State v. Howell ( 1972 )

PARKER, Judge.

Defendants have been charged with violation of G.S. 5-8, which grants to every court of record power to punish certain conduct as for contempt “when the act complained of was such as tended to defeat, impair, impede, or prejudice the rights or remedies of a party to an action then pending in court.” In our opinion the evidence in the present case falls short of being sufficient to support the trial court’s finding that defendants violated this statute. There was no showing that any act of defendants, however improper, was such as tended to defeat, impair, impede, or prejudice the rights or remedies of any party to any action then pending in court. Mr. and Mrs. Ayers were not parties to any action then pending in court, and therefore any acts of defendants, however violative of the Ayers’ rights, were not such as warranted punishment of defendants “as for contempt” under G.S. 5-8. The closest which the evidence came to showing that the rights of any party to a pending action may have been impeded as result of improper acts of the defendants was the magistrate’s testimony that he spent approximately 25 minutes investigating the false summons and that while he did so “others had to wait.” However, the magistrate could not remember the name of any person who was thereby required to wait, and it is pure conjecture to conclude, as the trial court did, that the “others” referred to included “a party to an action then pending in court.” Conviction as for contempt must be supported by a more substantial foundation than the evidence in this case disclosed.

The evidence may tend to show a violation of G.S. 14-118.1, but we hold it insufficient to warrant punishment of defendants “as for contempt” under G.S. 5-8. In view of this holding we find it unnecessary to pass upon appellants’ remaining contentions, some of which appear to have merit.

The judgment appealed from is

Reversed and vacated.

Judges Britt and Vaughn concur.