Welch v. Barber

52 Conn. 147 | Conn. | 1884

Carpenter, J.

In a civil suit pending before the Court of Common Pleas the defendant caused his counsel to procure a postponement of the trial on the ground that he was ill and unable to attend court. The plaintiff, suspecting that there was no ground for a postponement, filed a written application, accompanied with affidavits, praying for an attachment for contempt. An order to show cause was served on the defendant. He did not appear in person on account of sickness, but his counsel appeared for him and filed successively a plea in abatement and demurrer, both of which were overruled. - They then filed an answer, to which the plaintiff made no reply. A hearing was then had in the absence of the defendant. To prove the facts alleged in the application the plaintiff offered an affidavit signed by three persons, being the same affidavit which is attached to the application. The defendant objected to its admission, but the court admitted it. Two of the affiants subsequently appeared in court and testified in person. The plaintiff also offered a deposition, to the admission of which the defendant’s counsel objected, but the court admitted it.

The court found the allegations of the application true, and sentenced the defendant to pay a fine of fifty dollars and costs. The costs were taxed as in an ordinary civil suit, including complaint, service, court fees, trial fees, &c., against the defendant’s objection.

Before proceeding to discuss the questions more particularly raised by the appeal, we will briefly notice the claim that the facts do not constitute a contempt, and consider the nature and character of a contempt generally.

“ Contempt is a disobedience to the rules and orders of a court which hath power to punish such offense.” “And this word is used for a kind of misdemeanor, by doing what one is forbidden, or not doing what he is commanded.” Jacob’s Law Dictionary, in verhum. “ Some of these con-tempts may arise in the face of the court, as by rude and contumelious behavior; by obstinacy, perverseness or prevarication; by breach of the peace, or any wilful disturbance whatever. Others in the absence of the party, as by disobeying or treating with disrespect the king’s writ, or the rules or process of the court, by perverting such. writ or process to the purposes of private malice, extortion or injustice ; by speaking or writing contemptuously of the court or judges acting in their judicial capacity; by planting false accounts, (or even true ones without proper permission,) of causes then depending in judgment; and by anything, in short, that demonstrates a gross want of that regard and respect which, when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people.” 4 Black. Com., 285.

The most remarkable instances of contempts, for which any person whatsoever is punishable, are reduced to the following heads in 2 Hawkins’s Pleas of the Crown, 220:— 1. Contempts of the king’s writ. 2. Contempts in the face of the court. 3. Contemptuous words or writing concerning the court. 4. Contempts of the rules or awards of the court. 5. Abuse of the process of the court. 6. Forgeries of writs, and other deceits of the like kind, tending to impose on the court. In Swift’s Digest, vol. 2, p. 380, the definition is substantially the same as in Blackstone.

From these definitions it is apparent that the conduct of the defendant may have been of such a character as tended to obstruct and embarrass the court in the administration of justice. The court below found that it was a contempt, and, the facts being of such a nature that it does not clearly appear as matter of law that they did not and could not constitute a contempt, we are not at liberty to revise the finding on that point.

The statute limits the penalty for contempts in the presence of the court. Other contempts may exist, such as disobeying injunctions and other orders of the court, which the statute does not provide for, but the manner of dealing with them is to be determined by the common law. There are other acts which are in defiance of the power and dignity of the court, but which are not actually nor constructively in its presence. Of this class is the case of Huntington v. McMahon, 48 Conn., 174. These too are not within the statute, but are defined and punished by the common law.

The present case belongs to the latter class. The offender was not personally present in court and the judge could have no knowledge of the facts which constituted the offense except as they were communicated to him by others. He could not of his own motion and upon facts within his own knowledge render judgment against the delinquent. As the facts must be established by proof a trial was necessary.

Another question which becomes important is, whether the contempt is civil or criminal. A civil contempt is one in which the conduct constituting the contempt is directed against some civil right of the opposing party, as where an injunction is disregarded or some act required by the court for the benefit of the other party should be neglected. In eases of contempts of this sort the proceeding for its punishment is at the instance of the party interested and is civil in its character. Such are the cases of Lyon v. Lyon, 21 Conn., 185, and Rogers Manufacturing Co. v. Rogers, 38 Conn., 121. A criminal contempt is conduct that is directed against the dignity and authority of the court, and a proceeding for its punishment should conform as nearly as possible to proceedings in criminal cases. When the court has knowledge of the contempt as it occurs it will of its own motion proceed to punish it;.but, when witnesses are required to prove it, the proper course is for some informing officer to bring it to the attention of the court. Middlebrook v. The State, 43 Conn., 257; Huntington v. McMahon, 48 Conn., 174.

The process in this case was begun and carried on to the end as a civil case in the name of the plaintiff in the suit pending. That was irregular. But the irregularity might be overlooked and the matter treated as a proceeding by the court of its own motion upon the suggestion of the plaintiff, were it not for the fact that the defendant on the trial was denied some rights and deprived of some privileges to which a party in a criminal proceeding is clearly entitled.

In the first place, it is very clear that the court had no power to proceed to a trial and judgment of condemnation in the absence of the accused. “ If such offense be done by a person not present in court, and proper complaint or information be made, the court will either make a rule on the party to attend on a certain day to answer to the matter complained of, or else will make a rule upon him to show cause why an attachment should not be granted against him; or if the offense be of a very flagrant nature, will grant an attachment upon the first complaint; and the party who is ordered to attend, in pursuance of such rule, must appear in person, and not by attorney.” 2 Swift’s Digest, 382.

In the next place, the accused was entitled to be heard. In cases of this character, where the act was equivocal, and might or might not be a contempt, and it was necessary to examine witnesses in order to determine that question, the party must be present and has a right to be heard. If it had been made to appear that the matters which the defendant’s counsel set up in his behalf in the answer were true, we do not see why he would not have been entitled to a discharge. Those facts were in substance that he was in fact sick, that he was unable to attend court, that there were no false representations, and that he intended no disrespect to the court. It is apparent from the record that the accused had no opportunity to show these facts—an opportunity which the law clearly gives him. 2 Swift’s Digest, 382.

The court also erred in admitting the affidavit in evidence on the trial. The affidavit had performed its office when it satisfied the court that this was a case which it ought to notice. It could not be received in evidence to prove guilt without violating two cardinal principles in all criminal trials,—the right of the accused to confront the witnesses against him in open court, and his right to cross-examine them. The error was not healed by the subsequent appearance of two of the affiants as witnesses. The deposition was also improperly received, and for obvious reasons.

For these reasons the judgment of the Court of Common Pleas was erroneous and must be reversed.

The record shows that the defendant sustained damage by such erroneous judgment to the amount of $110.31; for wffiich sum with costs the defendant is entitled to judgment.

In this opinion the other judges concurred.