Ex parte Biggers , 85 Fla. 322 ( 1923 )

Whitfield, J.,

(after stating the facts.)

In this habeas corpus proceeding it must be determined whether the Circuit Judge had a legal predicate in the finding made as shown by the statement, for adjudicating an imprisonment for contempt of court, the charge being that the respondent below, Petitioner here, made and caused to be published statements intended to impugn the integrity of the Judge and to embarrass the Judge in deciding a case on appeal from the municipal court.

The general common law of England is in force in this State except where it is “inconsistent with the constitution and laws of the United States and the acts of the legislature of this State.” Sec. 71, Rev. Gen. Stats. 1920.

There are no statutes regulating the procedure in contempt eases in this State.

As to contempts at common law and the procedure, Blackstone says: “Contempts are either direct, which openly insult or resist the powers of the courts or the persons of the judges who preside there, or else consequential, which (without such gross insolence or direct'opposition) plainly tend to create a universal disregard of their authority and if the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him, or, in very flagrant instances of contempt, the attachment issues in the first instance; as it also does if no sufficient cause be shown to discharge; and thereupon the court confirms and makes absolute the original rule. This process of attachment is merely intended to bring the party into court; and, when there, he must either stand committed, or put in bail, in order to answer upon oath to such interrogatories as shall be administered to him for the better information of the court with respect to the circumstances of the contempt. These interrogatories are in the nature of a charge or accusation, and must by the course of the court be exhibited within the first four days; and if any of the interrogatories are improper, the defendant may refuse to answer it, and move the court to have it struck out. If the party can clear himself upon oath, he is discharged; but, if perjured, may be prosecuted for the perjury. If he confesses the contempt, the court will proceed to correct him by fine or imprisonment, or both, and sometimes by a corporal or infamous punishment. If the contempt be of such nature that, when the fact is once acknowledged, the court can receive no further information by interrogatories than it is already possessed of, the defendant may be admitted to make such simple acknowledgment, and receive' his judgment without answering to any interrogatories; but if he wilfully and obstinately refuses to answer, or answers in an evasive manner, he is then clearly guilty of a high and repeated contempt, to be punished at the discretion of the court. In equity after the party in contempt has answered the interrogatories, such his answer may be contradicted and disproved by-affidavits of the adverse party; whereas, in the courts of law, the admission of the party to purge'himself by oath is more favorable to his liberty, though perhaps not less dangerous to his conscience; for, if he clears himself by his answers, the complaint is totally dismissed. This method of examining the delinquent himself upon oath, with regard to the contempt alleged, is at least of as high antiquity, and by long and immemorial usage is now become the law of the land.” 4 Lewis’ Blackstone Com. p. 286 et seq. and Notes; Appeal of Verdon, 89 N. J. L. 16, 97 Atl. Rep. 783; In re Gonzalez, 88 N. J. L. 536, 97 Atl. Rep. 953.

In contempt proceedings at common law the general rule is that if the matters complained of were not perpetrated in the presence of the court or judge or so near the court or judge as to impede or embarrass judicial procedure, the rule issued to the accused to show cause why he should not be punished for contempt, should be predicated upon affidavits of those who have personal knowledge of the facts alleged as the contempt. If the charge is not so predicated the rule should be discharged or quashed upon appropriate motion. See 13 C. J. 64 et seq.

If the charges duly made are admitted to be true and they clearly constitute contempt whether so intended, or not, appropriate punishment follows. If the matters charged and admitted to be true are ambiguous or do not clearly constitute contempt, and an intent to offend is duly denied under oath, a discharge from custody follows. See In re. Chadwick, 109 Mich. 588, 67 N. W. Rep. 1071.

If the matters charged are denied under oath and the denial is false, prosecution for perjury is the remedy.

It does not appear that the Circuit Judge had any personal knowledge of the making of the statements alleged to have been made about him, or of the respondent’s part, if any, in the publication of the statements, and there are no affidavits supporting the allegations in the rule that the respondent made the statements and “caused them to be published” in a newspaper in another county and judicial circuit; therefore the 8th ground of the motion to quash the rule was well taken. See Ex parte Duncan, 78 Tex. Crim. 447, 182 S. W. Rep. 313, 2 A. L. R. 222 and note; 13 C. J. 64.

In view of the finding of the Circuit Judge that the published statements “came to the attention of this court and did embarrass this court in determining the ease” on appeal before him, and as in habeas oorpios the scope of the inquiry is limited to matters affecting the authority to imprison for contempt, those matters will be considered.

The respondent does not appear to have been an owner or editor or officer of the newspaper in which the publication was made. See Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 52 N. E. Rep. 445, 44 L. R. A. 159; In re Hayes, 72 Fla. 558, 73 South. Rep. 362.

1 The statements with reference to- the Judge found to have been made and published, were made and published 'in another city in another county and judicial circuit. There was no jury for the publication to affect. Even though by reasonable inference the speech complained of and its publication, as set out in the statement, were intended to be and were personally offensive to the judge to whom the statements referred, -and as such were an unjustifiable personal affront, yet such statements as made and published in another county and circuit even though they “came to the attention of the court,” could, in view of the assumed character and fortitude of a Circuit Judge, reasonably have had no real tendency to embarrass the court in determining the cause referred to,- or to interfere with and hinder and embarrass the court in arriving at a decision and final order in said cause. This being so, the express finding of the judge that “the speech and threats and insinuations and words as set forth and alleged in the rule nisi, came to the attention of this Court and did embarrass this Court in determining the said cause of Antelo v. Bailey, and did interfere with and hinder and embarrass this Court in arriving at a decision and final order in said cause, ’ ’ is not warranted by the acts charged and found to have been committed as charged. As a necessary result, the finding is in law not a sufficient predicate for the order adjudging imprisonment of the respondent, petitioner here, as for contempt of court. The determining point is not alone what effect the acts complained of actually had on the Judge but what were the reasonable tendencies of the acts with reference to the integrity of the court and to the performance- of judicial functions.

The right to make fair comments and criticisms of official conduct, does not warrant or excuse offensive statements reflecting upon officials as such; but unless acts or words of criticism or condemnation affecting a judicial officer not perpetrated in or near his presence when acting judicially, are of such a nature and occur under such circumstances as to offend the court as such or to hinder or embarrass the orderly discharge of judicial functions, such acts, words or other conduct do not in general warrant imprisonment as for contempt of court. See Ex parte Earman, decided this day.

A Circuit Judge is expected to be a man of ordinary firmness of character; and if the matter complained of as constituting contempt, when fairly interpreted, does not have a reasonable tendency to degrade or to embarrass or hinder such a judge in performing his own duty, or to affect a mind of reasonable fortitude it is not a criminal contempt for which imprisonment may be lawfully adjudicated, particularly when an intent to offend is denied on oath.

Generally it is the nature and reasonable tendencies of the matter complained of that controls; and if the matter is of doubtful tendency or might or might not be considered ambiguous as to its general or specific purpose, the circumstances under which the thing was done or in which its consequences are to appear, may be considered in determining the reasonable tendency of the matter to affect judicial authority or dignity; and express denials of a desire or an intent to offend, when duly supported or corroborated by pertinent circumstances may be considered in determining the real nature and reasonable tendency of the matter complainned of as being calculated to affect the functions of the court. See 6 R. C. L. 584; In re. Chadwick, 109 Mich. 588, 67 N. W. Rep. 1071.

The statement that the Judge “is as weak as water” was made in another circuit and not in or near the presence of the Judge when acting judicially so as to be a direct insult to the court as a tribunal, and the statement under the circumstances, had a personal rather than a judicial reference, particularly when considered in connection with another statement in the same speech that the Judge was a candidate for another office. The statement that “our court is absolutely annulled if a man has money and influence,” had reference to the municipal' court in which the convictions referred to were had; and the part of the statement as to “money and influence” may reasonably have had reference to the expense and help necessary in employing counsel and paying costs and in giving' bond in obtaining a review of convictions adjudicated in the municipal court. The statement that he spoke “without fear of being in contempt,” like the other statements, is ambiguous and did not necessarily reflect upon the court and could not impede judicial functionsy'The respondent denied under oath that he intended to reflect upon or impugn the integrity of the judge and denied that he caused the statement to be published. These denials should be given due weight in determining whether a contempt of court was committed. All the statements were made in one speech in another circuit, and even if the respondent caused them to be published in a newspaper that circulated within the jurisdiction of the Circuit Judge, the statements when taken together and considered in the light of the attending circumstances, were not a direct -insult to or in the presence of the court as a judicial tribunal, and they had no real tendency to hinder or impede or in any way to affect the judicial functions of the Circuit Judge, who proceeded in due course to dispose of the pending ease as his judicial authority and duty appeared to him. See 13 C. J. 36.

In Ex parte Hayes, 72 Fla. 558, 73 South. Rep. 362, the respondents were writers for or connected with the newspaper that published, within the jurisdiction of the court while it was in daily session, plain and ambiguous charges against the integrity of the court, and the newspapers were circulated in the presence of the court. Upon the filing of an admission of the publication with a disclaimer of any intent to reflect upon the court, the respondents were adjudged guilty of contempt because of the plainly impugning nature of the admitted publication, and the respondents were discharged upon payment of costs.

In this ease the person who made the statement about the Circuit Judge was apparently not connected with or a writer for the nenwspaper in which the.publication was made, the newspaper was published in another judicial circuit, there was no affidavit to support the charge that the respondent “caused” the publication to be made and the respondent specifically denied under oath that he “caused” the publication to be made in the newspaper which was circulated in the circuit where the judge resided.

The petitioner will be discharged.

Taylor, C. J., and Browne and West, J. J., concur. Ellis, J., dissents.