Hendershot v. Hendershot ( 1980 )

Miller, Justice:

In this appeal from a criminal contempt proceeding, the appellant, James Hendershot, Sr.,¹ urges that his constitutional right to a trial by jury was violated.

Appellant was sentenced to serve 90 days in jail and fined $500 on a charge that he violated a court order in a divorce case which required appellant’s son to relinquish custody of his child — appellant’s grandson — to the son’s wife. The petition for contempt alleged that appellant had conspired with his son to remove the child from the State. We considered some of the procedural aspects of this case in Hendershot v. Handlan, _ W.Va. _, 248 S.E.2d 273 (1978).

At the hearing on the contempt charge, the appellant requested a trial by jury, but this was refused by the trial court.

Appellant argues that Article III, Section 14 of the West Virginia Constitution² affords an absolute right to a jury trial for all crimes and misdemeanors, and that criminal contempt is a crime. He acknowledges that Bloom v. Illinois, 391 U.S. 194, 20 L. Ed. 2d 522, 88 S.Ct. 1477 (1968), sets a federal constitutional right to a jury-trial in cases where the potential punishment involves imprisonment for more than six months.

In Bloom, the Supreme Court abandoned its traditional position, exemplified in Green v. United States, 356 U.S. 165, 2 L. Ed. 2d 672, 78 S.Ct. 632 (1958), that a criminal contempt trial could be conducted without a jury regardless of the severity of the penalty imposed. Bloom, noting the lack of substantial common law precedent for summary proceedings in criminal contempt,³ held that criminal contempt was in essence a crime, and expressed a fundamental concern for the potential for abuse in criminal contempt proceedings:

“Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both....

“The court has long recognized the potential for abuse in exercising the summary power to imprison for contempt — it is an ‘arbitrary’ power which is ‘liable to abuse.’ Ex parte Terry, 128 US 289, 313, 32 L Ed 405, 412, 9 S Ct 77 (1888). ‘[I]ts exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions.’ Cooke v. United States, 267 US 517, 539, 69 L Ed 767, 775, 45 S Ct 390 (1925).” [391 U.S. at 201-02, 20 L. Ed. 2d 528-29, 88 S.Ct. 1481-82]

The Supreme Court arrived at its holding in Bloom by an empirical analysis of the right to a jury trial as it existed in this Country at the time the United States Constitution was framed. In so doing, the Court relied on the conclusions of Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S.Ct. 1444 (1968), and Cheff v. Schnackenberg, 384 U.S. 373, 16 L. Ed. 2d 629, 86 S.Ct. 1523 (1966), that historically the right to a jury trial in a criminal case did not include “petty” offenses. This term was defined in Cheff to be an offense for which the punishment does not exceed a six-month confinement. Bloom followed Duncan’s constitutional analysis that the Due Process Clause of the Fourteenth Amendment to the United States Constitution mandated this result on the states, since the right to a trial by jury is a fundamental right embodied in the concept of due process.

Appellant argues that while Bloom sets the federal constitutional standard, Article III, Section 14 of the West Virginia Constitution clearly calls for a more protective standard. In this respect, Oregon v. Haas, 420 U.S. 714, 43 L. Ed. 2d 570, 95 S.Ct. 1215 (1975), permits a state under its constitution to set a higher standard of constitutional protection than is available under the federal constitution. We have recognized this principle in several cases. State ex rel. McLendon v. Morton, _ W.Va. _, 249 S.E.2d 919 (1978); Waite v. Civil Service Commission, _ W.Va. _, 241 S.E.2d 164 (1977); Adkins v. Leverette, _ W.Va. _, 239 S.E.2d 496 (1977).

This Court has traditionally considered both civil and criminal contempt proceedings to be criminal in nature from a procedural standpoint, as expressed in State ex rel. Arnold v. Conley, 151 W.Va. 584, 587, 153 S.E.2d 681, 683 (1966):

“ ‘Whether the proceedings are civil or criminal, a contempt of court is in the nature of a criminal offense, and the proceeding for its punishment is criminal in its character, and the rules of evidence governing criminal trials are applicable....’ 4 M.J., Contempt, Section 3, page 242. To the same effect, see 17 Am.Jur.2d, Contempt, Section 78, page 72; State ex rel. Alderson v. Cunningham, 33 W.Va. 607, pt. 1, syl., 11 S.E. 76; State v. Davis, 50 W.Va. 100, 40 S.E. 331; State ex rel. Continental Coal Co. v. Bittner, 102 W.Va. 677, pt. 2 syl., 136 S.E. 202, 49 A.L.R. 968; State ex rel. Taylor v. Devore, 134 W.Va. 151, pt. 2 syl., 58 S.E.2d 641; State ex rel. Hoosier Engineering Co. v. Thornton, 137 W.Va. 230, pt. 1 syl., 72 S.E.2d 203; State ex rel. Taft v. Cox [State ex rel. Cox v. Taft], 143 W.Va. 106, pt. 2 syl., 100 S.E.2d 161.”

To the same effect was State ex rel. Hoosier Engineering Co. v. Thornton, 137 W.Va. 230, 239, 72 S.E.2d 203, 208 (1952):

“In State [ex rel. Ben Franklin Coal Co.] v. Lewis, 113 W.Va. 529, 168 S.E. 812, this Court stated: ‘ ... And, since a prosecution for contempt is in the nature of a prosecution for a crime, such affidavit or information should state the acts constituting the offense with as great certainty as is required in criminal proceedings. ...’ ” [Citations omitted]

While we have in the past acknowledged that “ ‘[t]he line of demarcation between acts constituting criminal and those constituting civil contempt is very indistinct,’ ” State ex rel. Arnold v. Conley, 151 W.Va. at 586, 153 S.E.2d at 683, quoting 17 C.J.S. Contempt § 5(2), it is clear that our more recent cases focus on the nature of the punishment inflicted. We stated in Syllabus Point 9 and in part of Syllabus Point 10 of Eastern Associated Coal Corp. v. Doe, _ W.Va. _, 220 S.E.2d 672 (1975):

“In a contempt proceeding, whenever the defendant may effect his release from jail by performing such act or acts as the court directs, the contempt is civil in nature and the rules regarding criminal contempt do not apply regardless of the ultimate length of the time served in jail.”

“Whenever a defendant is sentenced to jail for a definite period of time for having failed to obey a court order, the contempt is criminal and not civil; ...”

We also held in Syllabus Point 1 of Floyd v. Watson, _ W.Va. _, 254 S.E.2d 687 (1979), that:

“Imposition of a fixed term of imprisonment for civil contempt is improper where the contem-nor is given no opportunity to purge himself of the contempt and thus free himself from imprisonment.”

In Floyd we elaborated on the ultimate distinction between a civil and criminal contempt:

“ ‘[T]he most important result of the distinction between civil and criminal contempt is the rule that if a contempt procedure is criminal in nature, the sentence must be a determinate one, while if it is civil in nature, the sentence must be coercive.’ See, Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, 243 (1971). ‘For this reason the authorities are in almost unanimous agreement that the imposition of a fixed term of imprisonment for civil contempt is improper where the contemnor is given no opportunity to purge himself of the contempt.’ McDaniel v. McDaniel, 256 Md. 684 at 689, 262 A.2d 52 at 55....” [_ W.Va. at _, 254 S.E.2d at 692]

From the foregoing cases, it appears that a contempt will be deemed criminal when a jail sentence is imposed and the contemnor is given no opportunity in the sentencing order for immediate release by purging himself of contempt by doing an act which is within his power to accomplish.⁴

The narrow question here, therefore, is whether Article III, Section 14 of the West Virginia Constitution affords a right to a jury trial in a criminal contempt proceeding where the defendant faces a potential jail sentence with no provision for immediate release by purging of the contempt. We begin by analyzing the scope of the right to jury trial in criminal cases at the time of the adoption of our State Constitution, in order to determine if there are historical characteristics of our State provisions for jury trial in criminal cases which make the petty offense limitation of Bloom inapplicable. The 1863 West Virginia Constitution, Article II, Section 8, provided:

“The trial of crimes and misdemeanors, unless herein otherwise provided, shall be by jury....”

This same provision was carried into Article III, Section 14 of the present West Virginia Constitution, adopted in 1872, except that the provision specified “a jury of twelve men.”

The 1863 Constitution contained a further provision in its Article VII, Section 10:

“[T]he defendant, in such cases of misdemeanor or breach of the peace as may be made by law cognizable by a single Justice, when the penalty is imprisonment or a fine exceeding five dollars, shall be entitled to a trial by six jurors, if demanded, under such regulations as may be prescribed by law.”

This provision was not carried into our 1872 Constitution, perhaps for the reason that the 1863 Acts of the Legislature, Chapter 132, Sections 5 and 6, contained a statute relating to trials of misdemeanors, which in material part read:

“When the penalty authorized by law is a fine exceeding five dollars and not exceeding ten dollars, or imprisonment, the accused shall be entitled to a trial by six jurors, if demanded ....”

In the 1881 Acts of the Legislature, Chapter 8, Section 226, the statutory right to a jury trial for a misdemean- or in a justice of the peace court was amended to read:

“When the penalty authorized by law is a fine exceeding five dollars, or imprisonment, the accused shall be entitled to a trial by twelve jurors, or a less number if demanded, under the regulations respecting such trials in civil suits before justices....”

This statute existed until the 1976 revision of Chapter 50, where the following right to a jury trial is found in W. Va. Code, 50-5-8:

“Any defendant in any criminal action shall be entitled to a trial by jury, and any such verdict must be unanimous.”⁵

In addition to these legislative expressions, we have had, since the inception of this State, a provision permitting the parties to consent to the waiver of a jury trial in a misdemeanor case:

“In any case, except a case of felony, in which a trial by jury would be otherwise proper, the parties or their counsel, by consent entered of record, may waive the right to have a jury, and thereupon the whole matter of law and fact shall be heard and determined, and judgment given by the court; or by like consent, the jury may consist of a number less than twelve, and in that case a verdict shall be as valid, and have the same effect, as if it had been found by a jury of twelve.” [W. Va. Code, 56-6-11]

It was this statute which provoked one of the first discussions by this Court on the language of Article III, Section 14, providing the right to a jury trial in “[t]rials of crimes, and misdemeanors.” In State v. Cottrill, 31 W.Va. 162, 6 S.E. 428 (1888), the constitutionality of the foregoing statutory language was challenged on the basis that there could be no waiver of the right to a trial by jury in a misdemeanor case. The Court was equally divided over the waiver question, but all judges were in fundamental agreement that Article III, Section 14 requires a jury trial.⁶

Prom the foregoing survey, it can be seen that from the time this State was formed, the framers of the West Virginia Constitutions, the Legislature and this Court have been unanimous in the belief that under Article III, Section 14 of the West Virginia Constitution, the right to a jury trial is accorded in both felonies and misdemeanors where the penalty imposed involves any period of incarceration. We recognize that Bloom’s empirical survey of the right to a trial by jury in colonial times reaches a different result as to petty offenses. However, we cannot ignore our own historical roots, which are embedded in such clear and unequivocal constitutional, statutory and judicial language.⁷

In reaching this conclusion as to the scope of the mandate of Article III, Section 14, we are aware of its proviso that: “Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men....” [Emphasis added]. This proviso obviously refers to other provisions in the Constitution which might limit the right to a trial by jury. There are certain provisions in our Constitution containing some limitations, but none of these abolish the right to have a trial by a jury in either a felony or misdemeanor case.⁸

Our research discloses that our constitutional language, “[t]rials of crimes, and misdemeanors,” [emphasis added] is unique in its specificity.⁹ Most state constitutions utilize the phrase “in all criminal prosecutions,” which parallels the language of the Sixth Amendment to the United States Constitution. In seven states, courts have concluded that the language “in all criminal prosecutions” requires the right to a jury trial on any criminal offense which may result in incarceration.¹⁰ Two of these states have applied the right to a jury trial to any criminal contempt. State v. Browder, 486 P.2d 925 (Alaska 1971); Peterson v. Peterson, supra, but this issue appears not to have been decided in the other five states.¹¹

We are not unmindful that W. Va. Code, 61-5-26,¹² establishes a provision on contempt which implies that the court, for a direct contempt committed in its presence, can without jury impose a maximum fine of $50 and ten days in jail. The statute is silent as to the right to a jury in the other categories of contempt.

This Court has not had occasion to consider the constitutionality of W. Va. Code, 61-5-26, in a criminal contempt proceeding as against a claim that it violates the right to a trial by jury under Article III, Section 14. We stated in Hallam v. Alpha Coal Corporation, 122 W.Va. 454, 459, 9 S.E.2d 818, 821 (1940), that:

“[This] section which, by its language, conferred upon the courts jurisdiction to punish summarily the listed instances of contempt, including misbehavior of an officer of the court in his official character, ... expressly excludes proceeding summarily in all other cases....”

Moreover, in discussing this statute in State ex rel. Arnold v. Conley, 151 W.Va. 584, 588, 153 S.E.2d 681, (1966), we stated:

“In State ex rel. McNinch v. Porter, 105 W.Va. 441, pt. 2 syl., 143 S.E. 93, it was held that, notwithstanding the common law right of courts to punish for contempt, a circuit court may not proceed and punish summarily for acts other than those enumerated in the statute. To the same effect, see State v. Hansford, 43 W.Va. 773, pt. 1 syl., 28 S.E. 791.”

It is, therefore, apparent that we have viewed this statute as a restriction on the contempt powers of a court. However, the ultimate question of the right to a jury trial in a criminal contempt proceeding must be answered by the constitutional command which, as we have seen, mandates a jury trial in a criminal contempt where a jail sentence may be imposed without the right of immediate release by purging oneself. To the extent that the statute conflicts with this constitutional mandate, it must yield.

It should again be emphasized that our holding is narrow and only to the effect that Article III, Section 14 of the West Virginia Constitution prohibits imprisonment without a jury trial in a criminal contempt proceeding where the contemnor is sentenced and the sentencing order does not provide him an opportunity to purge the contempt.¹³ It is not applicable where the sentencing order contains the condition that the contemnor can gain immediate release by purging himself of the contempt by performing an act that is within his power to accomplish.¹⁴

We recognize the argument that by requiring a jury trial in criminal contempt cases involving jail sentences, we would be depriving trial courts of an effective means of keeping order in the courtroom or ensuring that their orders are obeyed. Obedience to court orders can still be effectuated, where parties have been contumacious, through a civil contempt proceeding which includes conditional imprisonment; that is, imprisonment based on the condition that the contemnor will be freed on agreeing to honor the court order and perform such act to comply with the order as is reasonable within his power to do. A court may also summarily expel a disruptive party or spectator from the courtroom.¹⁵

Finally, the court’s power to punish for criminal contempt by fine or imprisonment is in no way diminished by today’s opinion. Such power has only been made subject to the procedural safeguard of a jury as constitutionally commanded for any crime where incarceration is contemplated.

In view of this range of retributive rights, we can hardly conceive that the trial courts are powerless to control the parties or the conduct of the proceeding before them.

Appellant raises several evidentiary questions. However, because a new trial must be granted because of the failure to accord a jury, we decline to discuss them.

For the foregoing reasons, the appellant’s conviction for criminal contempt is reversed and a new trial awarded.

Reversed and remanded.

1 This case comes to us styled in the names of the original parties to the divorce action. The better practice in criminal contempt would be to style the proceeding State v._

2 The material portion of Article III, Section 14, states:

“Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay....”

3 The relevant part of Note 2, Bloom v. United States, 391 U.S. 194, 199-200, 20 L. Ed. 2d 522, 527, 88 S.Ct. 1477, 1480-81 (1968), states:

“The unalloyed doctrine that by ‘immemorial usage’ all criminal contempts could be tried summarily seems to derive from Mr. Justice (later Chief Justice) Wilmot’s undelivered opinion in The King v Almon (1765), first brought to public light by the posthumous publication of his papers, Wilmot, Notes 243 (1802), reprinted in 97 Eng Rep 94. Wilmot’s opinion appears to have been the source of Blackstone’s view, but did not become an authoritative part of the law of England until Rex v Clement, 4 Barn & Ald 218, 233, 106 Eng Rep 918, 923 (KB 1821). Cf. Roach v Garvan, 2 Atk. 469, 26 Eng Rep 683 (Ch 1742). See discussion in 8 How St Tr 14, 22-23, 49-59, and the subsequent civil action, Burdett v Abbot, 14 East 1, 138, 104 Eng Rep 501, 554 (KB 1811); 4 Taunt 401, 128 Eng Rep 384 (Ex 1812); 5 Dow 165, 202, 3 Eng Rep 1289, 1302 (HL 1817). The historical authenticity of this view has been vigorously challenged, initially by Solly-Flood, The Story of Prince Henry of Monmouth and Chief-Justice Gascoign, 3 Transactions of the Royal Historical Society (NS) 47, 61-64, 147-150 (1886). This led to the massive reappraisal of the contempt power undertaken by Sir John Fox: The King v Almon, Pts. 1 & 2, 24 LQ Rev 184, 266 (1908); The Summary Process to Punish Contempt, Pts. 1 & 2, 25 LQ Rev 238, 354 (1909); Eccentricities of the Law of Contempt of Court, 36 LQ Rev 394 (1920); The Nature of Contempt of Court, 37 LQ Rev 191 (1921); The Practice in Contempt of Court Cases, 38 LQ Rev 185 (1922); The Writ of Attachment, 40 LQ Rev 43 (1924); J. Fox, The History of Contempt of Court (1927). On contempt generally, see R. Goldfarb, The Contempt Power (1963).”

4 Other courts have identified the determinate sentence without the ability to purge as the hallmark of a criminal contempt. See, e.g., Board of Education v. Shelton Education Ass’n., 173 Conn. 81, 376 A.2d 1080 (1977); In re Rasmussen’s Estate, 335 So.2d 634 (Fla. App. 1975); McDaniel v. McDaniel, 256 Md. 684, 262 A.2d 52 (1970). We do not conceive that the term “determinate sentence” is the key to a criminal contempt. Rather, the important factor is the jail sentence without the right to immediate release by purging oneself of the contempt.

5 It should be noted that the Judicial Reorganization Amendment to the West Virginia Constitution, ratified November 5, 1974, provides in Article VIII, Section 10, that a trial in magistrate court “shall consist of six jurors.”

6 In State v. Cottrill, 31 W.Va. 162, 6 S.E. 428 (1888), the four members of this Court wrote separately, and the following quotations demonstrate their unanimity on the basic question, whether Article III, Section 14 of our Constitution guarantees a right to jury trial in felonies and misdemeanors:

“Mark the language: ‘Trials of crimes and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men.’ This declaration, plain and unmistakable, is that trials of crimes and misdemeanors in West Virginia shall in all cases be by jury, unless somewhere else in the Constitution it is provided that they may, under certain circumstances, be in some other mode. It is not elsewhere provided in the Constitution that such trials shall be in any other mode, except in the trial of impeachments....” [Johnson, J., 31 W.Va. at 181, 6 S.E. at 438]

“[Y]et I maintain that where the constitution itself expressly or by necessary implication declares that the trial must be by a jury, that the Legislature can not, even with the consent of the accused, substitute the court in lieu of a jury, and confer upon it jurisdiction to try a cause, the trial of which has been exclusively vested in the jury.” [Emphasis in original] [Woods, J., 31 W.Va. at 190, 6 S.E. at 443]

“Without a statute permitting the waiver of trials in misdemean- or cases, I should not hesitate to hold that no consent or waiver by the accused could confer jurisdiction upon the court to try such cases without a jury; but I am wholly unprepared to hold the statute authorizing such waiver unconstitutional.” [Snyder, J., 31 W.Va. at 205-06, 6 S.E. at 451]

“Now, as I understand, this last provision is nothing but a clear and distinct announcement of the meaning of the phrase, ‘the right of trial by jury shall remain inviolate,’ when applied to criminal cases. And its meaning is precisely the same as that of our Constitution, that ‘the trial of crimes and misdemeanors shall be by jury.’ They all simply mean that the Legislature shall pass no law whereby, ‘in the trial of criminal cases, a jury shall be dispensed with.’ ...” [Green, J., 31 W.Va. at 215, 6 S.E.2d at 456]

The equal division by the Court in Cottrill on the constitutionality of the waiver statute was resolved in State v. Griggs, 34 W.Va. 78, 11 S.E. 740 (1890), where the Court unanimously concluded that the statute was constitutional. The United States Supreme Court has held from a constitutional standpoint that a defendant can knowingly and intelligently waive his right to a jury trial with the consent of the court and the prosecution. Singer v. United States, 380 U.S. 24, 13 L. Ed. 2d 630, 85 S.Ct. 783 (1965).

7 We recognized in Markey v. Wachtel, _ W.Va. _, _ S.E.2d _ (1979) (No. 14504), that the right to a jury trial under Article III, Section 10, providing that “[n]o person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers,” does not extend the right of jury trial to an involuntary civil commitment of a person to a mental health facility. In Markey, we traced the historical background of Article III, Section 10, and concluded that it was not designed to provide a blanket right to jury trial in all civil cases. Markey did not discuss Article III, Section 14, which is obviously designed to apply to criminal proceedings.

8 Article III, Section 13 provides: “In suits at common law ... in a court of limited jurisdiction a jury shall consist of six persons.” Article III, Section 9 provides that in eminent domain cases “compensation shall be ascertained by an impartial jury of twelve freeholders.” Article III, Section 21, ratified November 6, 1956, provides: “Regardless of sex, all persons, who are otherwise qualified, shall be eligible to serve as petit jurors, in both civil and criminal cases....” Under Article VIII, Section 10, ratified November 5, 1974, the following provision is found: “In a trial by jury in a magistrate court, the jury shall consist of six jurors who are qualified as prescribed by law.”

9 Much the same point was made by the Court in State v. Cottrill, 31 W.Va. 162, 6 S.E. 428 (1888).

10 Baker v. City of Fairbanks, 471 P.2d 386 (Alaska (1970) (jury trial for any offense that involves a possibility of incarceration or loss of valuable license); State v. Sklar, 317 A.2d 160 (Me. 1974) (jury trial for every prosecution which is criminal, regardless of it being “petty” or “serious”); Cahill v. Fifteenth District Judge, 70 Mich. App. 1, 245 N.W.2d 381 (1976) (jury trial whenever defendant may receive a jail sentence); Peterson v. Peterson, 278 Minn. 275, 153 N.W.2d 825 (1967) (jury trial for all criminal prosecutions “regardless of gravity;” excluding municipal ordinances as “not against the state;” applied to include jury trial for criminal contempt which by statute is punishable by up to six months and $250); Franklin v. State, 576 S.W.2d 621 (Tex. Crim. App. 1978) (right of jury trial applies equally to felonies and misdemeanors); State v. Becker, 130 Vt. 153, 287 A.2d 580 (1972) (jury trial for all criminal offenses even if maximum penalty involves no incarceration and only $50 fine); State ex rel. Murphy v. Voss, 34 Wis.2d 501, 149 N.W.2d 595 (1967) (jury trial right extends to all misdemeanors).

11 R. Goldfarb in The Contempt Power (1963), at 183, discussed the constitutional aspects of a criminal contempt proceeding:

“The constitutional policies are clear. Criminal contempt should be tried as other crimes are — with all procedural guarantees protecting the accused. There should be the right to a jury trial of the charged contempt. The confusion wrought from vague and misleading distinctions between civil and criminal contempts, and the stronger policies of protecting individual liberty, underscore this logical conclusion.”

12 “The courts and the judges thereof may issue attachment for contempt and punish them summarily only in the following cases: (a) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice; (b) violence or threats of violence to a judge or officer of the court, or to a juror, witness, or party going to, attending or returning from the court, for or in respect of any act or proceeding had, or to be had, in such court; (c) misbehavior of an officer of the court, in his official character; (d) disobedience to or resistance of any officer of the eourt, juror, witness, or other person, to any lawful process, judgment, decree or order of the said court. No court shall, without a jury, for any such contempt as is mentioned in subdivision (a) of this section, impose a fine exceeding fifty dollars, or imprison more than ten days. But in any such case the court may impanel a jury (without an indictment or any formal pleading) to ascertain the fine or imprisonment proper to be inflicted, and may give judgment according to the verdict. No court shall impose a fine for contempt, unless the defendant be present in court, or shall have been served with a rule of the court to show cause, on some certain day, and shall have failed to appear and show cause.”

13 Since the issue has not been raised, we do not determine whether Article III, Section 14 of our Constitution requires a jury trial on a criminal charge where only a fine is involved. The United States Supreme Court has not interpreted the Sixth Amendment to require the right to a jury trial in a criminal proceeding involving a fine. Muniz v. Hoffman, 422 U.S. 454, 45 L. Ed. 2d 319, 95 S.Ct. 2178 (1975); District of Columbia v. Clawans, 300 U.S. 617, 81 L. Ed. 843, 57 S.Ct. 660 (1937). It has, however, held that a criminal fine cannot, in the case of an indigent defendant, be converted into a jail term because of his inability to pay the fine. Tate v. Short, 401 U.S. 395, 28 L. Ed. 2d 130, 91 S.Ct. 668 (1971).

14 An obvious example would be where a party is required by court order to pay alimony and support and contumaciously refuses to make payments. The court could order his commitment without the necessity of a jury trial if the order provided for immediate release upon his agreeing to make the payments. State ex rel. Trembly v. Whiston, _ W.Va. _, 220 S.E.2d 690 (1975).

15 Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1061, 25 L. Ed. 2d 353, 359 (1970), permits expelling a criminal defendant and suggests as a last resort that he be bound and gagged. It has been recognized that the contempt power may have little effect on a truly disruptive defendant, as noted by Chief Justice Burger in his concurring opinion in Mayberry v. Pennsylvania, 400 U.S. 455, 467, 91 S.Ct. 499, 506, 27 L. Ed. 2d 532, 541 (1971):

“The contempt power, however, is of limited utility in dealing with an incorrigible, a cunning psychopath, or an accused bent on frustrating the particular trial or undermining the processes of justice. For such as these, summary removal from the courtroom is the really effective remedy.”