Scott, In re, 58

• Citation: 342 Mich. 614,71 N.W.2d 71
• Decision Date: 06 June 1955
• Docket Number: No. 58,58
• Parties: In re Matter of Virginia Ann SCOTT. Motion
• Court: Supreme Court of Michigan

Page 71

71 N.W.2d 71

342 Mich. 614

In re Matter of Virginia Ann SCOTT.

Motion No. 58.

Supreme Court of Michigan.

June 6, 1955.

Patrick J. Keating, Detroit, for petitioner.

Henrietta E. Rosenthal, Detroit, for respondent.

Before the Entire Bench.

BUTZEL, Justice.

Virginia Ann Scott, petitioner, seeks a writ of habeas corpus and the ancillary writ of certiorari to review what she claims was an illegal conviction of contempt of court by the Honorable Frank G. Shemanske, a judge of the recorder's court of the city of Detroit, also referred to as respondent.

Petitioner and Haroldine Cucchi, both 18 years of age, were informed against for larceny of a wallet in the city of Detroit. Petitioner pleaded guilty to a lesser charge but later was called as a prosecution witness at the trial of her alleged accomplice. The record reveals that during the trial petitioner's testimony was at times contradictory in nature regarding the complicity of Haroldine Cucchi. She initially testified that defendant Cucchi was not aware of the theft of the wallet. Later she stated that defendant Cucchi knew that petitioner had the wallet but asked her to return it. Petitioner further testified that Cucchi was not an accomplice as alleged and that neither of the two told a police officer and a matron that they were both involved and in fact had planned the crime together. This testimony contradicted that given by the officer and the matron who swore that the two girls had admitted to them their joint participation in the crime. After her testimony petitioner was ordered to be present in the court each day of the trial. Two days later, while the jury was considering its verdict, the court called petitioner before the bench and advised her that she was in contempt of court and summarily sentenced her to 15 days in jail. Though previously admonished to tell the truth, petitioner was not given a hearing on the charges nor properly advised of them prior to being sentenced, nor given the opportunity to obtain counsel in order to present a defense. Petitioner here seeks to review this summary conviction.

In reviewing these proceedings we are limited to a consideration of whether there is any testimony to support the finding and more particularly whether the court legally proceeded in the manner it did. In re Wood, 82 Mich. 75, 45 N.W. 1113; In re Gilliland, 284 Mich. 604, 280 N.W. 63.

Does the record reveal facts sufficient to support a conviction? The conviction order states that petitioner:

'* * * give wilfully false and evasive testimony as follows: she denied that said Haroldine knew what she, Virginia, was going to do when Virginia went to Cora's (complainant) purse; whe denied that she had told detective Sopolinski that Haroldine knew this (Tr 4); she denied that she had told a police matron that Haroldine was also in on this; she denied that she had agreed to steal this money with the other girl (5); she denied that Haroldine knew what she was doing in the store; she denied that she and Haroldine planned this thing (larceny) before going into the store. She testified falsely, on cross-examination that Haroldine didn't know at any time that she, Virginia, had taken the money (7) that she hadn't planned it (8) all of which testimony was wilfully false and evasive and in contempt of this Court and said Virginia Ann Scott is therefore adjudged guilty of criminal contempt.'

The partial transcript attached thereto contains excerpts of petitioner's testimony and the testimony of both the police officer and police matron. In so far as that part of the record is concerned it is evident that the conviction was based entirely upon the fact that petitioner's testimony conflicted with that of these other witnesses. Respondent asks, and petitioner does not object, that we also look to his return, supported by a complete transcript in order to find that the contempt conviction was based upon other conduct as well. As will be noted later in the opinion, it is important to determine the basis for the conviction. Respondent states in his return that:

'The attitude of petitioner on the stand, her evasive replies to prosecutor's questions, her patent co-operation with defense counsel, her changing testimony in response to his leading questions, her contumacious and contemptuous attitude towards the court, and her own contradictory statements were evidence of her contempt of this court and her efforts to thwart public justice. These were substantiated by the testimony of the three witnesses mentioned.'

Apparently the jury believed petitioner because they acquitted Haroldine Cucchi. This, however, would not be decisive to the question. A review of the entire proceeding convinces us that there were sufficient facts upon which a contempt conviction might be sustained. It is further evident that the conviction was based primarily upon the fact that petitioner's testimony conflicted with that of other witnesses, though her own contradictory statements and conduct contributed to the decision. That such demeanor can be contempt is well settled. C.L.1948, § 605.1, Stat.Ann. § 27.511; People v. Doe, 226 Mich. 5, 196 N.W. 757; People v. Wolfson, 264 Mich. 409, 250 N.W. 260; 11 A.L.R. 342; 73 A.L.R. 817. We find nothing evasive or contumacious in the testimony except in so far as it is in contradiction with that of the two witnesses for the People.

Petitioner, however, was convicted summarily. In view of the circumstances was she thus accorded due process of law, or was she entitled to a full hearing on the charges, with the right to obtain counsel, and time to present a defense? The statute authorizing summary contempt procedure, C.L.1948, § 605.2, Stat.Ann. § 27.512, provides:

'When any misconduct, punishable by fine and imprisonment as declared in the last section, shall be committed in the immediate view and presence of the court, it may be punished summarily, by fine or imprisonment, or both, as hereinafter prescribed.'

It should be here noted that statutes of the type enacted in Michigan are merely declaratory, and in affirmation, of the inherent common law right of courts of record to determine contempt. Langdon v. Judges of the Wayne Circuit Court, 76 Mich. 358, 43 N.W. 310; 17 C.J.S., Contempt, § 43. What occurred in this case, of course, took place in the physical 'presence of the court'. However, in order to have a valid summary conviction, due process requires that the salient facts constituting the contempt be within the personal knowledge of the judge. In In re Wood, supra, this court was considering a summary conviction for contempt arising out of statements written on the back of a check paid into court pursuant to an imposed fine. Discussing the meaning of 'in the presence of the court,' the opinion states [82 Mich. 75, 45 N.W. 1115]:

'The immediate view and presence does not extend beyond the range of vision of the judge, and the term applies only to such contempts as are committed in the face of the court. Of such contempts, he may take cognizance of his own knowledge, and may proceed to punish summarily such contempts, basing his action entirely upon his own knowledge. All other alleged contempts depend solely upon evidence, and are inferences from fact, and the foundation for the proceedings to punish these must be laid by affidavit.' (Emphasis added.)

In a more recent case the Ohio court has held that personal judicial knowledge of the operative facts is necessary in a summary conviction, further saying of the testimony that a 'well founded belief of its untruthfulness is not sufficient.' Fawick Airflex Co., Inc., v. United Electrical, Radio & Machine Workers of America, Local 735, 1950, 87 Ohio App. 371, 92 N.E.2d 436, 442, appeal dismissed, 154 Ohio St. 106, 93 N.E.2d 409. The court in that case also held that where...