Virginiа Ann Scott, petitioner, seeks a writ of habeas corpus and the ancillary writ of certiorari to review what she claims was an illegal conviction of contempt of court by the Honorable Frank G. Schemanske, a judge of the recоrder’s court of the city of Detroit, also referred to as respondent.
Petitioner and Haroldine Cucchi, both 18 years of age, were informed against for larceny of a wallet in the city of Detroit. Petitioner pleaded guilty to a lesser charge but later was called as a prosecution witness at the trial of her alleged accomplice. The record reveals that during the trial petitioner’s testimony was at times contradictory in nature regarding the complicity of Hаroldine Cucchi. She initially testified that defendant Cucchi was not aware of the theft of the wallet. Later she stated
In reviewing these proceedings we are limited to a considеration of whether there is any testimony to support the finding and more particularly whether the court legally proceeded in the manner it did.
In re Wood,
Does the record reveal facts sufficient to support a conviction? The conviction order states that petitioner :
“did give wilfully false and evasive testimony as follows: she denied that said Haroldine knew what she, Virginia, was going to do when Virginia went to Cora’s (complainant) purse; she denied that she had told detective Sopolinski that Haroldine knew this (Tr 4); she denied that she had told a police matron that Haroldine was also in on this; she denied that she had agreed to steal this money withthe other girl (5); she denied that Haroldine knew what she was doing in the store; she denied that she and Haroldine рlanned this thing (larceny) before going into the store. She testified falsely, on cross-examination that Haroldine didn’t know at any time that she, Virginia, had taken the money (7) that she hadn’t planned it (8) all of which testimony was wilfully false and evasive and in contempt оf this court and said Virginia Ann Scott is therefore adjudged guilty of criminal contempt.”
The partial transcript attached thereto contains excerpts of petitioner’s testimony and the testimony of both the police officer and police matron. Insofar as that part of the record is concerned it is evident that the conviction was based entirely upon the fact that petitioner’s testimony conflicted with that of these other witnesses. Respondent asks, and petitionеr does not object, that we also look to his return, supported by a complete transcript, in order to find that the contempt conviction was based upon other conduct as well. As will be noted later in the opinion, it is important to determine the basis for the conviction. Respondent states in his return that:
“The attitude of petitioner on the stand, her evasive replies to prosecutor’s questions, her patent cooperation with defense counsel, her changing testimоny in response to his leading questions, her contumacious and contemptuous attitude towards the court, and her own contradictory statements were evidence of her contempt of this court and her efforts to thwart public justice. Thesе were substantiated by the testimony of the 3 witnesses mentioned.”
Apparently the jury believed petitioner because they acquitted Haroldine Cucchi. This, however, would not be decisive to the question. A review of the entire proceeding convinces us that there were sufficient facts upon which a contempt conviction
Petitioner, however, was convicted summarily. In view of the circumstances was she thus accorded due process of law, or was she entitled to a full hearing on the charges, with the right to obtain counsel, and time to present a defense? The statute authorizing summary contempt procedure, CL 1948, § 605.2 (Stat Ann § 27.512), provides:
“When any misconduct, punishable by fine and imprisonment as declared in the last section, shall be committed in the immediate view and presence оf the court, it may be punished summarily, by fine or imprisonment, or both, as hereinafter prescribed.”
It should be here noted that statutes of the type enacted in Michigan are merely declaratory, and in affirmation, of the inherent common-law right of courts of record to determine contempt.
Langdon
v.
Judges of the Wayne Circuit Court,
“The immediate view and presence does not extend beyond the range of vision of the judge, and the term applies only to such сontempts as are committed in the face of the court. Of such contempts, he may take cognisance of Ms own knowledge, and, may proceed to punish summarily such contempts, basing his action entirely upon his own knowledge. All other alleged contempts depend solely upon evidence, and are inferences from fact, and the foundation for the proceedings to punish therefor must be laid by affidavit.” (Emphasis added.)
In a more recent case the Ohio court hаs held that personal judicial knowledge of the operative facts is necessary in a summary conviction, further saying of the testimony that a “well-founded belief of its untruthfulness is not sufficient.”
Fawick Airflex Co., Inc.,
v.
United Electrical, Radio & Machine Workers of America, Local 735
(1950), 87 Ohio App 371, 382 (
There is weighty authority to the effect that the requisite judicial knowledge is absent when the determination of contempt is dependent upon the testimony of other parties.
In
Cooke
v.
United States
(1925),
“Where the contempt is committed directly under the eye or within the view of the court, it may proceed ‘upon its own knowledge of the facts and punish the offender, without further proof, and without issue or trial in any form,’ Ex parte Terry,128 US 289 , 309 (9 S Ct 77 , 32 L ed 405); whereas, in cases of misbehavior of which the judge can not have such personal knowledge, and is informed thereof only by confession of the party, or by tеstimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished. 4 Blackstone’s Commentaries 286.”
Recently in a case arising out of the Michigan one-man grand jury system, the supreme court of the United States in
In re Oliver
(1948),
“There it was pointed out that for a court to exercise the extraordinary but narrowly limited power to punish for contempt without adequate notice and oрportunity to be heard, the court-disturbing misconduct must not only occur in the court’s immediate presence, but that the judge must have personal knowledge of it acquired by his own observation of the contemptuous conduct. This court said that knowledgе acquired from the testimony of others, or even from the confession of the accused, would not justify conviction without a trial in which there was an opportunity for defense. * * *
“If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires, according to the Cooke Case, that the accused be accorded notice and a fair hearing as above set out.” (Emphasis added.)
See, also, annotation at 57 ALE 545.
People v. Doe, supra, is cited for a contrary holding. That ease involved an appeal by way of certiorari of a contempt conviction, which an equally divided court affirmed. The 4 affirming judges said, in regard to the petitioner’s own contradictory statements whiсh were the basis of his conviction (p 16):
“While his inconsistent testimony alone was not sufficient to convict for perjury * * * it was sufficient to authorize a finding that he had testified falsely * * and that such false testimony tended to the obstruction of the due administration оf justice. If this was contempt, it was direct contempt, committed in the face of the court, to be dealt with summarily.”
Aside from the fact that only one-half of the court considered the issue and thus the ease made no law, the other 4 desiring to revеrse on another ground, the case might be distinguished on the ground that here we are primarily concerned with petitioner’s testimony as it conflicted with that of other witnesses, whereas in the Poe Case the court had before it contradictory statements of thе same witness. We need not discuss whether this is a distinction without a meaning. It may be said, however, that the cases cited also note that personal knowledge is also not present where the judge must depend upon a confession of the accused as the basis for the contempt. This would seem to apply equally in the case of contradictory statements.
Petitioner makes much of the fact that she was not punished until some 48 hours after the alleged contemptuous conduct took place. She was sentenced while the jury was considering its verdict. In view of our decision we need not discuss this aspect of her argument but need only stаte that in and of itself time apparently is of little importance. See
Sacher
v.
United States
(1952),
It is our considered opinion that petitioner’s conviction must be reversed and that any proceeding in which she might be held for contempt cannot be summary in nature but must conform to statutory and due process requirements.
Judgment reversed and petitioner discharged. No costs.