Finegold v. State

112 Neb. 64 | Neb. | 1924

Rose, J.

In the district court for Douglas county, Nathan Finegold was found guilty of contempt of court and for that offense was sentenced to serve a term of eight months in the county jail. As plaintiff in error he has presented his sentence for review.

The conviction cannot be approved. There was no formal complaint accusing Finegold of a violation of the criminal law or of contempt. He was brought into court by a capias. The judgment recites that he was brought before the bar “to answer for contempt of court in connection with perjury committed during the trial of this cause” — a civil action in which he was the plaintiff; that he was found guilty of “contempt of court in connection with perjury committed during the trial of this cause” — the civil case mentioned ; that he was “arraigned for sentence” and informed of the finding of guilty. He was not arraigned under any criminal charge. He was first found guilty and afterward “arraigned for sentence.” Neither the capias nor the findings of the court recite that Finegold himself committed perjury in the civil action. The record goes no further than to state the conclusion that he was “guilty of contempt of court in connection with perjury committed during the trial” of the civil case. What that “connection” was or what specific act was contemptuous is nowhere stated.

To sustain the conviction the attorney general invokes the statutory power of a court to inflict punishment for a “wilful attempt to obstruct the proceedings, or hinder the due administration of justice,” in pending litigation, or to punish summarily contempts committed in the presence of the court. Comp. St. 1922, secs. 9189, 9190. The record does not show an exercise of judicial power under these provisions. There is no charge or finding that Finegold wilfully attempted to obstruct the civil proceedings or to hinder the due administration of justice. “Contempt of court in' connection with perjury committed during the trial” of the civil case is the only attempt anywhere in the record to state or define any unlawful or contemptuous act. The judgment itself shows that the conviction was not based on what the presiding judge observed in the presence of the court. It recites that evidence was adduced and considered in determining the question of guilt. The record, therefore, is fatally defective and the action taken will not support the sentence imposed. If Finegold was not subject to summary punishment, ’a written complaint and an opportunity to make a defense were necessary to a conviction for contempt. If he was guilty of contempt in the presence of the court, his conviction should state the conduct constituting the contempt. In neither respect is there a compliance with the law. The judgment is therefore reversed and the cause remanded for further proceedings.

Reversed.

Note — See Contempt, 13 C. J. p. 63, sec. 87 (1925 Ann.).