Williams, In re, 658

• Decision Date: 20 January 1967
• Docket Number: No. 658,658
• Citation: 269 N.C. 68,152 S.E.2d 317
• Parties: In the Matter of Reverend Frank WILLIAMS.
• Court: North Carolina Supreme Court

Page 317

152 S.E.2d 317

269 N.C. 68

In the Matter of Reverend Frank WILLIAMS.

No. 658.

Supreme Court of North Carolina.

Jan. 20, 1967.

Atty. Gen. T. W. Bruton and Staff Attorney Andrew A. Vanore, Jr., Raleigh, for the State.

Major S. High, Herman L. Taylor, Greensboro, and Mitchell & Murphy, Raleigh, for appellant.

James Mattocks, High Point, and Charles F. Lambeth, Jr., Thomasville, for North Carolina Civil Liberties Union, Inc., amici curiae; Daniel H. Pollitt, Chapel Hill, of counsel.

LAKE, Justice.

G.S. § 5--1 provides:

'Any person guilty of any of the following acts may be punished for contempt:

'* * * 6. The contumacious and unlawful refusal of any person to be sworn as a witness, or, when so sworn, the like refusal to answer any legal and proper interrogatory.'

Webster's New International Dictionary, Second Edition, says:

'Contumacious implies stubbornness or perversity, esp. as manifested in willful contempt of any lawful summons or orders, as of a court; as a contumacious witness.'

Black's Law Dictionary defines contumacy as 'The refusal or intentional omission of a person who has been duly cited before a court to appear and defend the charge laid against him, or, if he is duly before the court, to obey some lawful order or direction made in the cause.' To the same effect is Ballentine's Law Dictionary.

In Re Hayes, 200 N.C. 133, 156 S.E. 791, 73 A.L.R. 1179, affirmed a punishment summarily imposed by the Industrial Commission upon a witness who refused to answer a question properly propounded to him in a hearing. Connor, J., speaking for the Court, said:

'It has been uniformly held by this court and by courts of other jurisdictions that the power to punish for contempt committed in the presence of the court is inherent in the court, and not dependent upon statutory authority. (Citations omitted.) Without such power, the court cannot perform its judicial function. This principle is especially applicable when the contempt consists in the refusal of a witness in attendance upon the court, after having been duly sworn, to answer a question propounded to him for the purpose of eliciting evidence material to the issue to be decided by the court.'

The statute makes no distinction between one who, in the presence of the court, pursuant to its lawful subpoena, refuses to be sworn as a witness and one who, having been sworn, refuses to answer a proper question. In Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403, Ervin, J., speaking for the Court, with reference to punishment for contempt, said, 'One acts wilfully when he acts knowingly and of stubborn purpose.' The refusal of one subpoenaed as a witness to take the oath or to answer proper questions propounded to him, when done knowingly and intentionally, is contumacious and willful, within the meaning of this statute, even though such person believes it to be his moral duty to refuse to testify.

The contumacious and unawful refusal, in the presence of the court, by one duly subpoenaed, to be sworn as a witness is direct contempt and may be punished summarily. G.S. § 5--5; Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822; In Re Hayes, supra; Snow v. Hawkes, 183 N.C. 365, 111 S.E. 621, 23 A.L.R. 183. In State v. Yancy, 4 N.C. 133, Taylor, C.J., speaking of direct contempt, said, 'The punishment, in such cases, must be immediate, or it would be ineffectual, as it is designed to suppress an outrage which impedes the business of the court.'

G.S. § 5--4 provides that the punishment for contempt by such refusal to be sworn as a witness shall be a fine not to exceed $250 or imprisonment not to exceed thirty days, or both, in the discretion of the court. Thus, the sentence of ten days in jail, imposed by the superior court in this case, was well within the statutory maximum.

It is apparent from the record that the contemner refused to be sworn due to his sincere belief that for him to take the witness stand and testify to any matters, within his knowledge concerning the matter then on trial, would violate his moral duty as a Christian minister. However, it is equally clear that his refusal was willful and intentional. With commendable patience, care, and courtesy the presiding judge explained to him that objections properly entered to questions requiring the disclosure of confidential communications to him would be sustained. It is clear that the contemner understood what was required of him by the court. His refusal to take the oath and to testify was willful and deliberate, notwithstanding the demands of his conscience which motivated it. If it was also an unlawful refusal, it constituted direct contempt, punishable summarily, and the punishment imposed was within the authority of the court.

Contempt does not necessarily proceed from a malevolent spirit. History, both sacred and secular, ancient and modern, is replate with accounts of men of noble character and lofty motives who have suffered punishment far more severe than ten days in jail for conscience's sake. History, especially in recent times, also records that the respect and acclaim which have been accorded these heroes of faith, both spiritual and political, have sometimes induced the self-seeking charlatan to follow in their footsteps--so long as the probable penalty does not outweigh the anticipated applause. Whatever the motive of the recalcitrant witness or party may be, it does not determine whether he may lawfully be adjudged in contempt and punished. The judge is also under the compulsion of conscience, and of the law, to operate the court committed to his direction in accordance with the law. To enable him to do so, he is armed by the State with the power to punish for contempt one who wilfully and unlawfully refuses to testify when duly subpoenaed and called to the stand.

We find no merit in the contertion that the sentence was originally imposed when the contemner was not represented by counsel, or in the contention that the court was under a duty to appoint counsel for him. Summary punishment for direct contempt committed in the presence of the court does not contemplate a trial at which the person charged with contempt is represented by counsel. The record shows that the contemner is a man of intelligence. As to the alleged duty of the court to appoint counsel for him, we note that he is presently represented by three able attorneys, two of whom appeared for him in the superior court on the day after sentence was imposed and presented to the court a motion that he be released upon the same grounds now argued before us. The superior court heard that motion on its merits and denied it. There is no basis for the contention that to carry our the sentence would deprive him of his liberty without due process of law on the ground that he was denied a hearing or denied representation by counsel of his choice.

We come, therefore, to the question of whether the refusal to be sworn and to testify was unlawful. It was clearly so unless it was justified by the fact that the contemner was an ordained minister who acquired his knowledge of the matters, as to which it was proposed that he be interrogated, by reason of the relationship of pastor and communicant.

The record discloses that the solicitor proposed to question the contemner only as to whether he visited the home of the defendant during or near the weekend of 4 July 1965 and there saw Cheryl Parks. The defendant, through his attorney, expressly stated that he had no objection to such testimony. We infer from the record that Cheryl Parks was the prosecuting witness. There is nothing in the record to indicate that she, the defendant's wife, or any other person interested in the case then on trial, or in the disclosure of the information in question, had any objection to the testimony of the contemner with reference to such matters.

Apart from the statute, there is no privilege with reference to communications between a clergyman, or other spiritual advisor, and his communicants or others who seek his advice and comfort. Stansbury, North Carolina Evidence, § 54; Wigmore on Evidence, 3rd ed., § 2394; 58 Am.Jur., Witnesses, § 531; 97 C.J.S. Witnesses, § 263; Comment by Dillard S. Gardner, later the Librarian of this Court, 6 North Carolina Law Review 462.

In recognition of the sociological value of free communication between one and his spiritual advisor, G.S. § 8--53.1 provides:

'No clergyman, ordained minister, priest, rabbi or accredited Christian Science practitioner of an established church or religious organization shall be required to testify in any action, suit or proceeding, concerning any information which may have been confidentially communicated to him in his professional capacity under such circumstances that to disclose the information would violate a sacred or moral trust, When the giving of such testimony is objected to by the communicant; provided, that the presiding judge in any trial may compel such disclosure if in his opinion the same is necessary to a proper administration of justice.' (Emphasis added.)

It is not necessary for us, in the present proceeding, to determine whether the mere fact of the presence of a person in a home, into which an ordained minister has been invited in the course of his discharge of his pastoral duties, is 'information which may have been confidentially communicated to him in his professional capacity' within the meaning of this statute. It is sufficient to note, in the present proceeding, that no objection to the proposed testimony was or is advanced by the defendant then on trial or by any 'communicant' of this witness. Consequently, G.S. § 8--53.1 does not afford justification for his refusal to be sworn and to testify.

The fact that one called as a witness fears that his testimony may decrease the esteem in which he is held in the community, or may decrease his ability to render service therein, does not justify refusal by him to testify in response to questions otherwise...