State v. Driscoll , 151 Or. 363 ( 1935 )

In Banc. This is a proceeding for contempt. The defendant James H. Driscoll was adjudged in contempt of court and that he be confined in the county jail in Klamath county for a period of 60 days and pay a fine of $100. Defendant appeals.

On March 19, 1935, defendant was brought into the circuit court of the state of Oregon for Klamath county by the bailiff of the court where he was ordered to appear on the 21st day of March, 1935, for sentence. There was no affidavit of facts constituting the contempt or charge filed against defendant. The order of commitment made by the court recites, as the substance thereof, as follows:

"That the said Circuit Court of Klamath County, State of Oregon, was duly and regularly convened and called to order on Friday, March 8th, A.D., 1935, at the hour of nine o'clock A.M. and continued in session up to the hour of twelve o'clock noon, at which said time said Court was temporarily recessed or adjourned, and that said Court was again duly and regularly convened and called to order on the said 8th day of March, A.D., 1935, at the hour of one o'clock P.M. and was in session and continued in session during the remainder of said 8th day of March, A.D., 1935, and up to and including the hour of five o'clock P.M.;

That at the hour of 1.40 o'clock P.M. on the said 8th day of March, A.D., 1935, the defendant herein, the said James H. Driscoll, without invitation and without solicitation, entered the chambers of the Circuit Court of Klamath County, State of Oregon, at a time when Edward B. Ashurst, Judge of said Circuit Court, was in the preparation for the trial of criminal cases to be tried here in said Court; and that the said defendant, James H. Driscoll, then and there, on the 8th day of March, A.D., 1935, at a time when the Circuit Court of Klamath County, State of Oregon, was duly and regularly convened and at a time when said Court was in session, represented to Edward B. Ashurst, presiding Judge of the said Court, that he was interested in that certain cause of action then and now pending in said Court, more particularly described as follows, to-wit: Lamm Lumber Company, an Oregon corporation, v. Kesterson Lumber Company, a California corporation, No. 4269 Law, and the said defendant, James H. Driscoll, then and there corruptly and with the intent and purpose and design of taking advantage of the plaintiffs in said cause of action represented to the said Edward B. Ashurst, presiding Judge of the said Court, that it would be to his material and financial advantage if said Court would cause all of the proceedings in said cause of action to be indefinitely delayed and postponed; and that the said defendant, James H. Driscoll, represented to the said Edward B. Ashurst, presiding Judge of said Court, that if the said Edward B. Ashurst, presiding Judge of said Court, would continue to delay the proceedings in said cause of action and cause said case to be indefinitely and, if possible, permanently postponed, that he, the said James H. Driscoll, defendant herein, would be given and granted by the defendants in that certain cause of action, Kesterson Lumber Company, a California corporation, all of the insurance business of said Kesterson Lumber Company, a California corporation; and that the said defendant, James H. Driscoll, represented to the said Edward B. Ashurst, presiding Judge of said Court, that it would be to the material and financial advantage of him, the said James H. Driscoll, the defendant herein, if the said Edward B. Ashurst, presiding Judge of said Court, would concede to such an arrangement and agree to delay the proceedings in said cause of action, and cause said case to be postponed from time to time, and, if possible, indefinitely postponed; and that the said defendant, James H. Driscoll, then and there represented to the said Edward B. Ashurst, in the chambers of said Court, on said date as hereinbefore set forth, and at a time when said Court had been duly and regularly convened and was in session, that the insurance business of the said Kesterson Lumber Company, a California corporation, was of considerable magnitude; that he, the said James H. Driscoll, defendant herein, would profit materially by such arrangement, which has hereinbefore been set forth, and that the said defendant, James H. Driscoll, insisted and demanded that the said Edward B. Ashurst, presiding Judge of said Court, concede to such an arrangement and give him, the said defendant herein, James H. Driscoll, assurance and promise that the said cause of action, hereinbefore set forth, would be postponed from time to time so that he, the said James H. Driscoll, defendant herein, might profit and reap the rewards of any arrangement that he, the said James H. Driscoll, defendant herein, might be able to induce the Court to enter into in reference to said cause of action, as hereinbefore set forth; * * *"

"That the Court finds that it is highly improper for any person to approach, privately, a Judge and attempt to converse with him with reference to cases pending before said Judge, * * *"

and that the attempt on the part of defendant James H. Driscoll to converse with the court, as set forth in the order of commitment and to influence the court, was and is highly contemptuous. The order was entered in the journal of the court. The defendant assigns as error, among others, that the judgment and sentence of the court is unlawful, that the court exceeded its authority and jurisdiction in pronouncing such judgment and sentence for the reason that the order of commitment does not recite facts occurring in the immediate view and presence of the court, sufficient to constitute a direct contempt and to give the court jurisdiction, and that the court, in acting summarily, exceeded its jurisdiction.

As we view the case, this is the only question that it is necessary to consider. We treat the statement of the court as to matters that occurred in the presence of the judge in chambers as importing absolute verity; nevertheless the conclusion that the court was in session, we think, is erroneous.

It is a settled rule in this state that the facts constituting contempt when not committed in the presence of the court must be shown by affidavit: State v. Kaiser, 20 Or. 50 (23 P. 964, 8 L.R.A. 584); State v. Downing, 40 Or. 309 (58 P. 863, 66 P. 917); State v. Stillwell, 80 Or. 610 (157 P. 970).

Section 8-501, Oregon Code 1930, as far as pertinent, provides as follows:

"Contempts defined. The following acts or omissions, in respect to a court of justice, or proceedings therein, are deemed to be contempts of the authority of the court:

Disorderly, contemptuous or insolent behavior toward the judge, while holding the court, tending to impair its authority or to interrupt the due course of a trial or other judicial proceeding;

A breach of the peace, boisterous conduct or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding;

* * * * *" The case does not come within this section, nor within the provisions of section 28-1506, Oregon Code 1930. The proceeding was evidently intended to be brought under and by virtue of section 8-501, subd. 1, Oregon Code 1930.

Contempt may be classified as direct or indirect, and as criminal or civil; a direct contempt is such as is offered in the presence of the court while sitting judicially; and an indirect or, as it is sometimes called, a constructive contempt, is such as tends by its operation, though not committed in court, to obstruct and embarrass or prevent the due administration of justice: 6 R.C.L. 488, § 1; State v. Jones, 111 Or. 295 (226 P. 433, 33 A.L.R. 603).

A court may act summarily in a contempt proceeding when the acts constituting the contempt take place in the immediate view and presence of the court, and, where such acts are not in the immediate view and presence of the court, the court can act only upon an affidavit first having been presented: §§ 8-503, 8-504, Oregon Code 1930. The statute of Oregon does not limit the power of the court to punish for contempt, but prescribes the method of procedure for the exercise of its power: State v. Brownell, 79 Or. 123 (154 P. 428).

The acts of defendant James H. Driscoll, as set out in the order of commitment, did not take place within the immediate view and presence of the court. The judge was in chambers, at the time the act complained of took place, arranging for the trial of cases, and it was while no trial or other judicial proceeding was taking place. The court was not duly constituted or in session. The acts of defendant James H. Driscoll, as set forth in the order of commitment, did not constitute a direct contempt. No doubt the legislature might provide that certain acts committed before the judge of the court should be contemptuous, but the provision for direct contempt is made for some act committed in the immediate presence of the court while in session.

We do not overlook the fact that the learned judge concluded that the court was in session, but from the facts set forth in the order of commitment we are unable to concur in such conclusion, and think that the same was erroneous.

It may be urged that the judge had as full knowledge of the act complained of, and that it constituted contempt, as though the court had been in regular session; but this would not change the situation. The defendant was entitled to be informed of the acts charged as contempt. He would also have a right to raise the question, and be heard thereon, as to whether, under the law, the facts stated amounted to contempt, and, if so, to answer and make defense.

In the case of State v. McClain, 136 Or. 60 (298 P. 213), we find the following language: "A direct contempt of court is the committing of some improper act in the presence of the court while in session."

The act complained of as set forth in the order took place on March 8, 1935. The defendant was called to account for the same, and the order was dated March 19, 1935. A sufficient time had elapsed to give an opportunity for the charge to be reduced to writing and permit the defendant to answer thereto.

For the reasons stated, the judgment of the circuit court is reversed.

ROSSMAN, J., not sitting.