Opinion
No. 37352.
April 10, 1950.
1. Contempt — attempt to influence juror.
The general rule is that an attempt to influence the decision of a juror is a contempt, regardless of whether the act which constitutes the contempt is committed in or out of the presence of the court or whether the juror is actually sworn on a particular case or is only a member of the panel from which a trial jury is to be selected; and it is not necessary that the contemnor accomplish his purpose, if in fact he has made a willful attempt, of whatever nature, at an improper influence.
2. Contempt — constructive contempt defined.
Constructive contempt is any act calculated to impede, embarrass, obstruct, defeat or corrupt the administration of justice, when done beyond the presence of the court.
3. Contempt — purpose accompanied by act — failure to accomplish purpose immaterial, except.
When there is deliberate purpose or calculation to corrupt the administration of justice and that purpose or calculation is accompanied by a definite overt act or declaration on the part of the contemnor, designed to carry that purpose or calculation into effect, the contempt is complete, and the failure of the design becomes immaterial except as it may have some place in considering the punishment therefor.
4. Contempt — attempt to influence juror — proved facts sufficient, case in point.
The fact, established by the proof, that contemnor went to see a juror who had been summoned on a special venire for the trial of a capital charge, and, calling the juror aside, told him that there were certain facts in favor of the defendant, stating them, which the court probably would not allow to go to the jury and asked the juror on account thereof to give the defendant a break, was sufficient to sustain conviction of contempt.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Prentiss County; RAYMOND T. JARVIS, Judge.
Windham Cunningham, for appellant.
In order for one to be guilty of constructive contempt for talking with a prospective juror, the evidence must show, beyond a reasonable doubt, that it was the intention and purpose of the contemnor to corrupt and influence unlawfully the verdict of the juror.
We respectfully submit that the trial court adjudged the appellant guilty, not of what the information charged, but on the ground "the court is of the opinion that such conduct was calculated to influence the juror and cause him to prejudge the case". This is not sufficient. Before the court would be warranted in finding the appellant guilty, the proof would have to go further than justifying the judge in forming an opinion that appellant's acts were calculated to influence a juror. It would have to prove beyond a reasonable doubt that appellant was guilty of the acts charged in the information. Brannon v. State, 202 Miss. 571, 29 So.2d 916; In re Odum, 133 N.C. 250, 45 S.E. 469 (Note to State v. District Court, 15 Ann. Cas. 748).
"An adjudication of contempt is improper when there is no material evidence to connect the alleged contemnor with acts charged and he denies any connection, although there are circumstances affording reasonable grounds for suspecting his participation." 12 Am. Jur. 441.
Where contempt is considered a criminal offense, "it is held that the guilt of the defendant must be proved step by step, that the malicious intent not only must be shown by the preponderance of the evidence, but such intent must be found, in terms, by the court to have existed, and that the proof must be established with reasonable certainty". 12 Am. Jur. 442.
The opinion of the trial judge clearly shows that the judge did not find the appellant guilty of the acts charged in the information, but that the evidence "fairly indicated it was the intention of the defendant to influence the juror". The evidence has to do more than "fairly indicate" an intent. It must prove it beyond a reasonable doubt. 12 Am. Jur. 442.
The opinion says, "There is some conflict in the evidence, but from all the evidence offered in this case this court would have to be a very credulous person to take the testimony of the defendant and acquit him on all the facts." It is clear that the court completely ignored the burden placed upon the State to prove the allegations contained in the information, but shifted the burden to the defendant to prove the allegations false. This is not the law. R.O. Arrington, Assistant Attorney General, for appellee.
The case at bar is very similar to the case of Brewer v. State, 176 Miss. 803, 170 So. 540, where the Court said: "When there is a deliberate purpose or calculation to corrupt the administration of justice and that purpose or calculation is accompanied by a definite overt act or declaration on the part of the contemnor, designed to carry that purpose or calculation into effect, the contempt is complete; and the failure of the design becomes immaterial, except as it may have some place in considering the punishment to be inflicted."
In the case of Durham v. State, 97 Miss. 549, 52 So. 627, with reference to the sufficiency of the evidence, the Court said: "It is further contended that the evidence was not sufficient to convict defendant. It is true there is a conflict in the testimony; but, taking the record as a whole, we think it shows a case of constructive contempt. The court was the trier of the facts, and it is presumed had no desire to reach any result in it, except that to which the evidence conducted. The trial judge heard the witnesses testify, and was in a position to determine their credibility, and to give such weight to the testimony of each as in his judgment it was entitled to."
The evidence in this case was sufficient to prove the guilt of the appellant beyond a reasonable doubt. Brannon v. State, 202 Miss. 571, 29 So.2d 916.
The general rule, in which a number of Mississippi cases are cited, is announced in 17 C.J.S., Section 22.
The sole question presented by this appeal is the sufficiency of the evidence to support a conviction for contempt of court. A special venire had been drawn and summoned for the trial of a murder charge against one Earl Strange. The evidence which the circuit judge was justified in believing discloses that appellant went to the home of one of the jurors who had been summoned for the trial of that case, this being some four or five miles from appellant's home, and the prospective juror was engaged at work on a water pump with the assistance of a third party; appellant requested the prospective juror to walk out to the barn with him and there appellant approached this juror with the statement "I see you are on the venire on that case up there" and proceeded to advise the juror that there were some things in favor of the defendant that the court would not permit to go to the jury, that the deceased had been running over the defendant, that "they are going to try to keep that off the stand and if you are selected on the jury I feel like you ought to give the boy a break if they don't bring that out."
In 12 Am. Jur., p. 402, Contempt, Sec. 20, it is said: (Hn 1) "The general rule is that a person who attempts to bribe or influence the decision of a juror is guilty of contempt of court, regardless of whether the act which constitutes the contempt is committed in or out of the presence of the court, or whether the juror is actually sworn on a particular case or is only a member of the panel from which a trial jury is to be selected. To be in contempt of court, it is not necessary that a person accomplish his purpose. It is sufficient that he make a wilful attempt, of whatever nature, to influence improperly jurors in the impartial discharge of their duties."
Substantially the same rule is announced in 17 C.J.S. Contempt, Sec. 22b, p. 28-29, and in Sullens v. State, 191 Miss. 856, 4 So.2d 356, 360, this court cited a long line of Mississippi decisions and said (Hn 2) "Constructive contempt has been defined as `any act calculated to impede, embarrass, obstruct, defeat, or corrupt the administration of courts of justice, when the act is done beyond the presence of the court.'" One of the authorities cited in the Sullens case is Brewer v. State, 176 Miss. 803, 170 So. 540, 541, which we think is directly in point and wherein this court said: (Hn 3) "When there is a deliberate purpose or calculation to corrupt the administration of justice and that purpose or calculation is accompanied by a definite overt act or declaration on the part of the contemnor, designed to carry that purpose or calculation into effect, the contempt is complete; and the failure of the design becomes immaterial, except as it may have some place in considering the punishment to be inflicted."
(Hn 4) Finding that the conviction is abundantly supported by the authorities, the judgment of the trial court is affirmed.
Affirmed.