State v. District Court of Second Judicial Dist.

• Decision Date: 11 May 1908
• Citation: 95 P. 593,37 Mont. 191
• Parties: STATE ex rel. WEBB v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT et al.
• Court: Montana Supreme Court

95 P. 593

37 Mont. 191

STATE ex rel. WEBB v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT et al.

Supreme Court of Montana

May 11, 1908

Citation against John Webb, directing him to show cause why he should not be punished for contempt for unlawfully interfering with the proceedings of the court by attempting to improperly influence certain jurors. A judgment was rendered for writs of supervisory control and certiorari. Application for writ Of supervisory control discharged, application dismissed, and judgment affirmed.

Brantly C.J., dissenting in part.

C. M Parr and John J. McHatton, for relator.

H. A Frank, for respondents.

BRANTLY C.J.

On March 25, 1908, there were filed in the district court of Silver Bow county, in department 2 thereof, the Honorable George M. Bourquin being the presiding judge, the four several affidavits which follow:

"Frank Boucher, being first duly sworn, on oath deposes and says: That he is the defendant in the above-entitled action. [John Webb, Plaintiff, v. Frank Boucher, Defendant.] That said action was commenced on or about the 18th day of June, 1907, by the filing of a complaint therein, and ever since has been, and now is, undisposed of, undetermined and pending in department 2 of the above-entitled court. That said action was originally set for March 7, 1908, for trial, and has been regularly continued from time to time to March 31, 1908.

"[Signed] Frank Boucher."

"L. J. Smith, being first duly sworn, on oath deposes and says: I am commonly called 'Smithie.' I am a hackman, and have my stand in front of P. C. Gillis' cigar store, on Main street, in the city of Butte, Mont. That C. H. Hickman is a member of the trial jury now in attendance on department 2 of the above-named court, and has been such juryman for more than four weeks last past. That said Hickman is also a hackman, and has his stand at the same place I have mine. Deponent further says that on Friday afternoon, on March 13, 1908, at about 5 o'clock p. m. on said date, John Webb came to me at my stand and said: 'Where is Hickman?' I said: 'I don't know where he is. He is on a jury up there, and maybe he is not out yet.' I further said: 'What do you want? He and I are kind of partners here.' Webb then said: 'I want to see him. I understood he was on the jury. I have got a case coming up with Frank Boucher. I am suing him for $5,000, and I thought maybe Hickman could do something for me. That was all I wanted to see him about.' At this time we were talking about said Hickman. I then said to Webb: 'Hickman is a pretty square sort of a fellow in my opinion. If he happens to be on your jury, and he thinks you have anything coming to you, why you'll get it; otherwise, you won't.' Webb then said: 'Don't say anything about this to anybody.' I said: 'I won't to anybody except Hickman. Of course, I will have to tell Hickman.' Said Webb then said: 'Of course. It is just this way: I worked about five years over there. I put in them windows and doors. I have got this money coming to me, and Boucher is trying to beat me out of it; and if I get a verdict in my favor I'll make it right with him.' At this time we were talking about said Hickman. Webb further said: 'I am willing to make it right with any of the boys that stay with me.' Deponent further says that about this time said Hickman drove up, and I said to Webb: 'There is Hickman now. You can have a talk with him yourself; but,' I said, 'I don't think you can do anything with him, unless the evidence would make him feel that you are entitled to it.' I then left the said Webb, and had no further conversation with him, and immediately thereafter spoke to Hickman about the matter. Deponent further says that, during his conversation with said Webb (but at what particular part of it deponent does not now remember), said Webb asked this deponent to speak to said Hickman about the matter, and deponent told said Webb he bad better see Hickman himself.

"[Signed] L. J. Smith."

"C. H. Hickman, being first duly sworn, on oath deposes and says: That he is a hackman, with a stand in front of P. C. Gillis' cigar store, on Main street, in the city of Butte, Mont., and is well acquainted with, and to some extent connected in business with, L. J. Smith, commonly known as 'Smithie,' who is also a hackman, with a stand at the same place. That deponent is now, and has been for more than four weeks last past, a member of the regular panel of trial jurors in attendance upon department 2 of the above-named court. That said L. J. Smith came to me at said stand about 5 p. m., on March 13, 1908, and said: 'Do you know that fellow that was talking to me there?' I said: 'Yes.' Said Smith then said: 'He has a case coming up in Bourquin's court, and he said he would make it right with any of the boys who would stand with him.' Said Smith then told me that said Webb asked if I was all right, and said Smith answered that I was on the square, and that if he (said Webb) had any damages coming I would give them to him, and if he didn't I wouldn't.

"[Signed] C. H. Hickman."

"W. Edgar Wright, being first duly sworn, deposes and says: That he is now and for more than four weeks last past has been a member of the regular panel of trial jurors in attendance upon department 2 of the above-named court. That on or about the 6th day of March, 1908, John Webb walked behind deponent and one Solveson from the Thornton Hotel, in the city of Butte, Mont., to P. C. Gillis' cigar store in said city. That at said last-mentioned place said Webb invited deponent to have a cigar, and then said, in substance, to deponent: 'You are on the jury. It must be tiresome work on the jury. I have a case coming up there, and I hope, the boys will do the right thing by me.' Deponent then walked away from the said Webb, and had no further conversation with him.

"[Signed] W. E. Wright."

Thereupon the court issued a citation requiring John Webb, the relator, to show cause why he should not be adjudged guilty of contempt for unlawfully and willfully interfering with the proceedings of the court by attempting to improperly influence Jurors Hickman and Wright, then in attendance upon the court. The relator, having appeared by his counsel at the appointed time, entered a plea of not guilty. After hearing the evidence, the court found him guilty, and sentenced him to imprisonment in the county jail for five days, and to pay a fine of $200, with additional imprisonment until the fine should be paid or satisfied. Thereupon application was made to this court for writs of supervisory control and certiorari to annul the judgment, the grounds of the application being (1) that the affidavits upon which the conviction is founded do not state sufficient facts to show a contempt; and (2), assuming that they do, that the evidence is insufficient to justify conviction. The theory upon which application was made for both writs is that, while upon certiorari the court may determine the question of jurisdiction arising upon the sufficiency of the allegations contained in the affidavits, it may not, upon the review afforded by this writ, examine the evidence to determine its sufficiency to sustain the finding and judgment. Hence, following the course pursued in State ex rel. Sutton v. District Court, 27 Mont. 128, 69 P. 988, the supervisory power of the court was invoked to determine this question, in case the conclusion was reached that the district court had jurisdiction.

Section 2170 of the Code of Civil Procedure provides: "The following acts or omissions, in respect to a court of justice, or proceeding therein, are contempts of the authority of the court." The first eight subdivisions of the section enumerate various specific things which are contempts. Some of these are direct, while others are indirect or constructive contempts. Subdivision 9 reads, "any other unlawful interference with the process or proceedings of a court." This includes acts other than those enumerated in the preceding subdivisions, whether done in the presence of the court or not. The acts charged here constitute an indirect contempt, for they did not occur in the presence of the court. It is said that the affidavits are not sufficient in form to state a contempt, in that nowhere in them is it alleged that the acts done were done with intent then and there unlawfully to interfere with the proceedings of the court. A sufficient answer to this contention is that the statute does not require the affidavit to be drawn in strict conformity with the rules of criminal pleading, as in case of informations or indictments. Section 2172 of the Code of Civil Procedure declares: "*** When the contempt is not committed in the immediate view and presence of the court, or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators or other judicial officer." This provision does not prescribe any form, nor require, any characterization, of the act charged as a contempt in order to confer jurisdiction. It merely requires a statement of the facts constituting the contempt. In the absence of some requirement of statute prescribing the form in which the charge must be presented a substantial and general statement will give the court jurisdiction to proceed. Jordan v. Circuit Court, 69 Iowa, 177, 28 N.W. 548; State ex rel. Fischer v. District Court, 65 Minn. 146, 67 N.W. 796. The particular act with the attendant circumstances furnishes its own characterization, if the statement be complete and substantial enough to justify a conclusive inference of knowledge and intent in the contemnor at the time the act is done.

It is said that a contempt proceeding is criminal or quasi...