State v. Johnson, 18589

• Decision Date: 03 January 1967
• Docket Number: No. 18589,18589
• Citation: 152 S.E.2d 669,249 S.C. 1
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Joseph L. JOHNSON and Joseph G. Grace, Appellants.

Page 669

152 S.E.2d 669

249 S.C. 1

The STATE, Respondent, v. Joseph L. JOHNSON and Joseph G. Grace, Appellants.

No. 18589.

Supreme Court of South Carolina.

Jan. 3, 1967.

Pritchard, Myers & Morrison, Charleston, for appellants.

Arthur G. Howe, Sol., Charleston, for respondent.

LEWIS, Justice.

The defendants Joseph L. Johnson and Joseph G. Grace have appealed from their conviction of contempt of court for alleged jury tampering. They contend, generally, that their convictions should be set aside because (1) neither the charges nor the evidence constitute contempt, and (2) prejudicial error was committed in the conduct of the trial.

On September 14, 1964 the Charleston County Grand Jury indicted Joseph L. Johnson, Jr., (son and nephew, respectively of the defendants Joseph L. Johnson and Joseph G. Grace), along with two others, for rape, assault with intent to ravish, assault and battery of a high and aggravated nature, and conspiracy. When the case was called for trial on March 3, 1965, the jurors were examined on their voir dire. During the examination of the jurors, information was divulged indicating that improper contacts had been made with a number of the prospective jurors. However, a jury was selected and the case proceeded to trial, resulting in a verdict of acquittal. Issues in that case, arising out of a motion by the State for a new trial upon the ground of alleged improper contact with the jurors, were before us in State v. Johnson et al., S.C., 149 S.E.2d 348.

On March 8, 1965, after the foregoing verdict of acquittal, the trial judge, because of the information developed in the voir dire examination of the jurors, brought the entire panel before him and each member was examined under oath by the judge and the solicitor as to possible contacts with them. This examination was in the nature of an investigation or inquiry to determine the extent of any contacts with the jurors and was made in the absence of, and without notice to, the present defendants or their counsel. Of course, notice to the defendants of the March 8th hearing was not required, since it was not a trial but solely a preliminary investigation to determine if grounds existed for the institution of proceedings for contempt.

Upon the foregoing examination, a juror, Henry Deas, testified as to a visit made to his home by the defendant Johnson and his wife. The Deas and Johnson families were neighbors and good friends. The testimony of Deas was to the effect that the defendant Johnson and his wife had visited in his home after he had been summoned as a juror for the term of court at which their son was to be tried, and discussed the case with the wife of Deas. Johnson and his wife had heard that Deas might be prejudiced against their son and they wanted to find out the cause of any such prejudice. The defendant Johnson was present but did not participate actively in the conversation, the discussion being between Mrs. Johnson and Mrs. Deas. During the conversation Mrs. Deas was told that their son was innocent. While the juror Deas was not at home at the time, the information revealed to Mrs. Deas was communicated to him by her.

In addition, a juror, B. L. Matthews, testified at the March 8th inquiry as to a visit made to his home by the defendant Grace and his wife after Matthews had been summoned as a juror. The Matthews and Grace families were good friends. The juror Matthews testified that the defendant Grace and his wife made a visit to his home and discussed the pending prosecution of their nephew, Joseph L. Johnson, Jr., for rape. During the conversation Matthews was told that their nephew was innocent; that the prosecutrix had signed an affidavit, which could not be introduced in evidence, indicating a desire to withdraw the charges; and that the NAACP was watching this particular case as a similar one was coming up in the near future.

While Deas and Matthews were members of the general panel of jurors, they did not serve on the jury which tried Joseph L. Johnson, Jr.

Upon the basis of the testimony of the jurors Deas and Matthews at the March 8th inquiry, rules were issued by the trial judge directed to the defendants Johnson and Grace requiring them to appear before the Court on March 18, 1965 to show cause why they should not be held in contempt of court for contacting and attempting to improperly and illegally influence the juror Deas, in the instance of defendant Johnson, and the juror Matthews, in the instance of defendant Grace. Charges against the wives of these defendants in connection with this and other incidents were disposed of in separate cases and are not here involved. The foregoing rules were issued in response to petitions by the solicitor, to which were attached transcripts of the sworn testimony of the above jurors taken before the trial judge at the time of the inquiry into the matter on March 8th.

A rule to show cause and the petition of the solicitor, to which was attached in each case a transcript of the sworn testimony of the juror, whom it was alleged the particular defendant had attempted to improperly influence, were duly served upon each defendant. The defendants first contend that the rule, petition and the attached testimony were insufficient to charge a contempt. The charge against these defendants was that of constructive contempt, that is, the alleged contemptuous conduct did not occur in the presence of the court. Contempt proceedings involving such conduct are properly begun by a rule to show cause which must be based upon an affidavit or verified petition alleging facts sufficient to warrant the issuance of such order. State v. Blackwell, 10 S.C. 35; Hornsby v. Hornsby, 187 S.C. 463, 198 S.E. 29.

The general principles governing the institution of contempt proceedings based upon conduct committed out of the presence of the court are thus stated in the Hornsby Case:

'Of course, as stated in 13 C.J. 68, 'before a person can be found guilty of contempt not committed in the presence of the Court, he must have due and reasonable notice of the proceeding. A rule to show cause, an attachment, or other process should issue.' And it is said in State v. Nathans, 49 S.C. 199, 27 S.E. 52, 57, 58, that 'the almost universal method by which contempt proceedings are begun is by affidavit, and an examination of the authorities will generally disclose that in all contempt proceedings, save for such as are committed in the court's immediate presence, an affidavit is essential.' The verified petition of the party applying for a rule to show cause, however, is a substantial compliance with the principle of law above stated, when and if the petition alleges facts sufficient upon which to base the issuance of such order.'

These proceedings were begun by the issuance of a rule based upon the petition of the solicitor, to which was attached a transcript of the sworn testimony of the juror allegedly contacted. The petition of the solicitor with the sworn testimony of the juror attached was in substantial compliance with the foregoing principles.

In determining whether the facts stated were sufficient to allege a contempt, the rule, petition and the attached sworn testimony of the juror must be construed together.

We have held that 'all willful attempts, of whatever nature, seeking to improperly influence jurors in the impartial discharge of their duties, whether it be by conversations or discussions, or attempts to bribe, constitute contempts.' State v. Weinberg, 229 S.C. 286, 92 S.E.2d 842. We further stated in Weinberg that '(w)here there is deliberate purpose to corrupt administration of justice, accompanied by definite overt act on part of contemnor, designed to carry purpose into effect, notwithstanding failure of design, one is guilty of contempt.' And attempts to influence a member of the general jury panel is regarded as a contempt to the same extent as tampering with jurors actually sitting in the trial of a case. State v. Weinberg, supra.

The defendant Johnson contends that the rule, petition and transcript of testimony served upon him were insufficient to charge a contempt in that (1) it was alleged that the contract was made with the juror's wife, and not the juror, and (2) it appears that the defendant's wife, and not the defendant, actually discussed the case with the juror's wife.

The papers served upon the defendant Johnson, in effect, charged him with having attempted to improperly influence the juror Deas; that in doing so the defendant and his wife made a visit to the juror's home for the purpose of discussing the case; that the juror was not at home but the wife of the defendant, with defendant present, discussed the case with the juror's wife and told her that their son was innocent; and that the purposes of the visit and substance of the conversation were subsequently communicated to the juror by his wife.

The foregoing was sufficient to charge a contempt of court. The fact that the allegations showed that the defendant Johnson had no personal contact with the juror Deas is not fatal to the charge. Brewer v. State, 176 Miss. 803, 170 So. 540; Summers v. State, 66 Ga.App. 648, 19 S.E.2d 28; Hurley v. Commonwealth, 188 Mass. 443, 74 N.E. 677. The discussion of the case with the juror's wife was an overt act which in the normal and expected course of things would result in the communication of the information by the wife to...