Lee v. State

• Decision Date: 22 January 1912
• Parties: LEE v. STATE.
• Court: Arkansas Supreme Court

143 S.W. 909

LEE v. STATE.

Supreme Court of Arkansas.

January 22, 1912.

Certiorari to Circuit Court, Woodruff County; Hance N. Hutton, Judge.

E. M. Carl Lee was convicted of contempt of court, and he brings certiorari. Judgment quashed.

The petitioner, E. M. Carl Lee, was adjudged guilty of contempt of court, fined $500 and six months' imprisonment in the county jail, and the case is before us on petition for certiorari to quash the judgment.

The facts necessary to state are as follows: A citation was issued by the circuit clerk of Woodruff county on January 6th to the petitioner, in vacation, notifying him to appear in the circuit court on the 1st day of the March term, 1911, on Monday, March 6th, to show cause why he should not be punished for criminal contempt for causing to be printed on or about the 3d day of September, 1910, in the Arkansas Gazette, a daily newspaper published in the city of Little Rock, of general circulation in the state, and Woodruff county, a certain article, setting it out, criticising the action of Judge Hutton, the judge of the circuit court, in the trial of a certain proceeding in his court and reflecting upon the dignity and integrity of the court. Petitioner appeared in the court at the March term, solely for the purpose of objecting to the jurisdiction, and filed a motion to dismiss, claiming privilege as a member of the General Assembly of the state of Arkansas, being a senator from his district, while the Legislature was in session on March 6, 1910, the day he was cited to appear. This motion being overruled, he filed another motion and objected to the jurisdiction of the court alleging: "That he respectfully submits that this honorable court is without jurisdiction to require the said E. M. Carl Lee to respond to said rule for the reason that there was no affidavit or sworn information filed in this proceeding, upon which to issue process, rule or summons as is herein attempted. He further respectfully submits that there is no sworn statement of facts or information as required by law, in such proceedings, and therefore it is improper and illegal to require the said E. M. Carl Lee to respond to the rule issued in this proceeding." The court overruled this motion, to which he excepted, and, expressly reserving his exceptions to the ruling of the court, he filed a response, denying that he caused the publication of the article set out in the citation, and that he was guilty of contempt. After hearing the testimony of witnesses and the petitioner, the court adjudged him guilty of criminal contempt, and fixed his punishment at a fine of $500, with six months' confinement in the county jail, and remanded him to the custody of the sheriff.

Petitioner admitted that the article as set out in the citation appeared in the Arkansas Gazette, a newspaper published in the state, of general circulation in Woodruff county, and ____ Dew testified that he was the city editor for said paper, identified the article as published, and stated that he called for Mr. Carl Lee over the long distance phone at Augusta, and requested a statement concerning the charge brought against him, Mr. Ludwig, and Cain, in the circuit court of Woodruff county, for publication; that some one answered the phone, and said he was Carl Lee, and dictated the statement over the phone virtually as it was printed; that he was very careful to take it as given, and when he did not understand, had the person talking to repeat and talk slowly, that no mistake might be made, and none was made. Carl Lee denied having had any conversation at all with Dew over the phone and any acquaintance with him, but admitted that he did talk over the phone with Mr. Kiger, another reporter on the Gazette, making some of the statements set out in the publication, but denied all that portion of same that would reflect in any wise upon the court. That he was personally well known to Kiger, and knew his voice over the phone, and knew that he was talking to him. Dew stated, further, that he was working in Kiger's place the night the message was received, that he (Kiger) might be off duty and spend the evening with his mother who was visiting him.

R. D. Campbell, for petitioner.

KIRBY, J. (after stating the facts as above).

It is contended that the circuit court was without authority to punish the petitioner for a criminal contempt, not committed in its immediate view and presence, without an affidavit or information bringing the facts to its knowledge first made. Courts of record and general jurisdiction have inherent power to punish for contempts and the conferment of the power by statute upon a superior court of record is deemed no more than declaratory of the common law. Such court may go beyond the powers given by statute in order to preserve and enforce its constitutional powers when acts in contempt invade them. Rapalje on Contempts, § 1; art. 7, § 26, Constitution; State v. Morrill, 16 Ark. 384. This charge was of criminal contempt, being directed against the dignity, integrity, and authority of the court, and constructive, not having been committed in its immediate presence. In Brown on Jurisdiction, § 116, it is said: "In constructive contempts, the court can only act upon a showing of the facts invoking jurisdiction and time should be given the accused to resist the charge." Our statute provides "contempts committed in the immediate view and presence of the court may be punished summarily; in other cases, the party charged shall be notified of the accusation and have a reasonable time to make a defense." Section 722, Kirby's Digest.

In York v. State, 89 Ark. 76, 115 S. W. 949, the court said: "As to the mode of procedure in cases of contempt, not committed in the immediate view and presence of the court, the authorities are well agreed that the contempt must be brought before the court on affidavits of persons who witnessed it, or have knowledge of it" — citing and quoting from State v. Henthorn, 46 Kan. 613, 26 Pac. 937. But that proceeding was to punish as for contempt the violation of an injunction issued by the court and the statute provides that it shall be done upon affidavit of breach of the injunction against the party committing the same. Section 3989, Kirby's Digest. Nevertheless, it is contended that that case was for a civil contempt, growing out of conduct in disobedience of process for the protection of the rights of a party to a judicial proceeding, and that the rule as to procedure therein does not control here. The authorities all agree that in cases of criminal contempt of this kind the accused is entitled to a distinct notice of the accusation against him, and must be given a reasonable opportunity to present his defense, or as expressed in our statute "shall be notified of the accusation, and have a reasonable time to make his defense."

There was no affidavit filed in this cause, setting out the publication and charge against the petitioner before the citation was issued, neither was there any statement of the facts constituting the charge made of record and signed by the judge in vacation, nor any order of the court, while in session, reciting that it had come to its knowledge that such publication had been made, setting it out, and directing a citation to issue against the petitioner to show cause why he should not be punished for contempt for causing the publication, and, if any such procedure was necessary, the petitioner did not waive it, having objected to the jurisdiction of the court specifically on that account.

In the case of State v. Morrill, 16 Ark. 386, the publication made was in a newspaper in Arkansas county, reflecting upon the Supreme Court in relation to a decision made by it. An attorney of the court, living there, called the court's attention to the publication, sending it a copy thereof, and expressing an opinion that the court should take some notice of it. The court concluded that it was due to the honor and dignity of the state, and its own usefulness, not to pass the matter by without some official action, and to institute an inquiry as to whether its constitutional privilege had not been invaded by the publication, and, "accordingly, an order was made, reciting the publication, and directing that the defendant be summoned to appear before the court at its present term to show cause why proceeding should not be had against him as for criminal contempt. No attachment, but a mere summons, was issued in the outset, because the constitutional power of the court to punish as for contempt in such cases had not been determined and was supposed to be not altogether free from doubt." Such was the statement of the procedure therein. A like course was pursued by the Supreme Court of California, in Re Shay (Cal.) 117 Pac. 442.

A great many of the authorities hold that it is necessary to decide whether the charge constitutes a civil or criminal contempt in order to determine the procedure for its punishment, and many of them seem to hold that if the contempt arises...