In re May , 1 F. 737 ( 1880 )

Brown, J.

By Rev. St. § 725, the power’ of the federal courts to punish for contempts is limited to three .classes of cases: First, a misbehavior of any person in the presence of the court, or so near thereto as. to obstruct the administration of justice; second, misbehavior of any officer of the court in his official transaction's; and, third, disobedience or resistance of any officer, party, juror, witness or other person, to any lawful writ, process, order, rule, decree or command of the courts. Ex parte Robinson, 19 Wall. 505, 511.

It is not necessary here to discuss the question whether, in the absence of the express order of the court to the jury to refrain from conversing with any one regarding the case, a juror could be punished for such misconduct. It would seem, however, that such violation of duty might he reached under the first class of cases, as the misbehavior of á person so near the presence of the court as to obstruct the administration of justice therein. The act does not- define how near the court the misbehavior must be, nor the character of such misbehavior, and -1 think it may be fairly construed to extend to any misbehavior by a juror, in his capacity as such, wherever committed, since such misbehavior necessarily tends to obstruct the administration of justice. U. S. v. Devaughan, 3 Cr. C. C. 84; State v. Doty, 32 N. J. 403. Otherwise it would 'be impossible for the federal courts to punish a juror, even for receiving a bribe, since there is no statute making the receipt of a bribe by a juror a crime. The act was passed ! for the purpose of preventing the courts from interfering with newspaper comments upon trials. It seems to me it could not have been the intention of congress to take -away from the courts the common law power of punishing jurors for misconduct. Upon this point, however, I express no opinion, as it is admitted there was an order given, and the only question is whether respondent disobeyed it.

It is a cardinal rule in proceedings for a criminal contempt that the answer of the respondent cannot be traversed and must be taken as true. If false, the government is remitted to a prosecution for perjury. 4 Black. Com. 287; In the matter of Pitman, 1 Curt. 186; U. S. v. Dodge, 2 Gall. 313; State v. Earl, 41 Ired. 464; Burke v. The State, 47 Ired. 528; People v. Feed, 2 John. 290; In re Moore, 63 N. C. 397; Nomes v. Cummins, 1 Lester, 40.

But the answer must be credible and consistent with itself, and if the respondent states facts which are inconsistent with his avowed purpose and intention, the court will be at liberty to draw its own inferences from the facts stated. In the matter of Crossley, 6 Term R. 701; Ex parte Nowlan, Id. 118. For instance, if the respondent in this case had stated that in his interview" with Burnstine he had asked and received of him a $1,000, and had kept the money in his pocket until after the jury were discharged; and had further stated that he did this for the purpose of delivering the money to the district attorney and prosecuting Burnstine for bribery, it would scarcely be contended that the court would be bound to draw the same inference from his conduct. So, then, it is, after all, a question in every case whether the facts stated are consistent with an honest intent.

The prosecution insist in this case that Miller was a myth; that respondent’s story with regard to his interview with him was concocted solely for the purpose of explaining the subsequent interview with Burnstine. The court, however, cannot accept this theory. I must take it for granted that the interview with Miller was had substantially as stated. Respondent had no power to prevent Miller from conversing with him as he did, and suggesting that money might be made out of the case, but he should at once have disclosed the fact to the court; or, at least, he should not have assumed to take on the character of-a detective and work up a case for the government without consultation with the officers of the government. If, as Miller said, he had been present several days during the trial, he was probably present during some of the days that succeeded his interview with the respondent, and might have been identified. Respondent, however, seems to have made no effort tb ascertain whether Miller was in the court room, but keeps the facts to himself for a whole week, and at the most critical moment of the trial, after the arguments had been concluded, and the ^ evening before the jury were to be charged, goes to the house of one of the defendants after dark to ascertain'whether Miller represented him or any of the other defendants in the case. What business was it to him whether Miller was sent by the defendants or not? Suppose he had been sent by Burnstine, what was the respondent to do about it ? He was not even content to take Burnstine’s word that he knew nothing about Miller, but consented to make another visit at a late hour in the evening, in the meantime suggesting to Burnstine that he see Rothschild and learn whether he knew anything of Miller. The records of the court show that the jury in this case disagreed. It does not, of course, show how they stood. But the respondent, in his answer, admits that he continued to vote for an acquittal until the end, giving, among other reasons, that he thought Miller had been trying to prejudice him against the defendants, when he admits that Miller had talked of the innocence and good standing of the defendants, and had suggested that money might be made out of the case.

Suppose a verdict of guilty had been rendered, or, to put the case stronger, suppose it had been a civil' case and a verdict had been rendered for the defendants, would it not have been the duty of the court, on respondent’s own showing, and to pat the most favorable construction upon it, to grant a new trial on account of his misbehavior ? It seems to me entirely clear that it would. Without looking at the affidavits upon which this order was issued, and which show a somewhat different state of facts, it seems to me clear, beyond a reasonable doubt, that respondent wont to Burnstine’s house, not for the purpose of detecting Miller or any other person, but rather with the intention of entering into a corrupt negotiation with Burnstine. He thus put himself in a position where ho could not do otherwise than persist in voting for an acquittal, since an exposure of his conduct was certain, if defendants were convicted. The respondent is therefore adjudged guilty of the specification charged in the order to show cause, viz.: “Going in the night-time to the house of Marcus Burnstine, one of the defendants, for the purpose of corruptly conferring * * with said Burnstine of and concerning said canse, and of and concerning the verdict thereafter to be rendered therein;” and is further adjudged to pay a fine of $100, and to be committed to the Detroit House of Correction until the terms of his sentence are complied with.