9 Wyo. 457 | Wyo. | 1901
Upon the petition of Belle Fisher, claiming to be unlawfully imprisoned in the jail of Carbon County by the sheriff of that county, a writ of habeas corpus was allowed by one of the justices of this court and made returnable before the court. The case was heard upon the petition, the return, plaintiff’s reply thereto, and briefs of counsel.
The return embraces the record of the proceedings resulting in the ■ order for plaintiff’s imprisonment, and attached to the reply is a certified copy of the testimony.
It appears that one Martin W. Foley was being tried in the district court of Carbon County, on the charge of murder, from the 9th day of July, 1900, to the 14th day of that month inclusive. On the last-named date the county and prosecuting attorney presented an information charging that the petitioner herein on the 12th day of July, 1900, pending the trial of the Foley case, corruptly approached two of the witnesses for the State and attempted to bribe them to testify falsely in said case, and praying that she be ordered to appear and show cause why she should not be punished for contempt of court. To the information thus presented were attached the affidavits of the witnesses alleged to have been corruptly approached. An order was thereupon entered requiring the petitioner to appear at two o’clock on the same day and show cause why she should not be punished for contempt. She appeared in obedience, to the order, and hearing
“On this 14th day of July, A. D. 1900, came Homer Merrell, county and prosecuting attorney of Carbon County, and Belle Fisher in person and by attorney, and thereupon the application of said Homer Merrell to this court that said Belle Fisher be ordered to appear and show cause why she should not be punished for contempt, in attempting to bribe certain witnesses who are in attendance upon this court in the case of the State of Wyoming v. Martin W. Foley, charged with murder, was read to her. And it appearing to the court that due service of a certified copy of said application and order of court issued herein was made upon the said Belle Fisher, she, the said Belle Fisher, now voluntarily appears and files no objection or answer to said proceedings and order, and said matter coming on to be heard, after hearing all the evidence on the part of the State and the defendant, the court, being fully advised in the premises, doth find that the said Belle Fisher did, on the 11th day of July, A. D. 1900, at the city of Hawlins, in said county and State, corruptly approach and offer to certain witnesses, in attendance upon said court in the case of State of Wyoming v. Martin W. Foley, money and other valuable considerations if they, the said witnesses, would modify their testimony and falsely swear in giving their testimony in said case.
“And the court doth now find the said Belle Fisher to be willfully and contumaciously guilty of such conduct and in contempt of court, and doth order, adjudge, and decree that the said Belle Fisher be fined in the sum of five hundred dollars ($500.00) and the costs attendant upon this proceeding, and that an execution issue therefor; and that the said Belle Fisher be confined in the county jail of Carbon County, at Bawlins, for the term of six (6) months.
“And the said Belle Fisher is now by the court ordered*470 into the custody of the sheriff of Carbon County in the State of Wyoming, and that she stand committed to the custody of the said sheriff until said fine is paid and said sentence served.”
The first and principal contention on behalf of the petitioner is that her alleged conduct did not constitute a contempt, and hence that the court was without jurisdiction in the premises, and its judgment void. In her petition, plaintiff charges that her offense was not alleged or proven to have been committed in th§ presence of the court, or so near thereto as to obstruct the procedure of the court; and the argument of her counsel is based upon that assumption. It is contended that an attempt to bribe a witness out of the presence of the court is not a contempt of court, but was punishable at common law as a crime, and was so punishable by statute in this State. It is not claimed that the court is without jurisdiction to punish as a contempt an act also indictable or punishable as an offense against the criminal laws, but it is conceded that the fact that an act is otherwise indictable does not deprive the court of the essential power to punish the same act as a contempt. It is, however, insisted that the offense charged against petitioner is not and never was a contempt of court. Counsel admit that the Legislature cannot, by making an act indictable, interfere with the inherent authority of a court to punish for contempt, but they argue that neither the Legislature nor the court is authorized to declare a crime to be a contempt, which has always been punishable as a distinct indictable offense at common law. It is practically conceded, if not in so many words, that the attempt to bribe a witness in the presence of the court, or so near thereto as to interrupt its orderly procedure, would amount to a contempt of court. In respect, therefore, to the question of jurisdiction, the contention of plaintiff’s counsel is confined to the proposition that the acts charged to have been committed did not occur in the presence of the court, or so near thereto as to interfere with its procedure.
On the hearing, Isherwood, being asked to state the circumstances of the attempt of the petitioner to bribe him, testified as to the place where it occurred as follows: ‘ ‘ At that time I was supposed to be upstairs as a witness. I went down stairs to go to the water closet; when I got down past the corner Miss Fisher called me and I stopped.” He then related the conversation between the petitioner and himself, in which the attempt was made to induce him to change his testimony. Stafford testified that he was approached by the petitioner in the hall of the courthouse down stairs — in the corridors between the two doors — and at that place the proposition was made to him to give false testimony. Both parties were in attendance upon the court as witnesses for the State in the criminal case already mentioned. Miss Fisher denied having made any corrupt propositions to either witness; but in giving her version of the affair she fixed the place of the conversation as “down stairs here,” and again “there in the stairway,” she stated that several persons were present, and some talk ensued, which she related, and that Doctor Stafford turned aside in the little hall-way, and she had some further conversation with him there. She admitted,
In the case of Savin, 131 U. S., 267, it appeared that the petitioner had been adjudged guilty of contempt for having improperly endeavored to deter a witness from testifying in a case in behalf of the government,. the offense of petitioner having been committed once in the jury room, temporarily used for witnesses, and once in the hallway of the court building immediately adjoining the court room. The question arose whether the misbehavior {"occurred in the presence of the court. It was held that it did. The court said, “The jury room and hallway where the misbehavior occurred, were parts of the place in which the court was required by law to hold its sessibns, ’ ’ and after quoting the following from Bacon in his essay on Judicature : “The place of justice is an hallowed place; and therefore not only the bench, but the footpace and precincts and purprise thereof ought to be preserved against scandal and corruption,” the court said further: “We are of opinion that, within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors, and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court. * * * If, while Flores was in the court room waiting to be called as a witness, the appellant had attempted to deter him from testifying on behalf of the government, or had there offered him money not to testify against Gougon, it could not be doubted that he would have been guilty of misbehavior in the presence of the court, although the judge might not have been person-allv cognizant at the time of what occurred. But if such attempt and offer occurred in the hallway just outside of the court room, or in the witness room, where Flores was waiting in obedience to the subpcena served upon him, or pursuant to the order of the court, to be called into the court room as a witness, must it be said that such misbe-
The bribing of witnesses or jurors strikes at the very foundation of judicial determination; and the court would be shorn of much of its efficiency in the administration of justice if it possessed not the power to protect itself against such reprehensible conduct as the corrupt interference with witnesses in the very precincts of the court, where the witnesses assemble in obedience to subpoena, and while waiting to be called to give their testimony. Witnesses are not usually required to remain constantly in the court room, and if they are in the hallway, witness room if any, or about the building within easy call, the purpose of their attendance is ordinarily subserved until they are required to take the stand. When in the building in obedience to subpoena or order of court they are in attendance upon the court and subject to its order, and we are not inclined to adopt so technical a,construction of the law as would permit a person to station himself within the building where the court is held, and there attempt to corruptly influence the testimony of witnesses without fear of being punished for contempt. The argument of counsel that such conduct would not be in the presence of the court or so near thereto as to interfere with its procedure, or obstruct the administration of justice is, to say the least, unreasonable. It is moreover opposed not only by the decision of the United States Supreme Court in the Savin case, but by other eminent authorities.
In Sinnott v. State, 11 Lea. (Tenn.), 281, it was held that one was guilty of contempt who approached the deputy sheriff while engaged in summoning jurors, with a list of names of persons which he endeavored to induce the deputy to summon as jurors; and also approached
In the case of Brule, 71 Fed., 943, the accused was charged with having by the use of money, persuaded another to conceal and hide himself and absent himself from court, to avoid the service of a subpoena upon him, and thereby prevented the government from using him as a witness upon a criminal trial. He was adjudged guilty of contempt, and it was held that the act was punishable as a contempt, though it was done at the residence of the witness, at some distance from the courthouse, in the town where the court was sitting, on the ground that it constituted a misbehavior so near to the court as to obstruct the administration of justice. The learned judge stated in the opinion that had the particular misbehavior charged occurred anywhere within the building where the court was held, it would have been misbehavior in the presence of the court, and added, “ If it is a contempt to bribe a witness in front of the courthouse door, is it not a contempt to do the same thing on the street opposite the court building, or four blocks away? Is not the result the same? Is not the motive of the
In Hale v. State, the party adjudged to be in contempt had, by promising to pay the expenses of a witness, who had been subpoenaed, induced her to leave the county, and thereby prevented her appearance as a witness at the trial of a criminal case. The act was held to be a contempt of court and punishable as such, notwithstanding that it was by statute constituted a distinct criminal offense, and that no express provision of the statute made the statutory punishment cumulative.
It is well settled that if an act is a contempt of court, the fact that the same act is indictable as a criminal offense, does not take away the jurisdiction of the court to punish the offender as for a contempt. We understand this general principle to be conceded, while it is contended that a different rule governs this case. We do not think so. The case comes fairly within the general doctrine, and we apprehend that enough has been said to render further discussion unnecessary.
It is insisted that as Section 5087 of the Revised Statutes, providing for the punishment as a misdemeanor of one guilty of disobeying a subpoena, expressly states that it shall not prevent summary proceedings for contempt, while Section 5088 contains no such reference to contempt proceedings, and is not therefore expressly rendered cumulative, the remedy under the last-named
Under similar statutory provisions the contrary was held in Hale v. State, 55 O. St., 210, upon facts already alluded to in referring to that case. The statute in question (Sec. 5088) provides that “whoever corruptly or by force or threats or threatening letters, endeavors to influence, intimidate, or impede any juror, witness, or officer in the discharge of his duty; or by threats or force obstructs or impedes, or endeavors to obstruct or impede, the due administration of justice in any court of this State, shall be fined not more than one thousand dollars, to which may be added imprisonment in the county jail not more than sixty days nor less than ten days.”
The act of petitioner clearly amounting to a contempt, bearing in mind the general rule above adverted to that making an act indictable as an offense does not invade the powers of a court to punish for contempt, we are not disposed to hold that petitioner was liable to be proceeded against only under Section 5088. The power to punish for contempts m facie curiae is inherent in all courts of superior jurisdiction. Legislative authority is not required for its existence or exercise. In this State indeed there is no statute conferring the power in such a case as the one at bar. We are clearly of the opinion that Section 5088 is not exclusive, and that where the act amounts to a contempt, it may be punished as such.
The judgment of the court was that the petitioner be fined in the sum of five hundred dollars, and be imprisoned in the county jail for the term of six months; and she was ordered into the custody of the sheriff and to stand committed until the fine is paid, and the sentence served. The term of imprisonment specified in the order has been served, and the petitioner is in custody for non-payment of the fine. It is contended that as to imprisonment for the fine, the sentence is indeterminate,
Section 5195, Revised Statutes, provides that “Any court shall have power, in all cases of conviction when any fine is inflicted, to order, as part of the judgment of the court, that the offender shall be committed to jail, there to remain until the fine and costs are fully paid, or otherwise legally discharged.”
It is provided by Section 5200 as follows : “Any person committed to jail for non-payment of fine or costs or both, may be imprisoned therein until such imprisonment, at the rate of one dollar per day equals the amount of such fine or costs, or both, as the case may be, or the amount shall be otherwise paid, or secured to be paid, when he shall be discharged.”
It is apparent that the contempt for which petitioner was tried and convicted is criminal in its nature. Some difficulty has arisen out of the attempt to classify con-tempts, but petitioner’s conduct was a direct contempt,— a contempt in facie curiae, and comes squarely within the class of criminal contempts. The offense being of a criminal character, we think it clear that the statutes empowering the court in all cases of conviction when any fine is inflicted, to order the offender to jail, and committed prescribing the method or rate for determining the period of imprisonment for non-payment of the fine, are applicable. In re Whitmore, 9 Utah, 441; 35 Pac., 524.
Some California cases are cited upon the proposition that where the sentence imposed comprises both fine and imprisonment, the statute authorizing the court to direct imprisonment at a prescribed rate per day for non-payment of the fine is inapplicable. In re Rosenheim, 83 Cal., 388; 23 Pac., 372. The statutes of Utah having been borrowed from California, the construction placed
The reason for that construction is found in the peculiar language of the various statutory provisions, and it was held that the Legislature had failed to provide for the case of a sentence where a definite term of imprisonment, and also a fine coupled with imprisonment until its payment, has been imposed. Under a statutory provision quite similar to that of California a contrary view is held in Iowa. State v. Myers, 44 Ia., 580. See also In re Beall, 26 O. St., 195. But our statutes do not follow the phraseology of the California and Utah Statutes, and the decisions in those States are not controlling. In re McDonald, 4 Wyo. 150. Counsel maintains that Section 5200 was enacted to make definite and operative Section 5199 and with sole reference thereto. Section 5199 provides that in the event of a sentence to pay a fine and costs, or to imprisonment and costs, the court may direct that in case of non-payment the defendant be put to work either in or without the prison until such fine and costs shall be paid. A mere reference to the statutes as originally enacted will serve to demonstrate the unsoundness of counsel’s position. Section 5200, or rather the provision for which it was afterward substituted, was enacted in 1869 as a part of the criminal code, and provided that whenever a fine shall be the whole or part of a sentence, the court may, in its discretion, order the person sentenced to be confined in the county jail, until the amount of the fine and costs be paid. The Crimes Act of 1890 repealed that provision, and in its stead embraced Section 5200 in its present shape except that the rate was fixed at one dollar and fifty cents per day, and imprisonment was limited to sixty days, which was changed by the succeeding Legislature to one dollar per day, and the limitation as to time omitted. The provision found in Section 5199, however, was not enacted until 1873. (See Comp. L., 1876, p. 168.) And the Crimes Act of 1890 allowed Section
It is claimed that the sentence violates Section 14 of Article 1 of the Constitution which prohibits the imposition of excessive fines, and the infliction of cruel and unusual punishment. It may be said to be fairly well settled that constitutional provisions as to cruel and unusual punishments, are aimed more at the form or character of the punishment rather than its severity in respect to duration or amount. 8 Ency. L. (2d ed.), 440; In re McDonald, 4 Wyo., 150; State v. Becker, 3 S. Dak., 29. But we are not prepared to decide absolutely, nor is it necessary that we do so, that a term of imprisonment or a fine provided by statute or the judgment of court could not in any case be held to be cruel or unusual, although entirely disproportionate to the offense committed. In the case in hand the punishment is certainly neither cruel nor unusual in respect to its character. If it violates the constitution, it is because the fine imposed is an excessive one. But it is evident that much latitude must be