State ex rel. Wright v. Barlow

• Decision Date: 11 February 1937
• Docket Number: 29868.
• Parties: STATE EX REL. WRIGHT v. BARLOW
• Court: Nebraska Supreme Court

271 N.W. 282

132 Neb. 166

STATE EX REL. WRIGHT v. BARLOW

No. 29868.

Supreme Court of Nebraska.

February 11, 1937

Syllabus by the Court.

1. A person who engages in the practice of law in this state without first procuring a license to so do, may be prosecuted for criminal contempt.

2. A contempt action is sui generis, neither civil nor criminal but in the nature of a criminal proceeding.

3. A prosecution for criminal contempt is governed by and in accordance with the strict rules applicable to criminal prosecutions.

4. Section 12, art. 1 of the Constitution, providing that " No person shall be compelled, in any criminal case, to give evidence against himself," has no application to one charged with contempt of court, and one so charged may be required to testify the same as any other competent witness.

5. That part of section 11, art. 1 of the Constitution, providing " In all criminal prosecutions the accused shall have the right * * * to meet the witnesses against him face to face" has no application in a contempt proceeding and does not prevent the use of depositions in such an action.

6. To sustain a finding of guilt in an action charging criminal contempt, the evidence must show the guilt of the defendant beyond a reasonable doubt.

7. Where the issues in an original action are formulated in this court, and the case then referred to a referee to take the evidence and make findings of fact and conclusions of law thereon, the ruling of the referee refusing the state permission to amend the information by adding a new count thereto is in all respects proper.

8. The period in which an action for criminal contempt can be brought is not limited by statute in this state, and, in the absence of a showing of special circumstances by which delay in instituting the suit has prejudiced the rights of the defendant, such an action is not barred by lapse of time.

9. The privilege of a witness of refusing to answer on the ground that such answer may tend to incriminate him or expose him to public ignominy must be timely made or it will be deemed to have been waived.

10. Evidence examined and held to sustain a finding of guilt for criminal contempt on three counts of the information.

Original proceeding by the State, on the relation of William H. Wright, Attorney General, against Robert A. Barlow, charging defendant with contempt of court for practicing law without a license.

Defendant found guilty.

Evidence relating to defendant's actions in handling administration of an estate, in advising appointment of a guardian in advising a guardian with respect to loaning of guardianship funds to guardian personally, and in preparing necessary documents for such proceedings, held to show that defendant was engaging in " practice of law," for which he was guilty of criminal contempt, where he had obtained no license.

Wm. H. Wright, Atty. Gen., Milton C. Murphy, Asst. Atty. Gen., and Lester A. Danielson, Sp. Asst. Atty. Gen., for plaintiff.

Ginsburg & Ginsburg, of Lincoln, and R. P. Kepler, of Sidney, for defendant.

Heard before GOSS, C. J., and ROSE, DAY, PAINE, and CARTER, JJ., and CHAPPELL, District Judge.

CARTER, Justice.

This is an original action brought by the Attorney General charging the defendant with contempt of court for practicing law in this state without a license. The issues were made up in this court and the case then referred to M. M. Maupin, as referee, to take the evidence and make findings of fact and conclusions of law thereon. The case is now before the court on the report of the referee and the exceptions of the defendant thereto.

The information, as originally filed in this court, contained 10 counts. A general demurrer to counts 7 and 8 was sustained by this court in a former opinion. State v. Barlow, 131 Neb. 294, 268 N.W. 95.The referee found for the defendant on counts 1, 2, 4 and 9. The referee further found that the defendant was proved guilty beyond a rea sonable doubt on counts 3, 5 and 10, and by a preponderance of the evidence on count 6. The exceptions filed by the defendant question the sufficiency of the evidence to sustain the findings of the referee on counts 3, 5, 6 and 10, and the correctness of the conclusions of law as determined by the referee.

That this court has the inherent power to punish by contempt proceedings those persons who engage in the practice of the law unlawfully cannot now be questioned. State v. Barlow, supra.The proceedings in the case at bar is one charging a criminal contempt. In Maryott v. State, 124 Neb. 274, 246 N.W. 343, 344, this court said: " Generally speaking, contempts are either direct, those committed in the presence of the court while in session, or constructive, consisting of those not committed in the presence of the court. Properly speaking, constructive contempts should be divided into two classes--criminal and civil. Those contempts which are prosecuted to preserve the power and vindicate the dignity of the court and to punish for disobedience of its orders are, ordinarily, termed criminal contempts, while those instituted to preserve and enforce the rights of private parties to the suit and to compel obedience to orders and decrees made to enforce the rights and to administer the remedies to which the court has found them to be entitled are, ordinarily, civil contempts."

The defendant contends that a prosecution for a criminal contempt is a criminal proceeding. With this we cannot agree. A proceeding for contempt is sui generis and summary in its nature. Its nature is aptly stated in the case of In re Gompers, 40 App.D.C. 293:" The action is sui generis, in a class by itself, partaking of some of the elements of both civil and criminal proceedings, but, strictly speaking, it is neither. It belongs to a class of proceedings inherent in the court, and deemed essential to its existence. It would hardly be held that a disbarment proceeding is criminal, although a severe penalty may be imposed; or that the power of a court to reprimand its officers for misconduct is a criminal proceeding, though the penalty im posed is humiliating and severe. These belong to a class of proceedings essential to the self-preservation of a court, and inherent in all courts, irrespective of their constitutional and statutory jurisdiction. Contempt, therefore, is without any particular form of action, and not subject to the limitations of procedure prescribed for the conduct of either civil or criminal actions." See, also, State v. Baker (Iowa) 270 N.W. 359.

While it is true that this court has said many times that a contempt action is in the nature of a criminal proceeding, strictly speaking it is not such. We conclude that it is an action sui generis, neither civil nor criminal, but in the nature of a criminal proceeding. We have examined the case of Connell v. State, 80 Neb. 296, 114 N.W. 294, and have concluded that the first syllabus thereof is wrong and it is hereby overruled.

This court has held that a prosecution for criminal contempt is governed by and in accordance with the strict rules applicable to criminal prosecutions. In Hydock v. State, 59 Neb. 296, 80 N.W. 902, 903, we said: " We have repeatedly held that proceedings in contempt are in their nature criminal, and no intendments will be indulged to sustain a conviction for contempt of court. Hawes v. State, 46 Neb. 149, 64 N.W. 699; Wilcox v. State, 46 Neb. 402, 64 N.W. 1072; O'Chander v. State, 46 Neb. 10, 64 N.W. 373; Zimmerman v. State, 46 Neb. 13, 64 N.W. 375." See, also, Bee Publishing Co. v. State, 107 Neb. 74, 185 N.W. 339; McCauley v. State, 124 Neb. 102, 245 N.W. 269; Maryott v. State, supra. Under the above authorities, we hold that a prosecution for criminal contempt is governed by the strict rules applicable to prosecutions by indictment.

While the prosecution for criminal contempt has many of the attributes of a criminal proceeding, one so charged is not entitled to a trial by jury. Gandy v. State, 13 Neb. 445, 14 N.W. 143; Hanika v. State, 87 Neb. 845, 128 N.W. 526.Neither is one so charged required to be arraigned before a hearing is held. Nebraska Children's Home Society v. State, 57 Neb. 765, 78 N.W. 267; Kopp v. State, 124 Neb. 363, 246 N.W. 718; Hanika v. State, supra.Nor may one convicted of a criminal contempt seek a review thereof by appeal; his remedy is by the institution of error proceedings. Hanika v. State, supra.

The record shows that the state called the defendant as a witness in its behalf over his objection that he was within the purview of secton 12, art. 1 of the Constitution of Nebraska, providing: " No person shall be compelled, in any criminal case, to give evidence against himself, or be twice put in jeopardy for the same offense." Clearly, a person cannot claim the benefits of this section of the Constitution unless it be in a case charging him with the commission of a crime. A contempt proceeding not being a criminal case, a person charged with contempt of court cannot invoke any benefit or privilege from this provision of the Constitution. The defendant in a contempt proceeding, therefore, may properly be called as a witness by the state and be required to testify the same as any other competent witness. This holding is sustained by the following cases: O'Neil v. People, 113 Ill.App. 195; People v. Seymour, 191 Ill.App. 381; State v. Reilly, 40 Wash. 217, 82 P. 287.

The defendant complains of the action of the referee in permitting the state to place in evidence the depositions of sundry witnesses for the reason that it deprives the defendant of his constitutional right to meet the witnesses against him face to face. That part of section 11, art. 1 of the Constitution, that is material on the point under consideration provides: " In all...