Belangee v. State

Reese, C. 3: This is a proceeding in error to the district conrt for Donglas county in a case where plaintiff in error, who will hereafter be referred to as defendant, was found guilty of contempt of court in an attempt to corrupt a juror in a case on trial in said court. As shown by the transcript, the proceeding was inaugurated by the filing of an information by the county attorney charging the accused with the specific offense. The charge contained in the information constitutes a constructive criminal contempt; that is, that the act, consisting of an attempt to bribe a juror, was not committed in the presence or hearing of the court, nor near the court when and where it was in session. The information was filed without any previous proceedings. It is in the exact form of an information in-a criminal prosecution, with the exception that at its close it is alleged that the acts committed were “contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Nebraska, and in contempt of said district court and its dignitya phrase not essential to the validity of a charge either in an ordinary criminal prosecution or a prosecution of this character. It is claimed that the verification. of the information is not sufficient, for the reason it is not positively sworn to; the recital in the affidavit being that “the.facts set forth in said information are true, to the best of my knowledge and belief.” After the filing of the information, defendant raised the question of jurisdiction by proper motions, objections, and exceptions, all of which were'overruled, when he entered his plea of not guilty, with a general denial of the allegations of the information. A trial was had to the district conrt resulting in finding defendant guilty as charged in the information. A motion for a new trial was filed and overruled, also a motion in arrest of judgment was filed, and which also was overruled, when defendant was sentenced to pay a fine of $500 and to be [186] imprisoned in the county jail for a period of six months and to pay the costs of prosecution. The case is now here for review; one of the contentions being that the court was without jurisdiction to hear the case or render any judgment. Upon the question as to the verification of the information, it has been held in this state that the affidavit required in cases of contempt is jurisdictional. Gandy v. State, 13 Neb. 445; Ludden v. State, 31 Neb. 429; Hawthorne v. State, 45 Neb. 871; Herdman v. State, 54 Neb. 626. In this case the information, filed by the county attorney, must be taken as the affidavit upon which the jurisdiction depends. There were two other affidavits presented to the judge, which he delivered to the county attorney, as shown by the bill of exceptions, but they do not constitute any part of the basis of the prosecution. In fact, in so far as the information is concerned, they are ignored. The affidavit of verification was made by the county attorney. We know of no rule of law requiring the affidavit to be made by him, nor do we find any provision or decision making it his special duty so to do. The affidavit must be treated the same as if made by any private person. It is the settled law that “the affidavit must state positive knowledge; if on information and belief, it is insufficient.” Herdman v. State, supra, citing Ludden v. State, supra, Gandy v. State, supra; Freeman v. City of Huron, 8 S. Dak. 435; Thomas v. People, 14 Colo. 254; 4 Ency. Pl. & Pr. 779, 780. As we have seen, the affidavit, or information, was not sworn to in the positive form. In other words, it did not state “positive knowledge” of the facts charged in the body of the information. To state that the facts are true to the best of one’s “knowledge and belief” falls far short of the statement that the affiant knows them to be true, which is essential in a charge of contempt. This want of jurisdiction was urged from the beginning to the end of the proceeding. The law governing the verification of informations in criminal prosecutions is upon an entirely different basis. It is required that the charge be made by the prosecuting attorney, after a pre [187] liminary examination in which the facts are established, often by a great number of witnesses testifying to separate and distinct facts consisting of circumstances, which would be impossible if personal knowledge by the prosecutor was required. In such cases the accused party is entitled to a jury trial, the jury, and not the court, deciding all questions of fact, but this is not true in contempt proceedings. The law seeks to protect the citizen from such prosecutions unless some one make thé charge upon his personal knowledge, when the case is brought before the court, heard and decided by the court, not by a jury, and in a summary way disposed of. The law upon that subject, as declared by the courts, is reasonable — a necessary and just protection to the person charged. The statement in an affidavit of verification refers to the charges contained in the body of the affidavit, and by which they are modified to the same extent as if the same language accompanied each statement of fact. Under averments and affidavits of the kind before us, it would be difficult, if not impossible, to convict any one of perjury in making the affidavit and charge, however false they might be.. The defense that the affiant believed the statement to be true according to the best of his knowledge would be an absolute defense in a prosecution for perjury. As said by Judge Maxwell in Ludden v. State, supra: The court is not informed “upon what grounds” the affiant “based his belief. His informant may have been a ‘busy-body’ who meddled in the affairs of others without knowledge or judgment, and his belief may have been based on the idle statements of those who knew nothing of the matter.” It is very clear that the charge made against the defendant was not sufficient, and the objection to the jurisdiction should have been sustained. The judgment of the district court is reversed and the proceedings dismissed. Reversed and dismissed. Rose, J., dissents.