Opinion
No. 36612.
November 10, 1947.
1. CONTEMPT.
Before a judge may find a witness guilty of false swearing and subject to punishment for contempt, court must have personal or judicial knowledge of the facts about which the witness testified and know beyond a reasonable doubt that the witness has wilfully and corruptly sworn falsely.
2. CONTEMPT.
Where the evidence in divorce case was conflicting and the court had no personal or judicial knowledge of whether wife had committed adultery as testified by husband, court was without power to adjudge husband guilty of contempt on the ground of false swearing.
APPEAL from the chancery court of Hinds county. HON. HAROLD COX, Special Chancellor.
John G. Burkett and W.L. Mhoon, both of Jackson, for appellant.
The special chancellor started out to try McInnis for "palpable perjury." The order directing his arrest stated that "palpable perjury" was the charge against him. The warrant issued by the clerk by virtue of this order contained the charge as "palpable perjury." However, when McInnis raised the question of his constitutional right to be indicted by a grand jury, on this felony charge, then the special chancellor began to refer to the charge as "contempt of court." McInnis had not received any notice except the warrant served upon him by the sheriff and thought he only had to meet a preliminary hearing on a charge of "palpable perjury" and not "contempt of court" until the proceedings were well under way. Whether McInnis was tried for "palpable perjury" or "contempt of court" is hard to say, since the final order refers to his offense as being "false swearing," which is the same thing as "perjury."
If McInnis was tried by the special chancellor on a charge of perjury, he has been denied every constitutional right and every statutory right accorded to him by the Mississippi Constitution and the statutes of the State, and his trial is a complete nullity.
Horn v. State, 186 Miss. 455, 191 So. 282; Sloan v. State, 71 Miss. 459, 14 So. 262; Code of 1942, Secs. 1692, 2316, 2457, 2479; Constitution of 1890, Secs. 27, 31.
In considering the matter from the standpoint of contempt of court, contempt proceedings are quasi criminal and must be judged in the same light as criminal charges.
McKee v. McKee, 192 Miss. 668, 7 So.2d 540.
The charge, if any charge at all, must be considered as a criminal contempt, since the special chancellor states that actions were prompted in an effort to protect the dignity and honor of the court. Any contempt of court directed against the dignity or honor of the court is criminal contempt. It must also be considered as direct contempt, being committed in the presence of the court.
13 C.J. 6.
Many acts are mentioned in the books as being contempt of court. All of them must be in the nature of acts which obstruct or tend to obstruct the orderly processes of the court, in the administration of its duties in meting out justice to contending parties. False swearing has been in a few instances held to be contempt of court and subject to punishment as such. But there are certain required and necessary elements which must be present before the court has any authority to hold that it is contempt of court. These elements in the main are: (1) The witness must by his own testimony admit that he is swearing falsely. (2) The witness must be contradicted by written documents to such an extent that the court may know beyond a reasonable doubt that he is swearing falsely. (3) The court must have personal or judicial knowledge of the facts about which the witness is testifying and know beyond a reasonable doubt that by reason of his own personal knowledge or judicial knowledge of the facts that the witness is swearing falsely.
13 C.J. 25.
In all the cases which we have examined where contempt charges have been upheld by courts of last resort, one or the other of the above elements was present.
People v. Stone, 181 Ill. App. 475; State v. Lazarus, 37 La. Ann. 314; Re Lerch's Contested Election, 21 Pa. Dist. 1113.
Courts do not punish false swearing as contempt, as a general rule, unless the facts are not in dispute.
Edwards v. Edwards, 87 N.J. Eq. 546, 100 A. 608; Finkle v. McCock, 286 N.Y.S. 755, 247 App. Div. 57, aff. 271 N.Y. 636, 3 N.E.2d 460.
It is generally held that perjury or false swearing is insufficient to justify a finding of direct contempt unless the court judicially knows that the evidence is false.
Bowles v. U.S.C.C.A., 44 F.2d 115; People v. Tomlinson, 296 Ill. App.? 609, 16 N.E.2d 940; People v. La Scola, 284 Ill. App. 328; People v. Anderson, 372 Ill. App. 93; People v. Richman, 222 Ill. App. 147; Russell v. Fields, 192 Ky. 262, 232 S.W. 375; Riley v. Wallace, 188 Ky. 471, 222 S.W. 1085, 11 A.L.R. 337; Lopez v. Maes, 38 N.M. 534, 37 P.2d 240; Eykelboom v. People, 71 Colo. 318, 206 P. 388; Juvenile Protective Ass'n v. Roeblling, 18 Ohio N.P.N.S. 385; Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656.
In the trial of cases criminal or quasi criminal, the proof must not only be consistent with guilt, but must be inconsistent with any reasonable hypothesis of innocence.
Ex parte Redmond, 159 Miss. 449, 132 So. 328; In re Franklin (Miss.), 138 So. 307, 308.
Disregard of fundamental right in the case of the guiltiest defendant, his conviction in violation of settled constitutional and legal safeguards, intended for the protection of all, are not things which affect the particular defendant in a given case alone, but, in their disastrous and far-reaching consequences, involve, in future trials, the innocent and guilty alike, subvert justice, and disorganize society. Guilt should be punished certainly, and condignly, most assuredly; but guilt must be manifested in accordance with the law of the land. Else some day the innocent who are sometimes called to answer at the bar of their country may come to find themselves involved in a common ruin, deprived of the legal trial necessary to the vindication of their innocence.
Ellerbe v. State, 75 Miss. 522, 531, 22 So. 950, 952, 41 L.R.A. 569. Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
I find difficulty in successfully answering the appellant's argument on the effect of the statute authorizing the court to commit a witness to jail who has committed palable perjury in court under Sections 2479 and 2480, Code of 1942. Counsel raised the question at the trial that this was an exclusive method of dealing with it insofar as perjury is concerned, perjury being not only a penitentiary offense but one carrying civil disqualifications in important particulars. I submit that the more rational and just proceeding on this point would be to not exercise the power of contempt where the judge thought it was perjury and a perjury punishable by indictment but that when it is perjury before the court the court instead of proceeding to punish the act itself should, under the statute, bind him over for the action of the grand jury and the criminal courts to deal with, and that it would be anomalous to have the same act or acts constitute a serious felony and at the same time punishable in the same way as a misdemeanor.
State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152; Tepper Bros. v. Buttross, 178 Miss. 659, 174 So. 556; State ex rel. Whall v. Saenger Theatres Corporation, 190 Miss. 391, 200 So. 442; Prine v. State, 143 Miss. 231, 108 So. 716; Code of 1942, Secs. 1152, 1313, 1534, 1656, 2479, 2480; Constitution of 1890, Sec. 22.
The general rule is that false swearing by a witness is an obstruction of justice and may constitute a contempt of court, but that the judge or chancellor cannot proceed against a witness for contempt in giving false testimony or information unless he knows that such testimony is false.
Brashier v. State, 197 Miss. 237, 20 So.2d 65; Riley v. Wallace, 182 Ky. 471, 11 A.L.R. 337, note p. 352; Blankenburg v. Massachusetts, 73 A.L.R. 808, note p. 817; Hegelaw v. State, 24 Ohio App. 103, 155 N.E. 620; Russell v. Field, 192 Ky. 262, 232 S.W. 375; Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656.
On the next day after the trial of a divorce suit between the appellant Henry R. McInnis and his wife Willie Mae McInnis, and before the court reporter's notes therein had been transcribed, the Special Chancellor caused to be entered upon the minutes of the court an order reciting among other things: "It appearing to the satisfaction of the court on the trial of this case that the complainant, Henry R. McInnis, in his testimony has committed palpable perjury in the presence of the court in his effort to establish his alleged right to divorce on the ground of adultery and the court being of the opinion that the complainant should be punished therefor; . . ." and it was thereupon ordered that a warrant be issued for his arrest and that he be brought before the court on the following day "for sentence at that time or to show cause why such sentence should not be imposed upon him for such offense." Accordingly the warrant was issued and served, and it stated that the accused was "to answer unto the State of Mississippi on a charge of palpable perjury."
On the appearance of the accused in open court as commanded, the court dictated into the record at the hearing a statement to the effect that the foregoing steps had been taken in the proceeding then up for consideration and also that "the testimony which the court considers as contempt in the presence of the court for false swearing is substantially this: The complainant charged in his bill of complaint as a ground for divorce, that the defendant was guilty of an act of adultery on January 9, 1946. That was the sole ground on which the divorce was sought from the defendant." The court then recited in substance from recollection what the accused had testified to upon the trial for divorce and concluded by saying that "the court finds that testimony to be so entirely incredible . . . as to convince the court beyond a reasonable doubt that the complainant McInnis was testifying falsely about the matter in this court in an effort to get a divorce to which he clearly was not entitled." Thereupon the accused or his counsel was afforded an opportunity to to make any statement that they wished to make into the record, and with the result that a plea of not guilty was then entered.
The accused did not thereafter offer to give any testimony, but his counsel stated to the court that, under the statutes and the Constitution of the State, the court was without power to do other than bind the accused over under bond to await the action of the grand jury; that the said statutes and Constitution provide that no person can be tried for a felony such as false swearing or perjury, without first having been indicted by a grand jury of the country, and which had not been done.
It appears that the statute to which counsel referred is Section 2479, Code 1942, which reads as follows: "Whenever it shall appear to any court that a witness or party who has been sworn or examined in any case, matter, or proceeding pending before the court, has testified in such manner as to induce a reasonable presumption that he has willfully and corruptly testified falsely to some material point or matter, the court may immediately commit such party or witness, by an order of process for that purpose, to prison, to take bond or recognizance with sureties for his appearing and answering to an indictment for perjury."
The court, however, was of the opinion that the procedure prescribed by this statute was not the exclusive remedy, and proceeded to adjudge the accused guilty of "wilfully, knowingly and corruptly swearing falsely" in the trial of the said divorce suit and found that he was therefore, and by reason thereof, guilty of a wanton contempt of the court, and sentenced him to serve a sentence of ten days in the county jail. From that sentence he has taken this appeal.
A transcript of the testimony taken upon the trial of the divorce suit is contained in the record now before us and shows that the appellant had testified that he married the defendant in the divorce suit, Willie Mae McInnis, while in the army and returned to the service for a time before being discharged; that he was discharged in November 1945 and came back to Utica, Mississippi, where his wife was staying, and that he later came to Jackson where he claimed to have been making his home for about thirteen years; that he had been hearing rumors that his wife was unfaithful to him and had been riding around in her automobile with other men; that on January 9, 1946, while he was attending school at Jackson College, and living for the time being on Lynch Street, he saw his wife very late in the afternoon pass the campus of the college in an automobile with a man; that they were proceeding west, and that a few minutes after they passed he got in another automobile and followed them; that he overtook them about a half mile from the college where they had turned off the road into a turn around place, or something of that kind near a bridge; that it was then just about dark but that he proceeded on foot after parking his car, to within forty feet of the car, and saw his wife and the man committing the offense charged in his bill for divorce; that thereupon he left the scene and went back to the college and that so far as he knew neither the man nor his wife were aware of his having seen them on the occasion complained of. The Chancellor in his summary of the evidence emphasized the fact that Lynch Street was one of the main throughfares or streets of the City of Jackson in adjudging the appellant's testimony untrue as to the occurrence testified about, and without making any mention of the statement of the witness as to the character of the place where the car had stopped.
Within a few days thereafter it is shown that the appellant wrote a letter to his wife to the effect that he was separating from her but made no reference to the occurrence about which he complained as a ground for divorce. However, he was corroborated by one other witness, not as to the above mentioned occurrence, but in regard to another circumstance which is alleged to have transpired on another occasion, indicating the unfaithfulness on the part of his wife. All of the foregoing testimony was emphatically denied by the wife, who was corroborated by her mother as to her presence at home on the occasion complained of when they say that she was confined to her bed on account of illness. The wife had been attended by a physician during her illness but he was not offered as a witness. However, the Chancellor was well warranted in believing that the parties had never lived on Lynch Street and that under all the facts and circumstances the appellant had wilfully and corruptly testified falsely upon the trial as to this alleged ground for divorce.
Nevertheless, while there are cases holding that false swearing may be adjudged to be a contempt of court, the presence of certain elements is essential before a judge may find him guilty of false swearing and subject to punishment for contempt, and one of which essentials is that the court must have personal or judicial knowledge of the facts about which the witness has testified and know beyond a reasonable doubt by reason of such personal or judicial knowledge of the facts that the witness has wilfully and corruptly sworn falsely.
In the case of People v. Stone, 181 Ill. App. 475, the court observed that "there is nothing in the record to disclose that the court knew that the testimony was false. In the case of direct contempt, it may act upon that of which it may take judicial notice, but it can not judicially know that evidence is false unless at the trial it is so made to appear by the witness' own admissions or perhaps by unquestioned or uncontrovertible evidence. Otherwise the court would act merely upon its belief or conclusions derived from the evidence heard, and not upon matters of fact of which it had judicial cognizance, which is essential to the summary proceeding for direct contempt."
In the case of Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 340, 63 L.Ed. 656, 11 A.L.R. 333, it was held that a federal court may not punish a witness for contempt solely because of the opinion of the court that he has committed perjury, and that if any other conception of the law were true "it would follow that when a court entertained the opinion that a witness was testifying untruthfully the power would result to impose a punishment for contempt with the object or purpose of exacting from the witness a character of testimony which the court would deem to be truthful; and thus it would come to pass that a potentiality of oppression and wrong would result and the freedom of the citizen when called as a witness in a court would be gravely imperiled."
Numerous authorities could be herein cited to sustain the general rule that a trial judge can only find one guilty of a direct contempt of court for false swearing when he has personal or judicial knowledge that the evidence is false. See the following cases supporting such view: Bowles v. United States, 4 Cir., 44 F.2d 115; People v. Tomlinson, 296 Ill. App. 609, 16 N.E.2d 940; People v. La Scola, 282 Ill. App. 328; People v. Anderson, 272 Ill. App. 93; People v. Richman, 222 Ill. App. 147; Russell v. Field, 192 Ky. 262, 232 S.W. 375; Riley v. Wallace, 188 Ky. 471, 222 S.W. 1085, 11 A.L.R. 337; Lopez v. Maes, 38 N.M. 524, 37 P.2d 240; Eykelboom v. People, 71 Colo. 318, 206 P. 388.
We are strongly inclined to the view entertained by the trial judge to the effect that the appellant was in fact guilty of false swearing. Nevertheless the testimony is in sharp conflict as to whether the occurrence testified to had actually taken place, and we think that it is the better rule that a witness should not be adjudged in contempt and punished for false swearing except in pursuance of the procedure prescribed by our statute hereinabove quoted, unless it could be safely said that the trial judge has found an accused guilty of the false swearing as a result of his own personal or judicial knowledge of the facts in regard to which the testimony has been given, and especially in view of the fact that the law requires that guilt of false swearing must be established by either two witnesses or one witness and corroborating circumstances. It is true that the appellant was not being tried for perjury, but it was necessary that he be adjudged guilty of false swearing before he could be punished as for contempt of court on account thereof.
We are, therefore, of the opinion that the judgment and sentence to imprisonment in the instant case should be reversed and that the appellant should be discharged.
Reversed and judgment here for the appellant.