Fisher v. McDaniel

Potter, Chief Justice. Upon the petition of Belle Fisher, claiming to be unlawfully imprisoned in the jail of Carbon County by the sheriff of that county, a writ of habeas corpus was allowed by one of the justices of this court and made returnable before the court. The case was heard upon the petition, the return, plaintiff’s reply thereto, and briefs of counsel. The return embraces the record of the proceedings resulting in the ■ order for plaintiff’s imprisonment, and attached to the reply is a certified copy of the testimony. It appears that one Martin W. Foley was being tried in the district court of Carbon County, on the charge of murder, from the 9th day of July, 1900, to the 14th day of that month inclusive. On the last-named date the county and prosecuting attorney presented an information charging that the petitioner herein on the 12th day of July, 1900, pending the trial of the Foley case, corruptly approached two of the witnesses for the State and attempted to bribe them to testify falsely in said case, and praying that she be ordered to appear and show cause why she should not be punished for contempt of court. To the information thus presented were attached the affidavits of the witnesses alleged to have been corruptly approached. An order was thereupon entered requiring the petitioner to appear at two o’clock on the same day and show cause why she should not be punished for contempt. She appeared in obedience, to the order, and hearing — 469 — was bad. The two witnesses aforesaid were examined, and the petitioner testified in her own behalf. Upon the submission of the matter the following order was entered : “On this 14th day of July, A. D. 1900, came Homer Merrell, county and prosecuting attorney of Carbon County, and Belle Fisher in person and by attorney, and thereupon the application of said Homer Merrell to this court that said Belle Fisher be ordered to appear and show cause why she should not be punished for contempt, in attempting to bribe certain witnesses who are in attendance upon this court in the case of the State of Wyoming v. Martin W. Foley, charged with murder, was read to her. And it appearing to the court that due service of a certified copy of said application and order of court issued herein was made upon the said Belle Fisher, she, the said Belle Fisher, now voluntarily appears and files no objection or answer to said proceedings and order, and said matter coming on to be heard, after hearing all the evidence on the part of the State and the defendant, the court, being fully advised in the premises, doth find that the said Belle Fisher did, on the 11th day of July, A. D. 1900, at the city of Hawlins, in said county and State, corruptly approach and offer to certain witnesses, in attendance upon said court in the case of State of Wyoming v. Martin W. Foley, money and other valuable considerations if they, the said witnesses, would modify their testimony and falsely swear in giving their testimony in said case. “And the court doth now find the said Belle Fisher to be willfully and contumaciously guilty of such conduct and in contempt of court, and doth order, adjudge, and decree that the said Belle Fisher be fined in the sum of five hundred dollars ($500.00) and the costs attendant upon this proceeding, and that an execution issue therefor; and that the said Belle Fisher be confined in the county jail of Carbon County, at Bawlins, for the term of six (6) months. “And the said Belle Fisher is now by the court ordered — 470 — into the custody of the sheriff of Carbon County in the State of Wyoming, and that she stand committed to the custody of the said sheriff until said fine is paid and said sentence served.” The first and principal contention on behalf of the petitioner is that her alleged conduct did not constitute a contempt, and hence that the court was without jurisdiction in the premises, and its judgment void. In her petition, plaintiff charges that her offense was not alleged or proven to have been committed in th§ presence of the court, or so near thereto as to obstruct the procedure of the court; and the argument of her counsel is based upon that assumption. It is contended that an attempt to bribe a witness out of the presence of the court is not a contempt of court, but was punishable at common law as a crime, and was so punishable by statute in this State. It is not claimed that the court is without jurisdiction to punish as a contempt an act also indictable or punishable as an offense against the criminal laws, but it is conceded that the fact that an act is otherwise indictable does not deprive the court of the essential power to punish the same act as a contempt. It is, however, insisted that the offense charged against petitioner is not and never was a contempt of court. Counsel admit that the Legislature cannot, by making an act indictable, interfere with the inherent authority of a court to punish for contempt, but they argue that neither the Legislature nor the court is authorized to declare a crime to be a contempt, which has always been punishable as a distinct indictable offense at common law. It is practically conceded, if not in so many words, that the attempt to bribe a witness in the presence of the court, or so near thereto as to interrupt its orderly procedure, would amount to a contempt of court. In respect, therefore, to the question of jurisdiction, the contention of plaintiff’s counsel is confined to the proposition that the acts charged to have been committed did not occur in the presence of the court, or so near thereto as to interfere with its procedure. — 471 — The information against the petitioner alleged that her conduct complained of, occurred at the city of Bawlins, in the county of Carbon. The court was in session in that city. But the affidavits attached to the information and upon which it was founded were more specific. The witness Isherwood deposed that he was corruptly approached by the petitioner, near the courthouse, and that she proposed that if he modify his testimony in the Foley case, and swear falsely from the evidence given by him at a former trial, she would pay him three hundred dollars. According to the affidavit of the witness Stafford, he was approached by petitioner in the courthouse, and the proposition made to him was that if he would change his testimony she would do the right thing, ‘ ‘ meaning that she would compensate” the witness for so changing his testimony and swearing falsely. On the hearing, Isherwood, being asked to state the circumstances of the attempt of the petitioner to bribe him, testified as to the place where it occurred as follows: ‘ ‘ At that time I was supposed to be upstairs as a witness. I went down stairs to go to the water closet; when I got down past the corner Miss Fisher called me and I stopped.” He then related the conversation between the petitioner and himself, in which the attempt was made to induce him to change his testimony. Stafford testified that he was approached by the petitioner in the hall of the courthouse down stairs — in the corridors between the two doors — and at that place the proposition was made to him to give false testimony. Both parties were in attendance upon the court as witnesses for the State in the criminal case already mentioned. Miss Fisher denied having made any corrupt propositions to either witness; but in giving her version of the affair she fixed the place of the conversation as “down stairs here,” and again “there in the stairway,” she stated that several persons were present, and some talk ensued, which she related, and that Doctor Stafford turned aside in the little hall-way, and she had some further conversation with him there. She admitted, — 472 — however, having met Ish'erwood at the corner of the courthouse, or ‘ ‘ in ” the corner, but denied having attempted to induce him to swear falsely. In the case of Savin, 131 U. S., 267, it appeared that the petitioner had been adjudged guilty of contempt for having improperly endeavored to deter a witness from testifying in a case in behalf of the government,. the offense of petitioner having been committed once in the jury room, temporarily used for witnesses, and once in the hallway of the court building immediately adjoining the court room. The question arose whether the misbehavior {"occurred in the presence of the court. It was held that it did. The court said, “The jury room and hallway where the misbehavior occurred, were parts of the place in which the court was required by law to hold its sessibns, ’ ’ and after quoting the following from Bacon in his essay on Judicature : “The place of justice is an hallowed place; and therefore not only the bench, but the footpace and precincts and purprise thereof ought to be preserved against scandal and corruption,” the court said further: “We are of opinion that, within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors, and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court. * * * If, while Flores was in the court room waiting to be called as a witness, the appellant had attempted to deter him from testifying on behalf of the government, or had there offered him money not to testify against Gougon, it could not be doubted that he would have been guilty of misbehavior in the presence of the court, although the judge might not have been person-allv cognizant at the time of what occurred. But if such attempt and offer occurred in the hallway just outside of the court room, or in the witness room, where Flores was waiting in obedience to the subpcena served upon him, or pursuant to the order of the court, to be called into the court room as a witness, must it be said that such misbe473 bavior was not in tbe presence of the court ? —- Clearly not. ’ ’ The Savin case is strongly in point, the facts being very much the same as in the case at bar; certainly as to the attempt upon the witness Stafford. Upon the principle laid down in that case no doubt can exist but that the offense of petitioner, within legal contemplation, was committed in the presence of the court. The bribing of witnesses or jurors strikes at the very foundation of judicial determination; and the court would be shorn of much of its efficiency in the administration of justice if it possessed not the power to protect itself against such reprehensible conduct as the corrupt interference with witnesses in the very precincts of the court, where the witnesses assemble in obedience to subpoena, and while waiting to be called to give their testimony. Witnesses are not usually required to remain constantly in the court room, and if they are in the hallway, witness room if any, or about the building within easy call, the purpose of their attendance is ordinarily subserved until they are required to take the stand. When in the building in obedience to subpoena or order of court they are in attendance upon the court and subject to its order, and we are not inclined to adopt so technical a,construction of the law as would permit a person to station himself within the building where the court is held, and there attempt to corruptly influence the testimony of witnesses without fear of being punished for contempt. The argument of counsel that such conduct would not be in the presence of the court or so near thereto as to interfere with its procedure, or obstruct the administration of justice is, to say the least, unreasonable. It is moreover opposed not only by the decision of the United States Supreme Court in the Savin case, but by other eminent authorities. In Sinnott v. State, 11 Lea. (Tenn.), 281, it was held that one was guilty of contempt who approached the deputy sheriff while engaged in summoning jurors, with a list of names of persons which he endeavored to induce the deputy to summon as jurors; and also approached — 474 — another deputy and sought to induce him to summon a certain person upon the panel to the sheriff unknown; although neither of said acts were committed in the courthouse, or in the actual presence of the court. The statute provided that a ‘ ‘ willful misbehavior of any person in the presence of the court, or so near thereto, as to obstruct the administration of justice,” is a contempt, and also that an abuse of or unlawful interference with the process or proceedings of the court is a contempt. The court said: “The attempt of defendant to induce the officers of the court to summon as jurors in the particular case then to be tried, certain persons specified by him in preference toothers, or, in common parlance, to ‘pack’a jury, was an unlawful interference with the proceedings of the court within the purview of said provisions, and was a contempt for which he was punishable by the court. Nor was it material that it was not within the courthouse, or in the immediate presence of the court.” In the case of Brule, 71 Fed., 943, the accused was charged with having by the use of money, persuaded another to conceal and hide himself and absent himself from court, to avoid the service of a subpoena upon him, and thereby prevented the government from using him as a witness upon a criminal trial. He was adjudged guilty of contempt, and it was held that the act was punishable as a contempt, though it was done at the residence of the witness, at some distance from the courthouse, in the town where the court was sitting, on the ground that it constituted a misbehavior so near to the court as to obstruct the administration of justice. The learned judge stated in the opinion that had the particular misbehavior charged occurred anywhere within the building where the court was held, it would have been misbehavior in the presence of the court, and added, “ If it is a contempt to bribe a witness in front of the courthouse door, is it not a contempt to do the same thing on the street opposite the court building, or four blocks away? Is not the result the same? Is not the motive of the — 475 — accused the same ? What difference does it make whether' the attempt was made on the ground owned by the United States, or at the residence of the witness in the same town, four blocks, or about one quarter of a mile away, from the court building ? In one case the misbehavior would be construed to be in the presence of the court, and in the other ‘ so near thereto as to obstruct the administration of justice,’ and the statute, in clear language, is made to apply to both cases.” See also Cuddy, Petitioner, 131 U. S., 280; Montgomery v. Circuit Judge, 100 Mich., 436; Langdon v. Wayne Circuit Judges, 76 Mich., 358; Hale v. State, 55 O. St., 210; Steube v. State, 3 O. Cir. C., 383. In Hale v. State, the party adjudged to be in contempt had, by promising to pay the expenses of a witness, who had been subpoenaed, induced her to leave the county, and thereby prevented her appearance as a witness at the trial of a criminal case. The act was held to be a contempt of court and punishable as such, notwithstanding that it was by statute constituted a distinct criminal offense, and that no express provision of the statute made the statutory punishment cumulative. It is well settled that if an act is a contempt of court, the fact that the same act is indictable as a criminal offense, does not take away the jurisdiction of the court to punish the offender as for a contempt. We understand this general principle to be conceded, while it is contended that a different rule governs this case. We do not think so. The case comes fairly within the general doctrine, and we apprehend that enough has been said to render further discussion unnecessary. It is insisted that as Section 5087 of the Revised Statutes, providing for the punishment as a misdemeanor of one guilty of disobeying a subpoena, expressly states that it shall not prevent summary proceedings for contempt, while Section 5088 contains no such reference to contempt proceedings, and is not therefore expressly rendered cumulative, the remedy under the last-named — 476 — section for the acts covered thereby is sole and exclusive, and deprives the court of the power to punish such acts as for a contempt. Under similar statutory provisions the contrary was held in Hale v. State, 55 O. St., 210, upon facts already alluded to in referring to that case. The statute in question (Sec. 5088) provides that “whoever corruptly or by force or threats or threatening letters, endeavors to influence, intimidate, or impede any juror, witness, or officer in the discharge of his duty; or by threats or force obstructs or impedes, or endeavors to obstruct or impede, the due administration of justice in any court of this State, shall be fined not more than one thousand dollars, to which may be added imprisonment in the county jail not more than sixty days nor less than ten days.” The act of petitioner clearly amounting to a contempt, bearing in mind the general rule above adverted to that making an act indictable as an offense does not invade the powers of a court to punish for contempt, we are not disposed to hold that petitioner was liable to be proceeded against only under Section 5088. The power to punish for contempts m facie curiae is inherent in all courts of superior jurisdiction. Legislative authority is not required for its existence or exercise. In this State indeed there is no statute conferring the power in such a case as the one at bar. We are clearly of the opinion that Section 5088 is not exclusive, and that where the act amounts to a contempt, it may be punished as such. The judgment of the court was that the petitioner be fined in the sum of five hundred dollars, and be imprisoned in the county jail for the term of six months; and she was ordered into the custody of the sheriff and to stand committed until the fine is paid, and the sentence served. The term of imprisonment specified in the order has been served, and the petitioner is in custody for non-payment of the fine. It is contended that as to imprisonment for the fine, the sentence is indeterminate, — 477 — and therefore void. The argument is that we have no statute applicable to contempt cases prescribing the period of imprisonment for non-payment of a fine; and that the statutes controlling that matter in the case of crimes do not apply where the sentence embraces both fine and imprisonment. Section 5195, Revised Statutes, provides that “Any court shall have power, in all cases of conviction when any fine is inflicted, to order, as part of the judgment of the court, that the offender shall be committed to jail, there to remain until the fine and costs are fully paid, or otherwise legally discharged.” It is provided by Section 5200 as follows : “Any person committed to jail for non-payment of fine or costs or both, may be imprisoned therein until such imprisonment, at the rate of one dollar per day equals the amount of such fine or costs, or both, as the case may be, or the amount shall be otherwise paid, or secured to be paid, when he shall be discharged.” It is apparent that the contempt for which petitioner was tried and convicted is criminal in its nature. Some difficulty has arisen out of the attempt to classify con-tempts, but petitioner’s conduct was a direct contempt,— a contempt in facie curiae, and comes squarely within the class of criminal contempts. The offense being of a criminal character, we think it clear that the statutes empowering the court in all cases of conviction when any fine is inflicted, to order the offender to jail, and committed prescribing the method or rate for determining the period of imprisonment for non-payment of the fine, are applicable. In re Whitmore, 9 Utah, 441; 35 Pac., 524. Some California cases are cited upon the proposition that where the sentence imposed comprises both fine and imprisonment, the statute authorizing the court to direct imprisonment at a prescribed rate per day for non-payment of the fine is inapplicable. In re Rosenheim, 83 Cal., 388; 23 Pac., 372. The statutes of Utah having been borrowed from California, the construction placed — 478 — upon them by the courts of the last-named. State is followed in Utah. Roberts v. Howells, Sheriff, 62 Pac., 892. The reason for that construction is found in the peculiar language of the various statutory provisions, and it was held that the Legislature had failed to provide for the case of a sentence where a definite term of imprisonment, and also a fine coupled with imprisonment until its payment, has been imposed. Under a statutory provision quite similar to that of California a contrary view is held in Iowa. State v. Myers, 44 Ia., 580. See also In re Beall, 26 O. St., 195. But our statutes do not follow the phraseology of the California and Utah Statutes, and the decisions in those States are not controlling. In re McDonald, 4 Wyo. 150. Counsel maintains that Section 5200 was enacted to make definite and operative Section 5199 and with sole reference thereto. Section 5199 provides that in the event of a sentence to pay a fine and costs, or to imprisonment and costs, the court may direct that in case of non-payment the defendant be put to work either in or without the prison until such fine and costs shall be paid. A mere reference to the statutes as originally enacted will serve to demonstrate the unsoundness of counsel’s position. Section 5200, or rather the provision for which it was afterward substituted, was enacted in 1869 as a part of the criminal code, and provided that whenever a fine shall be the whole or part of a sentence, the court may, in its discretion, order the person sentenced to be confined in the county jail, until the amount of the fine and costs be paid. The Crimes Act of 1890 repealed that provision, and in its stead embraced Section 5200 in its present shape except that the rate was fixed at one dollar and fifty cents per day, and imprisonment was limited to sixty days, which was changed by the succeeding Legislature to one dollar per day, and the limitation as to time omitted. The provision found in Section 5199, however, was not enacted until 1873. (See Comp. L., 1876, p. 168.) And the Crimes Act of 1890 allowed Section — 479 — 5199, then Section 3332, of the Key. Stat. of 1887, to remain undisturbed. Hence it is apparent that the two Sections 5199 and 5200 were not originally so connected as to require the latter to be construed solely with reference to the former. But Section 5200 does not contain the only provision authorizing imprisonment, for non-payment of a fine. The language of Section 5195, which was Section 1063 of the revision of 1887 is sufficiently general to include the case of a fine, whether it be imposed as the whole or only part of a sentence. ‘ ‘Any court shall have power, in all cases of conviction when any fine is inflicted, to order” that the offender be committed. We perceive no reason for holding that this language refers only to a case of fine disassociated from a sentence for a definite term of imprisonment. It embraces all cases of conviction when any fine is inflicted. We are of the opinion that it clearly covers a case where the sentence embraces both fine and imprisonment. The sentence is not, in our judgment, indeterminate, since the statute fixes the rate at which such a sentence is to be executed by imprisonment. It is claimed that the sentence violates Section 14 of Article 1 of the Constitution which prohibits the imposition of excessive fines, and the infliction of cruel and unusual punishment. It may be said to be fairly well settled that constitutional provisions as to cruel and unusual punishments, are aimed more at the form or character of the punishment rather than its severity in respect to duration or amount. 8 Ency. L. (2d ed.), 440; In re McDonald, 4 Wyo., 150; State v. Becker, 3 S. Dak., 29. But we are not prepared to decide absolutely, nor is it necessary that we do so, that a term of imprisonment or a fine provided by statute or the judgment of court could not in any case be held to be cruel or unusual, although entirely disproportionate to the offense committed. In the case in hand the punishment is certainly neither cruel nor unusual in respect to its character. If it violates the constitution, it is because the fine imposed is an excessive one. But it is evident that much latitude must be — 480 — accorded the Legislature in prescribing the degree of punishment for crime, as well as to the courts in imposing sentence; and that to be held excessive in any case it should be so out of proportion to the offense as to shock the moral sense of the people, or as said in State v. Becker, supra, “so excessive or so cruel as to meet the disapproval and condemnation of the conscience and reason of men generally.” In that case it was said further that a punishment would not be interfered with as cruel or excessive, ‘ ‘ except in very extreme cases, where the punishment proposed is so severe and out of proportion to the offense, as to shock public sentiment and violate the judgment of reasonable people. ’ ’ Counsel have referred to the statutes of some other States limiting the penalty in cases of contempt. It is to be observed therefrom that quite a difference exists between them, from a fine of $80, and imprisonment for thirty hours in Kentucky, to a fine of $500, and five days’ imprisonment in California, six months’ imprisonment in New York, and a like term in Wisconsin, and until costs and expenses are paid. We have not taken occasion to investigate the statutory limitations in States not mentioned in the brief of counsel. The sentence imposed in the Savin case, supra, was one year’s imprisonment. While in the case of petitioner, the sentence is severe, and doubtless intended to be so, we cannot say that it is altogether disproportionate to the offense, and so cruel or excessive as to meet or merit the condemnation of a reasonable public sentiment. The corrupt attempt to influence the testimony of witnesses in a pending trial, in the building where the court is in session, and the witnesses are assembled, certainly calls for punishment such as may properly be inflicted in. case of a flagrant misdemeanor. The trial court had the parties before it, and moreover the matter is not before us on error. The court otherwise having jurisdiction, the sentence must be so excessive, before we could interfere on habeas corpus, as to clearly violate the constitutional provision, and be, for that reason, utterly void. — 481 — The other matters urged in support of petitioner’s application for discharge are such as go merely to the regularity of the proceedings, and do not affect the validity of the judgment. Mere errors of law, if any, are not reviewable in this proceeding, as habeas corpus does not take the place of a proceeding in error. For the reasons given we are of the opinion that the court had jurisdiction in the premises, and that its judgment is not void. The petition will be dismissed. Corn, J., and Knight, J., concur.