobedience of the process of the court, and the publication of grossly inaccurate accounts of its proceedings in a newspaper, with intent to bring the court into contempt, —an appeal lies.

4. On such appeal, if from the superior court to this court, the findings of facts by the judge are conclusive, and this court can only review the law applicable to such state of facts; otherwise on appeal from a court below the superior court to that court. It is the duty of the superior court judge to review the facts and the law, and in his discretion he can hear additional testimony, orally or by affidavits.

5. It is the duty of the court passing sentence, in proceedings for contempt, to set out in the record the facts found upon which judgment is passed. If the contempt consists in publishing "grossly inaccurate accounts of the proceedings of the court, " the findings must show that the publication was made with intent to bring the court into contempt, and the language used must be found and set out.

6. Code, § 654, providing proceedings " as for contempt, " applies only to civil actions, except subsections 4, 5, and 6. It is only in proceedings as for contempt that the notice to show cause must necessarily be based upon an affidavit.

7. A party charged with contempt is not entitled to a trial by jury.

8. The mayor has jurisdiction to punish for contempt.

(Syllabus by the Court.)

This was a proceeding for contempt instituted before the mayor of the town of Troy, in Montgomery county, and came to the superior court by appeal from the mayor's court, and was heard at spring term, 1889, of Montgomery superior court, before Brown, J. The defendants offered affidavits in the superior court tending to show that they were not permitted to file any answer in the said mayor's court; also affidavits tending to show that the publication which was made by them was not grossly inaccurate, but was true in the main; and also affidavits tending to show that the defendants did not disobey the notice of said court, but were present before the time set, and at the time set, and the cause was continued upon the affidavits and facts. The defendants asked the court to reverse the facts found by the mayor, or to grant them a trial by jury, and contended that they had the right to have the facts reviewed by the court. The judgment of the mayor appealed from is as follows: "This cause coming on to be heard, and after hearing the defendants' statement in regard thereto, it is adjudged that the said J. M. Deaton and T. M. Hall willfully and designedly published said grossly inaccurate statements in the Troy Times, for the purpose of bringing this court into contempt and ridicule, and that they further contemptuously refused to obey the order of this court in refusing to appear before said court. It is therefore adjudged that the said J. M. Deaton and T. M. Hall are guilty of a contempt of this court, and it is ordered and adjudged that said J. M. Deaton and T. M. Hall pay each a fine of forty dollars, and the costs of this proceeding, and in default thereof that they be committed to the common jail for the county of Montgomery for 30 days, and until they be discharged according to law." The notice to show cause appears not to have been based upon affidavit, but to have been issued by the mayor ex mero motu. The appeal coming on to be heard in the superior court, his honor, being of opinion that he could not review the facts found by the mayor, confirmed the judgment, and gave judgment against the defendants. The defendants excepted, and appealed.

J. M. Brown, Batchelor & Devereux and J. C. L. Harris, for respondents.

Clark, J. Alternative judgments are not allowable in either civil or criminal cases. State v. Perkins, 82 N. C. 681; Dunn v.Barnes, 73 N. C.273; Strickland v. Cox, 102 N. C. 411, 9 S. E. Rep. 414. The sentence "to pay a fine of $40, and in default thereof to be imprisoned 30 days, " is erroneous. This, however, would not dispose of the case on the merits, but would merely require it to be remanded for a proper sentence. State v. Lawrence, 81 N. C. 522; State v. Green, 85 N. C. 600. We will therefore consider the other points raised by the appeal.

The power to punish for a contempt committed in the presence of the court, or near enough to impede its business, is essential to the existence of every court. In such cases, " necessarily there can be no inquiry de novo in another court as to the truth of the fact." Ruffin, C. J., in State v. Woodfin, 5 Ired. 199. The requirement (Acts 1846, now Code, § 650) that the court shall find the facts constituting the contempt, and have them spread upon the record, does not have the effect to give the right to an appeal nor to a writ of certiorari in this class of contempts, and for the reasons justly and forcibly given by Nash, C. J., in State v. Mott, 4 Jones, (N. C.) 449. But such facts, when found and spread upon the record, may authorize a revising tribunal, on a habeas corpus, to discharge the party, if it plainly appear that the facts, as found by the committing court, in law do not justify a sentence for contempt. Ex parte Summers, 5 Ired. 149. Another effect of the statute is to "furnish evidence against the magistrate, upon an indictment for malfeasance in office, " when there is such. State v. Mott, supra. So inherent is the right to punish for contempt that the legislature would have no power to deprive the courts of its exercise. Const, art. 4, § 12; In re Oldham, 89 N. C. 23. When the contempt is not committed in the presence of the court, but, as here, by the alleged willful disobedience of the process of the court, and the publication of grossly inaccurate accounts of its proceedings, with intent to bring the court into contempt, there is not that necessity for prompt punishment, nor the strong reasons which forbid the allowance of anappeal, which exist as to contempts committed in the...