25 N.M. 245 | N.M. | 1919
OPINION OP THE COURT.
(after stating the facts as above).
Appellant argues that the evidence in the case shows that Blake, the affiant, could have had no personal knowledge of the matters contained in the information. Blake, the affiant, did not testify as a witness in the case, and there is nothing apparent from the testimony of other witnesses which indicates that Blake had personal knowledge. Likewise, there is nothing in the record to show that he might not have had personal knowledge of the matters alleged in the information. In view of the fact that Blake was not a witness, did not testify, and the record discloses no affirmative evidence of his lack of knowledge, the charge that Blake had no actual knowledge of the facts set forth in his affidavit is not borne out by the record. Where the accusation in a contempt proceeding is in positive terms, and there is nothing in the record to show that the affiant did not have personal knowledge of the facts set forth in the accusation, the fact that the affiant did not testify as a witness in the case, and that the evidence did not affirmatively show knowledge on his part of such facts, will not divest the court of jurisdiction. It was not necessary in-this case to determine the question as to whether or not an affidavit in such a proceeding, based upon information and belief, would be sufficient to confer jurisdiction upon the court. No such affidavit was filed ill this case. As stated the affidavit was in positive terms.
“It affirmatively appears that at the time of the transactions and occurrences mentioned in the affidavit, the party, Victorio Ballejos, was not a witness before the court in which the contempt is charged to have been committed.”
In support of this proposition counsel allege that the witness Ballejos was in fact no longer a witness before the court, for the reason that he had concluded his testimony and had been told, ‘ ‘ That is all. ’1 They state that the process had been obeyed, the witness’ testimony had been concluded, and the spell of the process was no longer over the witness. The facts were that Ballejos had testified in the case,' had been excused, but had not been discharged from attendance upon the court. The evidence in the case had not been concluded at the time of the transaction charged in the accusation. He was subject to recall at any time. We think the trial court has the power to punish as for contempt any bribery, intimidation, or unlawful interference with a witness in a case on trial before such court until the trial of such case has been concluded and it is no longer possible for such witness to affect the result of the trial by changing his testimony or giving further testimony in the case. Some courts -even go to .the extent of holding that the witness is still before the court, so that tampering, or bribery, or assault upon such witness constitutes contempt of the court, even though the evidence in the case had been concluded--and the case has gone to the jury for its decision (Brannon v. Commonwealth, 162 Ky. 350, 172 S. W. 703, L. R. A. 1915D, 569), and this possibly is the correct rule; but in this case we are not required to go to that extent.
It is next urged that there is no allegation in the accusation that the appellant did or endeavored to do anything to prevail on Ballejos to swear falsely or to do anything that would make the transaction a contempt. The allegations of the accusation are that appellant attempted to persuade and prevail upon said Victorio Ballejos “to change his evidence,” to “change his testimony previously given and corroborate the testimony of two other witnesses.” The accusation says that, “unless he changed his testimony,” or “unless he changed his evidence, he might be indicted or punished for perjury or false swearing.” Also that appellant “willfully tampered and attempted, by threats, to procure said Victorio Ballejos to retract and change his testimony.”
Appellant contends that the accusation nowhere alleged that appellant attempted to procure Victorio Baílelos to swear falsely, to perjure himself, or to give false testimony; and he contends that an attempt to get a man to tell the truth is not contempt of court. He contends that the adjudicated cases all hold that it is contempt of court to use threatening language to a witness about to^ be examined, or to use either persuasive or threatening language to a witness for the purpose of making him testify falsely, or not to testify, or to attempt to intimidate witnesses, knowing they have been instructed by the court not to talk about the case; and eases of this import will be found cited in notes to section 48, p. 38, 13 C. J. It must be conceded that the cases cited go only to the extent of holding that it is contempt of court to attempt, by threats or bribery, to induce a witness to testify falsely. The question which appellant urges upon the court has, so far as our research has extended, never been decided, and counsel on either side have cited no case directly in point, but, on principle, we do not believe that appellant’s contention is sound. The purpose of a trial is to arrive at the truth of the contested issue, and this question can only be ascertained by the testimony of witnesses, and this testimony, if it is to be believed and carry conviction, must be given by the witness without fear or favor. In other words, The witness must recite the facts as he understands and remembers them, and the testimony which he is to give to the court and jury must not be put into his mouth by others. The ascertainment of truth requires that' the witness must tell his own story; in his own words, under the sanctity of his oath, without persuasion, intimidation, or bribery. Here the witness had told his story, and presumptively he told the truth. Appellant informed him that, unless he changed his testimony to correspond with that given by two other witnesses who apparently had testified to a different state of facts, one of the parties to the case, who had apparently been prejudiced by his testimony, would prosecute him for perjury.
Appellant’s intention in talking to his friend, Ballejos, may not have been inspired by bad motives, and it may be that he did not want his friend, Ballejos, to testify to anything that was false, but courts of justice cannot tolerate or permit any interference with witnesses by parties or others; and, in order to secure the impartial administration of justice, they must see to it that there is no interference with the witnesses in the case. If appellant’s position is sound, then in every case where a witness is bribed or intimidated and the party offering the bribe, or attempting to intimidate the witnesses, brought before the court upon a charge of contempt, the inquiry would necessarily go beyond the question as to whether or not the bribe was offered or the intimidation attempted, and the court would be required to determine whether or not the offending party had attempted to influence the witness to testify to a fact which was not true. Certainly this contention is unsound, and the only inquiry required in such a case is whether or not the party, by threats-or bribery, or other‘unlawful means, attempted to induce the witness to testify to a certain state of facts. It is not the fact, or the truth of a given fact, which such a party desires a witness to testify to, but the unlawful and unwarranted interference with the witness and the course of justice which brings punishment upon the head of the offender. Hence there is no merit in this contention.
“In determining' whether or not a contempt has been committed, it does not depend upon the intention of the offending party, but upon the act he has done.”
“Disclaimer of intentional disrespect or design to embarrass the due administration of justice is no excuse, especially where the facts constituting the contempt are admitted, or where a contempt is clearly apparent from the circumstances surrounding the commission of the act.” 13 C. J. 45.
Here a contempt was clearly apparent from the circumstances surrounding the commission of the act.
The next assignments in counsel’s brief are as follows: (a) No offense is charged; (b) there is no contempt proven; (c) there was no tampering with any witness; (d) it affirmatively appears from the evidence that none of the matters complained of amount to a- contempt. These points will all be discussed together as they practically involve the same question.
The offense charged in the affidavit and the facts as proved on the trial are practically the same. In substance, the offense charged and the evidence show the following facts: A certain trial was pending wherein the man, Arictorio Ballejos, had given certain testimony. The evening after the giving of such testimony the appellant, Augustin Kayser, was present- when a certain conversation was had between one of the defendants in the case pending, Col. Prichard, and his attorney, in which Prichard said that he was going to institute a-prosecution for perjury against Yictorio Ballejos and have him indicted on account of the testimony the said Ballejos had given that day. It further appears that the appellant, some few hours later, in company with two other men, went to the room where the said Ballejos was sleeping, and appellant related the conversation to Ballejos, and told him that if he did not change his testimony that Col. Prichard was going to have him indicted for perjury. It further appears from the evidence that Kayser and Ballejos were lodge brothers, and were neighbors and friends. The explanation of this conduct is that Kayser was simply acting as a friend of Ballejos, and was endeavoring to protect him, Ballejos, and induce him to tell the truth. It also appears that two other witnesses on the trial of the main case had testified differently from Ballejos, and Kayser endeavored to have Ballejos corroborate the testimony given by these witnesses. The question is, Is this sufficient to constitute a contempt of court?
“The great object of their (courts) existence is the ascertainment of truth in its relations to the transactions of men, and this can only be done fairly and impartially when all persons having knowledge of the transaction inquired of are brought or allowed to come before them for examination without let or hindrance from any one.”
The above quotation, which appears under the general subject of obstructing justice, we think clearly states the rule applicable to the present case. There is no dispute but that he went to the man, Ballejos, and attempted to influence his testimony. This is admitted throughout the entire trial, and stands forth plain and uncontradicted. It alone is sufficient to justify the conviction of the appellant and authorize the court in fixing the punishment it did, regardless of the intention of the appellant.
Counsel insist that there were no threats or other overt acts shown, no bribery, etc., but this contention is without merit. When Kayser went to the witness and told him that a prosecution for perjury would result unless he changed his testimony to corroborate the testimony of two other witnesses who had testified differently, he clearly threatened the witness. No greater inducement could be hung over a witness’ head than the threat of indictment for perjury, even though it was made under the guise of friendship. Such a guise only makes it the worse, and is calculated to have more effect. In the case of Murphy v. Wright, 167 Iowa, 75, 148, N. W. 985, the court said:
“The trial courts are charged with the duty and necessity of guarding- their proceedings against everything which interferes, or tends to interfere, with the due and orderly administration of justice.”
Clearly there is no merit in any of the contentions referred to.
“Disclaimer of intentional disrespect or design to embarrass the due administration of justice is as a rule no excuse, especially -where the facts constituting- the contempt are admitted or where a contempt is clearly apparent from the circumstances surrounding the commission of the act.” 9 Cyc. 25.
In the ease of United States v. Shipp, 203 U. S. 563, 27 Sup. Ct. 165, 8 Ann. Cas. 265, the court said:
“If the .presence and the acts should be proved, there would be little room for the. disavowal of the intent.”
Here the facts constituting the contempt were practically admitted, and the contempt was clearly apparent from the circumstances surrounding the commission of the act.
In the case of Atlantic Powder Co. v. Dittmar Powder Mfg. Co. (C. C.) 9 Fed. 316, the court said:
“Any question of animus can bear only on the extent of -punishment.”
This case was cited and approved by the territorial court-in the case of In re Clancy, 7 N. M. 580, 37 Pac. 1108.
In the matter of the contempt proceedings against Marron and Wood, 22 N. M. 632, 167 Pac. 9, L. R. A. 1918B, 217, this court said:
“In the first place it is to be observed that both respondents disclaim any intent to violate the order of supension. This disclaimer Is entitled to consideration by the court, and under many circumstances might so mitigate the offense as to require no more punishment than a reprimand. They both allege that they took counsel as to their rights under the order, and were advised that their course of conduct was proper. This fact reflects upon the degree of punishment required, but has no effect in relieving respondents of the contempt itself.”
See, also, ease note to the case of Carson v. Ennis, L. R. A. 1917E, 650.
We think these authorities sufficiently show that, where a contempt is clearly apparent from the circumstances surrounding- the commission of the act, the question of disclaimer affects only the punishment, and not the guilt or innocence of the party. It is a matter to be decided by the court after hearing all the evidence, and when it has once been determined by the trial court, who has the advantage of having the witness before him, of hearing his testimony by word of mouth, this court will not disturb the findings of the trial court in that regard.
Lastly, it is argued by appellant that the court erred in refusing to admit evidence proving or tending to prove that the subject of the testimony of Victorio Ballejos, and the fact that it was upon its face incorrect and even perjured testimony, was a matter of general talk, conversation, and discussion at Estancia at the time of the transactions upon which the alleged constructive contempt is based. We fail to appreciate the argument advanced by appellant to sustain the admissibility of this evidence, or to understand how such evidence would tend to excuse or exculpate the interference by appellant with the witness, or his attempt to persuade him to change his testimony. Much that has been heretofore stated in this opinion is' equally applicable to this point, and. need not be here repeated. It is sufficient to say that the court properly rejected the proffered evidence.
Finding no error in the record, the judgment will be affirmed; and it is so ordered.