State v. Meese

The following opinion was filed June 4, 1929: Fowler, J. It is contended by the State that the motion is not properly before the court because brought by appeal instead of writ of error. Cases decided prior to passage of ch. 333, Laws of 1927 (sec. 358.13, Stats.), are cited in support. The cases, however, are inapplicable in view of this statute, which provides that “In all cases in which a writ of -error is authorized . . . in a criminal case” the party entitled to the writ may “take an appeal” as was here done. As the defendant was adjudged guilty of a “criminal contempt” the case falls within this statute. It is conceded by appellant’s counsel that a clear case of perjury is punishable by the court in whose presence it is committed as a criminal contempt, but strenuously urged that this is not a clear case. There is much force to their argument. Were we sitting as a trial court instead of a court of review, we might incline to find the defendant not guilty. The proof must be “beyond a reasonable doubt.” State ex rel. Rodd v. Verage, 177 Wis. 295, 316, 187 N. W. 830. The power to punish for contempt is to be used but sparingly. It should not be used arbitrarily, capriciously, or oppressively. State ex rel. Schmidt v. Gehrz, 178 [459] Wis. 130, 189 N. W. 461. But it is also the law that this court will “not reverse a proper order in such a case except in a plain instance of mistake or abuse of power.” Warren v. Rosenberg, 94 Wis. 523, 69 N. W. 339. As a general rule, “a reviewing court in contempt proceedings will not consider pure questions of fact.” And “although it has been held that the findings of the lower court in contempt, proceedings are not conclusive on appeal,” the “appellate court will give the same force to the trial court’s findings in cases of contempt as in other cases where there is a conflict in.the evidence, and where there is evidence tending to show the guilt of the defendant a finding of guilty will not be reviewed.” Rubin v. State, 192 Wis. 1, 211 N. W. 926. Here the fact of the false swearing is plain, as is the fact that it operated as an “obstruction of the administration of justice,” for a good part of two days were consumed mostly in demonstrating the falsity of the statement. The “wilfulness” and “deliberateness” of the false swearing which the court found were not so positively shown, but the manner and demeanor of the witness upon the stand, which the record cannot disclose, may have had decisive weight with the trial judge upon this point. The credibility of his statement that he believed the garage storage record gave correctly the date of taking the car out of storage was affected by the statements of defendant respecting the car he used at the parade, which was in fact the Packard car, and respecting the relative time of taking out the car to the date of the Wagner “slugging” known to the defendant; and by the details given on his second examination respecting his use of the Packard car, his parking and locking of it, and his observation of it across the street at intervals during the night of the bombing. The circumstance that the defendant might readily and with absolute certainty have ascertained the correct date by inspecting the oil and labor charges connected with the car is not without force. While the fact that defendant stated on his first examination that [460] he first took the car when he changed the tires, standing alone, might be persuasive to indicate that the defendant had no purpose to conceal or deceive, we cannot say that on the whole evidence it was not overborne and that the court was not justified in finding to the contrary. It was also urged that the date of the taking of the car out of storage and the time when the defendant first drove it were not material to any issue involved in the Adler case in the trial of which the court was engaged, and that hence perjury was not committed by the defendant. But it was material to the issue involved in the inquiry to determine responsibility for the bombing. The bombing was a violation of the court’s in junctional order. The defendants were trying to show that the driver of the Adler Packard car was- guilty of the violation. It was certainly material on this issue to show that such was not the fact, and the testimony of the defendant that the car was in storage at the time of the bombing and that he did not drive it until five days thereafter negatived such fact. By the Court. — The order appealed from is affirmed.