State v. Winthrop

• Decision Date: 13 August 1928
• Docket Number: 21101.
• Citation: 269 P. 793,148 Wash. 526
• Parties: STATE v. WINTHROP.
• Court: Washington Supreme Court

269 P. 793

148 Wash. 526

STATE v. WINTHROP.

No. 21101.

Supreme Court of Washington

August 13, 1928

Department 1.

Appeal from Superior Court, King County; Howard M. Findley, Judge.

Louis Winthrop was adjudged guilty of contempt of court, and he appeals. Reversed,

Ewing D. Colvin, R. M. Burgunde, and Lynwood W. Fix, all of Seattle, for the State.

PARKER, J.

This is an appeal by Louis Winthrop, a member of the bar of this state, from a judgment of the superior court for King county adjudging him guilty of contempt of that court, and that he be punished therefor by a fine of $25 and be imprisoned in the county jail until the fine is paid. The judgment is rested upon the theory that the conduct of appellant, which the judge of the superior court regarded as constituting contempt, was in legal effect, committed in the presence of the court, and hence that appellant was subject to summary discipline and punishment without charge and trial, as required by law with reference to alleged contempts committed out of the presence of the court. This view of the proceeding entertained by the trial judge is clearly evidenced by appellant being forced, over his objection, to submit to the jurisdiction of the court and to the judgment of contempt without any charge made against him, and by recitals in the judgment.

On October 15, 1927, there was pending and ready for assignment for trial in the superior court for King county the case of Lynch v. Page. Appellant was attorney of record for Lynch in that case. On that day the case was duly set for trial on November 2, 1927, of which appellant had due notice. He appeared in court with his client and witnesses at the opening of court on that day, but soon thereafter, the case not being immediately called for trial, he absented himself from the court. A short time thereafter the case was called for trial, and, appellant not appearing for some time, the court, during appellant's absence, summarily adjudged him guilty of contempt and fined him therefor $25, causing the clerk to enter an order accordingly. Thereafter, on November 8, 1927, the judge, evidently regarding his order of November 2d as having been made without jurisdiction, in view of the fact of it being made and entered during the absence of appellant, vacated that order, ordered 'that a bench warrant issue forthwith for said Louis Winthrop,' and set the hearing thereon for November 14, 1927. The clerk accordingly issued a warrant for the arrest of appellant commanding the sheriff to arrest and bring him before the court, reciting therein, 'to answer to the state of Washington, charging the said Louis Winthrop with contempt of court, and to then and there show cause why he should not be convicted of a contempt of court.' These recitals in this order and warrant come the nearest of anything in this record to charging appellant with contempt. There was no charge made against appellant by affidavit or otherwise. Thereafter appellant filed his motion to quash the warrant upon the ground 'that there has not been served or filed herein any affidavit, or complaint, charging the said Louis Winthrop, with any offense, or stating any facts constituting any offense, or any contempt of court.' Thereafter the matter came on for hearing, when the court denied appellant's motion to quash the warrant, overruled his objection to the hearing then made upon the same ground as in his motion, and immediately proceeded with the hearing, listening to the testimony of several witnesses touching appellant's absence from court when the case of Lynch v. Page was called for trial. Upon the conclusion of the hearing, the court, on November 15, 1927, rendered final judgment adjudging appellant guilty of contempt, fining him $25 therefor, and committing him to the county jail until the fine be paid; reciting in the judgment as grounds therefor, in so far as we need here notice the recitals, in substance, as follows: On the opening of court at about the hour of 9:15 a. m. on November 2, 1927, appellant appeared in court with his client Lynch and witnesses. Soon thereafter, before the case of Lynch v. Page was called for trial, appellant absented himself from the court without securing permission therefor. Soon thereafter, during the absence of appellant, the case was called for trial. Appellant, without excuse, did not return to the court until about 10:25 a. m. In the meantime, the case of Lynch v. Page was stricken from the trial calendar. Upon these facts, and others which we have already noticed, so far as material to our present inquiry, the court concluded that appellant's absence was 'contemptuous behavior toward the judge while holding court, in the immediate view and presence of the court, tending to impair its authority and to interrupt the due course of the trial of said case.' Appellant then gave oral notice of appeal to this court. A full statement of facts was prepared and duly certified, the concluding language of which is as follows:

'On November 15, 1927, at 2 o'clock p. m. of said day, the said defendant appeared before the court, and the court did then and there render judgment against said defendant and imposed a fine of $25; said defendant then and there gave notice of appeal in open court, and asked the court to fix the amount of the supersedeas bond, but the court ordered the defendant, Louis Winthrop, committed to the county jail of King county until the defendant paid said fine, and thereupon the defendant paid said fine under protest.'

Our contempt statutes to be here noticed, referring to sections of Remington's Compiled Statutes, are the following:

'Sec. 1050. * * * Every court of justice and every judicial officer has power to punish contempt by fine or imprisonment, or both. * * *'

'Sec. 1051. * * * When a contempt is committed in the immediate view and presence of the court of officer, it may be punished summarily, for which an order must be made reciting the facts as occurring in such immediate view and presence, determining that the person proceeded against is thereby guilty of contempt, and that he be punished as therein prescribed.'

'Sec. 1052. * * * In cases other than those mentioned in the preceding section, before any proceedings can be taken therein, the facts constituting the contempt must be shown by an affidavit presented to the court or judicial officer, and thereupon such court or officer may either make an order upon the person charged to show cause why he should not be arrested to answer, or issue a warrant of arrest to bring such person to answer in the first instance.'

'Sec. 1062. * * * Either party to a judgment in a proceeding for a contempt may appeal therefrom in like manner and with like effect as from judgment in an action. * * *'

This plainly is not a civil contempt proceeding looking to the coercing of appellant to perform some act in compliance with an order or judgment of the court rendered in a civil action. It is a criminal contempt proceeding, looking to the punishment of appellant for conduct on his part, which the trial court decided constituted contempt. The judgment is criminal in its nature, as much so in its consequences to appellant as if it had been rendered against him upon conviction of a public offense of equal seriousness. Section 1050, Rem. Comp. Stat.; 6 R. C. L. 490.

It is contended in behalf of appellant that whatever his conduct may have been, which amounted to contempt in the opinion of the trial judge, occurred away from and out of the view and presence of the court, and that therefore the court erroneously proceeded summarily against him to his prejudice. It is plain, we think, by this record, that appellant's conduct, viewed by the court as contemptuous, consisted in his inexcusable absence from the court when the case of Lynch v. Page was called for trial. We are unable to see how such absence on the part of appellant occurred in the presence or view of the court. The Supreme Court of Missouri in Re Clark, 208 Mo. 121, 106 S.W. 990, 15 L. R. A. (N. S.) 389, had under consideration facts, in substance, the same as are here involved. Holding that such conduct on the part of the accused was committed out of the presence of the court and hence not summarily punishable, Justice Lamm, speaking for the court, made these very pertinent observations:

'Recurring now to the question, are the offenses recited in the judgment direct or indirect contempts? The complaint made and recited of the petitioner [Clark] was his intentional absence from the courtroom to the delay and embarrassment of a trial in which the petitioner was engaged as counsel, 15 minutes at one time and 55 at another. The petitioner himself was absent. His acts ad interim were likewise absent. His doings went with him. It would seem like an exquisite and palpable contradiction of terms to complain in one breath that the petitioner and his acts were absent, and in the next breath to say that such absence constituted a presence; that is, a contempt committed in the presence of the court. The absence of an attorney, a juryman, a witness, an officer (including even a member of the bench himself), from the courtroom at the precise time due there may be susceptible of many innocent explanations. Each and every of these absences are of a kind and, hence on a level, and none of these explanations are within the mere eyesight or earshot of any court of ordinary mortal endowments. These explanations can only come to the court by evidence aliunde his eye or ear, so that it would seem that absence ought not to be dealt with as essentially in the same class as things that happen in the view or hearing of the court. We think that is the more gracious and the better view, comporting with the good sense of the thing, comes

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