Kelly v. United States

• Citation: 250 F. 947
• Decision Date: 06 May 1918
• Docket Number: 3047.,3048
• Parties: KELLY v. UNITED STATES. [a1] GALEN v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

250 F. 947

KELLY v. UNITED STATES. ^[a1]

GALEN v. SAME.

Nos. 3048, 3047.

United States Court of Appeals, Ninth Circuit.

May 6, 1918

L. O Evans, of Butte, Mont., W. B. Rodgers, of Anaconda, Mont., F C. Walker, of Butte, Mont., and W. T. Pigott, M. S. Gunn, F W. Mettler, and E. G. Toomey, all of Helena, Mont., for plaintiff in error Kelly.

W. T Pigott, Carl Rasch, F. W. Mettler, E. G. Toomey, and M. S. Gunn, all of Helena, Mont., William Wallace, Jr., of New York City, L. O. Evans and F. C. walker, both of Butte, Mont., and Charles Donnelly, of St. Paul, Minn., for plaintiff in error Galen.

Burton K. Wheeler, U.S. Atty., and James H. Baldwin, Asst. U.S. Atty., both of Butte, Mont., and Homer G. Murphy, Asst. U.S. Atty., of Helena, Mont.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The plaintiffs in error in these two cases were adjudged by the court below to be guilty of contempt of court, and were fined $500 each for conduct in relation to jurors impaneled in the trial of a criminal case which had been pending in that court, in which case they had been the attorneys for two of the ten defendants therein. On the charges of contempt the court below found that during intervals of the trial of that case the plaintiffs in error knowingly visited and conversed with certain members of the jury, with a view of improperly influencing them in said case; that Galen so visited and conversed with the juror Warner, and furnished him liquid refreshments; that Kelly visited and conversed with the juror Brown, and furnished him liquid refreshments; and that both Galen and Kelly visited and conversed with the juror Warren, and promised to introduce him to members of the Legislature then in session, to secure him support for a proposed bill which he was promoting.

The objection was made in the court below, and it is reasserted here, that the informations charging the contempts were insufficient to confer jurisdiction, for the reason that they were verified upon information and belief. The informations were presented by the United States district attorney. While in some of the states it is held that the material allegations in the accusation or affidavit charging contempt must be made as of the personal knowledge of the affiant, we find no exception to the rule that, when the charges are made on the complaint or information of the state's attorney or the Attorney General, the facts may be alleged upon information and belief. Poindexter v. State, 109 Ark. 179, 159 S.W. 197, 46 L.R.A. (N.S.) 517; Hurley v. Commonwealth, 188 Mass. 443, 74 N.E. 677, 3 Ann.Cas. 757; Emery v. State, 78 Neb. 547, 111 N.W. 374, 9 L.R.A. (N.S.) 1124. And such is the rule in the federal courts, where, under the provisions of the Fourth Amendment, the defendant may be charged and tried for a misdemeanor on an information not verified or supported by affidavit. Creekmore v. United States, 237 F. 743, 150 C.C.A. 497, L.R.A. 1917C, 845; Weeks v. United States, 216 F. 292, 132 C.C.A. 436, L.R.A. 1915B, 651, Ann. Cas. 1917C, 524.

It is contended that the evidence is insufficient to sustain the convictions, and that the charges were not proven beyond a reasonable doubt. The proceedings in contempt cases, it is true, require a finding of guilt upon testimony as in criminal cases, and the presumption of innocence attends the accused, and he is to be adjudged guilty only upon evidence which carries conviction beyond a reasonable doubt; nevertheless the finding of the court in such a case has the conclusiveness of a verdict of a jury, if it is sustained by substantial evidence. In Bessette v. W. B. Conkey Co., 194 U.S. 324, 338, 24 Sup.Ct. 665, 48 L.Ed. 997, the court said that, on the appeal from a judgment of conviction on contempt proceedings, 'only matters of law are considered. The decision of the trial tribunal, court or jury, deciding the facts is conclusive as to them. ' See, also, Schwartz v. United States, 217 F. 866, 133 C.C.A. 576, Oates v. United States, 233 F. 201, 147 C.C.A. 207, and the decision of this court in Re Independent Pub. Co., 240 F. 849, 862, 153 C.C.A. 535, L.R.A. 1917E, 703, Ann. Cas. 1917C, 1084.

With that rule of law in mind, we turn to the evidence, not to weigh it, or to consider its credibility, but to ascertain whether there was any substantial evidence which, if credited, is sufficient to support the judgment. It may be conceded that there was no evidence that in any of the conversations there was any discussion of the pending case, or anything said in relation thereto, and that there was no evidence that in said conversations either of the respondents actually promised Warner to introduce him to members of the Legislature. Warner testified that twice he conversed with Kelly and asked him for introductions to legislators, and that Kelly said something about waiting until after the trial-- that 'he didn't care to do it now. ' Galen testified that Warner twice approached him in regard to his bill, and wanted to talk to him about it; that the first time he told Warner he had not time to fool with that, and the second time he said: 'For Christ's sake, wait until after this trial is over. ' There was testimony that on one occasion in the Placer Hotel lobby Kelly conversed with Brown for a period of 15 or 20 minutes, and that thereafter they went together into the barroom, and that Kelly paid for the drinks for Brown and for several bystanders. The evidence that Galen drank with Warner consists in testimony that one evening during the trial a witness saw Galen standing in the hotel lobby, where he was joined by Warner; that, after conversing about a minute, they went beyond and behind a post, and out of the vision of the witness, whence the only outlets were the barroom entrance and a stairway descending to a toilet room; and the further fact that at the conclusion of the trial Warner admitted to the district attorney that, after having the talk with Galen, he and Galen went into the barroom, and had a drink.

The principal question in the case is whether the conduct of the plaintiffs in error, so shown by the evidence and found by the court, was such as to constitute contempt of court. In order that one may be held for contempt for communications with jurors, on the ground of the harmful tendency thereof it is not necessary to prove that the communications had or the acts done were accompanied with a wrongful intent. It is sufficient if such acts and communications were knowingly and willfully done and had, and had the tendency to influence improperly the action of the jury. 13 C.J. 45; United States v. Anonymous (C.C.) 21 F. 761; In re Terry (C.C.) 36 F. 419, 430; Ellis v. United States, 206 U.S. 246, 257, 27 Sup.Ct. 600, 51 L.Ed. 1047, 11 Ann.Cas. 589. In Wartman v. Wartman, Taney, 362, Fed. Cas. No. 17,210, Chief...