Mack, In re

Decision Date05 October 1956
Citation386 Pa. 251,126 A.2d 679
PartiesIn re: Attachment for Contempt of David W. MACK, Appellant. In re: Attachment for Contempt of Robert PURDY, Appellant. In re: Attachment for Contempt of Don BINDYKE, Appellant. In re: Attachment for Contempt of william BLOCK, Appellant. In re: Attachment for Contempt of James G. KLINGENSMITH, Appellant. In re: Attachment for Contempt of Vince JOHNSON, Appellant. In re: Attachment for Contempt of Andrew BERNHARD, Appellant.
CourtPennsylvania Supreme Court

Fred B. Trescher, D. J. Snyder, Jr., Vincent R. Smith, Kunkle & Trescher, Greensburg, for appellants in Nos. 144 and 145.

Charles E. Kenworthey, Walter T. McGough, Reed, Smith, Shaw & McClay, Pittsburgh, for appellants in Nos. 154-158.

Paul K. McCormick, H. R. Belden, Greensburg, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

ARNOLD, Justice.

The seven defendants severally appeal from judgment and sentence by the court below finding each of them guilty of contempt, and imposing upon each a fine and five days imprisonment in the county jail. The appeals were argued together and will be disposed of in one opinion.

The respective judgments and sentences were sustained by the court below upon findings that defendants violated Westmoreland County rule of court No. 6084. The rule provides:

(a) No pictures or photographs shall be taken, immediately preceding or during sessions of this court or recesses between sessions, in any of the court rooms or at any place in the court house within forty feet of the entrance to any court room.

'(b) No court proceeding shall be broadcast or televised.

'(c) No pictures or photographs of any party to a civil or criminal action, juror or witness, shall be taken in the Law Library or in any office or other room of the court house, except with the knowledge and consent of the person or persons photographed.

'(d) No prisoner or inmate of the county jail shall be photographed in the jail or on his way to or from a session of court.' 1

As set forth in the facts hereunder, we are concerned only with subsections (a) and (d) of the rule, and our decision will be limited to these.

By a verdict of the jury J. Wesley Wable, known as the 'Turnpike Killer,' had been found guilty of first degree murder with a recommendation of the death penalty. On December 28, 1954, he had been called for sentence by Judge Bauer of the court below, in court room No. 5 on the fourth floor of the court house. This was a matter of common knowledge to the defendants.

The fourth floor consists of an octagonal shaped court room, flanked by the judge's chambers and a 50 foot corridor. The corridor is reached by means of a public elevator and a stairway. Entrance to the court room is from the corridor. Near this court room door the defendants surreptitiously took photographs of Wable and deputy sheriffs as he was being escorted to the court room. Wable, who was manacled to the sheriff, had been conveyed from the county jail to the first floor of the court house, and thence by elevator to the fourth floor. While he and the officers were approaching the entrance to the court room, and within 40 feet thereof, the defendants, by prearrangement each with the others, took the photographs in question. 1a These were procured without Wable's or the court's consent or knowledge. In fact, the attention of the sheriff and his deputies was distracted by a decoy photographer. The photographs were taken by means of infra red rays not requiring the use of flash bulbs and causing no commotion or noise. The following day these photographs were published by the defendants.

The defendants admit that they committed all of the acts hereinbefore described, and also that these acts were performed by agreement among them. Their plea is in the nature of 'confession and avoidance.'

The first contention is that the rule of court is in conflict with the federal and state constitutions involving the right of free press. However, as pointed out by Erwin D. Canham, Editor of the Christian Science Monitor, 'freedom of the press is not a right of the press. It is a right of the people.' 2 By the instant rule the court was attempting to preserve in dignity of the court and the decorum of trial, thereby insuring the orderly administration of justice. To be valid, such rule must be reasonable. Thus in American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 399, 70 S.Ct. 674, 684, 94 L.Ed. 925, it was held: 'When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of [freedom of the press] * * *, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented.' In Fitzgerald v. City of Philadelphia, 376 Pa. 379, 387, 102 A.2d 887, 891, this Court held: " Of course, it is accepted constitutional doctrine that these fundamental human rights are not absolute. * * * The essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery."

Therefore, whether or not freedom of the press is here involved is immaterial, since such freedom is subject to reasonable rules seeking maintenance of the court's dignity and the orderly administration of justice.

The defendants repeatedly assert that they do not contend for the right to take pictures within the court room, even by the infra red ray method which is accompanied by no display or disorder. But it must be conceded that if we sustain their contention that this rule of court infringes upon their rights of freedom of the press, the court likewise would have no power to forbid the taking of pictures in the court room which were accompanied by no disorder or disturbance. Yet this Court has adopted Rule 223 of the Pennsylvania Rules of Civil Procedure, 12 P.S.Appendix, which has the effect of a statute, 3 and which provides: 'During the trial of actions the court shall prohibit the taking of photographs and motion pictures in the court room and the transmission of communications by telegraph, telephone, or radio in or from the court room.' In addition, Canon 35, Canons of Judicial Ethics of the American Bar Association reads as follows: 'Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recess between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.' 4 The Westmoreland County rule incorporates the provisions of Pa.R.C.P. 223(b), and then proceeds to state further restrictions and limitations by it deemed proper and necessary to preserve the dignity of the court and the decorum of trial. The taking of a picture of a person called for sentence certainly does not inform the public as to any material facts, and serves no purpose except to pander to the lower tastes of some individuals. Court rooms and court houses are not places of entertainment, and trials are not had for the purpose of satisfying any sadistic instinct of the public seeking sensationalism.

The fact that the contempt in this case did not occur in court room, but in the precincts of the court, does not make the rule unreasonable. '* * * the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurours, and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court.' Ex parte Savin, 131 U.S. 267, 277, 9 S.Ct. 699, 702, 33 L.Ed. 150. As stated in Ex parte Sturm, 152 Md. 114, 136 A. 312, 315, 51 A.L.R. 356: 'It is essential to the integrity and independence of judicial tribunals that they shall have the power to enforce their own judgment as to what conduct is incompatible with the proper and orderly course of their procedure.' The Westmoreland County rule is proper so long as it bears a reasonable relation to the aim sought: maintenance of the dignity of the court and the orderly administration of justice. Certainly in this case the area affected is reasonable, as are the limitations of action, and the rule prohibiting the taking of pictures within the stated limits is well within the power of the court. See also Robinson v. City Court for City of Ogden, 112 Utah 36, 185 P.2d 256; People v. Ulrich, 376 I11. 461, 34 N.E.2d 393.

Amicus curiae cites the case of People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769, 48 A.L.R.2d 1425, in which conviction was reversed where the public and representatives of the press were excuded from the court room during the taking of testimony. But the court stated that the reason for the reversal in that case was that such exclusion deprived the defendant of an impartial and public trial. That case has no bearing on the instant case. Here the defendants were freely entitled to enter the court room and its precincts, and the press was accorded full coverage. Moreover, in an opinion written by the same judge who wrote the opinion in the cited case, the New York Court of Appeals denied the right of the Press Associations and Newspaper Publishers to be present at the trial of Jelke, and to report the proceedings, and further the court held: '* * * this is not a case of * * * freedom of the press and * * * the right asserted by petitioners is not embrached within the constitutional provision guaranteeing those freedoms * * *. But freedom of the press is in no way abridged by an exclusionary ruling which denies to the public generally, including newspapermen, the opportunity to 'see and hear what transpired'. * * * The fact that petitioners are in the business of...

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