Prine v. State , 143 Miss. 231 ( 1926 )

^* Corpus Juris-Cyc. References: Contempt, 13CJ, p. 39, n. 46 New; p. 52, n. 11; p. 60, n. 14; p. 61, n. 28 New; p. 63, n. 59; p. 65, n. 81, 84, 85, 89 New; p. 67, n. 10 New, 18; Forcing party or prosecuting witness to withdraw or not to institute action or proceeding as contempt of court, see note in 23 A.L.R. 187. On the relation of Toxey Hall, district attorney of the Fifteenth circuit court district of this state, appellants, T.M. Prine, Joe Prine, and Osro Prine, father and brothers of Paul Prine, were tried and convicted of a constructive contempt of the circuit court of that district sitting in and for Jefferson Davis county, and were sentenced to each pay a fine and suffer imprisonment, from which judgment they prosecute this appeal.

Leaving off the caption, style of the case, and the name of the district attorney, the information filed against appellants follows:

"And now comes Toxey Hall, district attorney in and for the Fifteenth circuit court district of the state of Mississippi, and with respect informs the court of the followings facts, to-wit:

"That heretofore, on or about August 21, 1924, while this honorable court was regularly in session, an indictment was returned by the grand jury at said term of the court in case No. 986, wherein the state of Mississippi was plaintiff and Paul Prine was defendant, charged by bill of indictment with the rape on one Beatrice Pittman, a female person; that said indictment was in all respects valid and was filed by the clerk of this court; that the said Paul Prine was afterward arrested, and said cause was thereupon placed on the docket of this honorable court for trial on the issue presented in said bill of indictment at the regular January term, 1925, of this honorable court; that, after the said Paul Prine was arrested on said charge of rape, the clerk of this court issued a subpoena for and on behalf of one Sampson Holloway to appear at the said January, 1925, term of the court, and testify as a witness for and on behalf of the said state of Mississippi on said charge of rape; that the said subpoena was served personally on the said Sampson Holloway, and, after being served as a witness in said cause, the said Sampson Holloway, in response to said subpoena, started on his way to attend the said honorable circuit court of said county at the said January, A.D. 1925, term, as a witness in said cause for and on behalf of the said state of Mississippi, and while en route to attend the said circuit court, as aforesaid, and as a witness in said cause, the said T.M. Prine, Joe Prine, and Osro Prine, father and brothers, respectively, of the said Paul Prine, accosted the said Sampson Holloway, and were then and there of a palpable and flagrant contempt of the honorable court in the following particulars, to-wit: The said T.M. Prine, Joe Prine, and Osro Prine, with full knowledge of the fact that the said Sampson Holloway had been subpoenaed as a witness in the cause aforesaid, and with full knowledge of the fact that said witness was then on his way to attend said court as a witness, and then and there did attempt to prevent the said Sampson Holloway from attending said court in response to said process by then and there saying to the said Sampson Holloway, ``There is the God damned son of a bitch now.' And by then and there further saying, ``Let me cut the God damned son of a bitch's throat;' ``I'll kill the God damned son of a bitch;' ``You had better not go up there swearing your God damned lies;' ``I dare you to go up there to court and tell them damned lies,' or words of like report and meaning and equivalent thereto, and by then and there taking hold of a rail, and exhibiting the same in the presence of the said Sampson Holloway, all of which was then and there with the purpose and intention of preventing the said Sampson Holloway from obeying the process of this honorable court, and that all of the said conduct and demeanor on the part of the said T.M. Prine, Joe Prine, and Osro Prine constituted, and was and is, an expression of contempt for this honorable court, and that the said T.M. Prine, Joe Prine, and Osro Prine should each and all be cited to appear before this honorable court and show cause, if such they can, why they should not be judged guilty of contempt of court and punished for the same."

Appellants failed to attack by demurrer the sufficiency in law of the information, but argue that it is void on its face; that it fails to sufficiently charge the fundamentals of a constructive contempt, and therefore, to that extent at least, appellants are entitled to raise the question of the sufficiency of the information for the first time in this court.

We do not deem it necessary to set out the evidence in the case either in detail or in substance, except to say that it tended to establish the allegations of the information. There was ample evidence to sustain the finding of the court that appellants were guilty of the offense charged in the information.

Appellants argue that a conviction will not stand on the allegations of the information, because they say the information was not brought by the district attorney in the name of and by authority of the state of Mississippi. Appellants cite authorities to the effect that a contempt of this character is an offense against the state, and not against the judge personally holding the court against which the contempt is directed, and, therefore, the prosecution must be in the name of and on behalf of the public. To sustain their position appellants cite In reNevitt, 117 F. 448, 54 C.C.A. 622; 2 Words and Phrases, pp. 1490-1491; State ex rel. Van Orden v. Sauvinet, 24 La. Ann. 119, 13 Am. Rep. 115. The authorities relied on by appellants sustain their contention. We are of opinion, however, that the information here, although perhaps somewhat informal in that respect, sufficiently shows that it was filed by the district attorney having authority to represent the state for and on behalf of the state.

Appellants contend that the judgment appealed from must be reversed because the district attorney failed to get leave of court to file the information. Appellants cite authorities to sustain the position that leave of court is necessary for that purpose. It seems, however, that a complete answer to that contention is that the circuit judge, on the presentation of the information to him by the district attorney, indorsed on it the following:

"To the Clerk of the Circuit Court, Jefferson Davis County:

"You will issue this citation as prayed for making same returnable before this court on Monday, August 31, 1925, at 9 o'clock a.m. This August 27, 1925.

"J.Q. LANGSTON, Circuit Judge."

We are unable to see how the judge having authority in the matter could have made a more specific order authorizing the filing of the information.

Appellants attack the information on the ground that it does not conclude, as indictments are required by section 169 of the Constitution to conclude, "against the peace and dignity of the state." Appellants argue that that provision of the Constitution applies to contempt informations as well as the ordinary criminal prosecutions by information and indictment. Section 169 of the Constitution provides, among other things, that all prosecutions shall be carried on in the name of and by the authority of the state of Mississippi, "and all indictments shall conclude ``against the peace and dignity of the state'" of Mississippi. Appellants were not indicted. They were not subject to indictment for the alleged contempt. The proceeding is by information, the method adopted by the district attorney. In re Cuddy,131 U.S. 280, 9 S. Ct. 703, 33 L. Ed. 154; 6 R.C.L. 530, par. 43. In a contempt proceeding the defendant is not entitled to trial by jury. O'Flynn v. State, 89 Miss. 862, 43 So. 82, 9 L.R.A. (N.S.) 1119, 119 Am. St. Rep. 727, 11 Ann. Cas. 530;People v. Tool, 35 Colo. 225, 86 P. 224, 229, 231, 6 L.R.A. (N.S.) 822, 117 Am. St. Rep. 198; State ex inf. Crow v.Shepherd, 177 Mo. 205, 76 S.W. 79, 99 Am. St. Rep. 624;I.C.C. v. Brimson, 154 U.S. 447, 14 S. Ct. 1125, 38 L. Ed. 1047. Failure, therefore, of the information to conclude, as required by section 169 of the Constitution, was not a defect; it was not required so to conclude.

Appellants argue that the information was insufficient to inform appellants of the nature and character of the charge they had to meet. We do not think there is any merit in that position. Although the information may not be a perfect model to be followed in this character of contempt proceeding, we think that it states the case of the state with so much clearness and definiteness that the district attorneys of the state might very well follow, at least, its general substance and outlines.

Another objection to the information is that it was not sworn to. It was not necessary to be specially sworn to. The district attorney, in filing the information, acted under the sanction of his official oath. Furthermore the information had been presented to the circuit judge, and he had given his express authority to its filing and the prosecution of appellants thereunder. Hurley v. Commonwealth, 188 Mass. 443, 74 N.E. 677, 3 Ann. Cas. 757;Welch v. Barber, 52 Conn. 147, 52 Am. Rep. 567; Ex parteWright, 65 Ind. 504; State v. Ackerson, 25 N.J. Law, 209;Poindexter v. State, 109 Ark. 179, 159 S.W. 197, 46 L.R.A. (N.S.) 517; State ex inf. Crow v. Shepherd, 177 Mo. 205, 76 S.W. 79, 99 Am. St. Rep. 624.

Appellants argue that the information was void because it failed to state the venue of the offense. It is provided in section 26 of the Constitution that in all prosecutions by indictment or information the accused shall be entitled to a speedy and public trial by an impartial jury of the county where the offense was committed. This provision of the Constitution has no application to contempt proceedings; it applies alone to crimes which are prosecuted either by indictment or information before a jury. It has reference to what is generally known as crimes. Contempts constructive or in the presence of the court are not such crimes as are contemplated by that provision of the Constitution. The punishment for a criminal contempt rests exclusively with the court against whom the contempt was directed. No other court has any authority to punish such a contempt. Statutes regulating the venue of trials of criminal offenses generally are inapplicable to contempt proceedings. No court except the court whose judgment or order has been defied can try and punish a contemnor.Typothetae of City of New York v. Typographical Union No. 6,138 A.D. 293, 122 N.Y.S. 795; In re Brown, 168 N.C. 417,84 S.E. 690; Smith v. State, 12 Okla. Crim. 513, 159 P. 941;Dunham v. U.S. (C.C.A.), 289 F. 376; Sullivan v. U.S. (C.C.A.), 4 F.2d 100. A court in one county may punish for a criminal contempt a person attempting in any other county to bribe a subpoenaed witness not to testify in such court. Powell v. State, 152 Ga. 81, 108 S.E. 464; Snow v. Hawkes,183 N.C. 365, 111 S.E. 621, 23 A.L.R. 183.

Appellants say the judgment should be reversed, because the uncontradicted evidence shows that appellants' threats and intimidation against the witness failed to prevent his attendance upon the court; that, therefore, no offense was committed. We know of no such principle of law applicable to cases of this character. The crime consists, not alone in the obstruction of justice, but also in the attempt to obstruct justice. The crime is completed whether the attempt to obstruct justice is successful or not.

We see no error whatever in the proceedings in this case which could have harmed appellants in the least. The judgment, therefore, is affirmed.

Affirmed.