Knox v. State

• Decision Date: 08 June 1931
• Docket Number: 29513
• Citation: 160 Miss. 494,135 So. 206
• Court: Mississippi Supreme Court
• Parties: KNOX v. STATE

135 So. 206

160 Miss. 494

KNOX v. STATE

No. 29513

Supreme Court of Mississippi

June 8, 1931

Division B

1 COURTS.

Supreme Court must re-examine text-book statement coming before it on appeal to determine whether text measures out as correct statement of law.

2 CONTEMPT.

"Constructive contempt" is act done beyond court's presence calculated to impede, embarrass, obstruct, defeat, or corrupt administration of courts.

3 CONTEMPT.

Any effort to influence action of officers in selecting personnel of jury, to be contempt, must be calculated to impede, embarrass, obstruct, defeat, or corrupt administration of justice.

4. CONTEMPT.

Accused person preparing list of trustworthy men as prospective talesmen and handing it to sheriff held not guilty of criminal contempt.

5. JURY.

Practice whereby litigants or lawyers make up lists of prospective talesmen and furnish them to sheriff is disapproved.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First district, HON. W. H. POTTER, Judge.

Rush H. Knox was adjudged guilty of criminal contempt, and he appeals. Reversed, and defendant discharged.

Reversed and appellant discharged.

Barbour & Henry, of Yazoo City, and Watkins, Watkins & Eager, of Jackson, for appellant.

The acts complained of, as shown by the undisputed proof, do not constitute contempt since the acts committed had no tendency whatsoever to obstruct, prevent or embarrass the administration of justice.

The charge in this case is of constructive contempt as contrasted with a direct contempt.

13 C. J., pp. 4-7.

A constructive contempt is an act done, not in the presence of the court, but at a distance, which tends to belittle, to degrade, or to obstruct, interrupt, prevent, or embarrass the administration of justice. It is the policy of the law not to extend the proceeding for constructive contempt to cases not coming within the established rules.

13 C. J., page 5.

A criminal contempt proceeding is one of a serious nature, carrying with it severe punishment and the imputation of the commission of a criminal offense. It involves more than unethical conduct and even reprehensible conduct may not necessarily be contemptuous.

Ex parte Redmond, 125 So. 833, 156 Miss. 431; Sellers v. Mississippi, 127 Miss. 748, 90 So. 716, 21 A. L. R. 238; Scott v. State (Tenn.), 71 S.W. 824, 21 A. L. R. 247; William L. Durham v. State, 52 So. 627, 97 Miss. 549.

There was nothing in this case calculated to impede, embarrass, defeat or obstruct, directly or indirectly, the administration of justice.

Neely v. State, 54 So. 315, 98 Miss. 816; In re Jay Allison, 256 Mo. 378; Ex parte Wright (Texas), 141 S.W. 971; State on Inf. of Kimbrell v. Clark, 114 S.W. 536; In re Ellison (Mo.), 165 S.W. 987; Ex parte McRae, 77 S.W. 211; Ex parte Kemper, 216 S.W. 172 (Texas); U. S. v. Carroll (D. C. Mont.), 147 F. 947; Poindexter v. Arkansas, 4 L. R. A. (N. S.) 517.

In no reported case has any conviction been sustained under facts similar to those at the bar.

Cases where a denial under oath of a want of intent is generally held to purge contempt usually arise from publication of articles, or in language used in pleadings or other papers filed in court, which are subject to two interpretations. As already stated, in such cases a denial of intent, coupled with an explanation of the language used, showing an innocent purpose, will usually purge the contempt.

State v. Henthorn, 46 Kan. 613, 26 P. 937; Percival v. State, 45 Neb. 741, 50 Am. St. Rep. 568, 64 N.W. 221; Fishback v. State, 131 Ind. 304, 30 N.E. 1088.

Since the facts are undisputed, and the guilt of the defendant depends upon the question as to whether or not the undisputed facts tended to obstruct the administration of justice, his sworn statement disclaiming any such purpose or intention, in the absence of direct evidence to the contrary, should be conclusive.

Ex parte Redmond, 126 So. 485, 156 Miss. 582; In re Perkins, 100 F. 950; Fishback v. State (Ind.), 30 N.E. 1088; Alford v. Charts (Nev.), 5 L. R. A. (N. S.) 916; In re Mitchell (Ala.), 71 So. 467.

We respectfully submit that in view of the fact that handing a list of qualified jurors to the sheriff by the appellant, under the facts and circumstances in this case, did not per se impede and obstruct public justice; that, therefore, the disclaimer of the appellant under oath, and not disputed, should be accepted.

Powers v. People, 114 Ill.App. 323.

W. A. Shipman, Assistant Attorney-General, for the state.

All effort to influence the action of officers in the selection of the personnel of the jury is contempt.

13 C. J., p. 23, section 27; Sinnott v. State, 79 Tenn. (11 Lea) 281; Section 1062, Code of 1930, section 1298, Code of 1906.

Any act calculated to impede, embarrass, defeat, or obstruct the administration of courts of justice, if committed without and beyond its actual presence, is a constructive contempt, and the court has an inherent right to punish such acts; but before the court can inflict punishment, the offense must be judicially established.

Durham v. State, 97 Miss. 549, 52 So. 627; Aaron v. State, 105 Miss. 402, 62 So. 419; Wood v. Ratliff, 138 Miss. 783, 103 So. 356; Pryne v. State, 143 Miss. 231, 108 So. 717.

The acts of the appellant charged in the information and admitted as true by him constitute a constructive contempt of court, and the judgment is in conformity with the statute fixing punishment therefor.

Moore v. Judge, Walk. 310; Vertner v. Martin, 10 S. & M. 103; Ex parte Adams, 25 Miss. 883, 59 Am. Dec. 234; Watson v. Williams, 36 Miss. 331; Shattuck v. State, 51 Miss. 50, 24 Am. Rep. 624.

OPINION

Griffith, J.

Appellant was under indictment in the circuit court of Hinds county, and his case was set for trial in the judicial week beginning on the 18th day of December, 1929. Because of prior events, and because of rumors and reports which had been brought to appellant, none of which are necessary to mention here, appellant had become apprehensive, although unduly so, that in the bringing in of talesmen by the sheriff or his deputies men would be brought who would not be impartial in the trial of the case, but who, on the contrary, would be predisposed against any defense which appellant might make. In this state of apprehension, appellant, on Sunday, December 17, 1929, by the use principally of the city directory and the book of telephone subscribers, made up a tentative list of sixty names of those thought to be in all respects well qualified as jurors, the names extending alphabetically from B to W. They were taken from the various respectable walks of life; there were insurance agents, automobile dealers, bankers, persons engaged in the mercantile business, barbers, printers, and men from many other trades and occupations. They were all of worthy character, of good reputation, and none of them had been approached or were approachable. No influence of any kind had been brought to bear upon them; not a word had been spoken to one of them by appellant or by any person connected with appellant, in respect to the case, and not one of them knew or had any reason to suspect that his name had been placed on such a list until more than a year thereafter. More than forty of these names were either then already in the jury box or have subsequently been selected by the board of supervisors and placed therein. Appellant knew personally only a small minority of them and had no intimate or close acquaintance with any of them. There were no business ties which connected appellant with any of them, and no other connection which would be sufficient to induce them or any of them in his favor. No question is raised by the state touching the character of the men on said list, but it is admitted that they are typical of those worthy in every way to sit in judgment on juries. Indeed, none of the facts herein stated are disputed. On the contrary, all the facts are agreed upon in the record and in the briefs; so that what we state herein as the facts is an abstract from what is not in dispute but is admitted in the records and briefs.

After this list had been prepared, and on the evening of said December 17th, appellant made an engagement with the sheriff, by which appellant went to the residence of the sheriff and there appellant handed the said list to the officer. The testimony of the sheriff as to the conversation which took place on that occasion would indicate that little was in fact said, but certain it is that appellant resorted to no threat, nor intimidation, nor other lawless means to induce the sheriff to use said list. The sheriff does not say that he was even requested to use it, and so far as the testimony of the sheriff goes the request to use said list comes only by the inference arising out of the fact that the list was delivered, while the testimony of appellant is that his sole purpose in exhibiting the list was to indicate the type and character of men, who in the trial of appellant's case or any other case would be intelligent and fair and impartial.

The sheriff took the list, made no...