Wilder v. Sampson

• Decision Date: 09 June 1939
• Citation: 279 Ky. 103
• Parties: Wilder v. Sampson.
• Court: United States State Supreme Court — District of Kentucky

279 Ky. 103

Wilder v. Sampson.

Court of Appeals of Kentucky. In Court of Appeals.

June 9, 1939.

1. Contempt. — In prosecution for setting up slot machines, court improperly adjudged defendant guilty of contempt for failure to produce machines, in absence of any provision for contempt proceedings in statutory procedure for confiscation and destruction of gambling devices (Ky. Stats., sec. 1962).

2. Prohibition. — Prohibition lay to restrain court from seeking to punish defendant for contempt in prosecution for setting up slot machines, where contempt orders were invalid (Ky. Stats., sec. 1962).

3. Contempt. — The alleged falsity of answers to questions propounded before grand jury to defendant charged with setting up slot machines did not justify punishment for contempt, where court could not judicially know of their falsity.

4. Contempt. — Contempt proceedings do not lie for perjury, except where truth of facts or falsity of evidence is judicially known.

5. Criminal Law. — The court in prosecution for setting up slot machines was required to proceed within bounds of law, since worst criminal no less than the most respected citizen is entitled to even-handed justice.

Smith & Brown and R.L. Brown for petitioner.

J. Milton Luker, Kenneth Tuggle, Walter Ray Smith and J.C. Bird for respondent.

OPINION BY JUDGE STITES.

Making temporary writ permanent.

The petitioner, Robert Wilder, was arrested and brought before the respondent, Flem D. Sampson, Judge of the Whitley Circuit Court on January 10, 1939 under three indictments charging petitioner with "setting up slot machines." He pleaded guilty. About half a dozen other defendants were arraigned at the same time under identical charges. No copies of the indictments are in the record before us but we gather from the testimony that they were returned under Sections 1960 and 1967 of the Kentucky Statutes. It is alleged that the petitioner and other defendants were called before the court at the same time and that the respondent "then and there stated, to this and other defendants, that it had never been the law that a person guilty of setting up and/or operating a slot machine could be discharged by paying a fine of $50.00 and costs, but further stated that it had been the custom heretofore in Whitley County, in such cases, and that he would not, at this time, depart from that custom; that the said respondent herein further stated that he would accept a plea of guilty on one charge against each defendant and enter a fine of $50.00 and costs and file any and all other indictments charging like offenses; that the court (respondent) then took the plea of each of the defendants, including your petitioner herein; that your petitioner entered a plea of guilty; thereupon, the court (respondent) stated to your petitioner that, if he would bring in and surrender to the jailer of Whitley County all his slot machines that the court would fine this petitioner $50.00 and costs and treat him like all the others engaged in the slot machine business; that your petitioner was then placed in custody of the jailer of Whitley County until such time as your petitioner had complied with the order of the court to surrender all his slot machines into the custody of said jailer; that in obedience to said order of the court, your petitioner hired and paid C.L. West, deputy jailer of Whitley County, to take your petitioner to his home near Saxton, Whitley County, to get fifteen (15) slot machines; that said machines were loaded into a truck and brought to the jail house at Williamsburg, Kentucky, and there delivered into the possession and custody of the jailer of Whitley County; that said C.L. West, as deputy jailer aforesaid, called the Honorable Flem D. Sampson, over the phone in the presence and hearing of this petitioner and reported to said Flem D. Sampson that your petitioner had brought in and delivered to the jailer of Whitley County fifteen (15) slot machines, and the said Flem D. Sampson ordered and directed deputy jailer to give a receipt to owner and take over the custody of said slot machines; that in pursuance to said directions of the court, the said C.L. West, delivered to your petitioner the following receipt in writing: `Received of Bob Wilder 15 slot machines. This 10-day of January 1939. C.L. West, Deputy Jailer, Whitley County.' "Your petitioner says that on the following morning he was again taken before the Honorable Flem D. Sampson, as Judge aforesaid, and the said Flem D. Sampson asked your petitioner how many slot machines he brought in. Your petitioner told the said Sampson that he had brought in fifteen (15). The said Sampson then replied that he would fine your petitioner $30.00 for contempt of court and that said contempt would continue until your petitioner brought in the balance of his slot machines. Thereupon, the following order was entered of record on January 12, 1939 in the clerk's office, at the direction of the court, the respondent herein.

"`Whitley Circuit Court

                "`Commonwealth of Kentucky                  Plaintiff
                   vs                 Setting Up Slot Machines
                Bob Wilder                                  Defendant
                

"`Order

"`It appearing to the court that the defendant, Bob Wilder, has been engaged in the business of owning and operating slot machines by himself and through other persons and of setting up the same for operation by other persons in different places of business in Whitley County and other counties, on a commission basis, or division of the proceeds, fifty percent to the defendant and fifty percent to the person on whose premises the machines were set up and operated, and that this business by the defendant has been carried on and conducted continuously for a number of months last past, and that the defendant is the owner and in possession of a large number of slot machines and gambling devices, used and employed by him for the purpose of carrying on unlawful games and promoting gambling in Whitley County, and that the number of machines he has now surrendered to the court is not all the machines that he owns and controls and manages in Whitley County and surrounding territory, and that the defendant has agreed in open court to surrender all said machines and gambling devices for destruction and has failed to do so, it is now ordered that the defendant, Wilder, in case No. 802, on the misdemeanor docket...