Moody v. State, 49165
| Decision Date | 15 March 1974 |
| Docket Number | No. 49165,No. 2,49165,2 |
| Citation | 206 S.E.2d 79,131 Ga.App. 355 |
| Parties | Mamie H. MOODY v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. One compelled under the police power of the state to do an act may not be punished because such act is in itself unlawful.
2. Except for contempts committed in the immediate presence of the judge, due process requires that in the prosecution of alleged contumacious conduct the accused be advised of the charges against him and given a reasonable opportunity to meet them by way of defense or explanation.
Moody was on trial for murder. His wife, the appellant in this contempt case, had been subpoenaed by both the state and the defendant. When the murder case was called for trial defendant's attorney stated he was unable to contact the wife. It does not appear that the state was in fact interested in calling her as a witness. A sheriff was dispatched and found her in 'the woodyard,' a place where she worked at unskilled labor. She was brought into the courtroom in a 'fuzzy' condition attributable either to liquor or medicine. The trial was in progress at the time and the judge, after briefly examining her, had her kept in custody overnight with instructions that any liquor and drugs be removed. She testified the next day for the defense without any actual delay of the trial. As to the appellant's mental condition when she was brought into the courtroom, defendant's lawyer, who was making the point that she was in no condition to testify at that time, asked a deputy sheriff: 'Do you feel in any way that her thought processes are impaired?' to which he replied:
The criminal case ended in a mistrial. The judge cleared the courtroom. Then, according to the stipulation, he called Mrs. Moody to the bench and asked her two questions (not informing her of his purpose in doing so): Where she had been the preceding day and whether she had received her subpoena. Mrs. Moody replied that she had been at the woodyard and that she had received the subpoena but was unable to comply because she had had car trouble. The judge then summarily declared her in contempt of court and orally imposed a fine and prison sentence. The order as subsequently reduced to writing recited that appellant failed to appear in response to a subpoena and gave no good or legal reason, that she was returned to court by the sheriff's office, that she was at that time under the influence of alcohol or some other drug, and declared 'that she is in contempt of this court for failing to appear in response to said subpoenas and that she is further in contempt for appearing in a semi drunken condition,' and imposed the sentence of 20 days and $200, from which she appeals.
Millard C. Farmer, Jr., Newnan, for appellant.
Eldridge W. Fleming, Dist. Atty., Hogansville, William F. Lee, Jr., Newnan, for appellee.
1. The order adjudging appellant in contempt of court and consequent sentence shows on its face that it is based on two findings of contumacious conduct: failure to appear as directed by a subpoena and appearing in a courtroom while under the influence of alcohol. We consider these findings separately and in inverse order. The court, on conflicting evidence, had a right to determine that the witness was temporarily incapacitated and that this state stemmed from alcohol rather than drugs. Her appearance in that condition in the courtroom, however, was not voluntary but resulted from her having been arrested and conveyed there by the sheriff's office. It was stated in Marshall v. State, 70 Ga.App. 106, 27 S.E.2d 702 that a conviction for public drunkenness is unauthorized where it appears that the defendant, although drunk, was not in a public place after he had been arrested and conveyed there by police officers. Where one was found lying drunk on a public road, but it did not appear whether he had gone there voluntarily or been placed there by others, the circumstantial evidence did not exclude the hypothesis of innocence. Reddick v. State, 35 Ga.App. 256, 132 S.E. 645. 'When a person is intoxicated in a place which is not one designated by statute, he cannot be forcibly removed from that place to a public place within the purview of the statute and then charged with committing the offense in the latter place.' Finch v. State, 101 Ga.App. 73, 112 S.E.2d 824. Where a defendant was arrested for improper parking and ordered to drive his automobile to police headquarters, this act did not subject him to conviction for driving without a license. 'When society, through its law-enforcement officers, has been the cause of an individual's action, it seems unjust for society to punish him.' State v. Ragland, 4 Conn.Cir. 424, 233 A.2d 698, citing 73 Harvard Law Review 1333, 1335. See also State v. Miller, La.App. 187 So.2d 461. The appellant's presence in the courtroom was due to actions of law enforcement officers, not her own, and she could not be held in contempt merely for appearing there in a drunken condition.
2. As to the due process defense, it is apparent that the appellant had neither notice nor hearing, nor was she in any way informed either when first brought into court or at the conclusion of the trial when recalled that the judge contemplated holding her in contempt. It might be observed that the witness, being the wife of the defendant on trial, was not compellable to testify in any event (Code Ann. § 38-1604) but this would have to be a point of personal privilege. Whether she was even aware of the fact is in grave doubt. Further, the subpoena which was served on her had printed on it: 'Fail not under penalty of Three Hundred Dollars' with no mention of possibility of imprisonment, but again we should probably indulge the entirely erroneous presumption that this citizen knows what the law is.
' Due process of law means the administration of general laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the subject-matter, and proceeding upon notice and hearing.' Norman v. State, 171 Ga. 527(2), 156 S.E. 203. Was the appellant entitled to notice and hearing on the charge that she had contumaciously refused to obey the subpoena? The answer lies entirely in the kind of contempt embraced by the charge. Code § 24-105 provides: 'The powers of the several courts to issue attachments and inflict summary...
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Farmer v. Holton
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