Morrow v. Roberts, 5--5569

• Decision Date: 31 May 1971
• Docket Number: No. 5--5569,5--5569
• Citation: 467 S.W.2d 393,250 Ark. 822
• Parties: Michael MORROW, Petitioner, v. Russell C. ROBERTS, Judge, Respondent.
• Court: Arkansas Supreme Court

Page 393

467 S.W.2d 393

250 Ark. 822

Michael MORROW, Petitioner, v. Russell C. ROBERTS, Judge, Respondent.

No. 5--5569.

Supreme Court of Arkansas.

May 31, 1971.

Rose, Barron, Nash, Williamson, Carroll & Clay, Little Rock, for petitioner.

Ray Thornton, Atty. Gen., Milton R. Lueken, Asst. Atty. Gen., Little Rock, for respondent.

BROWN, Justice.

Petitioner Michael Morrow was found in contempt of the Faulkner Circuit Court on two separate counts. He was sentenced to fifteen days in jail and fined thirty dollars for failure to respond to a subpoena. When Morrow was brought before the court on that charge he was instructed to permit his hair to be cut. He declined and was sentenced to thirty days on the county penal farm. The sentences were to run consecutively and it was provided that he could purge himself of the second sentence if during the first fifteen day period he permitted his hair to be cut. The following day this court ordered Morrow released under bond based on his petition for a writ of habeas corpus. On appeal Morrow contends that he was not guilty of contempt on either charge and, alternatively, that the punishment was excessive.

We have before us a complete transcript of the record and proceedings incident to petitioner's conviction. 'Consequently, we must review the record to determine the propriety of the trial court's action.' Widmer v. State, 243 Ark. 952, 422 S.W.2d 881 (1968). In making that review we begin with the proposition that this is a procedure for criminal contempt and the proof of guilt must be shown beyond a reasonable doubt. Blackard v. State, 217 Ark. 661, 232 S.W.2d 977 (1950). We examine the record for substantial evidence.

1. Response to the Subpoena. Morrow, a resident of Little Rock, was served with a subpoena on December 2, 1970, to appear in the Faulkner Circuit Court, Conway, on December 7 to testify on behalf of the plaintiff in the case of State v. Pruitt. Morrow did not report on the date ordered. He was brought before the court on December 10 and punishment was imposed. Morrow challenges the punishment for failure to report on two grounds. First, he says he called the office of the deputy prosecuting attorney on the morning of December 7 and advised his secretary that he, Morrow, had no transportation; that he was told by the prosecutor's secretary to stand by for further instructions; and that he waited at home for some four hours and heard nothing. The first weakness in petitioner's position is that he waited some four days and until the day of court when he was to report at 9:00 a.m. before explaining his transportation problem. Additionally, the court may have correctly concluded that other modes of travel were available for the short distance of some twenty-five miles from Little Rock to Conway. secondly, petitioner contends that because of a stipulation between the parties his testimony was not needed. We do not so interpret the record.

Mr. Pruitt was being tried for alleged embezzlement while employed in the business office of State College of Arkansas. Scores of students had been subpoenaed (Morrow was a former student) by the State to testify that they paid stated amounts as entrance fees, whether they paid in person or by mail, whether they received a receipt, and whether they could identify the college official with whom they dealt. Counsel for both parties interviewed all the students and former students who were present and stipulated what their answers would be to the enumerated questions. Thereupon those students were released. They could not stipulate as to petitioner's testimony because he was not present. His absence was reported to the court and an officer was sent to Little Rock with an attachment. Shortly after noon counsel for the State and for Pruitt went to the jail where petitioner had in the meantime been incarcerated and obtained from him all information which answered the recited questions. It was at that time that a stipulation was made as to petitioner's testimony which eliminated the necessity for his taking the witness stand. It must be noted that petitioner's presence was needed on December 7, the opening day of the trial, and again on the morning of December 10. Furthermore, the prosecutor testified that petitioner's presence was necessary to obtain the answers to enumerated questions before his presence on the witness stand could be waived. We are unable to say the court was in error in imposing punishment for failure to respond to the subpoena.

This brings us to a consideration of the amount of punishment imposed. It constitutes criminal contempt for one to willfully disobey any process or order of the court. Ark.Stat.Ann. § 34--901 (Repl.1962). Section 34--902 fixes a maximum fine of fifty dollars and imprisonment not to exceed ten days. However, that section has been held not to be a limitation on the power of the court to inflict punishment for disobedience of process. Spight v. State, 155 Ark. 26, 243 S.W. 860 (1922). Be that as it may, petitioner was nineteen years of age at the time, and according to his unrefuted testimony, he did make some effort to notify the authorities of his transportation problem. Further, his failure to respond caused no delay in the trial. Under the circumstances we think a fine of thirty dollars and twenty-four hours in jail (which he has already served) constitute sufficient punishment.

2. Refusal to Have Hair Cut. When the court imposed penalty on the first count appellant was ordered committed and the sheriff was directed to get appellant a haircut. Later in the day petitioner was brought before the court for a hearing. With regard to failure to get a haircut this colloquy occurred:

COURT: And when you were...