Berger v. State , 29 Ohio App. 434 ( 1928 )

John S. Berger, a resident of California, was called as a witness on behalf of the defendant in a first degree murder case, being tried in the court of common pleas of Hamilton county, Ohio. He was sworn and testified.

Berger was subsequently indicted by the grand jury of Hamilton county, Ohio, for perjury.

A motion to quash the indictment was made, argued, and taken under submission by the court. Before the court had decided the question, and while the judge was on the bench, Berger approached from the side, and, without leave or notice, tossed the following so-called "petition" on the bench in front of the judge:

"Petition. "We, the undersigned jurors, duly impaneled and sworn in the case of the State of Ohio v. George Remus, and having rendered our verdict therein as ``not guilty' on the evidence and testimony adduced therein, do respectfully petition this honorable court in the following, to wit:

"First. That during the course of the trial of the State of Ohio v. George Remus there was returned in open court an indictment against one John S. Berger, a witness for the defense, charging the said John S. Berger with the committing of perjury on the testimony given by the said John S. Berger before we, the said jurors, undersigned. In view of this fact, the return of the indictment as evidenced, we each separately, and of our own free volition, do humbly petition this honorable court to nolle pros., or in other manner, dispose of the said pending indictment against the said John S. Berger, because of the following:

"That the verdict of the jury was returned largely based upon the testimony of the said John S. Berger; that his testimony was fully believed; that his coherent relation to the jury of the issues involved in the case of the State of Ohio v. George Remus, convinced the jury, and each of us, that the said John S. Berger told the truth, the whole truth, and nothing but the truth; that by demeanor of the said witness, the said John S. Berger, while testifying from the witness stand, we further believe and know that the said John S. Berger was telling the truth; that this opinion, the joint and single opinion of each of we jurors, after having heard the testimony of the prosecuting witnesses, namely, Ruth Remus, Mrs. Grace Campbell, and Mrs. Julia Brown, in rebuttal to the testimony of the said John S. Berger, we further believe that the said defense witness, the said John S. Berger, was telling the truth and did not commit perjury in any form or manner.

"Wherefore, and in view of the foregoing, we each here below subscribe ourselves in petition to this honorable court to enter an order of nolle pros., or other legal remedy to exonerate the said John S. Berger."

Under Section 13621, General Code, the court was to determine whether there were any defects apparent upon the face of the record, including defects in the form of the indictment or in the manner in which the offense was charged.

The petition in question was prepared and presented to the court for the purpose of influencing in its decision.

It has been held that, if the act of the accused reflected upon the conduct of the court with reference to a pending suit, and tended in any manner to influence its decision, it would be contempt.

A copy of the petition was given to the press before it was presented to the court.

Cooley on Constitutional Limitations (5th Ed.), page 522, says:

"It has also been held in many cases that the publication of an article in a newspaper commenting on proceedings in court then pending and undetermined, or upon the court in its relation thereto, made at a time and under circumstances calculated to affect the course of justice in such proceedings, and obviously intended for that purpose, may be punished as a contempt, even though the court was not in session when the publication was made."

See, also, State v. Tugwell Baker, 19 Wn. 238,52 P. 1056, 43 L.R.A., 717.

In this instance the court was in session.

It is claimed by counsel for plaintiff in error that his act did not constitute contempt of court. Contempt of court consists in interfering or attempting to interfere with the proper execution of legal process, and with an attempt, either on the bench or off, to influence a court in its decision of a matter pending before the court.

From the record we are of opinion that the act constituted contempt of court; that the judgment of the court of common pleas was within the statute.

Judgment affirmed.

HAMILTON, P.J., and MILLS, J., concur.