Maples v. State

• Decision Date: 24 April 1978
• Parties: Ben Richard MAPLES, Petitioner, v. STATE of Tennessee, Respondent. 565 S.W.2d 202
• Court: Tennessee Supreme Court

Page 202

565 S.W.2d 202

Ben Richard MAPLES, Petitioner, v. STATE of Tennessee, Respondent.

565 S.W.2d 202

Supreme Court of Tennessee.

April 24, 1978.

Jerry K. Galyon, Sevierville, for petitioner.

Brooks McLemore, Jr., Atty. Gen., Henry E. Hildebrand, III, Asst. Atty. Gen., Nashville, Al Schmutzer, Jr., Dist. Atty. Gen., Sevierville, for respondent.

OPINION

HARBISON, Justice.

Petitioner was fined for contempt as the result of admittedly fraudulent divorce proceedings which he instituted in a chancery court and in which he gave false testimony. Subsequently he was convicted of the statutory offense of perjury for that false testimony. His principal insistence on appeal is that the criminal prosecution was barred on principles of double jeopardy. The Court of Criminal Appeals affirmed the conviction. We granted certiorari to give further consideration to that question and also to the manner in which petitioner's petition for probation was handled in the trial court.

On October 17, 1974, petitioner instituted a divorce action in Union County, making sworn allegations that his wife was a resident of that county. She filed an answer admitting that and other allegations. Four days after the complaint was filed, there was an oral hearing in which petitioner testified that his wife was a resident of Union County. He was awarded a divorce, and the court approved a property settlement, which stated that petitioner's wife did reside in that county.

Subsequently, petitioner's wife died, and in September 1975 he filed a petition under Rule 60, Tennessee Rules of Civil Procedure, to set aside the divorce decree which he had obtained under the foregoing circumstances. He testified at the hearing on that motion that he had sworn falsely to the Chancellor in the previous proceedings, and it was made to appear at that time that neither petitioner nor his wife had ever at any time resided in Union County. Although the Chancellor granted petitioner the relief which he sought, and set aside the divorce decree as having been fraudulently obtained, he nevertheless fined the petitioner fifty dollars for contempt of court and further directed that an investigation be made as to whether criminal proceedings should not be instituted against petitioner. Unfortunately, the decree which the Chancellor entered did not specify the particular conduct of petitioner which was found to be contemptuous, nor the exact statutory provision upon which the Court relied. He could have cited the petitioner for the filing of a fraudulent divorce proceeding in the Chancery Court, or the citation could have been for the false testimony given at the divorce hearing or for the procuring and obtaining of the final divorce decree.

The record is clear that the indictment on the perjury charge was based upon the false testimony given by petitioner at the divorce hearing on October 21, 1974.

While the record is not free from uncertainty in this regard, the Court of Criminal Appeals treated the contempt citation as having been based upon the same conduct as the perjury charge, that is, the oral testimony given by petitioner at the divorce hearing. It nevertheless concluded that the prosecution was not barred by the double jeopardy provisions of the state or federal constitutions, and, in the opinion of the majority, that conclusion was correct.

The statutes under which petitioner apparently was cited for contempt provide:

"The power of the several courts to issue attachments, and inflict punishments for contempts of court, shall not be construed to extend to any except the following cases:

"(1) The willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice."

"(4) Abuse of, or unlawful interference with, the process or proceedings of the court." T.C.A. § 23-902.

The statutory crime of perjury is defined as follows:

"Whoever (upon oath or affirmation) . . . shall upon such oath or affirmation, swear or affirm willfully, corruptly and falsely touching a matter material to the point in question, shall be guilty of perjury, and on conviction shall be imprisoned in the penitentiary for not less than one (1) year nor more than five (5) years." T.C.A. § 39-3301.

In the opinion of the majority, even if it is assumed that the contempt citation rested upon the false testimony given at the divorce trial, nevertheless there has not been demonstrated a sufficient identity between this summary contempt penalty and the statutory offense of perjury to establish a defense of double jeopardy. The purposes of the general statutes authorizing a court to punish for abuse of its processes and those creating and prescribing punishment for various indictable offenses are so entirely different, and designed to accomplish such wholly different purposes, that we do not find any violation of constitutional principles in imposing punishment upon an offender under both sets of statutes.

There can be no question that the punishment given for contempt was summary in nature and that it was imposed immediately by the Chancellor upon his learning of the facts. The record does not present a case of a formal citation for contempt or a show-cause order and trial thereon.

In a few cases punishments for contempt imposed following such formal citations have been held to preclude criminal prosecutions for statutory crimes based on the same conduct. Thus in the case of People v. Gray, 36 Ill.App.3d 720, 344 N.E.2d 683 (1976), the defendant has been enjoined from going about or molesting his wife in a divorce proceeding. He violated this order, struck and then shot his wife, and was cited for contempt of court. There was a formal trial and hearing, following which he was found to be in contempt of the divorce court and sentenced to serve six months in jail.

Thereafter the defendant was indicted for aggravated battery and attempted murder of his wife. The Illinois Court of Appeals held that under those circumstances the contempt citation did prevent the criminal prosecution. It should be noted in that case, however, that the contempt did not occur in the presence of the court, nor was the punishment summarily imposed, but followed a formal citation and trial.

In that case the court recognized and distinguished several federal cases where summary punishment for contempt was held not to preclude later criminal prosecution based upon the same conduct. Illustrative of these cases is U. S. v. Mirra, 220 F.Supp. 361 (S.D.N.Y.1963). In that case an obstreperous defendant, during the course of a long criminal trial, stood up in the courtroom, took the witness chair on which he was sitting, and hurled it at the United States Attorney. He threw the chair some fifteen feet, and it struck the jury rail about three feet from the lectern where the attorney was standing. For this disregard for the dignity and decorum of the court, the defendant was summarily held in contempt and sentenced to one year in prison. Thereafter he was indicted for the use of force in assaulting or interfering with a federal official in the performance of his duties. The defense of double jeopardy was interposed but was overruled in a careful and thoughtful opinion by the Court, in which the following observation was made:

"Let us consider by way of illustration the consequences of upholding Mirra's claim in the context of an extreme but not wholly improbable case that could have arisen after, and out of, Mirra's contempt conviction. Assume that Mirra's projectile had received more accurate a propulsion and had scored on its intended target the Assistant United States Attorney. And assume further the grizzly and morbid fact that the Assistant United States Attorney had sustained an injury which ultimately proved fatal. To sustain Mirra's claim would, in effect, grant a summary contemnor immunity from a homicide prosecution an unconscionable result. Merely to state the case suffices to reveal what must perforce to be the answer to Mirra's theory." 220 F.Supp. at 366.

See also U. S. v. Rollerson, 308 F.Supp. 1014 (D.D.C.1970), aff'd, 145 U.S.App.D.C. 338, 449 F.2d 1000 (1971); O'Malley v. U. S., 128 F.2d 676 (8th Cir. 1942). These cases stress that in summary contempt cases, followed by later criminal proceedings, the accused is not subjected to the successive trials and prosecutions forbidden under the double jeopardy clause.

The elements necessary to sustain a conviction for the statutory crime of perjury are wholly different and distinct from those necessary to justify imposition of a contempt citation under T.C.A. § 23-902. In order for perjury to amount to contempt, there must be more than false swearing. There has to be an additional element of obstruction of justice or interference with the processes of the court. For example, false swearing could occur in a deposition, in an answer to an interrogatory, in an oath to a deed, or in some other context which might justify a conviction for perjury, but which would not necessarily amount to a contempt of court.

In the case of Ex parte Hudgings, 249 U.S. 378, 383-84, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919), the Supreme Court of the United States observed:

"An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted a principle which, applied to the subject in hand, exacts that in order to punish perjury in the presence of the court as a contempt, there must be added to the essential elements of perjury under the general law the further element of obstruction to the court in the performance of its duty. . . . It is true that there are decided cases which treat perjury, without any other element, as adequate to sustain a punishment...