State v. Shumaker

• Decision Date: 18 October 1928
• Docket Number: No. 25147.,25147.
• Citation: 163 N.E. 272,200 Ind. 623
• Parties: STATE v. Edward S. SHUMAKER et al.
• Court: Indiana Supreme Court

200 Ind. 623

163 N.E. 272

STATE

v.Edward S. SHUMAKER et al.

No. 25147.

Supreme Court of Indiana.

Oct. 18, 1928.

On (I) respondent Martin's motion for a new trial and additional response, (II) relator's motion to modify the judgment and increase sentence of respondent Shumaker, and (III) petition for rehearing and motion for a new trial (on the original finding) by respondent Shumaker.

*272MARTIN, J.

Concurring in part with the supplemental opinion of the court filed July 20, 1928 (162 N. E. 441), and dissenting in part thereto.

I. For the reasons pointed out in my dissenting opinion (157 N. E. 769), filed at the time the decision herein was rendered, I concur in the order of the court now entered with respect to respondent Martin by which the finding as to him is vacated.

II. I also concur in the conclusion reached by the court in denying the Attorney General's motion to increase the sentence of respondent Shumaker for the following reasons: (A) Because the court had no jurisdiction in this proceeding to try the respondent on the new charge attempted to be set forth in the motion, the motion itself being insufficient and the acts attempted to be alleged therein being clearly not a part of the original offense and not in the nature of a continuing offense but being entirely separate and of a different character. (B) (1) Because the evidence adduced at the hearing was shown to have been presented to the court or to a certain member or members thereof before the judgment was rendered; (2) because the principal items of evidence presented by relator, viz. depositions of Senator James E. Watson and Mr. Henry Lane Wilson, were incompetent and wrongfully admitted; and (3) because the evidence does not show any contempt or “corrupt attempts to influence a decision” as alleged by the Attorney General.

(A) Relator's “motion to modify judgment and to increase sentence” is as follows:

“Comes now the State of Indiana and moves to modify the judgment rendered against the respondent, Edward S. Shumaker, and to increase the sentence imposed on him on the ground that the same now appears inadequate because of corrupt attempts by him, the said Shumaker, to corruptly influence a decision favorable to him in said cause.”

No direct allegation of any fact is made, and the motion concludes with a statement that the state “offers the testimony” of certain persons, and a request that a date be fixed for the hearing and that the witnesses be subpœnaed.

Not only are these allegations of conclusions by the pleader entirely insufficient to legally charge any person with an offense or with contempt, but it also appears from the allegations that the “corrupt attempts” referred to are not in the nature of a part of the original offense, or a continuing offense, but are entirely separate and distinct and of a different character from the acts alleged in the original action and upon which respondent has been found guilty and sentenced. That being true, the prosecution for such separate and distinct subsequent alleged contempt could be brought only in a new and separate information. The only element of similarity of the two alleged offenses is that they are both alleged indirect contempts of court. The respondent's punishment for one offense cannot be increased because of his alleged commission of a subsequent separate offense.

Even in cases of direct contempt, a respondent is afforded an opportunity for defense, and in cases of indirect contempt the authorities are uniform in holding that they “must be instituted by an accusation or affidavit presented to the court setting forth the facts constituting the contempt,” 13 C. J. 64. § 88, note 77, and that, “since a person accused of contempt committed out of the presence of the court or judge is entitled to be informed of the nature and cause of the allegation against him, the initiatory information or affidavit is jurisdictional *** all authorities agree that the charging paper must show on its face facts sufficient to constitute a contempt,” 13 C. J. 64, 65, § 89, notes 81, 85; Stewart v. State (1894) 140 Ind. 7, 39 N. E. 508;Whittem v. State (1871) 36 Ind. 196;Saunderson v. State (1898) 151 Ind. 550, 52 N. E. 151.

A court must have a definite and proper charge upon which to base its judgment, and a respondent is entitled to such an allegation of facts under oath as will enable him to purge himself thereof by an answer under oath, if, when advised of such facts, he is able to make such answer thereto. Relator's motion alleges no facts from which the court can determine whether or not a contempt has been committed, nor from which the respondent is able to determine the nature or character of the charge against him, and it follows that this court had no jurisdiction to proceed to trial thereunder. I am therefore of the opinion, not only that the motion of the Attorney General to modify the judgment and to increase the sentence was properly denied, but also that the objections of the respondent Shumaker to further trial and hearing on the motion to modify judgment and to increase sentence should have been sustained.

(B) (1) After judgment herein was rendered on August 5, 1927, a letter from the respondent Shumaker, dated August 6, 1926, to United States Senator James E. Watson, and the Senator's reply thereto, dated August*2738, 1926, were published in the newspapers of September 17, 1927. Soon after these letters were published, the Attorney General filed his motion to modify the judgment and increase the penalty “on the ground that the same now appears inadequate,” etc.

It developed at the hearing on this motion, not only that these letters were the basis for the motion, but also that the original of the Shumaker letter and a carbon copy of the Watson letter from Senator Watson's files were in the possession of the Attorney General as early as November, 1926, and that at a date later than that, but before judgment, the Attorney General showed the correspondence to one or more of the members of this court, and that he had divulged the contents of the letters to newspaper reporters. This act of presenting evidence to a member of the court in the absence of the adverse party should estop the relator from setting up those facts in the nature of newly discovered evidence after judgment has been rendered.

(B) (2) The state, without a waiver on the part of the respondent, cannot lawfully take and introduce depositions in evidence upon the trial of a proceeding for criminal contempt. The depositions of the two principal witnesses for relator were received over the objection of the respondent, who had not waived his right of confrontation of witnesses.

Proceedings for contempts are of two classes: (a) Those criminal or punitive in their nature, prosecuted to preserve the power and vindicate the dignity of the courts and to punish for disobedience of their orders; and (b) those civil, remedial, or coercive in their nature, instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for enforcing the rights and administering the remedies to which the court has found them to be entitled. The government, the courts, and the people are interested in the prosecutions for criminal contempts while the parties chiefly in interest in the institution of civil contempts are the individuals whose private rights and remedies are sought to be enforced. Bessette v. W. B. Conkey Co. (1904) 194 U. S. 324, 24 S. Ct. 665, 48 L. Ed. 997;Anderson v. Indianapolis Drop Forging Co. (1904) 34 Ind. App. 100, 72 N. E. 277.

While it is generally held that the respondent in inquiries as to criminal contempt is not entitled to a jury trial (but contempts are none the less offenses because trial by jury does not extend to them as a matter of constitutional right, Gompers v. United States, 233 U. S. 604, 34 S. Ct. 693, 58 L. Ed. 1115, infra), or to a change of venue. Dale v. State (1926) 198 Ind. 110, 150 N. E. 781, 49 A. L. R. 647,¹ he is entitled to all the substantial rights of a person accused of crime that are consistent with the summary nature of proceeding, the case is governed by the analogies of criminal procedure, and the respondent is entitled to the same rules of evidence and presumptions of innocence that avail him in any criminal case. Gompers v. Buck's Stove & Range Co. (1911) 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874;Gompers v. United States (1914) 233 U. S. 604, 34 S. Ct. 693, 58 L. Ed. 1115; Bates' Case (1875) 55 N. H. 325;Kidd v. Virginia, etc. (1912) 113 Va. 612, 75 S. E. 145;Hotaling v. Superior Court (1923) 191 Cal. 501, 217 P. 73, 29 A. L. R. 127;State v. Ralphsnyder (1890) 34 W. Va. 352, 12 S. E. 721;Hammond Lumber Co. v. Sailors, etc., Union (C. C. A. 1909) 167 F. 809. Thus the respondent is not obliged to be a witness against himself, Ex parte Gould (1893) 99 Cal. 360, 33 P. 1112, 21 L. R. A. 751, 37 Am. St. Rep. 57; the rule against conviction on the sole testimony of an accomplice applies, State v. District Court (1908) 37 Mont. 191, 95 P. 593, 15 Ann. Cas. 743; the evidence must be sufficient to establish guilt beyond a reasonable doubt, Kidd v. Virginia, etc., supra; and the accused must be bodily in court at the time of the sentence, Welch v. Barber (1884) 52 Conn. 147, 52 Am. Rep. 567; Ex parte Mylius (1907) 61 W. Va. 405, 56 S. E. 602, 11 Ann. Cas. 812, 10 L. R. A. (N. S.) 1098, and note; and thus it uniformly has been held that orders inflicting punishment for criminal contempt of court, as distinguished from civil or remedial contempt, are within the range of the pardoning power vested in the executive because such punishment is for a public offense, the whole doctrine of contempt going to the point that the offense is a wrong to the public, not to the person of the functionary to whom it is offered considered merely as an individual. Ex parte Grossman (1925) 267 U. S. 87, 45 S. Ct. 332,...