State v. Rodrigues

• Citation: 52 So.2d 756,219 La. 217
• Decision Date: 23 April 1951
• Docket Number: No. 40246,40246
• Parties: STATE v. RODRIGUES.
• Court: Supreme Court of Louisiana

Page 756

52 So.2d 756

219 La. 217

STATE v. RODRIGUES.

No. 40246.

Supreme Court of Louisiana.

April 23, 1951.

Provost & Ernest, New Iberia, G. Wray Gill, New Orleans, for relator.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., L. O. Pecot, Dist. Atty., Franklin, and Minos Armentor, Asst. Dist. Atty., New Iberia, for respondents.

HAWTHORNE, Justice.

Relator, Emar Rodrigues, having been adjudged guilty of contempt of the Sixteenth Judicial District Court in and for the Parish of Iberia and sentenced to pay a fine of $100 and to be imprisoned in the parish jail for a period of 10 days and in default of payment of the fine to serve an additional 10 days, applied for and was granted remedial writs by this court with a stay order.

The relator was a witness before the grand jury of the Parish of Iberia, which had been called in special session for the purpose of investigating the offenses of public bribery, corrupt influencing, and malfeasance in office. He refused to answer a certain question propounded to him. Thereupon the grand jury went into open court accompanied by relator, and according to the minutes of the court the following then occurred:

'Thereupon the Grand Jury, through their Foreman, Owen J. McMahon, informed the Court that they were investigating the crimes of public bribery in accordance with the charge heretofore given them, and that they had called before them, Aymar Rodrigue [Emar Rodrigues] as a witness to testify in said investigation; that the following question was propounded to him, which he refused to answer: 'Did you from January 1, 1950 to February 10, 1951, collect any money from the owners of slot machines in the City of New Iberia?'

'Aymar Rodrigue, being present in open Court, was asked by the Court whether he would answer the said question or not, whereupon the said Aymar Rodrigue stated that he refused to answer the same and that he stood on his constitutional ground. The Court, thereupon read to him Article 1, Section 11 and Article 19, Section 13 of the Louisiana Constitution and thereupon ruled that the testimony sought of him was such as to afford him immunity from prosecution under this last article, and that he would have to answer the question or be held in contempt of Court. Again, the said Aymar Rodrigue stated that he refused to answer the question, and the Court found him guilty of contempt of Court and, under R.S. 15:12 sentenced him * * *.'

These articles of the Constitution were read in open court to relator:

Article 1, Section 11. 'No person shall be compelled to give evidence against himself in a criminal case or in any proceeding that may subject him to criminal prosecution, except as otherwise provided in this Constitution. * * *'

Article 19, Section 13. 'Any person may be compelled to testify in any lawful proceeding against any one who may be charged with having committed the offense of bribery and shall not be permitted to withhold his testimony upon the ground that it may incriminate him or subject him to public infamy; but such testimony shall not afterwards be used against him in any judicial proceedings, except for perjury in giving such testimony.'

In this court relator takes the position (1) that his refusal to answer the question, if it constituted contempt, was an act committed outside the presence or hearing of the court and that under LSA-R.S. 15:11 he was entitled to a hearing upon a rule to show cause served on him 24 hours before the time fixed for such hearing; (2) that, since he was not advised that anyone had been charged with the offense of bribery, Section 13 of Article 19 of the Constitution has no application, and that under Article 1, Section 11, he was granted immunity from testifying on the ground of self-incrimination; and (3) that, if Article 19, Section 13, is applicable, it does not afford complete immunity against prosecution for other but related crimes and amounts to no immunity at all.

(1) Under Article 1, Section 11, no one can be compelled to answer any question before a grand jury that may subject him to criminal prosecution, except as otherwise provided in the Constitution. A witness therefore has no right to refuse to answer a question propounded to him by a legally constituted grand jury except where the privilege of refusing has been granted by the Constitution, and, if he does refuse when the privilege is not available to him, his refusal constitutes contempt of court and is criminal contempt as that crime is defined in 17 C.J.S., Contempt, § 5, p. 7, as follows: 'A criminal contempt is conduct that is directed against the dignity and authority of the court, or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect.'

Contempt of court has been classified as either direct or constructive. The direct contempt is committed in the presence of the court, and the constructive contempt is committed out of the presence of the court. See 17 C.J.S., Contempt, §§ 2, 3, 4. See also People v. Sherwin, 334 Ill. 609, 166 N.E. 513.

In 17 C.J.S., Contempt, § 71(a), we find the following: 'It is the almost universal rule that, where a contempt is direct, in the immediate presence of the court, summary punishment may be inflicted without affidavit, pleading, or formal charges. In such cases, a formal entry showing the facts constituting a contempt and the proceedings taken constitutes the full record.' (All italics ours.)

This rule is followed in this state and is given effect to in LSA-R.S. 15:11 dealing with the inherent power and authority of courts. Under this statute the court may punish as a contempt every act interrupting or tending to interrupt its proceedings or impairing the respect due to its authority, provided that no one shall be punished for any contempt committed outside the presence or hearing of the court except after hearing on a rule to show cause served on him at least 24 hours before the hearing.

Relator's first contention then poses the question: Was the contempt of the witness in refusing to answer the question under the facts of this case a contempt committed outside the presence or hearing of the court as those terms are used in the statute?

In this state a grand jury is organized, impaneled, and charged under the direction of the court, and it is charged with the duty to investigate violation of the criminal laws and institute criminal proceedings where proper by returning bills of indictment. It may apply to the court for instructions concerning its duties, obligations, powers, and rights. It has the power and authority to administer oaths to each witness and to compulsory process of the witnesses who appear before it. The grand jury, therefore, is a constituent part, appendage, or arm of the court, and a contempt committed by any person in its presence is a direct contempt in the hearing and presence of the court itself.

In People v. Sheridan, 349 Ill. 202, 181 N.E. 617, 619, it was said: 'The first contention of defendant is that the petition filed by the state's attorney was insufficient to charge him with conduct constituting contempt of court because it did not contain an allegation that the grand jury was investigating any complaint or charge of crime committed in Cook county or an allegation of the object of the questions asked defendant when he was before the grand jury. It is a sufficient answer to this contention to state that the alleged contemptuous conduct of defendant was before the grand jury, which was a constituent part of the criminal court, and his conduct was therefore in the presence of the court, and if contemptuous was a direct contempt, and it was unnecessary to file a petition or make a formal charge by affidavit in order that the court might punish him for the contempt. People v. Cochrane, 307 Ill. 126, 138 N.E. 291; People v. Sherwin, 334 Ill. 609, 166 N.E. 513. * * *'

The facts in People v. Cochrane, 307 Ill. 126, 138 N.E. 291, 293, are similar to the ones in the instant case. In that case Robert J. Cochrane was adjudged guilty of contempt of the court committed in open court in refusing to answer interrogatories which he, a witness before the grand jury, had refused to answer before the grand jury, and which he again refused in open court to answer. The ground of his refusal was that the answer would disclose a confidential matter. Cochrane contended, among other things, that he was tried, convicted, and deprived of liberty without due process of law and in violation of his constitutional and statutory rights because he was brought into court without the formality of a charge against him and thus was not afforded an opportunity to be heard in answer to the charge. The court in affirming the judgment holding defendant to be in contempt of court said in the course of its opinion:

'* * * The plaintiff in error being a witness before the grand jury and refusing to answer questions, he, with the grand jury and state's attorney, went before the court and was given an opportunity to say whether he would answer the questions, and refused. He stood in open defiance of the court and of the authority of a judicial tribunal created and existing by virtue of the Constitution and laws of the state for the administration and enforcement of the criminal law. He had a full and impartial hearing before the court, and his refusal was in the presence of the court and punishable in a summary way by fine or imprisonment, or both, without any preliminary affidavit, process, or interrogatory. * * *

'* * * The grand jury is a constituent part of every court having general criminal jurisdiction. Boone v. People, 148 Ill. 440, 36 N.E. 99; People v. McCauley, 256 Ill. 504, 100 N.E. 182. A contempt committed in any place set apart for the use of any constituent part of the court during the session of the court is committed in the presence of the court. Any conduct...