Neely v. State

• Decision Date: 27 February 1911
• Docket Number: 14839
• Citation: 54 So. 315,98 Miss. 816
• Court: Mississippi Supreme Court
• Parties: RAS NEELY v. STATE

54 So. 315

98 Miss. 816

RAS NEELY v. STATE

No. 14839

Supreme Court of Mississippi

February 27, 1911

APPEAL from the circuit court of Rankin county, HON. C. L. DOBBS Judge.

Ras Neely was convicted of contempt of court and appeals. The facts are fully stated in the opinion of the court.

Reversed.

Lamar F. Easterling and W. H. Thomson, for appellant.

Before a person can be found guilty of contempt not committed in the presence of the court, he must have due and reasonable notice of the proceeding. The rule to show cause should inform the defendant of the nature of the contempt alleged. 9 Cyc. Law and Proc., pp. 39, 41; Shattuck v. State, 33 L. R A. (N. S.), 51 Miss. 50, 24 Am. Rep. 624; State v. Charleston Dist. Sheriff, 1 Mill, Const. 145.

An affidavit charging the facts constituting the contempt is absolutely necessary to support a judgment of contempt unless the alleged contempt is committed at the time, and in the actual presence of the court. 4 Enc. Pl. and Prac., p. 779; Saunderson v. State, 151 Ind. 550, 52 N.E. 151.

Carl Fox, assistant attorney-general, for appellee.

Contempts are denominated direct and constructive, or indirect. A constructive, or indirect, contempt is everywhere defined as an act done, not in the presence of the court, but at a distance, which tends to belittle, degrade, obstruct, interrupt, prevent or embarrass the administration of justice. 9 Cyc. 6. See, also 2 "Words and Phrases, Title "Constructive Contempt."

In 9 Cyc. 5, it is said: "A direct contempt is an open insult in the presence of the court to the person of the presiding judge, or a resistance or defiance in his presence to its powers or authority."

This definition is not by any means exact. All contempts which are not constructive, or indirect, are direct. It is not necessary that a direct contempt should be an "open" insult or resistance or defiance of the court in the sense that it must be apparent to all present at the time. See 3 "Words and Phrases," Title "Direct Contempt."

Argued orally by W. H. Thomson and Lamar F. Easterling, for appellant.

OPINION

ANDERSON, J.

The appellant, Ras Neely, was fined one hundred dollars by the circuit court of Rankin county for contempt, and appeals to this court. The facts in reference to such alleged contempt are as follows:

The appellant was convicted of the unlawful sale of intoxicating liquors, and made a motion for a new trial. One ground of the motion, among others, is that he was not represented by counsel when tried, and, being in a state of intoxication was incapacitated to properly conduct his defense. The testimony of witnesses was taken on the trial of the motion. Touching appellant's intoxication, the testimony was substantially this: That while being tried he appeared to be sober, and to understand what was going on, and fully able to conduct his defense; that, if he was intoxicated, it was not noticeable. The trial judge stated, which is embodied in the bill of exceptions, that he paid particular attention to the appellant during his trial, and did not notice that he was intoxicated, if he was. The sheriff testified that on the day before the trial he saw the appellant in...