In re Independent Pub. Co.

• Citation: 228 F. 787
• Decision Date: 11 December 1915
• Docket Number: 481.
• Parties: In re INDEPENDENT PUB. CO. et al.
• Court: U.S. District Court — District of Montana

228 F. 787

In re INDEPENDENT PUB. CO. et al.

No. 481.

United States District Court, D. Montana.

December 11, 1915

B. K Wheeler, U.S. Atty., of Butte, Mont., and Homer G. Murphy Asst. U.S. Atty., of Helena, Mont., for the United States.

C. B Nolan and E. C. Day, both of Helena, Mont., for respondents.

BOURQUIN District Judge.

Respondents' newspaper published a reference to and during a felony trial herein, which included purported past history, similar felonies, trials, sentences, imprisonment, parole, and exile to escape prosecution, of and by defendant. Brought to the court's notice, and it appearing several jurors had read it, the jury was discharged, the trial ended, and by the court's order respondents were cited to show cause why they should not be adjudged in contempt. They answer the article was by their reporter, believing it true, and was published without the knowledge of the respondent editor or any officer of the respondent corporation, without intent to obstruct the administration of justice, and that they 'regret exceedingly' the publication and have guarded against repetition.

Respondents put forward no unmaintainable contention that the article was not calculated to influence jury and judge, to prevent a fair and impartial trial, and so to obstruct the administration of justice. They make no impossible claim that newspaper publishers are peculiarly privileged to thus introduce improper matter to jury and judge; are not subject to the liabilities imposed by law upon any person who orally or in writing does the like. But they contend that since the power of United States Courts to proceed in contempt is limited by section 268, Judicial Code, to 'misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice,' the power is lacking here in that the publication was not 'so near' the court within the meaning of the statute. In argument they refer to Morse v. Ore Purchasing Co. (C.C.) 105 F. 337, as indicating support for their contention in that therein the defeated party secured a new trial because of a series of prejudicial publications (presumably by this newspaper) during the trial, but that 'it never occurred' to eminent counsel that contempt would lie. Referred to incidentally by them, so is it here. It is clear this publication did obstruct the administration of justice, and obviously because it was 'so near' to the court, and that, within the meaning of the statute. 'So near' in the statute means not so far off, not so distant but what it may obstruct the administration of justice. It is not a question of linear measurement, but of probable effect; not where the press runs, but where the publication circulates. So long as jury and judge are engaged in a trial, it is of no moment that the improper influence extended over them was miles away from the courtroom rather than adjoining it. The effect is the same, the consequences the same, the evil as great, and it is the effect, consequences, evil, the law guards against.

The thoughtful mind needs but momentary reflection to subscribe hereto. In Kirk v. United States, 192 F. 275, 112 C.C.A. 531, the appeals court of this circuit held oral attempts to influence jurors, made over half a mile from the courtroom, were contempts within the statute, saying:

'It is obvious that any willful attempt improperly to influence jurors, * * * no matter where it is committed, is sufficiently near to the presence of the court to tend to obstruct the administration of justice'

-- and that without the power to summarily deal with such attempts, 'the courts would be practically helpless. ' McCaully v. United States, 25 App.D.C. 404, is a like case, and after conviction for contempt, the Supreme Court (198 U.S. 586, 25 Sup.Ct. 803, 49 L.Ed. 1174) refused habeas corpus and certiorari. It hardly needs suggestion that, this being true in respect to oral words, a fortiori must it be true in respect to written words, of more permanency and potency. In United States v. Newspaper Co., 220 F. 458, it was held that newspaper publications in the city of a trial, tending to embarrass the court in consideration of the case, or to excite prejudice against a party, or against the court contingent on the nature of its ultimate decision, are so near the court as to obstruct the administration of justice within the meaning of the statute.

In re Josephus Daniels (C.C.) 131 F. 95, seems contra but therein the publication was after the proceeding criticized was...