200 Wis. 454 | Wis. | 1930
Lead Opinion
The following opinion was filed June 4, 1929:
It is contended by the State that the motion is not properly before the court because brought by appeal instead of writ of error. Cases decided prior to passage of ch. 333, Laws of 1927 (sec. 358.13, Stats.), are cited in support. The cases, however, are inapplicable in view of this statute, which provides that “In all cases in which a writ of -error is authorized . . . in a criminal case” the party entitled to the writ may “take an appeal” as was here done. As the defendant was adjudged guilty of a “criminal contempt” the case falls within this statute.
It is conceded by appellant’s counsel that a clear case of perjury is punishable by the court in whose presence it is committed as a criminal contempt, but strenuously urged that this is not a clear case. There is much force to their argument. Were we sitting as a trial court instead of a court of review, we might incline to find the defendant not guilty. The proof must be “beyond a reasonable doubt.” State ex rel. Rodd v. Verage, 177 Wis. 295, 316, 187 N. W. 830. The power to punish for contempt is to be used but sparingly. It should not be used arbitrarily, capriciously, or oppressively. State ex rel. Schmidt v. Gehrz, 178
It was also urged that the date of the taking of the car out of storage and the time when the defendant first drove it were not material to any issue involved in the Adler case in the trial of which the court was engaged, and that hence perjury was not committed by the defendant. But it was material to the issue involved in the inquiry to determine responsibility for the bombing. The bombing was a violation of the court’s in junctional order. The defendants were trying to show that the driver of the Adler Packard car was- guilty of the violation. It was certainly material on this issue to show that such was not the fact, and the testimony of the defendant that the car was in storage at the time of the bombing and that he did not drive it until five days thereafter negatived such fact.
By the Court. — The order appealed from is affirmed.
Rehearing
On motion for rehearing.
The following opinion was filed February 4, 1930:
A motion for rehearing is made in this case on the ground that the decision was based on the understanding by the court that the “bombing” which was the subject of inquiry when Meese gave his false testimony was a violation of an injunctional order theretofore made by the court.
The bombing, which was of a dwelling house of a defendant, was not a direct violation of the injunction, as the injunction was for the protection of plaintiff's property and employees against violence, and did not purport to enjoin violence against the defendants or their property; and if the bombing was done by an agent of the plaintiff it was not a
It is urged that the opinion indicates that the court doubts the correctness of the trial court’s finding of wilfulness on the part of Meese and that for this reason the conviction
Reconsideration of the case, however, convinces us that the judgment should be reversed on another ground. Question was put to counsel on the argument whether perjury committed on a trial constituted contempt of court and we understood that counsel for plaintiff conceded that it did, and we were led by the supposed concession to pass the point without due consideration. We have now carefully considered this question and are led to the conclusion that the conviction cannot be sustained.
Criminal contempt is based on the fundamental right of self-preservation, that is, the right to restrain acts tending to obstruct and prevent the untrammeled and unprejudiced exercise of the judicial power, by summarily treating such acts as a contempt and punishing them accordingly. Toledo Newspaper Co. v. U. S. 247 U. S. 402, 419, 38 Sup. Ct. 560.
Punishment for contempt is the subject of statutory provision in this state, by sec. 256.03, although the statute does nothing more than express the inherent power of the court. There is no provision in this statute directly covering the order of the court in the instant case. The statute provides :
“Every court of record shall have power to punish, as for a criminal contempt, persons guilty of either of the following acts and no other.”
Then follow seven paragraphs. The provision making the nearest approach to the instant case is par. (5), to wit:
“(5) The contumacious and unlawful refusal of any person to be sworn as a witness; and when so sworn, the like refusal to answer any legal and proper interrogatory.”
The defendant in this case did not refuse to answer any question propounded to him. So far as appears he answered
We are of opinion that the matter is ruled by the case of Ex parte Hudgings, 249 U. S. 378, 39 Sup. Ct. 337. It is there held that while there are decided cases treating perjury without any other element as contempt, such holding is mistaken, for the reason that if the conception were true it would follow that when a court was of opinion that a witness was testifying untruthfully the power to punish for contempt would be exercised with purpose to exact from the witness testimony which the court deemed truthful, with result of oppression and imperiling the freedom of the citizen when called as a witness. The rule, which we consider the right one, is there laid down that to constitute contempt as an act done in presence of the court, there must not only be perjury, but the further element of obstruction to the court in the performance of its duty.
In the original opinion we stated that the false swearing “ ‘operated as an obstruction of the administration of justice,’ for a good part of two days were consumed mostly in demonstrating the falsity of the statement.” But although the false swearing resulted in consumption of time as stated, it hardly constituted an obstruction of the court in the performance of its duty. If so, every case of perjury would be contempt of court. It is. the duty of the court to require witnesses to answer all material questions without evasion or quibbling and to frustrate obvious attempts to conceal the truth or to avoid answering by protesting ignorance where knowledge is obvious. The Hudgings Case, supra, cites as an example of perjury constituting
“If the witness’s conduct shows beyond any doubt whatever that he is refusing to tell what he knows, he is in contempt of court. That conduct is, of course, beyond question when he flatly refuses to answer, but it may appear in other ways. A court . . . ought not to be put off by transparent sham, and the mere fact that the witness gives some answer cannot be the absolute test. ... If a court is to have any power to compel an answer, it must surely have power to compel an answer which is not given to fob off inquiry. Nevertheless this power must not be used to punish perjury, and the only proper test is whether on its mere face, and without inquiry collaterally, the testimony is not a bona fide effort to answer the questions at all.”
In the instant case the truth or falsity of Meese’s statement did not appear on its face; it could only be determined by collateral inquiry. It was not an apparent effort to avoid answering the question put. It was for conduct of the latter sort that the witness was held in contempt in In re Rosenberg, 90 Wis. 581, 63 N. W. 1065, 64 N. W. 299. The refusal there was not to testify, but to disclose facts within his knowledge by professing ignorance when knowledge was obvious. The ground for holding the witness in contempt was obvious prevarication, which the court held “has the same effect upon the administration of justice as a refusal to answer.”
By the Court. — The motion for rehearing is denied. The former mandate of the court in this action is vacated and set aside. It is ordered that the order appealed from be reversed, and the cause remanded with directions to the trial court to discharge the defendant.