In re Buckley

Thornton, J.

This is a proceeding taken against the respondent, Buckley, for an alleged contempt of this court. The contempt charged relates to the cases of Bonnet v. City and County of San Francisco, and Parker v. City and County of San Francisco, which were pending in this court on appeal before, on and after the tenth day of May, 1884. In each of these causes, judgment of affirmance was rendered by this court on the day last named. These judgments of affirmance were in favor of Bonnet and Parker. The contempt charged is, that on the said day the defendant, well knowing that these causes had been decided by this court in favor of the parties above mentioned, affirming judgments in their favor given in the court below, for and in consideration of the sum of five hundred dollars, which Bonnet agreed to pay him, agreed and undertook with Bonnet that he, Buckley, would procure to be given and made by this court a judgment in favor of Bonnet and Parker, respectively, in the cases above stated; that Bonnet was at the same time assured by Buckley, and was made' to believe, that he (Buckley) possessed such influence with this court and the members thereof that he could procure through his influence said judgments in said actions to be given and made respectively in favor of said Bonnet and Parker.

Buckley, in obedience to an order to show cause, appeared herein, and in a verified answer denied the charge in every particular.

That the conduct with which respondent is here ^charged is a contempt of this court, we have no doubt. This is a proposition of law to us so plain that we think it unnecessary to discuss it further.

The material question to be considered relates to the guilt of respondent. The guilt of respondent must be established as a fact by clear and satisfactory evidence. If not so established, this court has no right to punish him.

It should be remembered that the proceeding here taken is criminal or quasi criminal. It was so held by this court in Ex parte Crittenden, 62 Cal. 534, following New Orleans v. Steamship Co., 20 Wall. 387, where it is said: “ Contempt of court is a specific criminal offense.” (See also Hummel’s Case, 9 Watts, 421; Cartwright’s Case, 114 Mass. 230; Durant v. Supervisors, 1 Woolw. 377; Com. Dig., tit. Attachment, 4; 4 Bla. Com. 288.)

The punishment for a contempt may be fine or imprisonment, or both,—a punishment appropriate to criminal offenses. (See Code Civ. Proc., secs. 1218, 1219.) Under such circumstances, the guilt of the party charged should be proved and established by clear and satisfactory evidence. A mere preponderance of evidence would not be sufficient to warrant the infliction of so serious a punishment. We know of no rule of law in this state authorizing any court to fine and imprison a person on a mere preponderance of evidence as to his guilt. The guilt must be established by clear and satisfactory proof, and generally, if not always, in criminal actions, beyond a reasonable doubt. It would be against all correct rules of law and principles of justice to permit guilt, under such circumstances, on a conviction of which punishment so serious and severe may follow, to be established by less than clear and satisfactory proofs.

In the matter of the application to disbar R E. Houghton, an attorney of this court (67 Cal. 511), it was said: “ A judgment against the respondent will deprive him of personal and property rights. Unless we are clearly satisfied of respondent’s guilt, we ought not to remove or suspend Mm from the practice of his profession. As we are not so satisfied, we decline to strike his name from the roll.” These remarks apply to this case. Such, in our judgment, is the legal result deducible from our statute relating to contempts (Code Civ. Proc. secs. 1209, 1210, etc.), by which an issue is required to be made up and tried as to the guilt of the accused. (Code Civ. Proc., secs. 1217-1219.)

It may be remarked that this was not so at common law. In such proceedings in courts of law not committed in facie curise, if a party charged with contempt cleared himself by his oath denying his guilt, he was by a court of law discharged. If, however, in making such oath, he was perjured, he might be prosecuted for perjury. Such is the statement of Blackstone as to proceedings upon such contempt in courts of law (see 4 Bla. Com. 287); and this is confirmed by the authorities.

But in this state the subject is regulated by statute as stated above. And of contempts not in face of the court an issue is made up by answer, and witnesses are called and examined as in other causes. In other words, a trial is had as in other cases.

In this case the contempt charged not having been committed in the face of the court, a trial was had on the pleadings and evidence.

The evidence in regard to the transaction in which the contempt is said to have been committed is found in the testimony of B. Bonnet, J. W. Taylor, and the respondent. Bonnet was the plaintiff in the above-named case of Bonnet v. The City and County of San Francisco. Bonnet testified that “ on the 10th of May, 1884, he and Joseph W. Taylor met Buckley at his saloon in the city of San Francisco, about 8 o’clock in the evening. Buckley invited them inside Ms private place, and then the respondent said to him: ‘You got a case in the Supreme Court.’ ‘I told him yes’; Taylor told him before they got to Buckley’s saloon, ‘Buckley could get a judgment for you right away,’ and when we got there, Buckley in his private room said: ‘I can get judgment for or against you in this case’; and Taylor said: ‘I suppose the judges will be down here to-night or to-morrow,’ to which Buckley said: ‘ O yes, there is two already here.’ Taylor asked him (Bonnet): ‘ Well, suppose we make a note for five hundred dollars.’ He asked him if five hundred dollars was satisfactory to him, or something of that kind, and said, ‘ Suppose we make a note for five hundred dollars and give it to him.’ I says, ‘ I won’t pay no five hundred dollars. I won’t pay it. My brother won’t authorize me to do so.’ ‘Well,’ he (Taylor) says, ‘I will pay half of it.’ ‘Well,’ I says, ‘all right, if you pay half of it we will pay it,’ and then Taylor drew a note himself and gave it to me to sign. I signed the note. I told him, says I, ‘Ain’t you going to sign?’ He says, ‘No, I don’t want my name to appear, but it is understood I pay half of it.’ And I said, ‘ Mr. Buckley, is that correct? You won’t make my brother responsible for more than two hundred and fifty dollars ? ’ ‘ Y es,’ he says, ‘ and Taylor will pay over the other half.’ ' ‘ Well,’ he (Buckley) says, ‘ I can have this judgment rendered immediately, and date it to-day, to-morrow, or Monday, or any time you want it.’ I says, ‘ It is not particular about the date; I don’t care about that.’ So we met and parted that way, I think. Taylor gave the note to Buckley in Lis presence, and it was left with him.”

The witness, at request of the prosecuting counsel, explained the reference to his brother. The money, he said, belonged to his brother, Eli Bonnet. It appeared that the claims belonged to Eli Bonnet, who had assigned them over to him, which he had assigned to Taylor. The claims in both the cases of Bonnet and Parker had been assigned to Taylor some time before as security for money advanced, and the witness was acting for his brother, who was sick. ' When a settlement was had with Taylor he was present, and two hundred and fifty dollars was retained out of the money in payment for that note. When this settlement was had, Taylor, D. H. Whittemore, M. J. Kelly, Eli Bonnet, and himself were present. Buckley was not there, in fact had gone East. The money was not paid to Kelly, who had the note, but Taylor kept it, and said that he would see that the note was paid. At the time the note for five hundred dollars was given to Buckley, B. Bonnet stated that he did not know that judgment had been rendered in the Supreme Court; that he did not know of it until the following Monday, the 12th of May, when he saw it in a newspaper. He then told Taylor not to pay the note; that it was obtained on false pretensions. This is, in substance, the testimony of Bonnet, which has any bearing on the matter of the contract.

Buckley was called, and testified as to the interview with Taylor and Bonnet on the evening of the 10th of May. He said: —

“My recollection of the affair is, that Mr. Taylor called upon me at my place of business that evening, in May, with a gentleman he said was Mr. Bonnet, and asked me if he could see me privately for a few moments. I went with him into a room in my saloon. Mr. Taylor introduced me to Mr. Bonnet, and said he was very anxious to see me in relation to the matter of these claims that was coming up before the board of supervisors; was very anxious that I should interest myself for him in trying to have these matters brought before the board. Some conversation in relation to the matter took place.

“ Q,. — State what it was, as near as you can recollect it.

“A.—As near as my recollection serves me, it was this: Mr. Taylor told me that in matters of this kind, that before obtaining their money they had to go before the board of supervisors, and recited some cases, and among others the name of Phelan that was adjudicated by the court, and went to the board of supervisors and there remained some four or five years, going from one board to the other, and the object of my assistance was to have this matter brought up and acted upon by the board of supervisors, and he asked me if I would not interest myself. I told him I did not know what I could do. I had known Mr. Taylor for a long time, and was willing to do anything I could for him; so Mr. Taylor and this other gentleman had a conversation between themselves, and they afterwards returned to me and said: ‘We do not want your services for nothing. We are willing to agree to pay you for it if you will assist us to have this matter brought up. We will pay you five hundred dollars, and to secure your payment of it will give you a note/ which they did, and I agreed to assist them and do what I could in the matter.

“That is about the conversation as I recollect it.”

Buckley further testified that the name of the Supreme Court was never mentioned during the conversation; that nothing was said of the members of the Supreme Court, and their names were never mentioned; nothing was said of his influence with the Supreme Court, or of his ability to procure decisions; that he never at any time or place had a conversation with Bonnet or any one else in relation to the Supreme Court or any member of it, or regarding his influence with the Supreme Court; that he had never stated to any person that he had any influence with the Supreme Court, or that he could procure decisions; that he had stated to the best of his recollection the whole of the conversation that took place at the time referred to; that Bonnet’s statement of the conversation was false from beginning to end, and that no such conversation as that detailed by Bonnet ever took place with him or in his presence.

It appeared in evidence that a dispatch had been sent from Sacramento, on the morning of the 10th of May, 1884, signed by J. W. McCarthy, then clerk of the Supreme Court, addressed to Buckley, Bush Street, San Francisco, in these words: “Parker and Bonnet v. San 'Francisco, judgment affirmed”; that this dispatch was received in San Francisco at 10:43 a. m., and delivered at Buckley’s place of business to one Thomas F. Doran, who was an employee of Buckley’s, at 323 Bush Street, at 10:48 a. m.

Buckley testified that he never received this dispatch, and had no recollection of ever hearing it read, until it was read in his presence this morning. His secretary testified to the like effect. Doran was not called. Taylor is called, and gives his version of what took place at Buckley’s saloon on the evening of the 10th of May, and testified: “I know no more or less than that Mr. Bonnet wanted me to go and see Mr. Buckley. He wanted me to take him up there. He did not know him, and wanted to see him, to help us through the board, and I took him up there.....I told him I would, and went up there and met Mr. Buckley, and told him Mr. Bonnet wanted to see him about helping him get some judgments through the board of supervisors. He said that he did not know if he could do much of anything to get the bills through.” The witness referred in this to the payment of the judgments. The witness further stated: “I told him. I said, ‘Mr. Bonnet thinks you can help us, and he would like to haye you help us if you can.’ He said, ‘Taylor, I do not know that I can,’ and I said, ‘Mr. Bonnet does not want you to do this for nothing, and if you will help us, he will give you something’; and he said, ‘I do not know that I can do anything,’ and Bonnet said, ‘He can, if he likes, help us.’ He says, ‘If he wants, he can do it.’ Bonnet says to me, ‘Look here, you had better give something,’ and I said, ‘What do you want to give him? I am satisfied to let things go as they are.’ I was drawing sixty dollars a month interest; and he said, ‘Well, we had better offer him five hundred dollars,’ and I said, ‘All right; if you want to help us through the board, Mr. Bonnet is willing to give you a note for five hundred dollars, and whenever the money is paid from the treasury, the bill is paid/ and he said, ‘I do not know. I will try and do what I can, but I do not know whether I can help you any, Taylor/ Then I drew up the note, and put the name of Bonnet in. I made a common note on a printed form. I drew the note up there. I did not know, and had not heard at that time, that the cases of Bonnet and Parker against the city had been decided. Nothing was said in the conversation of the Supreme Court, or the judges of the court. Nor did Buckley speak of his influence with that court. The name of a Supreme Court judge was never mentioned in the conversation. Never at any time had any conversation with Buckley touching his influence with the Supreme Court. He never agreed to pay half of the note for two hundred and fifty dollars.”

There was testimony showing that Taylor admitted before the committee of the Bar Association that when the conversation took ¡olace, on the evening of the 10th of May, 1884, he knew that the Supreme Court had decided the Bonnet and Parker cases.

It will thus be seen that Buckley and Taylor contradict Bonnet's testimony as to the conversation of the 10th of May. Buckley and Taylor both state that the Supreme Court was not mentioned, nor was the name of any of its members mentioned or referred to, nor anything said by Buckley in regard to it.

It is urged that the guilt of the respondent is established by circumstances which appear in evidence. It appears from the testimony that Buckley took some ste¡)s to procure the advancement of the cases of Bonnet and Parker by this court. The testimony in relation to this matter is substantially as follows: Not long before the order advancing the cases was made by this court, Buckley states that Taylor called on him at his place of business, and said that he had an assignment of cases or judgments, and wanted him to procure some information for him from the city and county attorney's office in relaiion to the trial of this case (Bonnet v. The City), and also to see if he would go among his friends here,—attorneys,—and see if we could get a place on the calendar; get them a substitute for the case that they might have on that calendar. For this service, he received five hundred dollars from Taylor at the time; that at the time he received the money, he did not know that it was the money of B. Bonnet. He ascertained afterwards that the cases were advanced without his aid, and that he has never offered to return the five hundred dollars received by him. He went around among the attorneys, and found a place for the cases on the calendar, which they did not use. The case for which they were substituted was an entirely different one., He never represented to Taylor that he had any influence with the Supreme Court by which he would have the causes advanced. Taylor informed him that the city attorney would not try the cases if they were advanced, and ho wished to find out if he would try the cases if they were advanced. He never intimated to Taylor, or any one else, that he had even an acquaintance with the Supreme Court, or had any influence over it, in any way, shape, or form. Buckley stated further, that he went to the office of the city and county attorney, saw Mr. Craig, who was then such attorney, and told him that he was not an attorney; told him of the cases, and asked him if there was any objection, and he said no; said he would try the cases, and he gave this information to Mr. Taylor.

In this transaction the Supreme Court was not talked about or discussed, nor were its members.

It should be stated here that the cases referred to were advanced on motion of counsel, in accordance with the usual practice of this court, a practice which had obtained for several years.

Another circumstance is the receiving of the dispatch, which has been mentioned above. It is only necessary to say further in regard to it that this dispatch was sent to Buckley by a deputy in the clerk’s office, in accordance with a custom which had for some time existed in that office. It was sent by Deputy Williams in consequence of a request put on a notice board kept in the clerk’s office. This request was put on that board by Meyers, another deputy in the clerk’s office, who was a friend of Buckley’s, on a supposition that Buckley had some interest, or felt some interest in the cases. The dispatch was not sent until the opinions of the court in the case referred to had been filed in the office of the clerk.

With regard to the first circumstance relating to the advancing of the causes, we cannot perceive how this tends in any way to prove that Buckley is guilty of the contempt charged. It has no relevancy in that regard. Take the evidence of Buckley’s connection with the advance of the cases, it appears that that transaction had been entirely concluded before the contempt is charged to have been committed, and we must say that what the evidence shows Buckley did in regard of such advancement was nothing more than any citizen might have done without impropriety. He did not pretend to act in the matter as an attorney. He went to the office of the city and county attorney and procured some information and found a case in place of which the cases could be substituted. Really, as it turned out, the cases were advanced on motion of an attorney of this court, who appeared in the cases, in place of a case other than that which was found by Buckley. The above is all Buckley did, and in that we see nothing wrong. In this remark we express no opinion as to his receiving five hundred dollars for his services in regard to advancing the cases. If the parties chose to pay him that sum for his services, they had a right to do so. In regard to the whole matter of advancing the causes, there is no evidence that Buckley ever pretended or gave out that he had any influence with this court, or that he was using such pretended influence in any way.

With regard to the other circumstance, it is said that Buckley testified falsely when he stated that he never received the dispatch sent from Sacramento on the 10th of May. Concede that this is so, that he did swear falsely in this regard, his receipt and knowledge of it would tend to show that his statement in regard to his employment to use his influence with the board of supervisors was true.

It may be asked that if he did not receive this dispatch, and neither he nor Taylor nor Bonnet knew that the cases were decided, why should they make any agreement with regard to the board of supervisors? Why make any such agreement in advance of the decision by this court of the Bonnet and Parker causes? It does appear improbable that any such agreement should be made in advance of the action of this court. But on an improbability of this character this court cannot base a judgment of guilt. Nor would it be justified in rendering any such judgment on such improbability, taken in connection with all the other testimony in the case. In our view, the probability is, that he received the dispatch and knew of the judgment of this court at the time of the interview of the 10th of May, and, in this view, the improbability urged vanishes.

From a review of the whole evidence we are of opinion that the guilt of the respondent is not made out. The evidence in favor of innocence, in our judgment, predominates. Bonnet's testimony alone tends to prove guilt, and that is contradicted by respondent and Taylor.

We are further of opinion that Bonnet is impeached by the testimony of F. A. Hornblower, J. H. Knight, and John Lewis, who testify that they knew Bonnet’s general reputation for truth and honesty and integrity, and that it is bad.

It should be also observed here that Bonnet is an accomplice with Buckley and Taylor on his own admission. In relation to the testimony of an, accomplice, it is provided by the Penal Code, section 1111, that “a conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which, in itself; and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense;' and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.”

There is no evidence, which in itself, without the aid of the testimony of Bonnet, tends to connect Buckley with the commission of the offense charged. In fact Bonnet’s testimony is the only evidence of the commission, of the offense.

The foregoing rule as to accomplices should have its due weight in passing on this cause.

We are of opinion that guilt of Buckley is not shown, and that the order to show cause should be discharged, and the proceedings dismissed.

So ordered.

Morrison, C. J., and Sharpstein, J., concurred.