Weldon v. State

• Decision Date: 07 November 1921
• Docket Number: 219
• Citation: 234 S.W. 466,150 Ark. 407
• Parties: WELDON v. STATE
• Court: Arkansas Supreme Court

234 S.W. 466

150 Ark. 407

WELDON v. STATE

No. 219

Supreme Court of Arkansas

November 7, 1921

Certiorari to Garland Circuit Court; W. B. Sorrels, Judge, on exchange; affirmed.

Judgment affirmed.

Thos S. Downey and Harry H. Myers, for appellant.

The alleged contempt was not committed in the presence of the court. A judge alone does not constitute a court. 8 A. & E Enc. Law (2nd Ed.) 22; 22 Neb. 280. A court is an official assembly, legally met together for the transaction of judicial business. 79 Ind. 376; 87 Ala. 330. Indignities offered to a judge in vacation, when not engaged in judicial business, and without reference to his official conduct, are not punishable for contempt. 9 Ark. 258.

Section 1484, C. & M. Digest, has reference to acts occurring within the presence of the court, or having reference to its processes.

Even if guilty of contempt, the punishment is excessive and unreasonable. Sec. 1485, C. & M. Digest.

The fact tat the defendant was notified by citation is conclusive that the act complained of was one committed without the presence of the court. Sec. 1496, C. & M. Digest, and the punishment to be assessed is provided by § 1485, C. & M. Digest.

J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants.

The assault was occasioned by litigation then pending before the court and was such contempt that the court was authorized, under the law to punish petitioner summarily. 9 Ark. 259; 139 N.C. 95; 2 L. R. A. (N. S.) 603. Contemptuous conduct toward a court while in discharge of a judicial duty is not limited to acts committed in the presence of the court, but includes insolent conduct during the intermission of court. 105 Iowa 7; 75 N.W. 685; 21 F. 772; 6 R. C. L. Sec. 5, p. 492 and notes. The punishment meted out in this case was not limited by § 1485, C. & M. Digest, as contended by petitioner. A similar punishment was sustained by this court for intimidating a litigant which act of intimidation was not in the presence of the court. 123 Ark. 341.

SMITH, J. HART, J., dissenting. The CHIEF JUSTICE concurs.

OPINION

SMITH, J.

This proceeding grew out of the following citation which issued out of the Garland Circuit Court:

"Whereas, on the 4th day of July, 1921, Charlie Weldon, in the County of Garland and State of Arkansas, made an assault on the person of the Hon. Scott Wood, judge of this court, and whereas said assault was without provocation and was prompted by malice by the acts of said judge in the performance of his judicial duties in a case pending in this court wherein the State of Arkansas is plaintiff and Charlie Weldon and others are defendants, and said assault was made with the intent to intimidate said judge and deter him from the performance of his duties in the trial of said case; it is therefore ordered that an attachment of contempt of court be issued for the said Charlie Weldon, and that he be requested to appear at the next regular day of the present term of said court on the 13th day of July, 1921, and show cause if any he have why he should not be punished for said contempt."

An agreement of exchange of courts was made between the judge of the Garland Circuit Court and W. B. Sorrels, judge of the Eleventh Circuit, and the matter was heard on the return day of the citation before the last-named officer. The case coming on for hearing, defendant Weldon, who will hereinafter be referred to as the petitioner, was found guilty as charged, and his punishment fixed at imprisonment in jail for three months and a fine of $ 500. Petitioner has by certiorari brought before us the record of the court below for review.

Judge Wood testified that the court over which he presided had taken a recess from the Saturday before the 4th of July to the 13th of that month, and that he spent the 4th at a bathing place called Arbordale Springs, eight miles from Hot Springs, the county seat; and that, as he came from the water, and was standing outside a dressing booth waiting to get in, he noticed petitioner walking toward him, and as petitioner came up he said to witness, "You are a smart guy," and struck at the judge. The judge said, "What is the matter with you? You are crazy; you are a fool." Petitioner said, "Did you hear what he called me?" The judge denied having called petitioner any name. The judge testified that he said to petitioner, "I know what you are doing this for; you think you can bully somebody," or "you are doing it because I did in my official capacity have to try you."

The petitioner used vulgar language toward the judge and called him some names, and asked, "What have you got it in for me for? What have I done to you?" but never denied that he was acting for the purpose of which the judge accused him, and made no response to the statement of the judge. The judge and the petitioner struck at each other, then clinched, but were separated without either having inflicted any bodily harm on the other. The judge further testified that he had only seen the petitioner in court, and had never before had any conversation or communication with him. He stated that petitioner had been indicted in his court for manufacturing intoxicating liquors, but an agreement had been made between petitioner and the prosecuting attorney that the charge should not be tried until a similar charge had been disposed of in the Federal court. Petitioner was convicted in the Federal court, but that conviction was reversed in the Federal Court of Appeals. Whereupon petitioner was put on trial in the Garland Circuit Court. There was a mistrial, and, in dismissing the jury, Judge Wood, who had presided, made the remark that the case would be set for another day and tried until a verdict was reached.

Petitioner testified that he spoke to the judge civilly, who responded by saying, "Hello, mooner," meaning thereby to call him a "moonshiner," and that this offensive epithet of the judge caused the difficulty which then ensued.

Each of these witnesses was corroborated in several material respects, but, without further reciting the testimony, we announce the conclusion that the finding of the trial court is supported by the testimony. Ex parte Winn, 105 Ark. 190, 150 S.W. 399.

It is insisted that the judgment of the court below must be quashed and the proceeding dismissed because the incident herein set out occurred on a day when the court was not in session, and at a place where a session of the court could not be legally held, and further that, as the conduct complained of did not take place in the actual presence of the court, the punishment imposed is without authority of law, and is, in any event, in excess of that permitted by the law.

It is true that the incident complained of did not occur on a day when the Garland Circuit Court was in session (Light v. Self, 138 Ark. 221, 211 S.W. 369), although it did occur before the adjournment of the court for the term. It is also true that the incident occurred at a place where court could not be legally held (Mellv. State, 133 Ark. 197, 202 S.W. 33). But are these facts conclusive of the question presented on this appeal?

Section 1484, C. & M. Digest, provides that every court of record "shall have power to punish as for criminal contempts persons guilty of the following acts," and there follows in five paragraphs an enumeration of acts declared to constitute contempt of court.

This section is taken from section 37, chapter 43, of the Revised Statutes of Arkansas; and no change appears to have been made in it except that as approved (February 28, 1838) it read: "Every court of record shall have power to punish as for criminal contempts persons guilty of the following acts, and no others," and thereafter follow the five paragraphs as they now appear in section 1184, C. & M. Digest.

The words, "and no others," have been eliminated from the statute. This was done by Josiah Gould in the digest of the statutes prepared by him in 1858, and in a note to the section where this omission first occurs the digester has the following explanation: "The words, 'and no others,' are stricken out as not binding on the courts. See State v. Morrill, 16 Ark. 384, and cases there cited."

The facts in the case of the State v. Morrill, 16 Ark. 384, were that Morrill had published an article in a newspaper reflecting upon a decision of the Supreme Court and apparently attributing the decision to extraneous influences. In response to the summons which there issued, the defendant filed a plea to the jurisdiction, submitting that the publication was not embraced within the statute regulating the punishment of contempts. Speaking for the court, Chief Justice ENGLISH conceded that the act charged against the defendant was not embraced within any clause of the statute. The insistence was made by counsel for the defendant that the court must look to the statute for its power to punish contempts, and not to any supposed inherent power of its own springing from its constitutional organization, and that the courts were controlled by this statute, and could not go beyond its provisions. The Chief Justice proceeded to answer and to refute this insistence in an opinion evincing great research and learning. He quoted from the opinion of this court in the case of Neel v. State, 9 Ark. 259, as follows:

"By the common law, a court may punish for contemptuous conduct toward the tribunal, its process, the presiding judge, or for indignities to the judge while engaged in the performance of judicial duties in vacation, or for insults offered him in consequence of judicial acts; but indignities offered to the person of the judge in vacation, when not engaged in judicial business, and without reference to his official conduct, are not punishable as contempts."

The...