Lindsley v. Superior Court

This is an application for a writ of certiorari to review the judgment of the Superior Court of Humboldt County adjudging the defendant guilty of four separate and distinct contempts of court and imposing sentence therefor. The petitioner was adjudged guilty of four distinct contempts of court and sentenced to pay a fine for each separate contempt, or, in default thereof, to be im

After the making and filing of the affidavit just herein referred to and the presentation of the same to the court, the court made and entered its order reciting that upon reading and filing of the affidavit, and good cause appearing therefor, it was ordered that the said Alfred Lindsley be and appear before said court at 10 o’clock on the thirtieth day of October, 1925, then and there to show cause, if any he had, why an order and judgment of the court should not be made adjudging him guilty of contempt. This order and affidavit were served upon the petitioner. At the time set in the order to show cause the petitioner appeared with his counsel, and, upon the calling of the case, first filed a motion to quash each of the four counts set forth in the affidavit, specifying a number of grounds therefor: (1) That the court had no jurisdiction to issue the order to show cause, etc.; (2) that the acts, facts, and things specified did not constitute a contempt of court. Upon the denial of this motion the defendant and petitioner herein then filed a demurrer raising the question of jurisdiction and setting forth in the demurrer specifically the same grounds as contained in the motion to quash; that none of the counts

[2] It is now contended that the judgment of the court is void, by reason of the fact that no further evidence was offered in the ease, that there was nothing before the court except the affidavit and the order to show cause, to which we have herein referred, that testimony should have been taken, and, in substance, that the court was without jurisdiction to pronounce judgment without first proceeding to take testimony.

This proceeding was instituted under the second paragraph of section 1211 of the Code of Civil Procedure, which specifies that “when the contempt is not committed in the immediate view and presence of the court, or judge at chambers, an affidavit shall be presented to the court, or judge, of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officer.” Section 1212 of the Code of Civil Procedure then directs that a warrant of attachment or an order to show cause shall be issued. In this case the affidavit was filed and then an order to show cause was issued. Coming to section 1217 of the same code, we find: “When the person arrested has been brought up or appeared, the court or judge must proceed to investigate the charge, and must hear any an

[3] It must be borne in mind, also, that the affidavit upon which such an order to show cause is based must set forth the facts constituting the contempt in order to give the court jurisdiction to proceed; not merely the ultimate facts, but the facts themselves, showing acts specifically constituting the contempt. In this particular the affidavit differs from the formal language ordinarily found in an information or indictment. The affidavit, in itself, in a • contempt proceeding must be evidentiary in character in order to show the contempt alleged and lay a basis for the proceeding. As stated in Frowley v. Superior Court, 158 Cal. 220 [ 110 Pac. 817 ], “in proceedings for constructive contempts of court, that is, contempts committed without the presence of the court, the affidavit which is made the basis for the proceedings should show upon its face the acts which constitute a contempt. The affidavit constitutes the complaint, and unless it contains a statement of the facts which show that a contempt has been committed the court is without jurisdiction to proceed in the matter.” (See Strain v. Superior Court, 168 Cal. 216 [Ann. Cas. 1915D, 702, 142 Pac. 62 ]; Mitchell v. Superior Court, 163 Cal. 423 - [ 125 Pac. 1061 ].)

“A party charged with contempt has the same inalienable right to be heard in his defense, especially in instances of mere constructive contempt, as he would have against the charge of any other crime. And in the proceeding for such a contempt, an issue is made up by the affidavit and answer, witnesses are called and examined and a trial is had as in other cases. While affirmative allegations contained in an affidavit of the defendant in contempt proceedings for the disobedience of an injunction cannot be deemed established without a trial to determine the issues so joined, yet the production of witnesses may be waived in such proceedings and the party may consent to try the case on the evidence” (5 Cal. Jur. 943, sec. 40). As to what the record should show, we find the following in 13 C. J., page 82: “The

“The petitioners allege, and the allegations are not denied, but are supported by the record, that the court adjudged the accused guilty upon the affidavits and answers ‘without proof or evidence, ’ without an investigation of the charge, and without a trial or a hearing. Though sufficient facts are alleged to constitute a constructive and criminal contempt and though the person charged therewith stands mute, still the court under the statute may not treat such allegations as confessed, and upon them pronounce a judgment of conviction. The court nevertheless is required ‘to investigate the charge. ’ It no doubt may, without proof or evidence, pronounce such a judgment if a plea of guilt or an answer equivalent thereto is entered.” While citing from this case, in considering the point relied upon by the petitioner, we may also quote therefrom the following statement, sustained .by a long list of authorities there set forth, to wit: “The authorities are almost, if not quite, unanimous that, if any act or conduct of any publication is ‘ calculated to intimidate, influence, impede, embarrass, or obstruct the courts in the due administration of justice in matters pending before them,’-it constitutes a contempt of court. Moreover, it is also frequently stated in the eases that if any wilful act or conduct, or any publication, has a tendency to prevent a fair trial, or tends to prejudice the public or jurors against an accused person on trial for an offense, or

It will be observed that the opinion of the court in the Herald-Republican case was based upon the predicate that an answer had been filed to the affidavits presented to the court charging contempt; that every allegation contained in the affidavits was denied save and except the mere fact of publication. The trial court held that the fact of publication being admitted, carried with it all the other acts, including the intent necessary to constitute contempt and admitted of no other proof in the case. It is also stated, after quoting the language that the court is required to investigate the charge: ‘ ‘ and nothing short of a plea of guilty, or its equivalent, will justify a judgment of conviction without evidence, and without an investigation of the charge.”

In Zobel v. People, 49 Colo. 142 [ 111 Pac. 846 ], the proceedings were identical with those in the case at bar. Upon the return day or order to show cause, the defendant first presented a motion to quash, which being denied, he filed a; demurrer, which, being overruled, from the language of the opinion, “no desire was manifested by the defendant in the contempt proceedings to plead, and no request was made for leave to make any answer or further return than the motion to quash or demurrer already referred to.” The court thereupon adjudged the defendant guilty of contempt. The court then proceeds.to consider the provisions of the Colorado code relating to contempts, which provisions are almost identical with those contained in our Code of Civil Procedure, and then says: “When defendant presented himself in court in response thereto, instead of making an answer denying the facts set up in the affidavit on which the entire proceeding for contempt was based, and without asking to have witnesses examined or evidence heard, and without making any showing at all in .opposition to the affidavit, he filed a motion to quash the proceedings, which, in more than one particular, is a general demurrer. It was overruled. The court was ready to proceed with the investigation. No request was made by the defendant to plead over, or to answer the affidavit further. There was no denial of defendant’s alleged

[6] This court has already held that the facts alleged in the affidavits upon which the proceeding for contempt was based are clearly sufficient to show wilful contempt within the foregoing rule (discussing the rule relating to publications tending to embarrass the proceedings pending in court, etc.). It is also there held by this court that it is not necessary to show that the jurors, or prospective jurors, actually read the article so published. In the Matter of Application of Lindsley for a Writ of Habeas Corpus, 75 Cal. App. 122 [ 241 Pac. 934 ], where the petitioner’s application for discharge on a writ of habeas corpus was denied, the rule is also well settled that, upon proceedings in certiorari, the evidence cannot be reviewed in so far as it affects or applies to the merits of the ease; it can be considered only for the purpose of ascertaining whether there was proof of the jurisdictional facts alleged in the affidavit. (Strain v. Superior Court, 168 Cal. 216 [Ann. Cas. 1915D, 702, 142 Pac. 62 ]; Rotating v. Superior Court, 191 Cal. 501 [ 29 A. L. R. 127 , 217 Pac. 73 ];. Livingston v. Superior Court, 117 Cal. 633 [ 38 L. R. A. 175 , 49 Pac. 836 ].)

As analogous to the proceedings had in this case, we may refer to the provisions of the Penal Code and also to the common law applying to ordinary criminal cases where a like situation is presented. Section 1011 of the Penal Code reads: “If the demurrer is disallowed, the court must per

In 7 Cal. Jur., page 993, section 130, the procedure followed in this case is set forth as proper. In the case of Mitchell v. Superior Court, supra, the supreme court, in considering whether further proof was necessary to support a certain allegation in the affidavit setting forth contempt, in the absence of a denial of the allegation, ruled as follows: “It is not necessary, however, to determine these matters, because the undenied allegation of defendant’s presence at the time of the making of the order rendered the showing of service of notice upon him entirely unnecessary.” As said in the case of Herald-Republican Co. v. Lewis, supra, if what was done by the defendant amounted to a plea of guilty or admission of everything charged in the affidavit, then, and in that case, the trial court was authorized to proceed and render judgment. If the procedure provided by the Penal Code that may be followed in cases which are criminal cases in every sense of the term and where the punishment may be more severe than that allowed in the present case is applicable, then the procedure of the trial court in the case at bar must be approved.

[7] We are of the opinion that when the defendant came into court in response to an order to show cause why he should not be adjudged guilty of contempt for having done and performed the acts charged in the affidavit, filed his motion to quash and then his demurrer thereto, and, after an adverse ruling on both his motion and his demurrer, announced that “he rested his case without putting anything before the court,” he did those.acts which amounted to an admission of guilt, or plea of guilty of whatever was charged against him in the affidavit, and if the affidavit set forth facts showing contempt, then, and in that case, upon an investigation of the affidavit and consideration of the facts therein alleged, which were alleged under oath, the court, if satisfied beyond a reasonable doubt that the defendant was

[8] It has been argued that only one contempt was committed; that the several acts committed upon different days in the different articles published upon different days do not constitute different contempts, but if contempt at all, only one contempt was committed. This, however, is not the law. In Oates v. United States, 223 Fed. 1013 [ 139 C. C. A. 389 ], it is said: “Where it consists of separate acts of disobedience to an injunction, the sentence should not be imposed generally for all offenses; but the punishment for each offense should be specified so that it can be reviewed on appeal.” In Gompers v. Buck, Stove & Range Co., 221 U. S. 418 [ 34 L. R. A. (N. S.) 874 , 55 L. Ed. 797 , 31 Sup. Ct. Rep. 492 , see, also, Rose’s U. S. Notes], it is further said: “A decree adjudging each defendant guilty of the independent acts set out in the separate paragraphs of a petition charging them with contempt of an injunction order, and consolidating sentence without indicating how much of the punishment was imposed for the disobedience in any particular instance, should be reversed if it appears that the defendants have been sentenced on any charge which, in law or in fact, does not constitute a disobedience of the injunction.” This rule is approved in 13 O. J., page 82, as follows: “Thus, where a defendant is found guilty of separate acts constituting contempt, judgment must be pronounced separately for the separate contempts.” In the case at bar each publication is charged separately and in different counts of the affidavit, constituting a separate and distinct offense, for which the court was authorized to pronounce judgment, the contempt sufficiently appearing, as we have heretofore considered. [9] The petitioner not having had imposed upon him a fine for any of the contempts of which he has been adjudged guilty in excess of the amount

It follows from what has been said that the petition for a writ of review herein must be and the same is hereby denied.

Hart, J., and Finch, P. J., concurred.