288 F. 712 | 8th Cir. | 1923
On January 23,- 1922, the District Court below found the plaintiff in error, S. E. Wakefield, “to be in contempt of this court as set forth in the certificate of facts of the said referee,” and ordered and adjudged “that he be committed by the United States marshal to the county jail of Oklahoma county, Oklahoma, for a period of six months from this date.” Wakefield sued out this writ of error to review the judgment against him, and has assigned many alleged errors in his trial and conviction, the chief of which is that he was thereby adjudged guilty and sentenced for a criminal contempt without any “proceeding instituted and tried as for a criminal contempt” declared indispensable to a lawful judgment of this kind by the Supreme Court in Gompers v. Bucks Stove & Range Company, 221 U. S. 418, 444, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.
It is conceded by counsel for both parties that the punishment adjudged was wholly punitive and for a criminal contempt, but counsel' for Wakefield insists that the proceedings upon which the judgment is founded were civil while opposing counsel insist that they were criminal in their nature. Those proceedings were these:
On August 13, 1921, after Butler-Williams-Wakefield. Motor Company, a copartnership composed of E. M. Butler, R. E. Williams, and S. L. Wakefield, and E. M. Butler, R. E. Williams, and S. E. Wake-field as individuals, had been adjudged bankrupts on August 20, 1920, B. C. Housel, the trustee in bankruptcy, filed in that proceeding a petition wherein he averred that on July 1, 1920, Wakefield left Oklahoma City, his residence, with a Cole-8 automobile worth about $2,000 and
On August 31, 1921, a hearing was had on this petition and answer before the referee, at which parts of the testimony of Wakefield at his examination in the bankruptcy proceeding under section 7 (9) of the Bankruptcy Act, which provides that no such “testimony given by him shall be offered in evidence against him in any criminal proceeding,” were introduced in evidence by the trustee, and Wakefield was also called, sworn, and examined as a witness by and for the trustee. After this hearing, the referee, pursuant to the petition, issued a certificate to the effect that Wakefield was guilty of contempt of court, attached to it the petition for the certificate, his citation to Wakefield to appear before him, Wakefield’s demurrer and answer, a general order to the defendants in the bankruptcy proceeding to file schedules and to preserve their property, which the referee had made at the time of the adjudication in bankruptcy in August, 1920, and a transcript of the testimony taken before the referee on the petition for his certificate of contempt. After these things had been done, the trustee filed a petition in the bankruptcy proceeding, in which he alleged the same acts of Wakefield averred in his former petition to the referee for the latter’s certificate of contempt, and also set forth the proceedings
Definitions of and the distinctions between civil contempt and criminal contempt may be found in the opinions in Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 441, 443, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874, In re Nevitt, 117 Fed. 448, 458, 54 C. C. A. 622, and Bessette v. W. B. Conkey Co., 194 U. S. 324, 328, 24 Sup. Ct. 665, 48 L. Ed. 997, and it is unnecessary to recite them here.
The question recurs: Was the proceeding which has been described, and upon which this judgment of criminal contempt is based, “instituted and tried as for criminal contempt?” The Supreme Court noticed and specified these indications that the contempt proceeding in Gompers Case was not so instituted and tried: (1) That there was nothing in the record indicating that the court or tire government was on one side of the contempt proceedings and. the defendants on the other. There is nothing in the case in hand so indicating. (2) That the contempt proceedings were instituted, entitled, and tried as a part of the original suit in equity. So was the contempt proceeding in this case. The referee’s certificate of contempt, the petition to the District Court for the order to show cause, and the order of the court adjudging Wakefield in contempt were entitled: “In the Matter of Butler-Williams-Wakefield Motor Company, a Copartnership Composed of E. M. Butler, R. L. Williams, and S. E. Wakefield, and E. M. Butler, R. E. Williams, and S. E. Wakefield, Individuals, Bankrupts. In Bankruptcy No. 1712.” (3) That the Bucks Stove & Range Company, through its counsel, conducted the proceeding for the adjudication of contempt, not as a representative of the United States or of the court, but for itself, and its counsel, in its name, filed briefs and made arguments for affirmance of the judgment of contempt in the appellate court. This is equally true of the trustee in bankruptcy and his counsel in this contempt proceeding again Wake-field. (4) 'That the complainant made the defendants witnesses foi itself, “a thing that most likely would not have been done, or suffered, if either party had regarded this as a proceeding at law for criminal contempt.” 221 U. S. 448, 31 Sup. Ct. 500, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874. The trustee in this case not only introduced and examined Wakefield as his witness, but also by agreement introduced prior testi
In view of the decision and opinion of the Supreme Court in Gompers’ Case, there is no rational way of escape from the conclusion that the judgment of the criminal contempt and punishment against Wake-field in this case cannot be sustained because the charge against him was not tried as for a criminal contempt, but as a civil suit or proceeding in the main equity cause, in which the familiar rules for the trial of a criminal offense were disregarded. Mitchell v. Dexter, 244 Fed. 926, 929, 936, 157 C. C. A. 276; In re Kahn, 204 Fed. 581, 582, 123 C. C. A. 107. An illustration of the trial of a charge as a criminal contempt is disclosed in Stewart v. United States, 236 Fed. 838, 840, 841, 842, 150 C. C. A. 100.
This conclusion has not been reached in this case without a thoughtful reading of the opinion in Re Mardenfeld (D. C.) 256 Fed. 920, upon which counsel for the trustee place reliance; but the order which the opinion in that case states would first be made, was not an order or judgment for a criminal but for a civil contempt. It left the keys of the defendant’s prison in his own hands, and the opinion fails to disclose any such similarity in the proceedings in that case and in this as to make that opinion either authoritative or persuasive here. Nor has the court failed to notice and consider the fact that the trustee in his petitions alleged that it would be useless to order Wakefield to turn over the $3,300 or the proceeds of the automobile, because he had testified that he had no way to restore or pay over either of them or the fact that the only prayer of his second petition was that Wakefield be punished for contempt, and that he did not pray, as did the Buck’s Stove.& Range Company, for such other and further relief as the nature of his case might require. But these facts are far from sufficient to overcome the conclusive indications which have been recited that the charge of contempt of court in this case was not tried as for a criminal contempt, but as for a civil suit or proceeding.
“A person shall not, in proceedings before a referee, (1) disobey or resist any lawful order, process, or writ; (2) misbehave during a hearing or so near the place thereof as to obstruct the same; (3) neglect to produce, after having been ordered to do so, any pertinent document; or (4) refuse to appear after having been subpoenaed, or, upon appearing, refuse to ‘take the oath as a witness, or after having taken the oath refuse to be examined according to law.”
The ground of the demurrer was that the petition did not set forth facts sufficient to warrant the issuance of the certificate of contempt. It did not set forth any lawful order, process, -or writ, which it alleged that Wakefiéld disobeyed in proceedings before the referee, nor his doing of any of the other things forbidden by section 41. Nor did it allege any criminal act or acts with such clearness and certainty as to advise the accused of the charge which he had to meet and to give him a fair opportunity to prepare his defense, so particularly as to enable him to avail himself of a conviction or an acquittal in defense of another prosecution for the same offense, or so clearly that the court could be able to determine whether or not the facts there stated were sufficient to support a conviction. Ledbetter v. United States, 170 U. S. 606, 609, 613, 18 Sup. Ct. 774, 42 L. Ed. 1162; United States v. Britton, 107 U. S. 655, 659, 670, 2 Sup. Ct. 512, 27 L. Ed. 520; Armour Packing Co. v. United States, 153 Fed. 1, 17, 82 C. C. A. 135, 14 L. R. A. (N. S.) 400. The demurrer should not have been overruled. .
Not only this, but it is-difficult to perceive what part such a petition for a certificate for contempt, the taking by the referee of the testimony of the defendant thereunder, the certificate of that testimony and of the contempt could lawfully play in a “proceeding instituted .and tried as for a criminal contempt,” which counsel for the trustee insist this was, in which the legal presumption is that the defendant is innocent until he is proved beyond a reasonable doubt to be guilty. And yet it was upon this proceeding for the referee’s certificate of contempt, upon evidence before the referee in that proceeding, and upon the referee’s certificate of the contempt that Wakefield was convicted and sentenced.
Let the judgment below be reversed, and let the case be remanded to the District Court, with directions to dismiss the entire proceeding, with costs.