*1 Brenner, 7 v. Duncan. parcels plain- give the two tionate values of and to opportunity, within such tiffs an reasonable time may hy as he fixed trial to court, thereafter pay bearing and into court a sum such tender ratio strip value of the 75-foot $15,000 to found parcel. Upon to the value the 100-foot to hear option payment by plaintiffs, the such tender and mutually binding contract for the en- a becomes prayed enter as will forcement hy decree plaintiffs. plaintiffs. Costs J., Sharpe, North, Carr, Butzel, Reid, C. J. JJ., Dethmers, Bushnell, concurred with Boyles, JJ., concurred in the result.
In re OLIVER. Contempt man relating tenee jail et dismissed and habeas seq.). — Equally Divided Court. grand jury by contempt an corpus gambling equally person proceeding investigating divided court found giving bribery false and evasive answers to' one- behalf of alleged (3 Comp. publie violations ordered to serve sen- person Laws officials, 1929, sentenced of statutes petition § [17217] corpus by Dohany
Habeas William F. on behalf accompanying of William Oliver with certiorari George Judge, B. to ob- Hartrick, Oakland Circuit jail. tain his Sub- release from Oakland (Calendar 43,539.) January No. mitted 1947. 7, May equally Writ dismissed an divided by Supreme court. on Reversed certiorari Court *2 of tbe United States March 8, 1948. Dohany, plaintiff.
William F. Eugene Attorney F. Blach, General, and Ed- Special Attorney ward Fallon, J. Assistant General, for defendant. September prior C. J. On 11, 1946, and Carr, investigation being
thereto, an conducted in by George of Oakland tbe Hon. B. Hart- judges county, rick, one of pur- tbe circuit of said provisions Comp. suant to tbe of 3 Laws 1929, §17217 seq. (Stat. §28.943 seq.). et Ann. et Tbe subject investigation matter of sucb al- involved leged pertain- of tbe statutes of violations State ing bribery gambling, operation gambling devices, public officials, and other offenses. On tbe date referred to William Oliver was summoned Judge questioned concerning before Hartrick and pertaining inquiry. certain matters During to tbe judges sucb examination tbe other circuit of Oak- county, Doty land tbe Hon. Frank L. and Hon. H. Judgei Russel sat Holland, Hartrick in an advisory capacity. At tbe conclusion of Oliver’s judges agreed tbe unanimously that false given and evasive answers bad been Oliver questions. Thereupon Judge answer to Hartrick adjudged guilty Oliver of court and days county jail. him sentenced to 60 in tbe Oakland Following petition tbe and conviction a sentence asking was filed in this Court on behalf of Oliver, habeas, corpus, accompanying- for a writ of writ of certiorari, to
inquire legality into tbe of bis imprisonment. sentence and conviction, On fil- tbe ing petition of said the writs issued, were and clarity Oliver, herein referred to for the sake of brevity plaintiff, as the was released on bail. petition The matter is this on the Court Judge Hartrick’s return.
The return forth sets the course of that, investigation referred it called to the to, was atten- judge, acting grand juror, tion of the circuit as a pin the owner of certain ball operated being machines which were in Oakland county, suspected, being which, was gambling purposes; used for
purchased from doing one C. A. Mitchell, business Bonding Company, as the Midwest in- series of plain- struments referred “bonds,” *3 paid money. tiff had Mitchell certain sums of The questioned return further shows that Oliver was jury grand concerning dealings before the and also to the Mitchell, as testimony location of the bonds question. Judge in' that Hartrick and his associates concluded was false and evasive is as follows: September you ap- “Q. Now, of 1944 proached by a man named A. Carman or Carman E. purchase Mitchell with reference to the of certain pin
bonds which were to cover ball machines that operated by you were owned and in the ' right? Oakland, that is “ n A. Yes. “Q. “A. now? Where are those bonds destroyed I Well, them.
“Q. When? IWell, “A. don’t remember the exact date. I imagine destroyed year. I it at the end of You through my papers going when know, I didn’t see any they keeping expired. use for them because ¡What you “Q\ destroy method did use to them? just 'Well, I “A. don’t know offhand Iwhat did do them, I them whether burned or threw them I must have ont. threw them out: you buy any Did “Q. ever bonds of that kind before?
“A. No. “Q. Never had your of that kind of bonds in possession your before in lifetime? “A. INo, never did. n “Q. You never had an event of that kind occur your you?
in all life did “A. No.. you “Q. And want now to us even understand, only in view of fact that those were the bonds of type you you this ever owned or handled, want you to believe that cannot tell us now what
/(cid:127)'us you employed destroying method them? n just got imagine “A. I rid of them. I I threw paper them in the waste basket. That is what I usually get papers, I do. lots of things circulations, that I waste no whatever have use for, threw them in the paper basket. you you
“Q. away? "Whendo think threw them Possibly year, “A. end found them in expired. there, run out, thing accuracy “Q. The you*can closest give regarding you, us those bonds, are hot you destroyed sure when them, are not what shre you destroy employed
method them? only say “A. The couldn’t I did what do. —I Probably threw them in the trash can. you Q. That as close as can tell us? *4 “A. I No, no, don’t remember what I did do positive say them. I can’t what I did do with them. you
“Q. Where when A.C. Mitchell first you purchase talked to about the of these bonds? my memory “A. toWell, the best of I was in * * # office. ‘‘Q. you Who these bonds he ? first, .mentioned “A. He did. In re you
“Q. he What did tell about them? just Oh, “A. he handed me told me one, to look it over. you “Q. Did look it over?
“A. Yes. “Q. you
Did it? read
“A. Yes. “ Q. What next was said? explain
“A. he went ahead to Well, to me about you the bonds, what it was for. know, you “Q. did What he tell for? was county any expense, “A. To reimburse the expense they go extra to to in case the machines, anybody caught gambling was on the machines or anything illegal. legal, perfectly they
“Q. Your are machines not? They yes.
“A. were, you going prevent Did “Q. tell who he was using gambling device? “A. He didn’t tell. you according “Q. Didn’t ask? You know, ruling they gambled can on.? be go people high “Q. You know and bet on things
scores like that? you “Q. Did Mitchell mention that
you bought them? upon county “A. if Well, stressed had to any expense, go expense, bonding extra com- expense. pany pay would you prosecuting attorney Did consult the “Q. about it?
“A. I No, didn’t. you knew “Q '. You did involved, not? yes.
“A. Well, you county’s “Q. Didn’t think it was stranger making business that some contract county? for the special anything No, “A. didn’t I think about $ # # J-j. *5 any- any you have conversation “Q. Did
body bought you, about bonds before else these ? them spoke it. “A. “Q. “A. Yes. I McNamara about Yes, is he not? now dead
McNamara is “Q. Who else? Hartley spoke it. I about “A. “Q. you Hart- did have with conversation What
ley? thought he him what about I asked “A. Well, He said McNa- know. he didn’t said, well, it. He mara had' an prosecutor attorney going to see and was going them. said about He got before he information he .wait and what see anything. did Hartley asked him what “Q. went to You thought? up, him I know him called don’t “A. I went * * # Anyway I discussed it. which. you you protection did think were “Q. What getting transaction? out of this they just you hand down a rul- know, “A. Well, illegal, places ing if machines in some that the things they gambling caught like them, on them good figured we faith, our I it would show that. legitimately. trying run them to, you Mitchell did think could “Q. How C. A. your con- machines were the law as far as enforce ' cerned? say ‘Enforce the know. He didn’t “A. I don’t our,good little sticker faith.’ We law, show * * * put we on the machines. Mr. Do- didn’t seek advice “Q. You money, your hany you parted or in you? did bonds, to these relation
“A. No.” plaintiff it is con- filed on behalf In the brief summary conviction tended, first, contempt process of law a denial due constituted In re *6 § and, 2, 16, article hence, violated the State Con- stitution, and section 1 of Amend- the Fourteenth ment to the Federal Constitution; second, that due process of law, under both the State and Federal required charges,-notice filing of Constitutions, the hearing hearing of charges; to the and a such accused, on contemptuous
third, to- that misbehavior grand jury conducting investigation ward a an un- statutory provisions der cited is not above contempt questions of court. These all raised Hartley, in the of In case re 317 Mich. in 441; Hartley contempt, the conviction of for committed analogous under to those in the case circumstances by evenly at bar, sustained an divided court. They by length were discussed at some Justice opinion, unnecessary in his to Dethmers " repeat there what was said. The claims made without merit. brings ques-
This
us
consideration of the
tion
plaintiff
whether, as a matter of
fact,
guilty
of court.
the cir-
return of
judge
cuit
as to the facts must be taken as true.
testimony
weigh
This Court
exam-
does
but.
support
ines it to
if
determine-
there is evidence to
finding. People
v.
Doe,
5;
226 Mich.
Slattery,
(certiorari
Judge and his also concluded Hartrick associates questions relating to his answers Oliver’s disposition and the bonds likewise false of were destroyed he He claimed that first evasive. instruments, questions in to further but answer by or what means to-tell when where was unable stating finally by that he concluded so, he did. re did not remember what he did with them. Conced- edly, entirely however, instruments of an previ- different character than ever ously possessed. suggested as one time If, he at in testimony, “good his he wanted.to show faith” his operation in the of his it is a reasonable machines, preserved inference that would have the so- called bonds. n judges advantage hearing The circuit had the of apd noting of his demeanor giving support it. conclusion reached finds accordingly in the An order record. will enter dis- missing’ petition remanding custody county the sheriff of of Oakland service accordance with sentence the order judge. of the circuit JJ., Bttshnell, Sharpe, Dethmers, con- Carr, C. J.
curred designated Oliver, J. William herein North, plaintiff, September, testifying 1946, after in a grand jury proceedings so-called one-man conducted George Honorable B. Hartrick, one Oak- judges, land a circuit was committed under 60-day plain- sentence of dburt. On petition corpus tiff’s issued we writs habeas *8 might we certiorari, that review and test valid- the ity Pending appeal of his commitment. the giving was released on bond. The has case been submitted Court, to this and Chief Justice Carr has imposed. written for affirmance of the sentence For hereinafter I am reasons unable to concur noted, in .that result. proceedings hearing incident the grand juror, questions including propounded by plaintiff, appear adequately
and answers made Michigan Reports. opinion Justice, in the of the Chief and therefore repeated. opinion, herein Prom that not clearly appears also record, from the that plaintiff justification finding guilty asserted of as stated “that was, Chief Justice, given by false and evasive answers had Oliver been questions.” scope in of our answer Hence the any competent review is this: Is there evidence in support finding the record in below plaintiff testifying gave when answers- which (1) (2) evasive or false? testimony quoted my As in above, noted opinion Brother’s bearing upon all discloses there in the record plain
the issue to whether of reading tiff’s answers were A careful evasive. of single fails to disclose evasive especially answer, when read in connection with quoted testimony. the whole of the Instead each responsive. answer was courteous and It true plaintiff give positive was not able to and defi questions. nite answers to some But that light circumstance must be viewed of the sub ject matter of the So far as it was examination. pertained relevant or the examination material, through conversations with one Mitchell * purchased whom had so-called bonds in operation pin cident to the ball various machines why plain localities; different and to the reason bought tiff the so-called also bonds, manner in plaintiff disposed they of the bonds after expired by important their own terms. It is to note purchased September, that the bonds were 1944, plaintiff’s testimony but involved herein was not given years September, until two later, 1946. Is it strange testifying at all that when in 1946 give could a verbatim or detailed statement of [*] For copy bond, see In re Earfley; .317 Mich. *9 quite commonplace conversations which occurred Again, him and Mitchell 1944? between year expired plaintiff a after bonds had when interrogated disposition as to he had what papers. made of the then There is no worthless dispute testimony or conflict in the destroyed bonds or threw them waste out as paper. be said Can it that a witness is unable who testify definitely disposed to example, as to how for of, expired policy
an automobile that had á year previously thereby is shown to be evasive testimony guilty giving his or that he of false testimony? many person If an honest would so, . being jail hazard headed for whenever summoned as a witness. appears quoted my
So far as record opinion, plaintiff’s testimony Brother’s as plau- purchasing reason for bonds is true and Nothing sible. in the record contradicts those an- ground finding The no swers. record affords for them either false or the testi- evasive. Perchance mony examining of this witness was not what the grand juror expected give, the witness would anything but neither that circumstance nor dis- by plain- closed record evasiveness this indicates tiff as to conversations with Mitchell or his reasons purchasing a does bonds. record Such contempt. justify punishment charge Likewise Oliver imprisoned gave false and was therefore, diligent of the record review fails to disclose a justification. Judge return to our Hartrick wholly specify any par- writ certiorari fails plaintiff’s testimony ticular answer 'answers in by anything in that are false. mony the record to be shown quotes plaintiff’s the return testi- Instead length, the at substance which embodied *10 [May- . opinion of the Justice. in' Chief the herein reviewing guess Court to it to this return leaves opinion plaintiff’s in of were, answers the of which judge, is not ade- false. return Such the circuit charged. person quate Both he it fair to the nor is specifically of informed entitled to he- arewe may falsity, ac- issue the the curately so claimed plaintiff so that this Court reviewed contempt, may purge if he finds oc- the himself of judge has the circuit At no time casion so to do. precise (or plaintiff Court) this informed testimony portion plaintiff’s that was deemed of false, plaintiff’s of exam- at close the instead be merely judge announced: “Because the ination the testimony) you story (plaintiff’s if want doesn’t, jell. you put language doesn’t understand, * * * any'one person reads who I don’t think your testimony, this could believe record, reads this story.” instant the return the The character of justification quite clearly lack of discloses a case gave ground punishment plaintiff that he on the testimony. false fatally record
In a case of character the this charge falsifying, unless it defective to the as^ which reveal contains other or circumstances facts falsity of. witness or unless the falsity. intrinsically is not sufficient It discloses knowledge judge may record dehors that a have might justify the witness conclusion that testimony. gave fatal defect in is the That false phase of the case. On the instant record as to this justification no before us. there record any of them concluding answers opposite against i.e., false as were conclusion— Hence the circuit true. his -answers that judge’s justifica- falsity is without toas conclusion have should not record, tion this ground committed for on been of as- judge If the sumed falsification. circuit had a sus- testifying falsely, might picion the court did in well have done as v. Meese, State 463.(225 31), N. W. 746, 229 N. 200 Wis. W. it is where stated: suspicious court, however, “The that the wit- _ telling the truth,
ness was tion and on own mo- subpoenaed production witnesses and ordered papers books determine truth or fal- *11 sity testimony. of the defendant’s He found that testify truthfully, did not defendant and that justice.” because thereof had obstructed practice pursued Had above been in the in- might might a stant record or case not have been justification made which would have disclosed for ’ contempt commitment. But on record before us a determination in accord with that of the cir- judge pure guess cuit would be or based on merest conjecture. justify punish- a record Such does not contempt grounds ment for of court on the asserted in comparable instant case, which the record not at all Slattery, In
to that
re
“On certiorari the Court only tions law and determines whether there was any justify findings evidence of facts which judge.” (syllabus), trial In re Gilliland 284 Mich. 604.
Contempt proceedings are criminal in their na
Riegler
ture rather than civil.
v. Kalamazoo Cir
Judge,
cuit
citing
In United ex A.), 852, a headnote reads: 294 Fed. contempt, being power punish for far- “The always
reaching and drastic should be exercised cautiously, regard due constitutional ’’ rights. us, does not contain
On the record before testimony by plaintiff which was evasive- or which showed he our conclusion falsified, unjustly committed court; judgment entered in the circuit that reason re- court be bond should vacated *12 leased. Reid, JJ., concurred with
Butzel,' Boyles, J. North,