64 So. 2d 225 | La. | 1953
This is the second time this matter has come before us under our supervisory jurisdiction.
On March 11, 1952, the District Attorney for the. Parish of Orleans filed a rule in Section “A” of the Criminal District Court, presided over by Judge William J. O’Hara, against John J. Grosch, Sr., Criminal Sheriff for the Parish of Orleans, and Joseph H. Abadie, his deputy, to show cause why they should not be adjudged guilty of contempt of court. On motion of the defend
When the case was remanded in conformity with our order, Judge Hertz enlisted the aid of the other judges of the Criminal District Court, excepting the recused judge, to sit with him for the hearing . of the contempt charges.
The District Attorney thereafter applied to this court for remedial writs. Certiorari was granted and the matter has been submitted for our decision.
The facts upon which the rule for contempt is founded .are succinctly alleged therein. They are as follows:
At about 6:30 or 7:00 o’clock on the morning of March 8, 1952, a colored man name Freddie Williams was killed in an establishment operated by one Leroy Campbell in the city of New Orleans. Witnesses' to the killing stated to the city police that Campbell had inflicted the fatal wounds and, as a consequence, the police were looking for Campbell to question him concerning the crime. Shortly before 7:45 that evening, Mr. Eugene Stanley, the attorney for Leroy Campbell, telephoned the Sixth Precinct Police Station and advised the police that he, Stanley, had surrendered Campbell to the parish prison. Upon receiving this notice, an officer of the Sixth Precinct Station communicated this information to Mr. John R. Perez, Jr., an Assistant District Attorney, who telephoned
If the above recited allegations of the rule are true, and they must be so considered for the purposes of the demurrer and the exception of no right or cause of action,.' it is manifest that not only did the Criminal Sheriff and his deputy permit the parish prison to be used as a sanctuary for-Campbell at a time when he was wanted by the police, but that they were recklessly-contemptuous of the order of Judge O’Hara, of the Criminal District Court.
Under the law, Sections 85 and 89-of Article 7 of the Constitution and LSA-R.S. 33:1-435 and 33:1523, the principal functions of the Criminal Sheriff are that of keeper of the parish jail and executive officer of the Criminal District Court. He-is not an investigator of crime in New Orleans nor is he charged with the duty of apprehending criminals; this is the responsibility of the city police. Of course, the-Criminal Sheriff and his deputies are peace officers and, as such, are entitled to make-arrests without a warrant under the conditions provided for in LSA-R.S. 15 :60 and' 15:60.1. But, whenever he or his deputies, make arrests, it becomes their duty, under-LSA-R.S. 15:77, to carfse •“* * * to be-entered on the book to be kept for- that. purpose the name of the prisoner and the crime or violation of ordinance charged against him and for which he shall have-been a-rrested”. . . ■
Insofar as the authority of Judge O’Hara is concerned, the law is express and clear. JLSA-R.S. 15:78 provides:
“The judges and other magistrates of all courts having criminal jurisdiction throughout the state, are hereby vested with jurisdiction over any person arrested for any crime or for the violation of any ordinance under and within their respective jurisdictions, from the moment said person is arrested and taken into custody'by any peace officer, ' with power and authority to immediately parole or release on bail such person so arrested over whom they have jurisdiction as aforesaid, provided the offense charged be bailable.” (Italics ours.)
Thus, from the moment Grosch and Abadie received Campbell in the parish jail, the power of the judges of the Criminal District Court over the person of the prisoner was plenary and exclusive. The authority of Grosch and Abadie, on the other hand, was purely of an executive nature, subordinate to and completely under the ■control of the judicial power. Hence, when Judge O’Hara issued his order to release Campbell to the city police, Grosch and Abadie had no choice whatever in the matter. As mere executive officers of the court, their duty was to immediately recognize and obey the judicial mandate — to deny or delay its fulfillment was contemptuous and a misfeasance.
The demurrer which was sustained by the trial judge is founded on two grounds, (1) that Judge O’Hara was without authority to deliver his parole order by telephone and (2) that the order was also illegal because Campbell was arrested for murder which is not a bailable offense.
That these objections are totally without merit is eloquently attested by the fact that neither counsel for the defendants nor the respondent judge even advert to them in their returns to the writ of certio
The grounds upon which the exception of no right or cause of action is predicated are not stated therein and the reason why the judge thought it to be well founded in law does not appear in the brief submitted by counsel for defendants. Consequenfly, we assume that the judge sustained this exception on the theory set forth in' an opposition which he filed .to the granting of the remedial writs during the pendency of relator’s application. In this opposition, the judge declares that he concluded that the Criminal Sheriff and his deputy had complied with the order of Judge O’Hara because Campbell was turned over to the police shortly after midnight, or within a period of four hours after the parole order had been given.
We find it difficult to perceive that the deliverance of Campbell to the Sixth Precinct Police Station within four hours after Judge O’Hara had given his order constituted a compliance therewith. On the contrary, it is alleged that Judge O’Hara ordered Abadie to deliver Campbell to the-police when they would call for him at the parish prison; that the police went there and that Abadie refused to release the prisoner, telling them that the Sheriff had forbade him to do so. The defendants’’ subsequent change of position, in re-delivering Campbell to Mr. Stanley for surrender to the police, may be a mitigating circumstance but it does not relieve them of the consequences of their prior contemptuous, conduct in disobeying the order of court.
In a brief filed in support of the rulings below, counsel for defendants contends that. Judge O’Hara was without power to order' the Criminal Sheriff to release Campbell to the police.
This point is unimpressive. It was not. the prerogative of either Grosch or Abadie .to question the motive of the judge, much .less his authority, in ordering deliverance-of the prisoner to the police. As shown above, Campbell was under the jurisdiction of the court from the moment he was taken into custody by the Criminal Sheriff and the latter and his deputies had only-a minis-ferial duty to perform, that is, to submit to-the judicial authority without question.
Similarly without merit is counsel’s-argument that Judge O’Hara could not exercise his right to parole Campbell because previous request for his release from the parish prison had not been made either by the prisoner himself or someone acting in his interest. As aforesaid, LSA-R.S. 15:78-vested the judge with full power to parole:
Counsel also proclaims that, inasmuch as Sheriff Grosch was without knowledge of Judge O’Hara’s order, he cannot be guilty of contempt. The statement that the Sheriff did not know of the order is in direct contradiction of the allegations of the rule. Hence, it is not pertinent to a -consideration of the exceptions; it is a matter of defense which addresses itself to the merits of the case.
Finally, as an alternative, counsel asserts that, if it cóuld be said that Grosch .and Abadie did not substantially comply with the provisions of LSA-R.S. 15:77 (which he denies) in permitting four hours to-elapse before delivering Campbell to the police for booking, they would be guilty of a misdemeanor and that this circumstance would operate as a bar to the proceedings for contempt.
This postulation has no substance whatever and the authorities cited by counsel, .'State ex -rel. Duffy & Behan v. Civil District Court, 112 La. 182, 36 So. 315 and State v. Jordy, 161 La. 104, 108 So. 229, do not ■support it. Obviously, it will not do to say that an- act which of itself is contemptuous -of the authority of a court precludes punishment for contempt merely because it may also constitute an infraction of the criminal laws.
For the foregoing reasons, the, judgment of the Criminal District Court is annulled and set aside; the demurrer and the exception of no right or cause of action are overruled and the matter is remanded to the trial judge for- further proceedings consistent with the views herein expressed. The costs of the proceedings in this court are to be paid by defendants in rule.
. This was done under the provisions of Rule XXIII of the Rules of the Criminal District Court which accords any judge the privilege of requesting one or more of the other judges of the court to participate with him in the determination of any question.
. On the trial of the demurrer, Mr. Stanley was called to, the witness stand for cross-examination and he explains that Campbell was redelivered to him, not in his role as the prisoner’s attorney, but as agent for Sheriff Grosch with instructions for his surrender to the Sixth Precinct Station. He says that Grosch did not have an available deputy.