269 N.C. 68
N.C.
1967
Lake, J.

G.S. 5-1 provides:

“Any person guilty of any of the following acts may be punished for contempt:
“* * 6. The contumacious and unlawful refusal of any person to be sworn as a witness, or, when so sworn, the like refusal to answer any legal and proper interrogatory.”

Webster’s New International Dictionary, Second Edition, says:

“Contumacious implies stubbornness or perversity, esp. as manifested in willful contempt of any lawful summons or orders, as of a court; as a contumacious witness.”

Black’s Law Dictionary defines contumacy as “The refusal or intentional omission of a person who has been duly cited before a court to appear and defend the charge laid against him, or, if he is duly before the court, to obey some lawful order or direction made in the cause.” To the same effect is Ballentine’s Law Dictionary.

In Re Hayes, 200 N.C. 133, 156 S.E. 791, 73 A.L.R. 1179, affirmed a punishment summarily imposed by the Industrial Commission upon a witness who refused to answer a question properly propounded to him in a hearing. Connor, J., speaking for the Court, said:

“It has been uniformly held by this Court and by courts of other jurisdictions that the power to punish for contempt committed in the presence of the court, is inherent in the court, and not dependent upon statutory authority. [Citations omitted.] Without such power the court cannot perform its judicial function. This principle is especially applicable when the contempt consists in the refusal of the witness in attendance upon the court, after having been duly sworn, to answer a question propounded to him for the purpose of eliciting evidence material to the issue to be decided by the court.”

The statute makes no distinction between one who, in the presence of the court, pursuant to its lawful subpoena, refuses to be sworn as a witness and one who, having been sworn, refuses to answer a proper question. In Lamm v. Lamm, 229 N.C. 248, 49 S.E. 2d 403, Ervin, J., speaking for the Court, with reference to punishment for contempt, said, “One acts wilfully when he acts knowingly and of stubborn purpose.” The refusal of one subpoenaed as a witness to take the oath or to answer proper questions propounded to him, when done knowingly and intentionally, is contumacious and willful, within the meaning of this statute, even though such person believes it to be his moral duty to refuse to testify.

The contumacious and unlawful refusal, in the presence of the court, by one duly subpcensed, to be sworn as a witness is direct contempt and may be punished summarily. G.S. 5-5; Galyon v. Stutts, 241 N.C. 120, 84 S.E. 2d 822; In Re Hayes, supra; Snow v. Hawkes, 183 N.C. 365, 111 S.E. 621, 23 A.L.R. 183. In State v. Yancy, 4 N.C. 133, Taylor, C.J., speaking of direct contempt, said, “The punishment, in such cases, must be immediate, or it would be ineffectual, as it is designed to suppress an outrage which impedes the business of the court.”

G.S. 5-4 provides that the punishment for contempt by such refusal to be sworn as a witness shall be a fine not to exceed $250 or imprisonment not to exceed thirty days, or both, in the discretion of the court. Thus, the sentence of ten days in jail, imposed by the superior court in this case, was well within the statutory maximum.

It is apparent from the record that the contemner refused to be sworn due to his sincere belief that for him to take the witness stand and testify to any matters, within his knowledge concerning the matter then on trial, would violate his moral duty as a Christian minister. However, it is equally clear that his refusal was willful and intentional. With commendable patience, care, and courtesy the presiding judge explained to him that objections properly entered to questions requiring the disclosure of confidential communications to him would be sustained. It is clear that the contemner understood what was required of him by the court. His refusal to take the oath and to testify was willful and deliberate, notwithstanding the demands of his conscience which motivated it. If it was also an unlawful refusal, it constituted direct contempt, punishable summarily, and the punishment imposed was within the authority of the court.

Contempt does not necessarily proceed from a malevolent spirit. History, both sacred and secular, ancient and modern, is replete with accounts of men of noble character and lofty motives who have suffered punishment far more severe than ten days in jail for conscience’ sake. History, especially in recent times, also records that the respect and acclaim which have been accorded these heroes of faith, both spiritual and political, have sometimes induced the self-seeking charlatan to follow in their footsteps — so long as the probable penalty does not outweigh the anticipated applause. Whatever the motive of the recalcitrant witness or party may be, it does not determine whether he may lawfully be adjudged in contempt and punished. The judge is also under the compulsion of conscience, and of the law, to operate the court committed to his direction in accordance with the law. To enable him to do so, he is armed by the State with the power to punish for contempt one who wilfully and unlawfully refuses to testify when duly subpoenaed and called to the stand.

We find no merit in the contention that the sentence was originally imposed when the contemner was not represented by counsel,, or in the contention that the court was under a duty to, appoint counsel for him. Summary punishment for-direct contempt committed in the presence of the court does not contemplate a trial at which the-person charged with contempt is represented by counsel. The record shows that the contemner is a man of intelligence. As to the alleged duty of the court to appoint counsel for him, we note that he is presently represented by three able attorneys, two of whom appeared for him in the superior court on the day after sentence was imposed and. presented to the court a motion that he be released upon the same grounds now argued before us. The superior court heard that motion on its merits and denied it. There is no basis for the contention that to carry ,.out. the sentence would deprive him of his-liberty without due process of law on the ground that he was denied a hearing or denied representation by counsel, of his choice.

We come, therefore, to the question of whether the refusal to be-sworn and to testify was unlawful.. It was clearly so unless it was. justified by the fact that the contemner was an ordained minister who acquired his knowledge of the matters, as to which it was proposed that he be interrogated, by reason of the relationship of pastor and communicant.

The record discloses that the solicitor proposed to question the contemner only as to whether he visited the home of the defendant during or near the weekend of 4 July 1965 and there saw Cheryl Parks. The defendant, through his attorney, expressly stated that he had no objection to such testimony. We infer from the record that Cheryl Parks was the prosecuting witness. There is nothing in the record to indicate that she, the defendant’s wife, or any other person interested in the case then on trial, or in the disclosure of the information in question, had any objection to the testimony of the contemner with reference to such matters.

Apart from the statute, there is no privilege with reference to communications between a clergyman, or other spiritual advisor, and his communicants or others who seek his advice and comfort. Stans-bury, North Carolina Evidence, § 54; Wigmore on Evidence, 3rd ed., § 2394; 58 Am. Jur., Witnesses, § 531; 97 C.J.S., Witnesses, § 263; Comment by Dillard S. Gardner, later the Librarian of this Court, 6 North Carolina Law Review 462.

In recognition of the sociological value of free communication between one and his spiritual advisor, G.S. 8-53.1 provides:

“No clergyman, ordained minister, priest, rabbi or accredited Christian Science practitioner of an established church or religious organization shall be required to testify in any action, suit or proceeding, concerning any information which may have been confidentially communicated to him in his professional capacity under such circumstances that to disclose the information would violate a sacred or moral trust, when the giving of such testimony is objected to by the communicant; provided, that the presiding judge in any trial may compel such disclosure if in his opinion the same is necessary to a proper administration of justice.” (Emphasis added.)

It is not necessary for us, in the present proceeding, to determine whether the mere fact of the presence of a person in a home, into which an ordained minister has been invited in the course of his discharge of his pastoral duties, is “information which may have been confidentially communicated to him in his professional capacity” within the meaning of this statute. It is sufficient to note, in the present proceeding, that no objection to the proposed testimony was or is advanced by the defendant then on trial or by any “communicant” of this witness. Consequently, G.S. 8-53.1 does not afford justification for his refusal to be sworn and to testify.

The fact that one called as a witness fears that his testimony may decrease the esteem in which he is held in the community, or may decrease his ability to render service therein, does not justify refusal by him to testify in response to questions otherwise proper. See Lassiter v. Phillips, 70 N.C. 462 ; 58 Am. Jur., Witnesses, §§ 34 and 35.

The contemner contends that his refusal to testify was not unlawful, and so did not constitute contempt of the court, because the information desired to be elicited from him was obtained as the result of his position as a Christian minister, and to require him to divulge this confidential information would violate his own constitutional rights to the free exercise of his religion. He says that for him to divulge the information would be in violation of his professional ethics and of his dignity as a minister of an established religion.

The Constitution of North Carolina, Article I, § 26, entitled “Religious Liberty,” provides:

“All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority should, in any case whatever, control or interfere with the rights of conscience.”

The First Amendment to the Constitution of the United States provides:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * *

It is well established by numerous decisions of the Supreme Court of the United States that the freedoms thus protected from congressional action by the First Amendment are so fundamental to liberty that they are also protected against state action by the Due Process Clause of the Fourteenth Amendment. See: Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. ed. 1628; Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. ed. 1213; Palko v. Connecticut, 302 U.S. 319, 68 S. Ct. 149, 82 L. ed. 288. The contemner here contends that to punish him for refusal to testify under the circumstances disclosed by this record would deprive him of his liberty without due process of law in violation of the Fourteenth Amendment to the United States Constitution, and, similarly, contends that it would deprive him of his liberty contrary to the law of the land in violation of the Constitution of North Carolina, Article I, § 17.

We think it clear that the term “rights of conscience” as used in Article I, § 26, of the Constitution of North Carolina, must be construed in relation to the right to worship God according to the dictates of one’s own conscience. Consequently, the freedom protected by this provision of the State Constitution is no more extensive than the freedom to exercise one’s religion, which is protected by the First Amendment to the Constitution of the United States. Clearly, these constitutional provisions do not provide immunity for every act which one’s conscience permits him to do, or even for every act' which one’s conscience classifies as required by ethics, nor do they shield the defendant from a command by the State that he do an act merely because he believes it morally or ethically wrong. It is the right to exercise one’s religion, or lack of it, which is protected, not one’s sense of ethics.

The freedoms protected by these constitutional provisions are not limited to clergymen. Indeed, they are not limited to members of an organized religious body and, consequently, are not contingent upon proof that others share the views of the individual who asserts his own constitutional right to the freedom to exercise his religion or “right of conscience.” Thus, if a clergyman, not otherwise privileged to refuse to testify, is protected from compulsion to do so by these constitutional provisions, because he believes that for him to so testify would violate his religious duty, a layman having such belief would also be protected from compulsion to testify. The con stitutional provisions extend their protection to the unorthodox, unusual and unreasonable belief as truly as to the belief shared by many. Thus, a holding that these constitutional provisions grant to the clergymen a privilege against compulsion to disclose upon the witness stand information given him in confidence because such disclosure would violate the clergyman’s concept of religious duty, may well give rise to claims of a like privilege by laymen. The consequence might well be to deprive the courts of testimony necessary in order to administer justice, or to require them to embark upon the hazardous undertaking of determining the sincerity of the belief asserted.

The free exercise of religion is impaired not only by governmental prohibition of that which one’s religious belief demands but also by governmental compulsion of that which one’s religious belief forbids. Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. ed. 2d 965; Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. ed. 2d 982; Board of Education v. Barnette, supra. On the other hand, the freedom to exercise one’s religious beliefs is not absolute. Thus, an act of Congress forbidding the practice of polygamy in territories of the United States was sustained against the contention that the defendant’s religious belief required him to practice it, Reynolds v. United States, 98 U.S. 145, 25 L. ed. 244, and one may be required to submit himself or his children to vaccination against a dread disease notwithstanding the fact that to do so violates his religious beliefs. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. ed. 645; Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. ed. 643. In the Prince case, Rutledge, J., speaking for the Court, said:

“[N] either rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well being, the State as parens patrice may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”

The use of drugs may be prohibited notwithstanding the user’s asserted belief that such use is required by Divine Law. State v. Bullard, 267 N.C. 599, 148 S.E. 2d 565; Shapiro v. Lyle, 30 F. 2d 971; State v. Big Sheep, 76 Mont. 219, 243 P. 1067; Sweeney v. Webb, 33 Tex. Civ. App. 324, 76 S.W. 766.

The liberty secured by the First Amendment to the United States Constitution and by Article I, § 26, of the Constitution of North Carolina are, however, so basic and fundamental that one may not be compelled by governmental action to do that which is contrary to his religious belief in the absence of a “compelling state interest in the regulation of a subject within the State’s Constitutional power to regulate.” Sherbert v. Verner, supra. See also: N.A.A.C.P. v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. ed. 2d 405; Thomas v. Collins, 323 U.S. 516, 65 S. Ct. 315, 89 L. ed. 430.

The effective operation of its courts of justice is obviously a “compelling State interest.” In Be Jenison Contempt Proceedings, 265 Minn. 96, 120 N.W. 2d 515, the Supreme Court of Minnesota affirmed a conviction and sentence for contempt for the refusal of Mrs. Jenison on religious grounds to serve as a petit juror. The Supreme Court of the United States in 375 U.S. 14, 84 S. Ct. 63, 11 L. ed. 2d 39, remanded the case to the State Court for “further consideration in light of Sherbert v. Verner,” supra. When the matter came again before the Supreme Court of Minnesota in 267 Minn. 136, 125 N.W. 2d 588, 2 A.L.R. 3d 1389, that Court reversed the conviction for contempt saying:

“Upon reconsideration we have come to the conclusion there has been an inadequate showing that the state’s interest in obtaining competent jurors requires us to override relator’s right to the free exercise of her religion. Consequently we hold that until and unless further experience indicates that the indiscriminate invoking of the First Amendment poses a serious threat to the effective functioning of our jury system, any person whose religious convictions prohibit compulsory duty shall henceforth be exempt.”

As pointed out in the annotation in 2 A.L.R. 3d 1392, following the report of the second Jenison decision by the Minnesota Court, “The loss of an occassional juror does not interfere enough with the operation of the government to justify refusal to excuse one who sincerely believes that service on a jury is contrary to the tenets of his religion.” An entirely different situation is presented by the refusal of a witness to testify. In many instances the witness is the only person who can give the desired testimony. The “compelling interest” of the state in the rendering of a just judgment in accordance with its law overrides the incidental infringement upon the religious belief of the witness that for him to testify is wrong.

The matter now before us arose in a trial wherein the life of the then defendant was at stake. It happened that the contemner was called to the stand by the State, but he had also been subpcented by the defendant. The contemner stated that he would not testify for either side because to do so would violate his religious belief as to his duty. While such religious beliefs are not lightly to be brushed aside and overridden by the order of a court, they must yield to the “compelling interest” of the state in doing justice between the state and one charged with a serious criminal offense for which, if guilt be established, his life may be forfeited. We, therefore, hold that there was no violation of the contemner’s constitutional right to the free exercise of his religion guaranteed by the First Amendment to the United States Constitution, or of his right of conscience guaranteed by Article I, § 26, of the Constitution of North Carolina, in the requirement that he give the testimony sought by the State and as to which the defendant had no objection. The refusal of the contemner to testify was contumacious and unlawful and the punishment imposed was within the authority of the superior court.

Affirmed.