Summary
In Melvin v. State (1950), 210 Miss. 132, 48 So.2d 856, 49 So.2d 837, the court held a wire recording properly excluded because of its lack of clarity, while holding that one who listened over a loudspeaker while the recording was made could testify as to what had been heard.
Summary of this case from Lamar v. StateOpinion
No. 37611.
November 27, 1950.
1. Compromise and settlement — limitation on right.
The right of litigants to compromise or settle their cases out of court exists only to litigants in private controversies between private individuals, and not as to taxpayers' suits brought for the use and benefit of the county and state.
2. Contempt — endeavor to settle pending litigation brought for the use of the county so as to make private gain by the settlement.
Where a party as a taxpayer has brought suits to recover statutory penalties for the unlawful sale of intoxicating liquor, he acts as a trustee for the state and county and he has no individual right in the funds thereby to be recovered, so that when he conspires to dismiss the suits and to destroy the evidence upon the payment of money to him for his own personal use, he is guilty of a contempt of the court in which the cases are pending.
3. Contempt — information — appointment of attorneys to present.
A court may of its own motion proceed against a party in contempt and, without calling on the district attorney, may appoint three of its attorneys to prepare and execute the information, and when drawn and filed in the name of the state it is not subject to objection that it was sworn to only on information and belief.
4. Contempt — inherent power — statute.
The judicial power to punish for contempt is inherent and implied in the judicial function and while the contempt statute limits the extent of the punishment for a contempt committed while the court is sitting, it does not control as to other cases of contempt. Sec. 1656 Code 1942.
5. Contempt — question of proof.
In order to impose a fine or imprisonment for contempt the proof must show the guilt beyond a reasonable doubt, and this is always carefully examined on appeal.
6. Contempt — court records — evidence.
In a hearing for contempt growing out of the attempt of the contemnors to procure money for the dismissal of pending taxpayers' suits, the court records of those suits were relevant and were admissible.
7. Contempt — evidence — microphone — wire recording and loud speaker.
The party from whom money was sought to be obtained for the dismissal of taxpayers' suits installed a microphone in the room where the negotiations were to be had and ran a wire to another room where it was connected with a wire recorder and a loud speaker and there the sheriff and two others heard the negotiations: Held that the sheriff's testimony as to what he heard over the loud speaker was relevant and admissible in analogy to a witness testifying to what he heard over a telephone, but that the wire recording was properly excluded because of its lack of clarity.
Headnotes as approved by Ethridge, C.
On Suggestion of Error. Jan. 15, 1951 ( 49 So.2d 837)8. Contempt — sentence for constructive contempt — inherent powers of court.
In imposing sentence for constructive contempt the court is in the exercise of its inherent powers, and the general statute as to penalties, where no specific statute has made provision therefor, is not applicable. Sec. 2562 Code 1942.
Headnote as approved by Lee, J.
APPEAL from the chancery court of Rankin County; ROY P. NOBLE, Chancellor.
Melvin Melvin, for appellants.
Appellants argued the following points:
I. The court erred in appointing the three solicitors of record to prepare the information.
II. The court erred in permitting the information to be filed as it is drawn, in that the information fails to show it is drawn in the name of the State of Mississippi or any person acting for and on behalf of the State.
III. The court erred in proceeding to try the appellants without first ordering the information filed and proper proceedings instituted thereon.
IV. The court erred in overruling the demurrer of the appellants.
V. The court erred in admitting the court records in the cases, Nos. 5649 to 5654 inclusive.
VI. The court erred in admitting evidence of the record of a recording made by one of the parties to the suits.
VII. The decree is against the overwhelming weight of the testimony.
VIII. The decree is against the law and the testimony.
IX. The court erred in the amount of the fine and imprisonment.
X. The court erred in finding that the charges could be prosecuted by some one other than the district attorney and in the name of the State.
And cited the following cases and statutes: Durham v. State, 52 So. 627; Sullens v. State, 191 Miss. 856, 4 So.2d 356, 361-362; Ex parte Hicket, 4 S. M. 751, 774; Brannon v. State, 202 Miss. 571; Ramsey v. Ramsey, 125 Miss. 716; Evans v. Evans, 193 Miss. 468; Barnes v. McLeod, 165 Miss. 437, Prine, et al. v. State, 108 So. 716, 718; Robertson v. State, 104 So. 561, 567-572; Grace v. State, 67 So. 212; O'Flynn v. State, 43 So. 82; Sanders v. State, 22 So.2d 500, 501; State v. Owen, 156 Miss. 487, 126 So. 25-28; Secs. 1583, 1605, 1656, 1832, 3920, Code 1942; Griffith's Mississippi Chancery Practice, (2nd Ed.) par. 666.
W.W. Pierce, also for appellants.
I. The court erred in holding that the charges filed in the form of an information by private attorneys were properly made so as to give the court jurisdiction to fine and imprison appellants for contempt. Henry v. State, 87 Miss. 36; Sanders v. State, 22 So.2d 500; Prine v. State, 143 Miss. 231; Secs. 3220, 3515, 8664 Code 1942; Sec. 268 Constitution 1890.
II. The court erred in holding that the charges filed and sworn to only by a private attorney, on information and belief, was proper and sufficient to give the court jurisdiction to proceed against the appellants. State v. McGahey, 12 N.D. 535; State ex rel. Harvey v. Newton, 16 N.D. 141; State ex rel. Harvey v. Davies, 16 N.D. 106; Swart v. Kimball, 43 Mich. 451; Russell v. Wayne, 136 Mich. 624; Thomas v. People, 14 Colo. 254; Kirby v. Chicago Railroad, 51 Colo. 82; Young v. Cannon, 2 Utah 560; Batchelder v. Moore, 42 Cal. 412; In re McCarty, 154 Cal. 534; Ludden v. State, 31 Neb. 429; Herdman v. State, 54 Neb. 534; Belangee v. State, 97 Neb. 184; Ex parte Landry, 65 Tex.Crim. 440; State v. Gallup, 1 Kan. App. 618; Dorman v. Grozier, 14 Kan. 224; Childs v. Bostic, 12 Daly (N.Y.) 15; State v. Conn, 37 Or. 596; Johnson v. State, 82 Ala. 29; Bessemer v. Eidge, 162 Ala. 201; Streater v. State, 137 Ala. 93; Ex parte Hickey, 4 S. M. (Miss.) 751.
III. The court erred in adjudging that the testimony was sufficient to warrant the conviction of appellants. Knox v. State, 160 Miss. 494.
George H. Ethridge, Assistant Attorney General, for appellee.
In Watson v. Williams, 36 Miss. 331, decided in 1858, the Court held that the right of punishing for contempt by summary conviction is a necessary attribute of judicial power inherent in all courts of justice from the very nature of their organization and essential to their existence and protection and to the due administration of justice. It is a trust given to the courts, not for themselves, but for the people whose laws they enforce and whose authority they exercise, and each court has the power for itself finally to adjudicate and punish contempt extending not only to acts which directly and openly insult or resist the powers of the courts or the persons of the judges, but to indirect and constructive contempt which obstructs the process and degrades the authority of the courts.
This doctrine is practically universal and is manifest from the very nature of the administering of justice that the courts shall have and exercise such powers as are necessary and proper to render their jurisdiction effective. While the court may not have been in session at Brandon when the acts constituting the contempt took effect, the suits were then pending in the court undisposed of, and apparently ready for trial, and if the facts testified to by the State's witnesses are true, as the court held them to be in finding the defendants guilty, the power of the court would have been obstructed, if not entirely defeated, by the acts of the appellants in seeking to settle the suits, not by having a judgment rendered and money paid to the county and state, but by having the money paid to the appellants and the appellants' proposition to destroy the evidence.
In Aarons v. State, 105 Miss. 402, 62 So. 419, this Court held that where in a criminal case a witness absconded and concealed himself at the request of the brother of a defendant, for the purpose of evading the service of subpoena afterwards to be issued is guilty of a constructive contempt of court and subject to a fine.
In 12 Am. Jur. 394, Sec. 7, it is said, "In general it may be said that all persons guilty of conduct constituting a contempt of court as previously defined, including attorneys, receivers, and other officers of the court, witnesses, parties litigant, and any other person who through strangers to the litigation knowingly and wilfully interfere with, or otherwise violate or aid and abet in the violation of, judicial functions, court orders or decrees, are subject to the court's power to punish for a contempt." Under Sec. 9 of the same volume, it is stated, "The acts constituting contempt cover a wide range, the most familiar of the forms of contempt of court being found in acts which hinder, delay, and obstruct the administration of justice, which are usually committed in the course of the adjudication of some cause or the execution of its judgment. Acts which bring the court into disrepute or disrespect, or which offend its dignity, affront its majesty, or challenge its authority, constitute contempt of court." To the same effect is 6 R.C.L., Contempt of Court, Sec. 28.
Our Court has dealt with the subject of contempt in so many aspects and in so many cases that this Court cannot but be informed as to the law upon that subject. See Prine v. State, 143 Miss. 231, 108 So. 716, where an information filed by the district attorney, although not sworn to, was upheld as being a sufficient charge of contempt. See also Knox v. State, 160 Miss. 494, 135 So. 206; Hanna v. State, ex rel. Attorney General, 169 Miss. 314, 153 So. 371; Durham v. State, 97 Miss. 549, 52 So. 637; Grace v. State, 108 Miss. 767-73, 67 So. 212; Simmons v. State, 181 Miss. 43, 178 So. 596; and Sellers v. State, 127 Miss. 748, 90 So. 716, 21 A.L.R. 238.
In my opinion there can be no doubt of the power of the chancellor, and his duty to see that his court and its processes shall not be used to defeat justice or to perpetrate a wrong and to enable a person by using such processes to secure money by threats of suits or by the actual filing and conducting of suits against a person and then accepting money or other things of value or destroy the evidence, or to do any other act that would injure another party. As I have already stated, the chancellor has the necessary power to protect its processes and its jurisdiction from abuse or wrong doing to the hurt of any other person. In my opinion, the chancellor not only had the power to appoint the attorneys attending his court and being officers of the court, to make an investigation where the chancellor had information or reason to believe that the court was being used as an instrumentality of injustice and wrong, and especially where the parties, as in this case, may have been using the court as an instrumentality of spoliation of one person for the profit of another.
This case requires the application of old and well established principles of the law of constructive contempt of court to an unusual statute and factual situation. The appellants were adjudged by the Chancery Court of Rankin County of constructive or indirect contempt of that court and sentenced to thirty days each in the county jail, and the court imposed a fine of $250.00 on L.G. Melvin and of $100.00 on K. Wayne Melvin.
In 1946 a group of citizens of Rankin County, Mississippi, organized an informal association known as the Rankin County Christian Citizens' League. The purpose of that organization was to undertake to eliminate numerous alleged illegal establishments selling intoxicating liquors in that County, and in other respects to participate as citizens in eliminating undesirable conditions which might affect the morals of that community. In December, 1947, the appellant, L.G. Melvin, was elected chairman of the Christian Citizens' League and in that capacity chairman of the Executive Committee of the League. Some time in the early part of 1948 L.G. Melvin and other members of the Executive Committee went to a firm of lawyers in Meridian, Lauderdale County, Mississippi, and discussed with them the filing of some so-called padlock proceedings against illegally operated whiskey stores in Rankin County. The attorneys advised them that they would have to obtain some evidence by the purchase of intoxicating liquors from the establishments sought to be closed before such proceedings could be filed. They also advised the Executive Committee that the League should appoint one man as its representative to deal with the attorneys in the filing and handling of such suits. L.G. Melvin, the chairman, was designated as the League's representative for that purpose. However, nothing was said in the authorization about L.G. Melvin having the power to settle or compromise the suits out of court.
Appellant K. Wayne Melvin, who was not a member of the League, and is a brother of appellant, L.G. Melvin, at the request of his brother proceeded to purchase whiskey from six different places in Rankin County. He then turned this evidence over to L.G. Melvin.
In accordance with the plan of the League, six suits were filed in the Chancery Court of Rankin County on September 1, 1948 against various defendants. One of the defendants in one of the suits was Guysell McPhail. The bills were filed under the authority of Sections 2639 and 2640 of the Mississippi Code of 1942. Section 2639 provides that any person who sells or allows to be sold at his place of business intoxicating liquors is subject to pay to the state and the county where the offense is committed the sum of $500.00 for the county and $500.00 for the state. The state or county or any taxpayer thereof may bring said suit in the name of the state or county. Section 2640 gives the chancery court concurrent jurisdiction with courts of law under Section 2639 in suits brought by the state, county, or by any taxpayer in the name of the state or county. In addition, it gives the chancery court power to suppress as a nuisance any place of business where Section 2639 is violated and by proper judgments and orders to punish and restrain the violators. These Statutes were first passed as Chapter 134 of the Mississippi Laws of 1910, and there has been a considerable amount of litigation involving their application.
All of the bills of complaint which were filed on September 1, 1948, were filed in the name of L.G. Melvin as complainant and as a taxpayer. They recited that he brought these six suits in the name of Rankin County and of the State of Mississippi "for the use and benefit of Rankin County, Mississippi, and the State of Mississippi. . . ." The bills charged the several defendants with selling or permitting to be sold intoxicating liquors on their premises, and requested a temporary injunction against the operation of the stated place of business owned or operated by the defendant, a final injunction, and a judgment against the defendants in "the sum of $500.00 thereof for the use and benefit of Rankin County, Mississippi, and the sum of $500.00 thereof for the use and benefit of the State of Mississippi. . . ." A temporary injunction was granted in each of these cases, but it was dissolved on September 30, 1948. In the meantime, on or about September 25, 1948, special demurrers and answers to the bills were filed by the defendants denying the allegations of the bills. This was the status of these six suits at the time the events took place which are the subject of this appeal. They were all pending for trial.
Several days before Christmas Eve, December 24, 1948, K. Wayne Melvin called Guy McPhail, one of the defendants in these suits, and arranged an appointment with him. The said appellant advised McPhail that his brother, L.G. Melvin, had spent quite a bit of time and money on these six suits already, and that the League seemed not to be interested in them. He further said that L.G. Melvin in fact was going to have to give up his home, but that if McPhail and the other defendants in these suits could get up enough money to settle them, he, L.G. Melvin, would withdraw the cases. K. Wayne Melvin then asked McPhail if he would contact the other defendants in the six cases with reference to settling them, and if he would then meet with him and L.G. Melvin and discuss a settlement, to which McPhail agreed. The meeting was scheduled for 5 o'clock on the afternoon of December 24, 1948, at Room 525 of the Heidelberg Hotel in Jackson. Prior to the meeting, McPhail had employed a private detective to place a microphone under a pillow in the room where the meeting would be held, and to run a wire to the room immediately below, No. 425, in which the detective had a loudspeaker and a wire recorder. Present in the room in which the recorder was located was the detective and the Sheriff of Rankin County, along with two other men. At the appointed time the appellants met McPhail in Room 525. The recording device was operating during the entire conversation, as was the loudspeaker over which the occupants in Room 425 could hear the conversation.
The talk extended over a period of about an hour, and during that time L.G. Melvin made the proposition to McPhail that if McPhail and the defendants in the five other suits would pay him, L.G. Melvin, $1,000.00 a suit or the total sum of $6,000.00, he would destroy the evidence and drop the suits. As the chancellor pointed out, L.G. Melvin does not deny that the proposition was made, but in fact admitted it. The other appellant, K. Wayne Melvin, participated in the conversation with McPhail, but it appears that L.G. Melvin advanced the proposition itself. McPhail testified that L.G. Melvin told him that he had a relative who was a lawyer and that he thought he could arrange through him for the dismissal of the suits. L.G. Melvin also admitted this. He also admitted that he advised McPhail during this conference that he had spent a lot of time and money on these suits, that he was tired of them and would settle them for $6,000.00. McPhail further testified that L.G. Melvin said that if he could not dismiss the suits in any other way he would get so mixed up on the witness stand that his testimony would be of no value. L.G. Melvin denied that he made this statement. At this point there is very little conflict in the testimony. However, L.G. Melvin, as well as K. Wayne Melvin, stated that his intention was to settle the suits and turn the money over to the state and county.
L.G. Melvin testified that his lawyers had told him that they had settled some of the suits in Lauderdale County. This was confirmed by the attorney, but he had not discussed any settlement of the six suits in Rankin County with appellants, and the first the attorney heard of any proposed settlement of these suits was about two months after the appellants' conversation of December 24th with McPhail. The evidence in these cases, consisting of several bottles of whiskey, was stored in the office of L.G. Melvin in Jackson, and on February 28, 1949, the building where it was located was destroyed by fire, also destroying the evidence. However, we do not think that this affects this case, inasmuch as the offense, if any, had been committed on December 24, 1948.
At the February, 1949, term of court the chancellor by order appointed three attorneys practicing before the court to make an investigation of charges against the appellants of constructive contempt of the court, and directed these attorneys to prepare an information accordingly. This was done, and the charges and information against appellants were tried at the September, 1949, term, at the end of which the chancellor adjudged appellants guilty of constructive contempt of the court, and sentenced them as stated at the beginning of this opinion.
The information charged that the appellants, while these six suits were pending, "did wilfully, unlawfully, and corruptly enter into a conspiracy to obtain certain moneys from the defendants in said causes in return for a destruction of the evidence upon which said causes of action were predicated, and a dismissal of said causes of action which were then pending in this said court." It charged further that the offer to destroy the evidence and to dismiss the causes was based upon payment to appellant of $6,000.00 "for his own personal use and to defraud the State of Mississippi and Rankin County, Mississippi", and that these acts constituted contempt of the court.
The chancellor in his decree found that appellants did not make the offer to McPhail in good faith, but that beyond a reasonable doubt from the evidence appellants intended to destroy the evidence and appropriate the money for their own personal use; that K. Wayne Melvin had participated actively in the negotiations and offer, and was also guilty of conduct tending to embarrass, hinder, and obstruct the administration of justice.
Appellants attack their convictions of contempt of court on five major grounds. (Hn 1) They first assert that they were doing what they and any other litigant have a right to do, settle or compromise their cases out of court, and without a trial. But this right exists only as to litigants in private controversies between private individuals. (Hn 2) Code Sections 2639 and 2640 create a right in a taxpayer to sue in the capacity of a fiduciary or trustee for the benefit of the county and state. The statute expressly provides for this, and the bills in the six suits stated that L.G. Melvin was suing for the use and benefit of the county and state. Money obtained by a taxpayer in a suit under these statutes belongs to the state and county. He sues and recovers as trustee for them. He has no individual right to the funds. Hence one who as a complainant in such an action wrongfully conspires and offers to destroy or who destroys the evidence therein, and to enrich himself at the expense of the state and county, and to dismiss the suits upon the payment of money to him for his own personal use and to defraud the state and county is obstructing the administration of justice in the court in which this type of case is pending.
It is more than a private wrong and a common crime. It is a wrongful attempt even if the plan is not consummated to impede, embarrass, obstruct, defeat, and corrupt the administration of justice in which the action is pending. It is a major affront to the responsibilities and powers of the court, and is in contempt of that court and punishable accordingly. See Dangel, Contempt, page 103 (1939).
(Hn 3) The charges based upon the information filed by the attorneys were properly made. Appellants say that the court had no authority to appoint the three attorneys to prepare and execute the information, this unprecedented action was improper, and that the court should have called upon the district attorney to file the charges. However, attorneys are officers of the court and take a solemn oath to uphold the administration of justice. Mississippi Code of 1942, Section 8664; Ex parte Redmond, 120 Miss. 536, 82 So. 513. We see no reason why the court should be denied the power to call upon its own officers to assist it. Otherwise, the judge himself would have to get out and make the investigation. In Grace v. State, 1915, 108 Miss. 767, 67 So. 212, the Court recognized the fact that the court might proceed against a party of its own motion. To the same effect is Dangel, Contempt, page 119; People v. Gard, 1913, 259 Ill. 238, 102 N.E. 255, writ of error dismissed, 235 U.S. 691, 35 S.Ct. 206, 59 L.Ed. 428; McCann v. New York Stock Exchange, 2 Cir., 1935, 80 F.2d 211, certiorari denied, McCann v. Leibell, 299 U.S. 603, 57 S.Ct. 233, 81 L.Ed. 444.
The information clearly shows that it was drawn and filed in the name of the state against appellants. A somewhat similar information was sustained by the Court in Prine v. State, 1926, 143 Miss. 231, 108 So. 716. Appellants also say that the information was erroneous because it was sworn to only on information and belief. Since attorneys are officers of the court, it would seem that their official oaths would suffice, even in the absence of an affidavit. Prine v. State, supra. Moreover, it would be unreasonable to expect the attorneys filing the charge to have personal knowledge of the events. It is a very unusual situation when the district or county attorney has any personal knowledge of the facts upon which his affidavit is made.
Appellants also say that the court's power to punish for contempt of court is defined and limited by Code Section 1656, and that therefore the court's power does not extend to a contempt while the court is not sitting. (Hn 4) However, we think that Section 1656 defines the extent of the punishment only while the court is sitting, but that it does not exclude the power to punish for contempt while the court is not sitting. It is almost universally held that the judicial power to punish for contempt is inherent and implied in the judicial function. Mississippi Constitution of 1890, Sections 159, 160, 161; Ex parte Adams, 1853, 25 Miss. 883; Watson v. Williams, 1853, 36 Miss. 331; 17 C.J.S., Contempt, § 43, pp. 55-60.
(Hn 5) Appellants claim that the decree was against the overwhelming weight of the evidence. The chancellor properly held that he must find appellants guilty beyond a reasonable doubt. Dangel, Contempt, page 76. And of course this Court has always examined carefully contempt convictions. See Brannon v. State, 202 Miss. 571, 29 So.2d 916. However, we think that the trial judge was amply justified in finding as he did on the facts.
The testimony is in agreement as to the proposition made by appellants to McPhail, except as to who would get the money. The record shows that L.G. Melvin stated that he had spent a lot of his own money and time on these cases and might have to give up his home. When L.G. Melvin was asked by McPhail what the court might do about dismissing the suits, he indicated that he had an uncle who was a lawyer who could arrange for the dismissal. He agreed to destroy the evidence. McPhail testified that L.G. Melvin said that if he could not handle it in any other way he would destroy the evidence or he would get mixed up on the witness stand. Furthermore, all of the preliminaries to and the offer to McPhail and the other defendants were done in a surreptitious manner. The chancellor heard all of the testimony and we cannot say that he was not justified from these and other facts in finding as he did.
The court did not err in the amount of the fine and imprisonment. Code Section 1656 does not apply to the scope of punishment for contempts occurring while the court is not sitting. (The applicable statute under these circumstances is Code Section 2562 applying to "offenses for which a penalty is not provided elsewhere by statute). . . ." (Hn 6) Nor did the court err in admitting the court records in the six cases which were pending at the time of the contempt. Those records were essential elements of the charges here, and were relevant to them. (Hn 7) Because of the lack of clarity of the wire recording, the court correctly excluded it from the evidence. However, the sheriff's testimony as to what he heard over the loudspeaker was relevant and proper. It is analogous to a witness testifying to what he heard over the telephone.
We therefore conclude that the decree of the chancellor and the convictions of appellants should be affirmed.
Affirmed.
The above opinion is adopted as the opinion of the Court, and for the reasons therein indicated the case is affirmed.
Kyle, J., took no part in the consideration or decision of this case.
ON SUGGESTION OF ERROR
Careful consideration has been given to the several points assigned and argued in the Suggestion of Error. Inasmuch as these questions were fully dealt with in the original opinion, further response thereto is deemed unnecessary. Since we adhere to the views heretofore expressed in the affirmance of this cause, it follows that the Suggestion of Error should be, and is, overruled.
In responding to the assignment of error which contended that the lower court had imposed excessive punishments, in the original opinion, in the paragraph next preceding the last, it was said: "The applicable statute under these circumstances is Code Section 2562 applying to `offenses for which a penalty is not provided elsewhere by statute'". [ 48 So.2d 856, 861.]
(Hn 8) Since the power exercised by the lower court in the prosecution and sentence for this constructive contempt was derived from the inherent powers of such court, Section 2562, Code of 1942, has no application, and reference to that section was untimely. To that end, the effect of the above quoted excerpt is eliminated from the opinion.
Suggestion of error overruled.