In re Gorham, 129 N.C. 481 (1901)

Dec. 23, 1901 · Supreme Court of North Carolina

129 N.C. 481

IN RE GORHAM.

(Filed December 23, 1901.)

3.CONTEMPT — Punishment as for Contempt — The Code, See. 654, Subsec. 3.

Under The Code, Sec. 654, Subsec. 3, a person may be punished, as for contempt, for unlawful interferences with proceedings in any action.

2. CONTEMPT — Punishment as for Contempt — The Code, Sec. 654, Subsec. 5 — Juror.

Under The Code, Subsec. 5, a juror may be punished, as for contempt, for allowing himself to be improperly influenced.

3. CONTEMPT — Jury Trial.

Respondents in a proceeding as for contempt are not entitled to a jury trial.

4. FINDINGS OF COURT — Judge—Appeal.

The findings of fact by a trial judge in a proceeding as for contempt, there being evidence, can not be reviewed on appeal.

5. CONTEMPT- — Purging.

The respondents in a proceeding as for contempt can purge themselves only where the intention is the gravamen of the offense.

Tbis was a proceeding to punish as for contempt. Tbe acts were alleged to have been committed by the respondents during the trial of the civil action of B. F. Long, administrator, against the North Carolina Bailroad and others,’in Iredell Superior Court, at its May Term, 1901, .and upon the answers of the respondents and the affidavits filed in the matter, his Honor, Judge George IT. Brown, found the following facts:

“1. That after the jury were empaneled in said action, the Court instructed them, in addition to the usual instruction, that it was their duty to report to the Court tbe name of any person wbo attempted to talk to them about the case or in their presence, and had each member of the jury to so promise the Court upon their honor. ITe further advised the jury not to associate with anyone connected with the case during the trial.

“2. That while the trial was in progress, and just as the jury were discharged from Court on Friday evening, May 24, R. A. Ramsey placed himself at one of the exits of the court-house grounds, and there met juror B. C. Deaton and took him to a bar-room and treated him to a drink of whiskey, and remained with him for about two hours, until about the ringing of the bell for the night session of the Court, and was seen in earnest conversation with him. That after Dea-ton had gone back to the court-house, Ramsey declared' it was his purpose in his communications with Deaton to influence his verdict in favor of the defendant in said cause, and that was his only business here, and the Court also finds as a fact that he attempted to carry out his said purpose.

“3. That J. A. Gorham is the law agent of the Southern Railway Company, which company is defending said suit in behalf of the said N. C. R. R. Co-., and the State University R. R, Co., and has been present during the trial, sitting in the bar and assisting counsel therein, and that the fact was known to juror J. H. Brown. That after the adjournment of the Court at its night session on Friday, Hay 24, the said J. A. Gorham and the juror J. H. Brown wore together, holding a long and close conversation in from of the Hotel Iredell, which continued for something like two hours, ■and until the hotel doors were closed for the night and most of the guests had retired. That the said law agent and juror talked about the case on trial. That about the hour of 11 o’clock, the said Gorham left his seat; went into the hotel, ascended partly up the first stairway, where he remained until tbe juror Brown overtook him. That prior to this, juror Brown had left the seat where he sat talking with Gorham, crossed the street to the court-house well, and remained for two or three minutes and then returned, joining Gorham on the stairway; that both of said parties then went to the room of said Gorham, No. 18, on the third floor, locked .the door and extinguished the light, and remained together until the next morning; that the said Brown went to Gorham’s room in consequence of an agreement between them that Brown should occupy a bed in said Gorham’s room and that it should cost him nothing — Gorham saying that it cost him nothing.

“4. That soon after, within a few minutes, after the said parties went to said room, three of plaintiff’s attorneys, who had been advised of such proceedings, went to the said room, knocked upon the door twice, and received no response.

“5. That the next morning, about 7 o’clock, juror Brown went down to the hotel clerk and stated that he had occupied a bed in room No. 18, and would pay for it before leaving Court. That said Brown had not registered as a guest. That shortly after Brown left room 18, Gorham opened the door to start down, and saw Geo. B. Nicholson, one of the plaintiff’s counsel, standing in the hallway and dodged back. •That he shortly afterwards went downstairs and told the hotel clerk that Brown had staid in his room the night before, but also said that he did not know he was a juror until he (Brown) told him. The Court finds as a fact that said Gorham and said Brown knew each other as a juror and law agent before any of said conversations or actions took place.

“6. The Court finds as a fact that the object and purpose of the said J. A. Gorham and J. TL Brown was to improperly and unlawfully influence the verdict of the said J. II. Brown in favor of the defendant in the said case on trial. .

“7. As to juror Deaton, by consent of all parties, the rule is discharged.

“8. As to L. 0. Caldwell, and as to bis conversation with R. A. Ramsey and juror Brown, and his connection with J. A. Gorham at the hotel, the Court is not able to find as a fact that said L. C. Caldwell had any unlawful or corrupt or wrongful purpose, and the rule as to him is therefore discharged.”

Thereupon the following order and judgment were entered:

“Upon the foregoing facts, it is adjudged that J. A. Gor-ham, J. H. Brown and R. A. Ramsey are guilty of gross, contempt of this Court, and have attempted .to pervert the course of justice and to obstruct the enforcement of the civil remedies and rights of the plaintiff in the civil action pending in this Court, wherein B. E. Long, administrator, is plaintiff, and the N. C. R. R. Co. et al. are defendants, in the following particulars:

“1. That the said respondent J. A. Gorham has attempted to corrupt and influence J. H. Brown, one of the jurors sworn tp -try the said case, and has been guilty of conduct that tended to defeat, impair, impede and prejudice the rights and remedies of the plaintiff in the above-entitled suit.

“2. That the respondent R. A. Ramsey had attempted to corrupt and' influence the juror B. C. Deaton, to the prejudice of the plaintiff, B. E. Long, administrator, in the above-entitled action, and has been guilty of conduct that tended to defeat, impair, impede the rights and. remedies of the said B. F. Long, administrator, plaintiff in the said suit.

“8. That the respondent J. II. Brown, one of the jurors sworn to try the said case; has permitted himself to be corrupted and influenced by the respondent J. A. Gorham, to the prejudice of the plaintiff, B. E. Long, administrator, in the said suit, and has been guilty of conduct that tended to defeat, impair and, impede the rights' and remedies - of the-said B. E. Long, administrator, plaintiff in said suit, and the due and: orderly course of justice.

‘Tt is therefore adjudged that the respondents, J. A. Gor-ham, E. A. Eamsey, J. H. Brown, are guilty as for contempt of the Court in the particulars above specified and set forth, and it is further adjudged:

“1. That the said J. A. Gorham be committed to the common jail of this county for twenty days, arid be fined fifty dollars ($50.00), and that he is further adjudged to pay the costs of this rule, and to be confined till thé said fine and costs are paid.

“2. That the said E. A. Eamsey be committed to the common jail of Iredell County for twenty days, and shall pay a fine of fifty dollars ($50.00) and costs, and shall pay the fine and costs before being discharged.

“3. That the said J. IT. Brown be fined fifty dollars and costs, and shall be in custody of the Sheriff till said fine and costs are paid.”

From the judgment of the Court, the respondents appealed.

Osborne, Maxwell & Keerans, for Gorham.

J. F. Gamble, for Eamsey and Brown.

Broivn 'Shepherd, for Attorney-General, contra.

MONTGOMERY,. J.

This proceeding in the Court below, as the record discloses, had for its object the punishment of the respondents as for contempt of Court, and the judgment was pronounced against them as for contempt. But the argument for the State here was also directed to the proposition that the judgment could be supported on the ground that the facts constituted a case of contempt of Court. In support of this proposition, numerous authorities were 'referred to, but in none of'those jurisdictions were the statutory laws like those of our State on this subject. One of them, however, People v. Wilson, 64 Ill., 195, 16 Am. Rep., 528-531, contains 'a most significant expression ; it is said there: “The statute may be regarded as a limitation upon the power of tbe Court to punish for any other than those acts committed in its presence. In this power would be necessarily included all acts calculated to impede, embarrass or obstruct the Court in the administration of justice. Such acts would be considered as done in the 'presence of the Court.” But the peculiarities c.f the language used in our statutory law, and the decisions of this Court upon that law, forbid us from following such precedents. Chapter 14 of The Code, a compilation of the acts 1869 and 1870-11, concerning contempt, embraces the whole law of our State at the present time on that subject. With the origin, history and objects of those acts the older lawyers of the State are familiar, and it would serve no good purpose to enter upon a discussion of the same. The act of 1868 was exactly the law which we now have embodied in Chapter 14 of The Code, except that subdivision 7 of section 1 of that act, concerning the publication of the proceedings in Courts of Record, was amended by the act of 1871, there being added also in the act of 1871 a section concerning the debarring of attorneys of their license to practice law, and two further sections in the following words: “Section 2. That the several acts, neglects and omissions of duty, malfeasances misfeasances and nonfeasances specified and described in said act of April, 1869, as hereby amended, shall be and they are hereby declared to be the only acts, neglects and omissions of duty, malfeasances, misfeasances and nonfeasances which shall be subject of contempt of Court. Section 3. That if there be any parts of the common law now in force in this State which recognized other acts, neglects, omissions of duty, malfea-sances, misfeasances or nonfeasances besides those specified and described in said act, the same are hereby repealed and annulled.” The preamble to the act of 1871 refers indirectly, but clearly, to an opinion of this Court delivered by Chief Justice Pearson in the case of Ex Parte Moore, 63 N. C., 397, in which it was said that there were other matters and acts which were the subjects of contempt at common law which were not embraced in the act of 1869, and the added sections above quoted were the admitted result of that opinion of the Court. This Court has repeatedly held that the act of 1871,limiting the power of the Courts to punish for contempt to the particular instances and acts embraced in the act of 1869 was not unconstitutional. Ex Parte Schench, 65 N. C., 353; In re Oldham, 89 N. C., 23 ; Kane v. Haywood, 66 N. C., 1. In the last-mentioned case, the Court, said, Chief Justice Pearson delivering the opinion: “The preamble (to the act of 1871) sets out that doubts have been expressed as to the construction of the act of 1869, by reason of which the judicial authority has asserted that "other acts of con'tempt not specified in said act still exist at the common law, and the Courts have assumed to exercise jurisdiction over the same, and to impose other punishments therefor. The statute then goes on with a manifest intention to restrict the power of the judiciary just as' far as the Oonstitution permits the General Assembly to do (italics ours), and confines the neglects and omissions of duty, malfeasances, etc., to the specified particulars in the act of 1869, and for fear of evasion by the Courts, it is enacted Tf there be any , parts of the common law now in force in this State which recognize other acts, neglects, malfeasances, etc., etc., the same axe hereby repealed and annulled.’ ” The facts in the case before us do not f All under the specifications of contempt in Chapter 14 of The Code, and the respondents are therefore not guilty of contempt. They would be but for the act of 1871, although not specified in The Code, for, but for that act, we would have no hesitancy in saying, as was said in Ex Parte Moore, that the act of 1869 did not embrace all the acts which, at common law, constituted contempt. But as we have said in the beginning of this opinion, this matter was proceeded with in the Court below as for contempt, and particularly under subdivision Y of section 654 of The Code, which is in these words: “All other cases where attachments and proceedings as for contempt have been heretofore adopted and practiced in courts of record of this State to enforce civil remedies, or protect the rights of any party to an action.” That provision clearly applies to civil remedies, as was decided in the matter of In re Deaton, 105 N. C., 59. In the argument here our attention was called to section 656 of The Code, which is in these words: “To sustain a proceeding* as for contempt, the act complained of must have been such as tended to defeat, impair, impede or prejudice the rights or remedies of a party to an action then pending in Court,”' and it was insisted that that section covered the facts in the case before Tie Court. But we think that that, section must refer only to those specifications of acts which subject persons to punishment as for contempt set out in section 654 of The Code, and restricted instead of being matter of aider. But we think, from the facts found by his Honor, that the respondents Gorham and Ramsey unlawfully interferred with the proceedings of an action pending and being tried by him, and in doing so, violated the law as it is written in the last sentence of sub-section 3 of section 654 of The Code, and that for that offense the judgment and sentence pronounced upon .them should be sustained. The whole of subsection 3 (prefaced by the opening words of section 654, “every Court of record shall have power to punish as for contempt”), reads as follows: “All persons for assuming to be officers, attorneys or counsellors of the Court, and acting as such without authority, for receiving any property or person Avhieh may be in custody of any officers by virtue of any order or process of the Court, for unlawfully detaining anywitness or party to any suit,while going to, remaining at or returning from the Court where the same may be set for trial, or for the unlawful interference with the proceedings in any action.” The acts for which the respondents were found guilty were interferences with the proceedings in that action of the most unlawful and reprehensible kind. As to the juror Brown, the other respondent, the proceeding was also properly had as to him under subsection 5, section 654 of The Code, in which it is declared that punishment as for ’ contempt may be awarded against “parties summoned as jurors for impropriety, conversing with parties or others in relation to an action to be tried at such Court, or receiving communications therefrom.” The respondents were not entitled to a trial by jury, nor to have the findings of fact reviewed in this Court. There was evidence before his Honor to support the findings, and that is all that it required. In re Deaton, supra. Neither can their attempts to relieve themselves by aVowals of lack of intention to bring the Court into contempt avail them. That rule— the disavowal of the imputed intent purges the contempt and relieves the respondent — applies only to that class of cases “where the intention to injure constitutes the gravamen of the offense'.” Baker v. Cordon, 86 N. C., 116.

Under the facts found, they can plead neither ignorance nor innocency. Upon a careful consideration of the whole case, we think the judgment must be

Affirmed.

ClaRK, J\,

concurring. The administration of justice must be kept pure at its source. The evidence is set out in the record. The Court found thereon the following facts: 1. That the said respondent J. A. Gorham has attempted to corrupt and influence J. H. Brown, one of the jurors stvorn to try the said case, and has been guilty of conduct that tended to defeat, impair, impede and prejudice the rights and remedies of the plaintiff in the above-entitled suit. 2. That the respondent R. A. Ramsey has attempted to corrupt and in-Auence the juror B. C. Deaton, to tbe prejudice of tbe plaintiff, B. E. Long, administrator, in tbe above-entitled action, and bas been guilty of conduct tbat tended to defeat, impair and impede the rights and remedies of tbe said B. E. Long, administrator, plaintiff in tbe said suit. 3. Tbat tbe respondent J. H. Brown, one of tbe jurors sworn to try tbe said case, bas permitted bimself to be corrupted and influenced by tbe respondent J. A. Gorbam, to tbe prejudice of tbe plaintiff, B. F. Long, administrator, in said suit, and bas been guilty of conduct tbat tended to defeat, impair and impede tbe rights and remedies of tbe said B. F. Long, administrator, plaintiff in said suit, and the due and orderly course of justice.”

Tbe findings of fact, there being evidence, can not be reviewed on appeal. In re Deaton, 105 N. C., 59, and upon those facts tbe Judge could not do less than adjudge tbe respondents guilty.' Tbe sentence'of $50 fine and twenty days’ imprisonment each, for Gorbam and Ramsey, tbe most guilty parties, and of $50 fine without imprisonment for Brown, were moderate sentences for an offense which, 'if unchecked, would overthrow and make contemptible the administration of justice.

The besetting sin of Courts is to go beyond their jurisdiction and supervise tbe action of the other departments, and the Courts should strive against tbat tendency. But, on tbe other band, tbe judiciary should be firm and prompt to maintain and defend tbe exercise of their own prerogative and authority from tbe invasion of tbe other departments. Suum cuique. Let each department keep within its own limits.

The Constitution, Article IV, section 12, provides: “The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction which rightfully pertains to it as a co-ordinate department of tbe government.” If tbe General Assembly bad expressly enacted that such acts as are here found to bave been committed by tbe respondents, could not be punished by tbe Courts, it would bave been a nullity as an attempt to deprive tbe judiciary of a power wbicb bas belonged to it from tbe remotest antiquity, and wbicb bas never been denied to any other Court, and wbicb is an inherent power necessary to tbe very existence of any authority in tbe Courts. If tbe moment a juror passes out of tbe court-room, hired lobbyists in tbe pay of powerful and wealthy suitors can take them in charge, suborn them, bribe them, sleep with them, treat them and snap their fingers with- impunity at tbe Court, then indeed tbe judiciary' is worse than “exhausted.” It will not avail that tbe parties can be tried for “embracery” at tbe next term, if all tbe Judge can do is to make a mistrial. Tbe injury is done, and tbe contempt of the Court most fully shown by preventing a trial at this term. Tbe contempt could not be more direct or palpable if a band of armed men bad followed tbe jury to tbe court-house with threats of violence if their verdict was unfavorable, and bad stood just outside tbe door to execute punishement if disappointed. It is equally a contempt of Court whether a man meets a juror just outside tbe court-room with a bribe or a bludgeon in bis band. If tbe Court can not prevent either because not done within tbe court-room, tbe administration of justice is no longer free. Tbe independence of tbe judiciary no longer exists. If a juror can with impunity be bribed or bullied on this trial, tbe same thing can be done when these respondents are on trial for embracery at another term. If jury lobbyists or “law-agents” can with impunity tamper with this verdict, they can with that. It can not be justly imputed to any General Assembly that they passed an act intended or so worded as to justly mean that tbe administration of justice can be “defeated, impaired and impeded.” Were it possible that such an act bad been passed, it would be our duty to declare it unconstitutional, and with as great reason as tbe Court bas ever done so in any case. If tbe Court can seriously question tbe power of tbe Legislature, acting witbin its exclusive power of laying taxes, to tax an emigrant agent $25, it can surely call in question tbe construction of any act wbicb would deprive tbis department of its right to administer justice without being hindered, by bribery and fraud. It is clearly stated by Smith, C. J., In re Oldham, 89 N. C., 23, that an act having such effect would be invalid. But, as tbe Judge below held, tbe Legislature, not wishing to deprive tbis co-ordinate department of any just powers inherently necessary for tbe administration of justice, provided in section'656 of Tbe Code: “To sustain a proceeding as for contempt, tbe act complained of must have been such as tended to defeat, impair, impede or prejudice tbe rights or remedies of a party to an action then pending in Court,” and Tbe Code, section 654 (3) recognizes tbe power to punish as for contempt, among others, all persons guilty of “unlawful interference with, tbe proceedings in any action.” Tbis legislative construction fits tbis case as a glove does tbe band. That tbe power to punish for contempt is not restricted to those acts committed in view of tbe Court is further recognized by section 653 of Tbe Code, wbicb provides : “Whenever the contempt shall not have been committed in tbe immediate presence of the Court, or so near as to interrupt its business,” notice shall issue to tbe defendant.

In Rapalje on Contempt, section 1, it is said: “The better opinion seems to be that legislative bodies have not power to limit or regulate tbe inherent powers of Courts to punish for contempt. Tbis power being necessary to tbe very existence of the Court, as such, tbe legislature has no power to take it away or hamper its free exercise. This is undoubtedly true in tbe case of a Court created by tbe Constitution. Such a Court can go beyond tbe statute in order to preserve and enforce its constitutional powers, by treating as contempts acts which may clearly invade them. On the other hand, the Circuit and District Courts of the United States, being the creatures of Congress, their powers and duties depend upon the act calling them, into existence and subsequent acts extending or limiting their jurisdiction are valid. A statute which limits the amount of the fine or the term of imprisonment which the Courts may impose, does not deprive them of their power to enforce affirmatively their orders, or to enforce any decree.” This inherent power applies to Superior Courts, Eapalje Contempt, sec. 1, and does not at common law inhere in inferior courts. Ibid, sec. 4. As to them, the power to punish for contempt is statutory.

In Rhyne v. Lipscombe, 122 N. C., 650, and many decisions following, it is held that an act of the Legislature depriving the Superior Court of its recognized power to review the Courts below was unconstitutional as depriving it of its inherent power and position. A fortiori would this act be unconstitutional if it is construed to deprive the Superior Court of its inherent power to punish such acts as those which directly, not constructively, “defeat, impair and impede” the administration of justice in that Court.

The respondents can not purge themselves in a case of this kind. That is admissible only “where the intention is the gravamen of the offense.” The intention here is not to be considered, for it is the acts of the appellants which constitute the contempt.