O'Flynn v. State, 43 So. 82

O'Flynn v. State

43 So. 82 | Miss. | 1906

Mayes, J.,

delivered the opinion of the court:

These two cases being proceedings against appellants for contempt, and involving the same question, we consider them *862together. The district attorney filed an information in the circuit court against James and Charles O’Flynn, charging them with constructive contempt. This information was sworn to and citation issued thereon for appellants. They appeared, in obedience to the citation, and made answer under oath, denying the statements of the information and purging themselves of the contempt charged against them. After they had filed their answer denying the allegations of the information, and over the protest of the contemnors, the court proceeded to hear testimony offered for the purpose of proving the charges against the appellants, alleged in the information as constituting the contempt. Objection was made by appellants to the hearing of any testimony on this motion in proceeding for contempt, which was overruled by the court, whereupon the appellants excepted, and asked that the matter be tried by a jury. This was also overruled by the court.

The court proceeded to hear the testimony, and on the facts adjudged appellants guilty of contempt, and proceeded to fine them. From this action of the court an appeal is prosecuted.

We do not think it necessary to discuss the error assigned because of the court’s action in denying appellants the right of trial by jury in this proceeding for contempt, further than to say that the overwhelming weight of authority is that in such cases they were not entitled to a jury trial. 4 Ency. Pl. & Pr., 789; 9 Cyc. Law & Proc., 47.

The main complaint in this record is that the court had no right to hear the testimony to prove the charges alleged in the information, after appellants had answered under oath denying the charges. It is contended that the answer under oath of the contemnors entitled them to a discharge, and that the matter could not be inquired into further. It seems to have been the ancient common law rule, now wisely departed from by most modern authorities, that where a person was charged with constructive contempt of court, and made answer to the *863contempt proceedings on oath, if by his oatli he cleared himself of the contempt, he was discharged. Under these older eases, no' testimony could be heard by the court to disprove the answer under oath, but it must be taken as true, and the contemnor discharged, the only recourse being that he might be subsequently prosecuted for perjury, if he swore falsely. We do not feel warranted in following these older cases upon this subject, and see no reason why a court should be precluded from questioning the truth of the answer made in a proceeding for contempt against a party, by taking testimony to prove that the answer is untrue. To hold this would be to hamper the courts in the administration of the law. We adhere to the rule which is adopted by the supreme court of the United States in a very recent case on this subject, the case of the United States v. Shipp, et al., reported in the advance sheets of the United States supreme court, vol. 5, p'. 165, date Feb. 1, 1907. The supreme court of the United States in passing upon this very question, that is to say, the question of constructive con-tempts, says, on page 167: “Another general question is to be answered at this time. The defendants severally have denied under oath in their answer that they had anything to do with murder. It is argued that the sworn answers are conclusive; but in this proceeding they are to be tried, if they so elect, simply by their oaths. It has been suggested that the court is a party, and therefore leaves the facts to be decided by the defendant. But this is a mere afterthought, to explain something not understood. The court is not a party. There is nothing that affects the judges in their own persons. Their concern is only that the law should be obeyed and enforced, and their interest is no other than that they represent in every case. On this occasion we shall not go into the history of the motion. It may be that it was an intrusion or perversion of the canon law, as is suggested by the propounding of interrogatories, and the very phrase, ‘purgation by oath.’ If so, it is a fragment *864of a system of proof which does not prevail in theory or as a whole; and the reason why it has not disappeared may be found in the rarity with which contempts occur.” And again the court says: “The question was left open in In re Bavin, 131 U. S., 267, with a visible leaning toward the conclusion to which we come, and that conclusion has been adopted by state courts in decisions entitled to respect. Huntingdon v. McMahon, 48 Conn., 174, 200, 201; State v. Matthews, 37 N. H., 450-455; Bates case, 55 N. H., 325, 327; In re Snyder, 103 N. Y., 178, 181; Crow v. State, 24 Tex., 12; Mason v. Harper's Ferry Bridge Co., 16 W. Va., 864, 875; Wartman v. Wartman, Fed. case 17,210; Cartwright's case, 114 Mass., 230; Eilenbecker v. District Court, 134 E. S., 31. We see no reason for emasculating the power and making it so nearly futile as it would be if it were construed to mean that all contemnors willing to run the slight risk of a conviction for perjury can escape.”

The court having tried the parties and adjudged them guilty of contempt on the facts, we do not feel warranted in disturbing its judgment.

Affirmed.