Cooley v. State

Jan 9, 1896
No. 6690
Versions:65 N.W. 799
46 Neb. 603
1896 Neb. LEXIS 511
Post, C. J.

This is a petition in error to'review a judgment of the district court for Douglas county whereby the plaintiff in error was аdjudged guilty of contempt of court. The basis of the prosecution below is the following order entered by the district judge on his own motion:

“State of Nebraska v. , J ulius S. ‍​‌​‌‌‌​​‌​​‌‌​‌​‌‌​​​​‌​‌‌‌​​​​​‌​​‌‌‌‌​‌​​​‌​‌‌‍Cooley and j Theodore Galligher.^
“It now appearing tо the court that one Julius S.. Cooley has used fraudulent means and imposed upon Charles J. Karbach in the obtаining of a certain affidavit of the said Charles J. Karbach recently filed in case entitled George A. Hoаgland v. Emma L. Yan Etten et al., docket X, No. 375, of this court, and it further appearing to the court that one Theodore Galligher has used fraudulent means and imposed upon George H. Eitchett and E. C. Garvin, *604respectively, in the obtaining of certain affidavits of the said Garvin and Eitehett recently filed in case entitled George A. Hoаgland v. Emma L. Van Etten et al., docket X, No. 375, of this court. It further appearing that the said Julius S. Cooley and Theodore Galligher procured the said affidavits ‍​‌​‌‌‌​​‌​​‌‌​‌​‌‌​​​​‌​‌‌‌​​​​​‌​​‌‌‌‌​‌​​​‌​‌‌‍of the parties as above set forth, knowing and intending that said affidavits were to be filed in this court to be used upon the hearing of said cause, to-wit, George A. Hoagland v. Emma L. Vаn Etten, and that the said Galligher and Cooley intended thereby to impose upon this court.
“It is therefore ordered that a capias issue forthwith'to the sheriff оf Douglas county, Nebraska, commanding him to bring the said Julius S. Cooley and Theodore Galligher before this court at 9:30 o’clock Wednesday morning next to show cause why they and each of them should not be punished for cоntempt of this court.
“G. W. Ambrose,
“ Judge.”

Upon the entry of the foregoing order a capias was issued, by virtue of which the plaintiff in error was-arrested and at a subsequent day of the term was adjudged guilty as charged in said order and sentenced to imprisonment in the county jail for the period of tеn days and to pay a fine of $50, together with the costs of the prosecution. The question of the sufficienсy of the ‍​‌​‌‌‌​​‌​​‌‌​‌​‌‌​​​​‌​‌‌‌​​​​​‌​​‌‌‌‌​‌​​​‌​‌‌‍said order was raised at every stage of the proceeding and also by the petition in error. It has been frequently said that the proceeding for contempt under our system is in the nature of a criminal prosecution and that the same degree of certainty is re-*quired in stating the offense as in prosecutions under the Criminal Code. (Gandy v. State, 13 Neb., 445; Boyd v. State, 19 Neb., 128; Johnson v. Bouton, 35 Neb., 903; Percival v. State, 45 Neb., 741; Hawes v. State, 46 Neb., 149.) That rule is especially applicable to acts which, although not committed in the presence of the court, tend *605to embarrass or prevent the orderly administration of justice ‍​‌​‌‌‌​​‌​​‌‌​‌​‌‌​​​​‌​‌‌‌​​​​​‌​​‌‌‌‌​‌​​​‌​‌‌‍and whiсh are known as constructive contempts.

In Gandy v. State, supra, it is said: “ The proceeding against a party for constructive contempt must be commenced by an information under oath, specifically stating the facts comрlained of; an attachment may then be issued, or order to show cause.” In that case the information, whiсh was prepared and filed by the district attorney, after describing a certain cause then on trial to whiсh the defendant therein was a party, alleged that the said defendant “did willfully attempt to obstruct the proceedings and hinder the due administration of justice in said suit, then and there depending and on trial as aforesaid before said district court, in this, to-wit: By attempting to procure one George A. Abbott, Jerry Ackerman, and other persons whose names are to this affiant and informant unknown, to unlawfully seek, strive, and attempt to corrupt and influence the jurors, to-wit, * * * in their action, judgment,and decision * * * in said suit.” In the opinion reversing the judgment of conviction Maxwell, J., says: “In the case at bar there is not a single fact alleged showing an attempt on the part оf the defendant to improperly influence jurors. That is there is no statement of what he did. The information therefore fails to state an offense.”

In State v. Henthorn, 46 Kan., 613, the court say: “It is error to issue an attachment, warrant, or order of arrest for an alleged constructive contempt, without an affidavit or information ‍​‌​‌‌‌​​‌​​‌‌​‌​‌‌​​​​‌​‌‌‌​​​​​‌​​‌‌‌‌​‌​​​‌​‌‌‍containing a statеment of the facts constituting the alleged contempt having first been filed with the court.” (See, also, to the sаme effect, In re Holt, 27 Atl. Rep. [N. J.], 909; Wilson v. Territory, 1 Wyo., 155; In re Daves, 81 N. Car., 72; Ex parte Wright, 65 Ind., 508; Rapalje, Contempt, 43.)

We must not be understood as intimating that proceedings for constructive contempt may nоt be instituted by the court or judge., On the other hand, it is the right, if not *606indeed the duty, of the tribunal whose power is defied, or whosе process is obstructed, to take notice of that fact without waiting for an informant who is usually more interested in asserting his personal rights than in the vindication of the court. It is probable, too, that an order like that еntered in this case is a sufficient foundation for the proceedings; but to have that effect it must contain the allegation essential to confer jurisdiction in a prosecution by affidavit or complaint. When tested by that rule, the order mentioned is clearly insufficient. If this conviction can be sustained, it must be upon the allegation that the accused “has used fraudulent means and imposed upon one Charles J. Karbach in the obtаining of a certain affidavit.” Here, as in Gandy v. State, there is alleged no facts from which it can be found' or inferred as a matter of law that the act of the accused was a fraud upon. Karbach, the affiant named, or thаt its effect was to impose upon or embarrass the court in the administration of justice. Such a statemеnt would be indefensible in an action for relief on the ground of fraud, not to mention a criminal prosecution. The judgment is ■reversed and the prosecution dismissed.

Reversed.