State v. Jasper

• Decision Date: 16 May 1916
• Citation: 88 S.E. 1096,78 W.Va. 385
• Parties: STATE v. JASPER ET AL.
• Court: West Virginia Supreme Court

88 S.E. 1096

78 W.Va. 385

STATE v. JASPER ET AL.

Supreme Court of Appeals of West Virginia.

May 16, 1916

Syllabus by the Court.

The courts of this state have authority by statute to issue attachments and punish summarily for contempt in the following cases, among others, namely, for "misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice," and for "misbehavior of an officer of the court, in his official character." Section 27, c. 147, Code 1913 (sec 5280).

Additional Syllabus by Editorial Staff.

In a prosecution for a felony, the filing of pleas in abatement charging that the judge improperly influenced the grand jury with regard to bringing in the indictments did not constitute "misbehavior" amounting to contempt.

Where defendants in a felony case had filed a plea charging the judge with improperly influencing the grand jury, and after answering questions of the judge, relating to the plea, their attorney objected to the questions and directed them not to answer any further questions, but the record does not show that any further questions were asked, that they appealed to their counsel for direction or signified their intention to follow his advice, they were not guilty of contempt.

An attorney who advised defendants in a criminal case to refuse to answer questions by the judge as to pleas in abatement which had been filed was guilty of contempt.

Error to Circuit Court, Fayette County.

S. J Jasper and others were convicted of contempt, and bring error. Reversed, and proceedings dismissed as to defendants Jasper and another, and affirmed as to C. W. Osenton.

McClintic, Mathews & Campbell, of Charleston, for plaintiffs in error.

A. A. Lilly, Atty. Gen., and John B. Morrison and J. E. Brown, Asst. Attys Gen., for the State.

MASON J.

By an order entered in the criminal court of Fayette county it appears that S. J. Jasper, R. W Cannaday, and C. W. Osenton were fined $50 each for contempt of court. The defendants carried the case to the circuit court of the county, and the judgment of the criminal court was affirmed. The defendants have brought the case here for review upon writ of error.

There is no material conflict in the testimony upon which the proceedings for contempt were based. The record shows that separate indictments for felony were pending against Jasper and Cannaday in the criminal court of Fayette county. C. W. Osenton, who is a practicing attorney, appeared as one of counsel for these defendants. Among other defenses, a plea in abatement was tendered in each case. The purpose of the pleas was to show that the indictments in each case had been improperly returned by the grand jury. The pleas tendered were identical except as to names. These pleas, among other things, charged that the judge of the court improperly influenced the grand jury in its action in this behalf. The court refused to permit the filing of the pleas, to which ruling the defendants excepted; and the pleas are made part of the record. While the court was passing on these motions, a bill of exceptions filed in the case shows that:

"Thereupon the court inquired of the defendants S. J. Jasper and Dr. R. W. Cannaday if they had signed said respective pleas, and if they knew the contents thereof, and they both answered that they had signed same and knew the contents thereof. Thereupon the court inquired of C. W. Osenton, of counsel for said defendants, if he prepared said pleas, and he stated that he had; and thereupon the said C. W. Osenton objected to the court interrogating the defendants upon said pleas, and directed them not to answer any further questions; and thereupon the court fined the said C. W. Osenton, S. J. Jasper, and R. W. Cannaday $50 each. Thereupon the said C. W. Osenton moved the court to set aside said finding in each case, which motion the court overruled, and to the action of the court in overruling said motion, the defendants excepted."

The order of the court assessing the fines states that:

"This day the defendants, S. J. Jasper, R. W. Cannaday, and C. W. Osenton, were adjudged for contempt of court for misbehavior in the presence of the court or so near thereto as to obstruct and interrupt the administration of justice, in this, that C. W. Osenton, S. J. Jasper, and R. W. Cannaday did prepare and file with the court under the guise and upon the pretext of filing a plea in abatement to the indictments in the case of the State of West Virginia v. S. J. Jasper and R. W. Cannaday, for felonies, certain paper writings falsely charging bias and prejudice on the part of John T. Simms, judge of the court, and by insinuation and allegation questioning the integrity of the trial judge as to matters now properly pending before him for the purpose of embarrassing and intimidating the judge of the court and hampering and impeding the progress of justice, and for further misbehavior in the presence of the court for the purpose of obstructing and interrupting the administration of justice, to wit, when the court was proceeding to inquire of S. J. Jasper and R. W. Cannaday whether they had signed said alleged pleas in abatement, and whether they knew the contents of same and as to make further inquiry, C. W. Osenton, counsel for said Jasper and Cannaday, arose, and in an insolent and offensive manner, in the presence of the court, and in very audible tones, advised the said Jasper and Cannaday not to answer further inquiries of the judge of the court, and the said Jasper and Cannaday accepted counsel's advice

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