251 F. 205 | 6th Cir. | 1918
These are contempt cases, and it is sought to have the final order made in each of them reviewed. Charles E. Dye was indicted in the court below for- violation of section 16, Act Cong. Feb. 8, 1875 (18 Stat. pt. 3, p. 310 [Comp. St. 1916, § 5966]), and on arraignment the accused entered a plea of guilty. He was sentenced to pay a fine of $2,500 and to be confined in the county jail of Ross county, Ohio', for a period of six months. An order of commitment was entered, June 29, 1916, commanding the marshal to deliver Dye at the jail, and on the same day the order was carried into execution. Alonzo Swepston, as the sheriff of Ross county and custodian of the county jail and the prisoners there committed, received Dye as a prisoner, and of course subject to the terms of the order of commitment. Donald Swepston was at the time a deputy sheriff of Ross county and the keeper of the county jail.
Subsequently, on September 14 and 28, 1916, the United States attorney for the Southern -district of Ohio filed two verified petitions, one charging Alonzd Swepston, as sheriff, and the other Donald Swepston, as deputy sheriff, with disobedience of the court's order of commitment of Dye, and with violation of their official duties, the one as custodian, and the other as keeper, of the county jail, and particularly of the prisoner, in that each respondent “did conspire” with Dye, “and permit and connive at and assist” him “to escape from said jail, * * * and * - * * ■ to be at large and beyond the confines of said county jail,” for a substantial part of the time between the date of commitment and the 7th of September, praying in each petition the allowance of an order directing that respondent be arrested and required to answer for contempt of court, bécause of his violation of the
The sheriff and deputy sheriff each answered, with the usual verification, denying the charges set out in the petition against him, the sheriff alleging in his answer that the deputy marshal, who brought the prisoner to the jail and delivered the mittimus, stated that he, the deputy, had orders to ask the sheriff to give the prisoner all the liberty and good treatment he could, that the prisoner was being punished wrongfully and would soon be pardoned, and the sheriff further alleging that it was the custom .to make trusties o E prisoners serving simply jail sentences and to put them at work- about the jail and the jail yard; and it is alleged in both answers that Dye was made a trusty and as such given the privileges mentioned, the deputy, however, alleging that as such trusty the prisoner was “permitted to go outside of the jail and yard several times.” It is also alleged in each answer that the respondent did not intend to disobey any order of the court, and “did not intend to commit any contempt against the said court or its pro,cess.”
The court fixed the time and place of trial; the issues made in both proceedings as stated and the evidence adduced thereunder were presented to and heard by the court and in effect were treated as arising in a single cause. Quite a number of witnesses testified in open court in behalf of the respective parties, both respondents also testifying and presenting affidavits. The court delivered an extended opinion, finding that tiie charge o E conspiracy was not sustained, but that both respondents were guilty of “permitting and assisting Dye to escape.” Alonzo Swepston was sentenced to, the county jail of Delaware county, Ohio, for a period of 40 days and to pay the costs; and Donald Swepston was sentenced to pay a fine of $60 and costs, and to he committed until payment was made; execution of each judgment and sentence was stayed, upon the giving of a prescribed bond, in order to admit of proceedings in error.
“to the legislatures of the several states to pass laws, making it expressly the duty of the keepers of their gaols, to receive and safe keep therein all prisoners*208 committed tinder the authority of the United States, until they shall be discharged by due course of the laws thereof, under the like penalties, as in the ease of prisoners committed under the authority of such states respectively,” etc.
Although provision was otherwise made later for cases where states, having once complied with this recommendation, subsequently withdrew their action (1 Stat. 225; 3 Stat. 646; R. S. §§ 5537, 5538 [Comp. St. 1916, §§ 10521, 10522]), yet we fail to find any repeal of the original resolution of September 23, 1789. Ohio enacted a statute many years ago, and still maintains one, requiring each sheriff to “receive prisoners charged with or convicted of crime committed to his custody by the authority of the United States, and keep them until discharged by due course of law.” 1 O. G. C. § 3179. See, also, 2 Smith & Benedict’s Ohio Rev. Stat. § 7381; 57 O. L. 108, making similar provision, and repealing an earlier act to the same effect of December 20, 1806 (8 O. L. 496, 497).
“If a man intentionally adopts ccrmiTi conduct in certain, circumstances known to Mm, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in wMch the law ever considers intent.”
It is not claimed that the proceedings for contempt were inconsistent, nor were they, with the fact that the acts of respondents were also punishable under either the federal or the state statute defining the duties of jailers in respect of federal prisoners. R. S. § 5409 [Comp. St. 1916, § 10308] ; 3 O. G. C. § 12832. However, it is claimed that, if respondents were punishable Under those statutes for “permitting and assisting” the prisoner to escape, they were each entitled to a trial by jury in the contempt proceedings. Reliance in this behalf is placed on Act Oct. 15, 1914 (38 Stat. pt. 1, pp. 730, 738, §§ 21 and 22, Comp. St. 1916, §§ 1245a, 1245b), known as the Clayton Act. It is enough to say of this (1) that no demand for a jury was made, and (2) that section 24 of the act expressly excepts from its operation proceedings of the kind here involved. Section 24 provides:
“That nothing herein contained shall be construed to relate to contempts committed * * * in disobedience of any lawful * * * order * * * entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and other cases of contempt not specifically embraced within section 21 of this act, may be punished in conformity to the usages at law and in equity now prevailing.” Comp. St. 1916, § 12456.
The complete answer, then, to the latter contention, is the fact that the order which the contemnors are found to have violated was entered in the case of United States v. Dye.
The judgment in each cause will be affirmed. , However, it has come to our attention that Donald Swepston, the plaintiff in error in No. 3034, has been wounded while in the service of the United States in the American Expeditionary Force in France, and that the District Judge has recommended that a pardon be granted to him covering his offense here involved, in which recommendation the District Attorney has joined. Accordingly, our mandate in No. 3034 will await the disposition of this application for pardon, and will be withheld until further order.