In Re Fountain.

• Decision Date: 21 September 1921
• Docket Number: (No. 50.)
• Citation: 108 S.E. 342
• Parties: In re FOUNTAIN.
• Court: North Carolina Supreme Court

108 S.E. 342

In re FOUNTAIN.

(No. 50.)

Supreme Court of North Carolina.

Sept. 21, 1921.

Appeal from Superior Court, Edgecombe County; Calvert, Judge.

Contempt proceedings against L. E. Fountain. Respondent was convicted of indirect contempt, not in presence of the court, and appeals. No error.

The judge finds as facts that at November term, 1921, of said county the case of "L. E. Fountain against Calvin Jones" was called for trial on Thursday of the first week (it being a two-week term), and the verdict was rendered on the following day; that Raeford Liles was a talis juror, and after the verdict had been returned he was discharged from further service as a juror; that about an hour or two after the return of the verdict in said cause, and after said talis juror had been discharged from further service, he was met on the street by the plaintiff in the action, L. E. Fountain, "who accosted him, using abusive and insulting language towards him and the other jurors in the case because of the verdict they had rendered, and committed an assault upon the said Liles." The matter was brought to the attention of the court during that term, who thereupon issued a rule against the said Fountain which was not served because of his absence from town until after the said court had adjourned for the term, and was continued by reason of such failure: the March term was a criminal term, and this matter was not reached, but at the April term it was called up, and a new rule to show cause was issued by the judge holding that term, requiring the respondent to appear to answer the rule, which he did in person and by counsel, and—

"upon the hearing then had the court makes these further findings of fact: About an hour or two after court adjourned for the day on which a verdict was rendered the respondent. (L. E. Fountain) accosted the said Raeford Liles, using abusive, and insulting language towards him, and of and concerning him, and the other jurors in the case, and committed an assault upon him, the said Liles, and that this talis juror Liles that same afternoon informed one, Daniel Harris, who was then a regular juror, and served as such the following day, that the acts and conduct of the said respondent, L. E. Fountain, did tend to impede and impair the respect and authority for the proceedings of the court; and the court finds that the respondent has been guilty of contempt of the court, and so adjudges L. E. Fountain, respondent, to be in contempt of court, and adjudges that he pay a fine of $100 and the costs of this proceeding.

"Thomas H. Calvert, Judge Presiding."

The respondent excepted to the foregoing findings of fact and the judgment of the court.

G. M. T. Fountain & Son, of Tarboro, for appellant.

The Attorney General and Frank Nash, Asst. Atty. Gen., for the State.

CLARK, C. J. This is a proceeding for indirect contempt, under C. S. § 984, by conduct impeding and impairing the respect due to, and the authority of, the court, by abusing and assaulting a juror. Such conduct occurred during the term of the court, but not in the immediate presence of the court.

The court held In re Gorham, 129 N. C. 485, 40 S. E. 311, that in a proceeding as for contempt in attempting to influence a juror, the findings of fact by the trial judge, if there is any evidence, cannot be reviewed on appeal, and that the respondent can purge himself only where the intention is the gravamen of the offense. Baker v. Cordon, 86 N. C. 116, 41 Am. Rep. 448. Here there is evidence, and the offense was in the act, and not in the intention.

In this case, moreover, there was slight divergence between the evidence for the state and the respondent, and there was ample evidence to justify the findings of fact by the court. While the respondent denies attempting to strike the juror Liles, he does not deny the abusive and threatening language as to him and the other jurors on account of the verdict they rendered against him. Said juror testified that, when the respondent upon the recess of the court met him and began cursing and abusing him and the rest of the jury who had sat on the case, using profane and vile expressions, he started to walk away from said Fountain, but the latter continued to walk beside him, cursing and abusing him and all members of the jury, and repeatedly raised his hand and shook it in his face, continuing to threaten and abuse both affiant and all other members of the jury, talking in an angry and vehement manner and threatening him so that the affiant had to walk away from him, being an old man 70 years of age, to avoid a battery upon him, and walked into the lot of an adjacent stable to avoid personal encounter and fisticuff, as he thought the said Fountain was going to strike him, and he was actually put in fear, and that this was before the court had adjourned for the term, and about two hours after the affiant had been discharged as a juror.

There was also an affidavit by the deputy sheriff that he was unable at that term of the court to serve the rule upon said Fountain, though his residence and place of business was in Tarboro, he absenting himself from the county for the purpose of avoiding said officer or...