Kopp v. State
| Decision Date | 14 February 1933 |
| Docket Number | 28491 |
| Citation | 246 N.W. 718,124 Neb. 363 |
| Parties | HARRY KOPP v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Holt county: ROBERT R. DICKSON JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. " The common-law power of the courts to punish for constructive contempts is, in this state, expressly confirmed by legislative enactment." State v. Bee Publishing Co., 60 Neb. 282, 83 N.W. 204, 50 L.R.A. 195, 83 Am.St.Rep. 531.
2. Preliminary examination is a proceeding unknown to the common law, so, in the absence of a statute requiring a preliminary examination on a charge of constructive contempt of court, no preliminary examination is necessary.
3. The right of a defendant, under section 29-1802, Comp. St. 1929 not to be required, without his assent, to answer an indictment, until one day shall have elapsed after receiving a copy thereof, may be waived. The failure of the record to show that he made any objection raises the presumption that he waived the right.
4. The striking from the files, after a hearing thereon, of the defendant's motion in arrest of judgment, which motion contained no meritorious point, did not prejudice the defendant and was not erroneous.
5. Where the record fails to show affirmatively that the court, before pronouncing sentence, informed defendant that he had been found guilty, and there is no showing in the record to the contrary, it will be presumed that such information was duly given.
Error to District Court, Holt County; Dickson, Judge.
Harry Kopp was convicted of contempt of court, and he brings error.
Affirmed.
W. T. Thompson and H. M. Uttley, for plaintiff in error.
C. A. Sorensen, Attorney General, and Irvin Stalmaster, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
This action was on an information for constructive contempt. The defendant, Harry Kopp, plaintiff in error here, was tried before the district judge, was convicted of contempt of court, was sentenced to be confined in the county jail for four months and to pay a fine of $ 100 and costs. No bill of exceptions was brought up. Therefore, we have no evidence produced at the trial. The review must be considered upon the transcript alone.
It is first assigned as error that the information does not state facts to charge contempt of court or any offense punishable under the laws of this state. The information was drawn under section 20-2121, Comp. St. 1929, being the first of the three sections of the Code of Civil Procedure relating to contempts. It comes definitely under the fourth subdivision of the above section granting power to every court to punish, by fine and imprisonment, as for criminal contempt, "any wilful attempt to obstruct the proceedings, or hinder the due administration of justice in any suit, proceedings, or process pending before the courts." The information is couched in understandable language, though it contains some surplusage which, however, does not invalidate it if otherwise sufficient. It informed the defendant that the offense was committed on or about November 24, 1931, during the November term of court; that the case of the State v. John M. Flannigan and James C. Flannigan was set for trial, to be heard before the court and a jury selected from the panel of which Ralph Rosenkrans was a member, and who was chosen and sworn as a member of the party to try said case; that on or about November 24, 1931, defendant did wilfully attempt to corrupt and influence said Rosenkrans and did wilfully attempt to obstruct said proceedings and to hinder and delay the due administration of justice in said action to be tried; that in furtherance of said purpose defendant requested one Joseph Juracek to inform Rosenkrans that defendant had a hundred-dollar bet and that defendant would furnish Rosenkrans one of defendant's farms "rent free if he would hang the Flannigan jury;" that he offered said Juracek, as payment for said services, to cancel an indebtedness of upwards of $ 7 and to pay said Juracek the further sum of $ 50; and that Juracek approached Rosenkrans at the time the latter was a member of the jury sitting in the trial of said case and advised him of defendant's said offer.
The statute is a legislative expression of the commonlaw power. "The common-law power of the courts to punish for constructive contempts is, in this state, expressly confirmed by legislative enactment." State v. Bee Publishing Co., 60 Neb. 282, 83 N.W. 204. We are of the opinion that the information states facts sufficient to charge defendant with contempt of court and to notify him of the particulars of the accusation against him.
Defendant claims the trial court erred in taking cognizance of, and requiring defendant to plead to, the information without defendant first having been given a preliminary examination or the right to waive it. This might be true in the general prosecution of crimes. However, the legislature has provided substantively a method for the punishment for such contempts as this. "Contempts committed in the presence of the court may be punished summarily; in other cases the party upon being brought before the court, shall be notified of the accusation against him, and have a reasonable time to make his defense." Comp. St. 1929, sec. 20-2122. The third section relating to contempts, section 20-2123, Comp. St. 1929, says: "Persons punished for contempt under the preceding provisions shall nevertheless be liable to indictment, if such contempt shall amount to an indictable offense; but the court before which the conviction shall be had, may, in determining the punishment, take into consideration the punishment before inflicted in mitigation of the sentence." It so happens that the Criminal Code, section 28-737, Comp. St. 1929, provides punishment for one who corruptly or by threats of force endeavors to influence a juror or to impede the due administration of justice. It is apparent, however, that the information in suit is drawn under section 20-2121, Comp. St. 1929. The procedure as for a contempt, being completely provided for by the legislature, did not contemplate the necessity for any preliminary examination and so did not provide for it. "In the absence of a statute no preliminary examination is necessary, the proceeding being unknown to the common law." 16 C. J. 314. The purpose of a preliminary examination when a crime is charged is to ascertain if a crime has been committed, and if so whether there is evidence sufficient to give probable cause for believing that the arrested man is guilty of the crime and that he may not be further deprived of his liberty if there is no probable cause for such belief. 8 R. C. L. 104, sec. 66.
The record shows that the information was filed on January 21 1932, and that the defendant's plea of not guilty was entered the same day. He forthwith gave his bond for appearance the next day for trial. The case was tried January 22, 1932. Appellant claims the court erred in requiring him to plead the same day the information was filed. Section 29-1802, Comp. St. 1929, provides that one shall not be arraigned or called on to answer an indictment, without his assent, until one day shall have elapsed. This right accorded by the statute may be waived. The failure of the record to show that defendant made any objection to proceed with the trial raises the presumption that he waived the right. Barker v. State, 54...
To continue reading
Request your trial