State v. Harris
| Decision Date | 26 October 1905 |
| Citation | 105 N.W. 621,14 N.D. 501 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Pollock, J.
Marie Harris was adjudged guilty of contempt, and appeals.
Affirmed.
M. A Hildreth, for appellant.
Affidavits upon information and belief without personal knowledge are usually condemned. State v. McGahey et al., 12 N.D 547, 97 N.W. 865; Swart v. Kimball, 43 Mich. 451; Kaeppler v. Red River Valley Nat. Bank, 8 N.D. 411 79 N.W. 869; Thomas v. People of the State of Col., 9 L. R A. 569.
Objections to the interrogatories should have been sustained. Section 5942 contains provisions that are mandatory. Noble Tp. v. Aasen, 10 N.D. 265, 86 N.W. 742, 57 Am. St. Rep. 568; State v. Root, 5 N.D. 487, 67 N.W. 590.
In contempt proceedings the acts of the asserted contempt must be stated with the certainty required in the statement of an offense in a criminal action, and upon the personal knowledge of the affiant. Herdman v. State, 74 N.W. 1097; State v. Sweetland, 54 N.W. 415; Bloom v. People, 48 P. 519; Freeman v. City of Huron et al., 66 N.W. 928; O'Chandler v. State, 64 N.W. 373; Zimmerman v. State, 64 N.W. 375; State v. Galup, 42 P. 406; State ex rel. Olson et al., v. Allen et al., 45 P. 644; Cooper v. People of Col., 6 L. R. A. 430; Batchelder v. Moore, 42 Cal. 415.
Contempt proceedings are quasi criminal, and guilt must be established with the sufficiency of proof required in criminal cases, evidence clear and satisfactory; a mere preponderance is insufficient. In re Buckley, 10 P. 69; Prehohl et al. v. O'Sullivan, 80 N.W. 903; Haight v. Lucia et al., 36 Wis. 355; 5 Crim. Law Mag. and Rep. 508-509.
No presumptions or intendments are indulged. Burdick v. Marshall, 8 S.D. 308, 66 N.W. 462; Ex parte Hollis, 59 Cal. 405; Ex parte Gould, 21 L. R. A. 751; State v. Sweatland, 54 N.W. 415; Howes v. State, 64 N.W. 699.
Offense is not established beyond a reasonable doubt. Hydock et al. v. State, 80 N.W. 902; Haight v. Lucia et al., supra; Boyd et al. v. U.S. 116 U.S. 616, 29 L.Ed. 746; Ex parte Gould, supra; Ex parte Hollis, supra.
B. D. Townsend, for respondent.
Statements upon information and belief may be disregarded and affidavits are sufficient without them. State v. Root, supra; Noble Tp. v. Aasen, supra.
Evidence of the general character of a house is competent to prove it a bawdy house. Hanson v. State, 5 Cr. Law Mag. & Rep. 693; Territory v. Stone, 2 Dak. 155, 4 N.W. 697; Territory v. Chartland, 1 Dak. 379, 46 N.W. 583.
MORGAN, C. J. ENGERUD, J., did not sit on the hearing; Hon. CHARLES J. FISK, Judge of the First Judicial District, sitting in his place by request.
This is an appeal from an order of the district court of Cass county, finding the defendant guilty of a violation of an injunctional order issued by said court on June 3, 1904. The injunctional order was issued in an action between Andrew Johnson and other as plaintiffs and Marie Harris and others as defendants. The order which it is claimed that the defendant has violated is as follows, so far as material, to wit: "It is ordered that the defendant * * * be * * * hereby enjoined, restrained and forbidden from in any manner using or occupying or permitting to be used or occupied any part of the premises described in the complaint for or as a house of prostitution or place of resort for prostitution until the further order of this court." The regularity of the proceedings in the action in which the injunctional order was issued is not questioned, nor is any question raised as to the service upon defendant of said injunctional order. In December, 1904, contempt proceedings were instituted in the district court pursuant to sections 5936 and 5937, Rev. Codes 1899, based upon affidavits charging that the defendant had violated said injunctional order. The district court thereupon issued a warrant of attachment for the defendant, and she was brought into court and pleaded that she was not guilty of a violation of the commands of the injunctional order. Thereupon written interrogatories were submitted to the defendant for written answers. Upon filing such answer and after hearing other evidence submitted by witnesses sworn in court, and upon the original affidavits, the court found the defendant guilty of willfully violating the injunctional order, and ordered that she be punished by being imprisoned in the county jail for thirty days and by paying a fine in the sum of $ 250. There are numerous specifications of error, but they can be disposed of under the following general assignments: (1) That the contempt proceedings were not conducted by the state's attorney of Cass county, nor by the attorney general of the state, as provided by the provisions of section 9, c. 178, p. 235, Laws 1901. (2) That the evidence is insufficient to sustain the conviction. (3) That the affidavits on which the warrant was issued did not state facts sufficient to confer jurisdiction on the court. (4) That the interrogatories were not in compliance with section 5942, Rev. Codes 1899. (5) That errors were committed in the admission of the evidence at the hearing.
Upon the first specification it is contended that the contempt proceedings were conducted by an attorney who was not the state's attorney of Cass county, or his assistant, or the attorney general of the state, or his assistant, and was not appointed by the court under chapter 178, p. 234, Laws 1901. No objection was made to the attorney who conducted the proceedings until the costs were being taxed. The objection was then made as a ground for the disallowance of all costs. The objection that was then made was to "any hearing being had on the subject of costs * * * on the further ground that Mr. Tenneson, who appears in these proceedings, had no authority to appear in behalf of the state at no stage of the proceedings, and has no authority to conduct this prosecution, or to ask for the allowance of any costs." The objection came too late, even if conceded to be meritorious if made in time. By permitting the attorney to conduct the proceedings without challenging his authority promptly, the defendant waived the want of authority and consented to the appearance of the attorney. State ex rel. Donovan, 10 N.D. 610, 88 N.W. 717. It does not, however, appear in the record that Mr. Tenneson had no authority to appear as attorney in the contempt proceedings.
It is also urged that the affidavits on which the warrant of attachment was issued will not sustain such warrant, for the reason that the facts set forth in the affidavits are stated upon information and belief. The affidavits are too voluminous to be set forth in the opinion. A careful reading of them shows the point not to be well founded as a matter of fact. There are statements in the affidavits based on information and belief, but in every instance they pertain to the affiant's conclusions as to the purposes for which persons entered the house owned by the defendant. This purpose was alleged upon information and belief. Without these allegations the affidavits stated sufficient facts on which to base a warrant of attachment. The purpose for which persons entered the house, as given in the affidavit, might have been stricken out, and sufficient facts would remain stated in the affidavits to sustain a warrant based thereon. The affidavits contained positive statements of facts sufficient to confer jurisdiction on the court to issue the warrant.
It is next urged that the interrogatories as filed did not comply with the terms of section 5942, Rev. Codes 1899, which provides that the "court or judge must, unless the accused admits the offense charged, cause interrogatories to be filed specifying the facts and circumstances of the offense charged against him." The objection urged to the interrogatories is that they do not in any way specify the facts and circumstances of the offense, as provided by the language of the statute. If the section could be construed to mean that the interrogatories must specify the facts and circumstances of the offense, then the statute provides that the defendant is entitled to two specifications of what the offense charged is. The affidavits on which the warrant is issued take the place of a complaint, and must state facts showing the offense complained of as a contempt. State v Root, 5 N.D. 487, 67 N.W. 590, 57 Am. St. Rep. 568. To provide for another charge or complaint would answer no purpose. The meaning to be given to the section is that the interrogatories must inquire of, and relate to, the facts of the contempt charged, and not to any other offense or contempt. Construing the whole section together, it is clear that it means that the interrogatories shall be so framed as to elicit answers from the defendant as to the facts and circumstances of the contempt, and that it cannot be construed to mean that the filing of interrogatories shall add to, or enlarge or explain the charge already made by the moving affidavits. The use of the word "interrogatories" precludes the idea that the...
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