In re The State of Ohio v. Post.

To the charge made against him under this act, the defendant answers that he did write the article contained in the charge, and cause the same to be published, and he claims that he had a right sc to write and cause said article to be published, because he was the editorial writer of a newspaper, and his purpose was to educate a public sentiment which would correct what he considered certain abuses in judicial proceedings.

The facts as disclosed by the testimony and the admission of the defendant are as follows: The newspaper, The Cleveland Recorder, in which the defendant caused this article to be published, is a newspaper of general circulation in the city of Cleveland and in the county of Cuyahoga, and at the time of the publication of this article and previous thereto had such circulation throughout that territory and was kept for sale and was sold in the courthouse in said county and city at the newsstand located therein, to citizens going in and out of said building. The issue of the paper containing the article complained of contained in the charge, was sold in the courthouse and circulated therein, and in the various court rooms in said courthouse; and was read by lawyers, court officials and jurors attending said court, and by jurors attending in and before the judge named in said article; all of which was either known to the defendant at the time he wrote said article and caused it to be published or by the exercise of any care upon his part before writing said article, could have been known by him, so far as the facts existed at that time; and as to the subsequent circulation of the paper and the use of it and the article therein, they should have been reasonably apprehended by the defendant before writing the same. The article was brought to the attention of this member of the court, named in the article, while in session, on the day of its publication, by the comments of lawyers and persons attending the court in the room occupied by that person, by comments made pon the same by said persons and lawyers in the presence of said judge; all of which occurred before the final disposition of the case referred to in said article, and while the same was still pending upon a motion or subject to a motion before said judge for a new trial. The testimony and the admission of the defendant in his answer together show that it was clearly his purpose to reach and inâuence and affect and excite the minds of all persons whom he might be able to reach by the circulation of his paper, irrespective of their relations to the court or the places in which the article might be made public. He offers no word in mitigation of his offense, or retraction or justification.

It has been urged on behalf of the defendant that the court has no jurisdiction over the defendant, because the act complained of did not take place in the presence of the court, or even in the court room. This question was raised in the case of Frederick Steube v. The State of Ohio, 2 O. C. D., 216, before the second circuit court, at the March Term, 1888, and was fully considered and discussed by that court. This question was again considered by the supreme court of the state of Ohio in the case of Meyer v. The State of Ohio, in the 46 O. S., at page 478.

The case of Steube v. The State, was a proceeding in error, prosecuted in the circuit court to reverse the judgment of the common pleas court in Franklin county in the case of The State of Ohio v. Frederick Steube, in contempt; and which judgment committed the defendant, Steube, to confinement in the county jail for four months, and to the payment of a fine of $25.00 for an assault upon the prosecuting attorney of Franklin county on a Saturday afternoon after the djournment of the court of common pleas on the morning of that day to the following Monday morning; the court at the time of its adjournment having on trial a criminal case against one Montgomery, in which the prosecuting attorney represented the state. The assault took place half a mile away from the court house, and upon a public street in front of the Neil house, in the city of Columbus, and as I have said, while the court was not in session and would not be in session for two days. This question was raised, in that case, that it was not in the presence of the court, real or constructive, that it was not so near to it as to affect th

Cuyahoga Common Pleas Court.

administration of justice; that it was the result of a private controversy between these two parties, and that the court had no right, by the summary process of contempt, to reach out and take this citizen from his home and bring him in to answer to this act as one against the court. The circuit court says: "It is clear that the plaintiff in error was guilty of misbehavior, it did obstruct the administration of justice, and it only remains to determine what is meant by the words 'in the presence of the court, or so near thereto" etc. We have not deemed it necessary to consider the question whether the court has power to punish for contempt, for it is admitted that it is a power inherent in the court, and necessary for its own protection. It is claimed on the one side that the legislature may abridge that power, and on the other that it cannot. It is sufficient in this connection to say that we do not think the legislature has attempted in this state to abridge that power. It is claimed by the plaintiff in error that misbehavior "in the presence of the court, or so near thereto," etc, means misbehavior while the court is in session, and so close thereto that there is a possibility of the court hearing the affray. The testimony in this case that the court was not actually in session, is not a matter material in view of the decision in the case of The United States v. Patterson, 26 Fed. Rep., 509. We think the view taken of the statute by counsel for plaintiff in error was too narrow. Whatever acts are calculated to impede, embarrass or obstruct the court in the admininistration of justice, are considered as done in the presence of the court. Numerous authorities have been cited to show that the acts committed in the presence of the court may be punished as contempts. There can be no question about this, but that the principle which we have above announced is sound and applicable in this case, considering it as under our statute, is shown in the well considered cases of Stewart v. People, 3 Scammon 395, People v. Willson 64 Ill., 196, which hold that the plaintiff in error was in contemplation of the law in the presence of the court, and the act being calculated to actually obstruct the administration of justice, was a contempt of court.'

This question was again raised, in the case of Myers v. The State, in the 46 0. O. S., 473, to reverse the judgment of the common pleas court of Franklin county in this state in the case of The State v. Meyer, in contempt, which judgment imposed a fine of $200.00 and costs, and committed Meyer to the county jail for ninety days and until the fine and costs were paid. The act complained of in that case was the publication of an article by Meyer in the "Cincinnati Enquirer" concerning the conduct of Judge Pugh with reference to the empaneling of a grand jury in the cases of The State of Ohio v. Montgomery et al. The article was not only published in the city of Cincinnati, but was actually written by Meyer in that city; the facts showing, however, that the paper was of general circulation in the city of Columbus where Judge Pugh was holding court, and that the paper containing the article in question was circulated in and about the courthouse, and read by the court officers and jurors and persons attending the court; and that the defendant knew or ought to have known that such use and such distribution would be made of the paper and of the article. Meyer was proceeded against under section 5639 above referred to, and the claim was again made there, as made in this case, and as always made by the authors of such publications for the purposes of escaping responsibility for their acts, that the author was a contributor to a newspaper, and the subject was a proper one for public investigation and inquiry; and that as the article was written in the city of Cincinnati, and published and printed in that city, concerning a judge in the remote county of Franklin, holding court in the city of Columbus, the common pleas court of Franklin county bad no jurisdiction to hear and punish him summarily under the provisions of section 5639; and upon this point the supreme court say: "The publication came within section 5639 of the Revised Statutes, which reads: "A court or judge at chambers may punish summarily a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice. Further they say: "It is true that the

In re The State of Ohio v. Post.

article was not written nor was it circulated by the respondent in the presence of the court; indeed it was written in the city of Cincinnati, though dated at Columbus, but the publication was in the court room as well as elsewhere. It was admitted to have affected and did have effect in the court house at Columbus ; and the writer was just as much responsible for that effect as though he had in the court room himself, and while the court was progressing, circulated and read aloud the article or uttered the libelous words orally." Further, they say: "The statute clearly authorizes, as did the common law, courts to punish summarily as contempts, acts calculated to obstruct their business. They could not be maintained without such power, nor could litigants obtain a fair consideration of their causes in the court where the jury or judge should be subject during the trial, to influences in respect to the case upon trial calculated to impair their capacity to act impartially between the parties." This is the well considered utterance of the supreme court of the state of Ohio upon this subject. And without any disrespect to the western tribunals that have held otherwise, in this state it is the law of the land. If, then, under the holding in this case of Steube v. The State by the circuit court, the attack upon the prosecuting attorney of the court at a time when the court is not in session, and made upon the public streets of a city, at least half a mile away from the courthouse, can be held to be done in the presence of the court under section 5639, and as held by the supreme court in the case of Myer v. The State as to the writing of an article in the city of Cincinnati, and the presenting of the said.article to a newspaper published in that city for publication, when the paper circulates in the county of Franklin, and in the city of Columbus, and in and through and about the courthouse in said city, can be said to be an act done in the presence of court sitting in the courthouse in the city of Columbus and in the county of Franklin, there can be no question but that an article written and published in a newspaper in the city of Cleveland, by the editorial writer of a paper, which paper circulates generally in this city and in this county, covering the jurisdiction of the court, and sold and circulated and read. in the courthouse and in the ooms of the courthouse, was an act done in the presence of the court. And to quote the language of the supreme court upon that subject: "And the writer was just as much responsible ior that effect, as though he had in the court room himself, and while the court was progressing, circulated and read aloud the article or uttered the libelous words orally."

The next claim of the defendant is, that under the constitution of the state, he cannot be proceeded against for contempt without first an information being filed in the court against him, supported by affidavit; and he predicates this claim upon section 14 of the Bill of Rights, which provides: "That no warrant shall be issued but upon probable cause, supported by oath, upon information particularly describing the place to be searched, and the persons and things to be seized." I think no man upon the bench has been more conservative, and more of a conservator of the constitutional rights of citizens than myself. I have, perhaps, some of the old fashioned respect and reverence for a constitution which possibly is more or less fading away in these days. I believe its provisions mean something, and that it is the highest law binding upon courts as well as citizens. And if I had any question in my mind under the holdings of our courts as to the constitutional rights of this defendant in this proceeding, he would certainly have the benefit of that question. I am sitting here not as an individual party. I am sitting here to protect him, and am his protector, as well as those who are represented under the name of the state of Ohio. It is conceded for counsel for the defendant, however, that there are exceptions to this provision of the constitution in contempt proceedings, that there are cases in contempt which do not come under the requirements of this provision of the Bill of Rights. Counsel simply claim that these are cases in which the act occurred in the presence of the court, and therefore the facts of which are known personally to the judge in the proceeding. I have yet to find any authority which will justify such a discrimination as to a

Cuyahoga Common Pleas Court.

constitutional right. If this provision of the constitution applies to the defendant in this case, it applies to him in any situation in which his liberties or his rights may be attacked. The origin of the charge against him, the method by which it may be established, the proof competent to sustain it, known to one person or to another, cannot affect the express provisions of the constitution if they are applicable to the case at bar. Whether the court must hear testimony from witnesses, or whether it has within its own judicial cognizance the knowledge sufficient to predicate a judgment of defendant's guilt, can make no difference in the constitutional rights of the defendant under this section of the Bill of Rights. But this question is not left without precedent. This question has also been settled in this state, and settled against the defendant. I have been referred to the case of Lowe v. The State, in the 9th O. S., 337. The section of the statute under which that proceeding was begun and prosecuted to a termination, embodied the provisions of section 5639, as we now have them in the Revised Statutes of Ohio, and also sections 5640 and 5641 of said statutes. The provisions of section 5641 as thus involved in the case of Lowe v. The State, require that a charge in writing should be filed in proceedings which would now be brought under section 5639 as well as under section 5640. That was the simple requirement of the statutes, and the only holding of the court in that case was that a charge in writing against the defendant spread upon the journal of the court was necessary at some time in that proceeding, and that the defendant have an opportunity to answer thereto and to be heard thereon. Since that decision the subject-matter of the provisions of that section have been divided into separate sections, as I have already referred to. Section 5639, under which this proceeding is brought, is one of them, providing for the summary punishment for contempt. The balance of the section, as far as the subject matter of the contempt is concerned, is provided for in section 5640, which provides that the following acts may be punished as for contempt:

1. Disobedience of, or resistance to, a lawful writ, process, etc. 2. Misbehavior of an officer of the court.

3 Failure to obey a subpoena duly served.

4. The rescue, or attempted rescue of a person or of property in the custody of an officer.

5. Failure upon the part of a person recognized to appear as a witness in any court, etc. Section 5641 embodies the remainder of this section which was under consideration in the case of Lowe v. The State, and provides as follows:

"In cases under the last section, a charge in writing shall be filed with the clerk, an entry thereof made upon the journal, and an opportunity given to the accused to be heard, by himself or counsel; but this section shall not be so construed as to prevent the court from issuing process to bring the accused party into court, or from holding him in custody, pending such proceedings."

And at the time of the institution of the proceedings at bar, there was no statutory requirement that a charge in writing should be filed in cases coming undre section 5639, and this renders entirely inapplicable to the case at bar that of Lowe v. The State. But all that was held in that case was that a charge in writing must be filed, while section 14 of the Bill of Rights requires an affidavit. I take it that if the constitutional provisions apply to this class of cases at all, it applies in all its terms and all its provisions; and would not be a compliance with the provisions of that section to file a complaint not sworn to or not supported by an affidavit.

I think that counsel for the defendant, when they conceded that the summary process of contempt might in some cases be exercised by the court without affidavit and without information, covered the whole ground of their objection. But this question was involved in the case of Steube v. The State of

In re The State of Ohio v. Post.

Ohio, decided in the 2d circuit court, to which reference has already been made. In that the complaint was filed, it is true, by an attorney caused to be appointed by the court; but it was simply a charge spread upon the journal of the court, and was not supported by affidavit, and had none of the characteristics of an information as we understand that term to require. It certainly did not comply with the requirements of the 14th section of the Bill of Rights, that there should be an information supported by affidavit. The question was raised in that case, that the complaint for this reason was defective, and the court had no jurisdiction over the defendant or the subject-matter. The circuit court upon that sujebct say: "We are of the opinion that the demurrer was not well taken; and indeed no serious objection is urged to the complaint except that it was not sworn to. The practice in other states may require affidavits to be filed in proceedings in contempt; but in this state, if in a case of this kind any complaint at all is necessary, which we do not decide, this was sufficient."

Further, they say: "An examination of the statute of 1834, Swan's Statutes of 1841, page 211, and comparing them with the present statute, would seem to show that no complaint is necessary."

Referring again to the case of Myer v. The State, we find the contempt proceeding in that case was instituted before the same judge before whom the proceedings in Steube v. The State was tried. The complaint in the Myer case was drawn by the same counsel who drew the complaint in the case of Steube; and the recitation in that case is, that the complaint was presented by counsel especially appointed by the court for that purpose, alleging certain matters as contempt against the defendant. The answer of the defendant was as to the jurisdiction of the court over such matters; and the contention of the defendant in his error proceeding was that the court had no right to issue the attachment against the defendant below and pronounce sentence.

The matters charged as contempt in the case of Steube and the case of Myer occurred substantially at the same time, and during the trial of the same case, and before the same judge, at the same term of court in Franklin county; and the complaint in each case was drawn and filed at substantially the same time: and it is apparent that the charges in the two cases are substantially the same.

With these holdings by the courts of our own state, the question songht to be made as to the sufficiency of the charge in this case is not an open question, but determined against the defendant. It is claimed, however, by the defendant, that the case of Myer v. The State does not apply, because Myer was a party to the action then on trial. That is an error. Myer was not a party to the case on trial. It was a criminal proceeding against Montgomery, and Montgomery was the only party on trial; and Myer was not a party to that suit in any sense of theword so that it bound or affected him in any manner whatever. And so far as the record discloses, he was not even a witness in the case. In the other case, Steube was not a party in the action which was on trial. He had been a witness called in the case by the defendant and his testimony taken; and for all that appears, his connection with the case then ended. Sufficient to say, however; that their relationships to the cascs, beyond the transactions out of which the contempt proceeding grew, were not commented upon by the court. It would seem, however, that if any person was to be privileged to criticize a court, it would be a person who had some direct interest at stake inthe proceeding, and was affected thereby, and not an entire stranger to the transaction, and one purely a volunteer in the cause.

Punishment for contempt has never been limited to parties to an action pending in the court which is the subject of the contempt. This is altogether too narrow a view of the doctrine of contempt, whether the proceedings are instituted under section 5639 or section 5640 of the Revised Statutes. The case of The State v. Goff, Wright's Reports, 78, settles this doctrine as to cases under section 5639; and the case of John Dempsy v. The Bank Street Railroad Company et al., decided by this court in 1889 and affirmed by the circuit and supreme