State v. Mitchell
| Decision Date | 17 August 1892 |
| Parties | State v. Mitchell. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Neither the constitutional provision that "the right of trial by jury shall remain inviolate," nor that the accused shall be entitled "to meet the witnesses against him face to face," has application to summary proceedings to punish for contempt.
2. That portion of section 13, c. 101, Laws 1890, which provides that "the affidavits upon which the attachment of contempt issues shall make a prima facie case for the state," is not unconstitutional, as being an encroachment of the legislative upon the judicial power.
3. Neither is such objection valid against the subsequent provision of the same section that "the defendant shall not be entitled to a discharge upon his denial of the facts stated in the moving papers," as it does not provide that he shall not be discharged, but leaves the whole matter with the court to be judicially determined.
4. Whether the law is unconstitutional, in that under it a defendant may be compelled to be a witness against himself is not decided, for it is not claimed that defendant's rights were so violated, and it is a well-established rule of law that no one can take advantage of the unconstitutionality of any provision of a law who has no interest in, and is not affected by, such provision.
5. Motion to strike out certain evidence examined, and the ruling of the court sustained.
Appeal from circuit court, Lake county; F. R. AIKENS, Judge.
Joseph C. Mitchell was convicted of contempt for violating an injunction order, and appeals. Affirmed.
McMartin & Carland, for appellant. Robert Dollard, Atty. Gen., for the State.
This was a proceeding to punish the defendant and appellant for contempt in violating an injunction order made in an action pending in the circuit court for the county of Lake, in which the state was plaintiff and appellant was defendant. The action was instituted under chapter 101, Laws 1890 prohibiting the sale of intoxicating liquors, and sought to restrain and vacate a place alleged to have been kept and used for the unlawful sale of intoxicating liquors by defendant, Mitchell. While such action was pending, and while an injunction order therein was in full force, commanding defendant to desist and refrain from selling, or offering to sell, or keeping for sale, barter, or trade, any intoxicating liquors, by himself, his agents or his servants, affidavits were presented to said court alleging violation by defendant of said injunction order, and by order of court an attachment was issued to the sheriff requiring him to bring the defendant into court, to show cause why he should not be punished for contempt. Upon the hearing the court found and adjudged the defendant to be in contempt, and imposed punishment of fine and imprisonment therefor, from which action and judgment of the court the defendant appeals. The attorney general files a stipulation waiving irregularities in the manner of bringing up the questions of error for review in this court, and consenting that all questions raised in the record be duly considered and determined. While we understand that such consent could not confer a jurisdiction which we did not otherwise possess, yet as the authorities are in confusion on the question of the right to appeal in contempt proceedings, and as to what questions may be reviewed, and as it is urged by both sides that it is important that this court express an early opinion upon some of the questions presented, we conclude that it is our duty to examine and decide such questions, with the distinct understanding, however, that by so doing we indicate no opinion upon the questions of procedure and practice which might be raised upon this record.
Upon the hearing the defendant demanded a trial by jury, which the court denied, and this is assigned as the first error. The constitutional provision that "the right of trial by jury shall remain inviolate" has no application to a summary proceeding of this character. Such guaranty does not extend beyond the cases where such right existed at common law. The provision is that the right "shall remain inviolate." The right of a court to punish for contempt without the intervention of a jury, was a well-established rule of the common law. In Eilenbecker v. Plymouth Co. Dist. Ct., 134 U.S. 31, 10 S.Ct. 424, the court says "If it has ever been understood that proceedings according to the common law for contempt of court have been subject to the right of trial by jury, we have been unable to find any instance of it." See, also, State v. Becht, 23 Minn. 411; McDonnell v. Henderson, 74 Iowa, 619, 38 N.W. 512; State v. Doty, 32 N. J. Law, 403; State v. Matthews, 37 N.H. 450; State v. Durein, (Kan.) 27 P. 148; Gandy v. State, 13 Neb. 445, 14 N.W. 143.
The defendant then demanded that the evidence of the state upon the question of his alleged contempt be taken orally, and not by affidavit. This was denied, and is assigned as error. Section 13 of the law under consideration, being the section under which this proceeding was had, expressly provides that, upon the examination of the charge of contempt, the "evidence may be oral, or in the form of affidavits, or both." Defendant argues that he was thus deprived of his constitutional right "to meet the witnesses against him face to face." This right, however, is confined to "criminal prosecutions,"--such prosecutions as also entitled him to "a speedy public trial by an impartial jury." Section 7, art. 6, Const. The authorities cited on the last point supra fully exhibit the character of contempt proceedings. While they are criminal in their nature, they are not of themselves criminal actions or prosecutions. They are incidental to and may occur in any action, civil or criminal, and neither the constitutional right to be tried by a jury, nor to be confronted with the adverse witnesses, exists in such proceedings. It was therefore competent for the law to provide that in such proceedings the evidence might be by affidavit, or oral, or both.
The contention of defendant that the act itself as a whole is void, because in violation of section 21, art. 3, of the constitution, providing that "no law shall embrace more than one subject, which shall be expressed in its title," was fully considered and discussed in State v. Becker, (S. D.) 51 N.W. 1018, and a conclusion reached adverse to such claim.
It is next contended that that portion of section 13, in relation to contempt proceedings, which provides that "the affidavits upon which the attachment for contempt issues shall make a prima facie case for the state," is unconstitutional, as being an encroachment of the legislative upon the judicial power. It is claimed that it undertakes to determine in advance, regardless of what the affidavits may in fact state, that they shall be...
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