Herald-Republican Publishing Co. v. Lewis

STE-ADP, J. We are asked to review on certiorari a record of the district court involving proceedings wherein the plaintiffs, the petitioners, were adjudged guilty of contempt; and to annul the judgment of conviction. James Hays, alias Thomas Riley, and Harry Thorne, were charged in the district court with the crime of murder, the killing of one Fassell. They had separate trials. Hays was tried first. The morning after the first day of the Hays trial, and on the 14th day of June, 1910, the Herald-Republican Publishing Company, engaged in publishing a newspaper at Salt Lake City, the place where such trial was had, published the following: [191] HATS MURDER CASE CALLED EOR TRIAL. SecoNd Panel Galled and Judge Lewis Oedees a Special Veniee oe EIety. ONE JUEOE IS ACCEPTED. Defendant Gives His True Name as Tbomas Riley. James Hays, charged with murder in the first degree for ■the killing of George W. Eassell the night of March 16, was brought before Judge T. D. Lewis in the district court for trial yesterday morning. The first panel of eight jurors was examined and only one remained in the box at 5 o’clock "when a second panel was called and sworn, and Judge Lewis ■ordered a special venire of fifty summoned for this morning. Joseph M. Silver, a building contractor, was the only juror ■accepted by both sides after examinations which lasted all day. Six of the eight jurors examined testified that they had read of the robbery of the grocery store in Eourth South street, between Sixth and Seventh East streets, in the Herald-Republican. James D. Pard'ee, appointed by the court as counsel for the prisoner, announced at the opening of court that Riley wished to give his true name as Thomas Riley, and, on order of the court, the alias of James Hayes was changed. Riley sat beside his counsel all through the court sessions yesterday, displaying interest in the examination of the talesmen, and paying close attention to the questions and answers, although making comment to his counsel on rare occasions. He was not handcuffed, although Deputy Sheriffs Andrew Smith, Jr., and Richard Eddington took turns sitting beside him. IMPLICATED BY EILEY. Riley is charged as being one of the three men who held up the grocery store at the time George W. Eassell was killed, but the state does not expect to show that he was the man who fired the fatal shot. Harry Thome, who was arrested with Riley, has confessed that he fired the shot which killed Eassell, and this confession implicated Riley as the [192] man who was with, bim at the time. Another man known as “Curly/’ who made up the trio of robbers, escaped, and to date has not been captured. The confession of Thome, which was made the day after the murder, will be prominent in the trial, this confession reading as follows: “Salt Lake City, Utah, March 27, 1910. “Confession of Harry Thorne of the Murder of G. W. Fas-sell on the Night of March 26, 1910. “Hays and myself and a man named Curly, whom I had, not met before, left the room about 7:30 p. m., intending to hold up the first place that looked good. We went into the store, which you say is Fassell’s. Hays stood about half way along the counter, facing the butcher. We told them to hold up their hands. The butcher held his up high, but Fassell did not hold his up high enough, or fast enough, and' as I was trying to get them together near the north end of the counter, the butcher ran through the back, and I put the gun against Fassell’s side to hurry him up, and it went off. After shooting Fassell I took some money out of the-cash register. Curly had taken some money before I got to it. “The pencil sketch of the store signed by me is about correct. [Signed] Harry Thome. “Witnesses: S. M. Barlow, J. J. Roberts, H. F. Wilson,. R. F. Golding, George Chase.” The murder of Fassell was the chief topic of conversation for many days, because of the general popularity of the young groceryman, who at the time of his death, was secretary of the Retail Merchants’ Association and also prominent in the Phillips Congregational Church. He was engaged to marry Miss Bessie Worthen of 566 East Tenth South street, and had a wide circle of friends and acquaintances. ARRESTED AT THE ANGKELUS. Riley and Thorne were arrested at the Angelus rooming house within a half hour after the murder by Detective [193] George Sheets, Chase and Schultz and S. M. Barlow, chief of police. The detectives had been warned that the gang of criminals had come from Ogden to Salt Lake and were quartered at the rooming house, and earlier in the evening they had called there for the purpose of taking them in on general principles and getting them moved out of town on floaters. Not finding their men, the detectives returiied to the police station with the intention of arresting the gang later that night, and they had only reached the station when a telephone call came, informing them of the hold-up and murder. Then they retraced their steps and got their men. Thereafter, when the Thome case was called for trial, the Herald-Republican, the morning after the first day of that trial, and on June 29, 1910, published the following :■ SIX JURORS SWORN TO TRT H. THORNE. Some Talesmen Refused in Riley Case Accepted in This One. Harry Thorne, slayer of George W. Fassell, appeared for trial before Judge T. D. Lewis, in the district court yesterday, entering a plea of not guilty. Six jurors were obtained and sworn during the day and a special venire of fifty names was drawn with twenty-five returnable at 10 o’clock this morning and twenty-five returnable Thursday morning. Several of the jurors sworn yesterday were men who were excused on peremptory challenges in the Thomas Riley case for the same offense last week and, in examining jurors, all of those who were excused for cause in the Riley ease were excused from the Thome case. Thome’s appearance in court yesterday was in striking contrast with the appearance of Riley, who was convicted of the same crime last week, inasmuch as Thome shows no marks of degeneracy or depravity in his face or appearance. The youth says he is only seventeen years old and does not look to be more than eighteen or nineteen. From his [194] demeanor, it was apparent that he has slight realization of the enormity of his offense or of the fate which may await him. Yesterday he seemed more interested in anything that struck his fancy in the courtroom than in the selection of a jury. In the course of the examination the state used one peremptory challenge and! the defense used three. CONFESSION OK THORNE. When Thome was arrested for the murder of Hassell he made the following confession. [Then follows a republication of the confession as set forth in the first publication.] On June 23, 1910, the district court directed the district attorney to file an affidavit charging the Herald-Republican with contempt, based on the first publication. Upon the filing of such an affidavit, an order was made on the 29th of June requiring the Herald-Republican to appear and show cause why it should not be punished for contempt. On the 30th of June the court directed the district attorney to file another affidavit charging contempt, based on the second publication. Upon the filing of such an affidavit, the court on that day entered an order requiring the Herald-Republican, its general manager, its managing editor, its acting city editor, and its reporter to appear and show cause why they should not be punished for contempt, based on the second publication. Both orders were served on the 30th of June, the day after the second publication. The affidavits are lengthy. The substance of them is: The murder was committed March 26, 1910. Shortly thereafter Hays and Thorne were arrested and accused. On the next day they confessed their “complicity in the crime of the charged murder,” Thome by a written confession signed by him, Hays an oral confession reduced to writing, but not signed. These confessions, it is averred', were, when made, given to the press, and’ with other purported facts of the homicide were published the following day, March 28th, by all of the daily papers of Salt Lake City, including the Herald-Republican. On the 13th of June the Hays Case [195] was called for trial, and tbe whole of that day consumed1 in impaneling a jury. It is averred that, by reason of the publications in March by all the newspapers, much difficulty was experienced in obtaining qualified jurors because of opinions of veniremen based on a reading of such publications ; that on the first day of the Hays trial “out of a number examined” but one qualified juror was obtained; that on the first day of the Thome trial “out of a number examined” six qualified jurors were obtained; and that in each case at the close of the first day’s trial fifty additional jurors were drawn and summoned. Then it is averred that on the 14th of June the Herald-Kepubliean published the first article referred to, “Hays Murder Case Called for Trial,” and on the 29th of June, the morning after the first day of the Thome trial, the second article, “Six Jurors Sworn to try H. Thorne.” The publications in March by all of the papers, including the Herald-Hepublican, of course, are not -complained of. Those made on June 14th and 29th by the Herald-Republican are complained of. Such portions of the publications as relate to the confession and the purported facts of the homicide and the arrest — the matters complained of — were but a resume of what had already been published in detail and circulated by all the daily papers of Salt Lake City several months before. But it is further averred that the publications complained of “were calculated greatly to prejudice and bias the minds of the readers of said paper against the said defendant then on trial, and to make it much more difficult for said court to secure qualified trial jurors,” and “did greatly prejudice and bias the minds of many persons throughout the county against the defendant, and did greatly prejudice and bias the minds of many persons who were prospective trial jurors in said case against said defendant, of whom many were regular subscribers of said paper;” that the accused “well knew” that such publications were calculated to prejudice, and would prejudice and bias the minds of such prospective jurors and others “against the defendant,” and would render it difficult to secure qualified jurors for the trial; and that the accused, well know [196] ing the charged harmful effect of such publications, “caused copies of the paper containing such publications to be delivered to and into the hands of a large number of said fifty additional drawn and summoned jurors before their attendance upon the court,” and that by reason thereof many of them were disqualified, and the obtaining of qualified jurors rendered difficult. To these affidavits each of the accused filed verified answers, admitting all the publications referred to in the affidavits, including those complained of, and the relations of the accused thereto as alleged; denying all other allegations of the affidavits; averring that such publications were made as matters of news, and as publications of judicial proceedings, and not otherwise, and were not made nor intended to influence or interfere with judicial action or proceedings, and disclaiming any wrongful intent or motive by such publications or any intended harmful effect or wrongful purpose whatever. They further alleged that the court was without jurisdiction, on the ground that no contempt in law was charged, and that they, under privileges guaranteed by the Constitution, had the right to publish the matters complained of. Upon the issues thus raised and presented, the court, without evidence or a trial, found and adjudged the accused guilty on the pleadings, on the affidavits of the district attorney and the verified answers of the accused. The judgment as to the first publication recites: “Whereupon the said matter is submitted to the court upon the affidavit filed herein and the admissions made in the answer of the said Herald-Bepubliean Publishing Company, and the questions of law raised by the answer so filed, and the same is argued by H. E. Booth, Esq., as attorney for said Herald-Bepublican Publishing Company, and submitted without argument by E. C. Loofbourow, district attorney, for the State. Being so submitted, the court finds and adjudges that the said Herald-Bepublican Publishing Company, a corporation, is guilty of contempt as charged in the affidavit, and it is the judgment and sentence of this court that the said corporation be, and is hereby, fined in the sum of $200.” [197] Tbe judgment as to tbe second: recites: “Whereupon tbe matter is submitted upon its merits upon tbe affidavit and answer heretofore filed and tbe amended affidavit of tbe district attorney and tbe arguments heretofore made, and being so submitted, and tbe court, being fully advised in tbe premises, now orders and adjudges that each of tbe accused is guilty of contempt as charged in tbe affidavit, and each of them being present in court, and accompanied by their attorney, H. E. Booth, Esq., and having stated that they bad no legal reason to give why judgment should not be pronounced against them, it is tbe judgment of this court that tbe said Herald-Bepublican Publishing Company be, and is hereby, fined in tbe sum of $200, that George E. Hale be, and be is hereby, fined in tbe sum of $200, and to be imprisoned in the county jail for a period of thirty days, and that A. J. Brown, Paul Armstrong, and Carl It. Williams, and each of them, be, and they are hereby, fined in tbe sum of ten dollars.” Numerous grounds are urged for tbe annulment of tbe judgment. They may be grouped: (1) Insufficiency of tbe affidavits to constitute contempt; (2) that, tbe charged constructive contempt being criminal, tbe “sworn answers” purging the contempt were conclusive; (3) that tbe publications were matters of news and publications of proceedings in court, which tbe accused bad tbe right to publish; (4) that tbe publications were not per se contemptuous, and were not calculated, as was alleged, to influence or interfere with judicial action or proceedings, and that it was not shown that they, as was also alleged, in fact bad such or any harmful effect; (5) and that the affidavits and answers presented triable issues, but tbe court found and adjudged tbe accused guilty without evidence or proof, without an investigation of tbe charges, and without a trial or a bearing. 1 We need not consider these in detail. Tbe gravamen of tbe charged contempt is that tbe accused, well knowing tbe publications were calculated to greatly prejudice and bias tbe minds of tbe drawn and summoned jurors and other persons against tbe defendant then on trial, [198] caused copies of tbe paper containing such, publications to be delivered to a large number of such jurors, and that such publications did, in fact, greatly prejudice and bias many of them against the defendant, and rendered it difficult to obtain qualified jurors. The charge is not that the publications, because of a distribution of the paper in the ordinary course of business fell into the hands, or were brought to the notice, of such veniremen and others, or that the accused ought to have anticipated that the publications might so fall into the hands or be brought to the notice of such persons; but that the accused well knowing the charged harmful effect of such publications, “caused copies of the paper containing such publications to be delivered to” such veniremen and others. That implies that such publications were brought to the notice of such veniremen, not only as the natural and probable result of such publications and a distribution of the paper in the ordinary course of business, but also that actual and direct deliveries of such copies of the paper were made to such veniremen, and that the accused were the actors, the agents — the efficient cause — in making such actual and direct deliveries. And, while it is not directly averred that they did so to influence such veniremen or to influence or interfere with judicial action or proceedings, nevertheless such effect and purpose is sought as a legal conclusion to be attributed to such conduct. Of course, a delivery of a document or thing to a drawn and summoned juror to influence him or to influence or impede or interfere with judicial action or proceedings is contemptuous, though the document or thing so delivered produced no such effect. The attempt to influence and interfere is itself wrongful and contemptuous, though the wrongdoer did not accomplish his purpose. Here it is not only averred that the accused published something tending to influence or interfere with judicial action or proceedings, but that they, well knowing the charged harmful effects of su<?h publications, caused copies of the paper containing such publications to be delivered to veniremen, many of whom by reason thereof were greatly prejudiced and biased against the defendant and were dis [199] qualified, and tbe obtaining of jurors rendered difficult. We think the affidavit sufficient. 2 Now, as to the second! ground: The charged contempt is a constructive contempt and criminal. As to such con-tempts, the old rule in proceedings in law courts:— not in equity — was that a denial on oath of the charged contempt, or by answers on oath to interrogatories submitted to the accused, purged the contempt, and entitled him to a discharge. But such is not now the general rule. In many jurisdictions the matter is regulated by statute. U. S. v. Shipp, 203 U. S. 563, 27 Sup. Ct. 165, 51 L. Ed. 319, 8 Ann. Cas. 265; In re Buckley, 69 Cal. 1, 10 Pac. 69. It is here regulated by statute which presently will be noticed. So as to the second ground we also hold against the petitioners. 3 The other alleged grounds may be considered together. And in this connection we think the last ground — rendering a judgment on pleadings adjudging the accused guilty of the charged contempt without evidence or proof or a hearing — presents the most serious question. Our Statute (Comp. Laws 1907, section 3360) provides that, when a contempt is not committed in the immediate view and presence of the court or judge, an affidavit shall be presented to the court or'judge “of the facts constituting the contempt.” Upon that a warrant of attachment is issued “to-bring the person charged to answer.” By section 3366, it is provided that, “when the person arrested has been brought up or has appeared, the court or judge must proceed to investigate the charge, and must hear any answer which the person arrested may make to the same, and may examine witnesses for or against him.” By section 3367, “upon the answer and evidence taken, the court or judge must determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he is guilty of the contempt, a fine may be imposed on him not exceeding $200, or he may be imprisoned not exceeding thirty days, or both.” 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 [200] 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 coui*t 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. But the court here was not justified in regarding the answers as equivalent to such a plea. They put in issue about every allegation in the affidavits alleged, except the publications. If it were thought and held that these were the only material allegations, then were they smothered by pages of redundant and immaterial matter. 4 With respect to the allegations of the delivery of copies of the paper containing such publications to veniremen, the accused’s knowledge of the charged harmful effect and consequences of such publications, and the actual harmful effect thereof as charged, direct issues, of course, were raised. But the allegations that the publications were calculated to produce the charged effect and consequences were also denied. Were they, too, subject to denials ? It is argued that they were not, for the reason that one may not be heard to deny the natural and probable consequences of acts voluntarily committed by him; and therefore, though the accused may he heard to deny that the publications in fact produced the charged injurious effect, nevertheless, they may not be heard to deny that they were calculated to produce such effect, unless an innuendo is necessary to show the meaning and application of the publications. And from this it further is argued that the court was justified in rendering judgment on the pleadings, on the theory that the publications complained of were in themselves as matter of law calculated to influence judicial action or to interfere with or obstruct judicial proceedings and therefore were contemptuous, and hence it is wholly immaterial whether they in fact had or had not such effect, or whether the published statements were true or false, [201] or wbat the motive, intent, or circumstances were with which and under which the publications were made, and since the publications were admitted, and since the question of whether they were or were not so calculated to influence or interfere was one of law determinable on the face of the publications, no triable issue was raised. In support of this, the cases of Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 52 N. E. 445, 44 L. R. A. 159, 70 Am. St. Rep. 280, Globe Newspaper Co. v. Commonwealth, 188 Mass. 449, 74 N. E. 682, 3 Ann. Cas: 761; Territory v. Murray, 7 Mont. 251, 15 Pac. 145; Hughes v. Territory, 10 Ariz. 119, 85 Pac. 1058, 6 L. R. A. (N. S.) 572, Cooper v. People, 13 Colo. 337, 373, 22 Pac. 790, 6 L. R. A. 430, State v. Howell, 80 Conn. 668, 69 Atl. 1057, 125 Am. St. Rep. 141, 13 Ann. Cas. 501, are cited. The cases do not support the contention. They are not cases where judgments were rendered on pleadings or confessions. In some of them the doctrine is announced that where the publication itself is calculated to influence, or impede, or interfere with, judicial action or proceedings, a showing that the publication in fact had no such effect, or that the publisher had no such intent, or was ignorant of such consequences or effect, or that the facts published were true, is no justification. But none of them as to a charged constructive criminal contempt holds a showing of such facts to be immaterial or impertinent. To the contrary, they hold that such and other facts to be material and proper to be shown, not, as some of the cases say, in justification or as a complete defense, but, as all of them hold, in mitigation and in relation to the punishment. The rule is familiar that one by a publication of false and defamatory matter may be held to respond in actual damages which either in law or in fact were the natural and probable consequences of the publication, though he may have intended no wrong, and even though he was ignorant of the natural and probable consequences of the publication. So in many other instances, both in civil and criminal cases, one is presumed or held to know and intend the natural and probable consequences of his voluntary acts, and, when called upon to answer for wrongs committed or in [202] juries inflicted by bim as tbe direct and' natural result of sucb acts, tbe law forbids bim to avoid responsibility by a showing that be did not in fact intend sucb or any barmful consequences, or that be even was ignorant of tbe probable and natural effect of sucb acts. But tbe doctrine generally is applied to cases where motive or intent is wholly immaterial. Where it is material, one may always deny wrongful, and, show good, intent or motive. In view of tbe charged constructive criminal contempt, we think that is true befe. A showing of good intent, or of ignorance of tbe harmful effect of a publication innocently made, may not in itself amount to justification, and may not be a complete defense; but in a charge of a criminal contempt we think sucb a showing nevertheless material, and may in some instances reduce tbe charged contempt to a mere technical contempt. Of course, some voluntarily committed acts may be so flagrant and scandalous as to admit of no explanation, or may in themselves show bad faith and willful and intentional wrongdoing to sucb an extent as to outweigh or entirely overcome all testimony adduced to show good faith and good intent, and may justify the court in disbelieving such testimony as against such flagrant and voluntary acts. 5 Before a publication, innocently made in good faith and with good intent, may, as respects the influencing of or interfering with judicial action or proceedings, be regarded’ as per se contemptuous, it must be of such character as naturally and necessarily to produce such effect. That it merely tends or is calculated to do so is not enough. It must naturally and necessarily have such effect. The authorities generally are to the effect that a publication concerning a cause or proceeding on trial made with the intent to have, or which necessarily must have, the effect of preventing litigants, or some of them, from having a fair trial, or of influencing or impeding, or interfering with, judicial action or proceedings or the administration of the law, is contemptuous. Notes to Percival v. State, 50 Am. St. Hep. 512. The publications here were not libelous nor scandalous; nor did they cast discredit upon or show disrespect to the court, judge, or another; [203] nor did they contain anything of intimidation, dictation, or even of comment or criticism. Portions of the publications purport to be and were made concerning proceedings before the court, a case then on trial. The accused had the undoubted right to publish proceedings so had before the court. The proceedings, however, chiefly related to the impaneling of a jury in a criminal case. Things- said and done in the court in respect of them the accused had the right to publish. They had the right to publish the fact that the case was called for trial, what the defendant was charged with as shown by the information or made to appear by the proceedings, his plea, by whom the defendant and the state were represented, the facts and happenings relating to the impaneling of the jury, and all other occurrences and ■ happenings and things said or done in court pertaining to such proceedings and cause on trial. But they went beyond this. They published something which did not purport to be a part, and which was no part, of such proceedings. They published some of the evidence which was expected to be adduced, the written confession of Thorne signed by him and witnessed by a number of persons, statements as to the popularity and prominence of the deceased, warnings which detectives had received of “the gang of criminals” who had come from Ogden, and who were housed at “the Angelus” at Salt Lake, the circumstances of the arrest, and purported facts of the murder. With respect to these matters the publications do not purport to be news — fresh information concerning something that had recently taken place, recent report or account of an event, fresh tidings, recent intelligence (Webster, Standard Diet.) —nor do they purport to be a part of the proceedings, or of happenings or occurrences with respect to them. And in this age of keen newspaper rivalry the accused, no doubt, would1 rather go to jail than admit that the facts and information in the publications complained of concerning the murder committed, and the arrest made several months before and widely published were to them fresh information and tidings, and recent intelligence. In stating some of the purported evidence statements were made, notably the Thome confes [204] sion, which, as to tbe Hays trial, was not even admissible evidence, and which, could not properly be considered by the jury. The contention, therefore, that the accused in making the publications as to the particulars complained of were acting in the interests of the public and were exercising a freedom granted the press to publish news and proceeding’s of court is untenable; for the publications in such particulars do not even purport to be, and as in effect is averred were not in fact, publications of either news or of court proceedings. A newspaper and those connected with it may not, under the freedom granted the press, any more than another, obstruct, impede, influence, or interfere with judicial action or proceedings. It cannot be doubted that one would be guilty of contempt who should communicate with or deliver a writing to veniremen drawn and summoned as jurors on a: case on trial, with the intent to have, or which naturally must have, the effect to influence such veniremen, by giving them information of the salient purported facts of the case, stating to them that the defendant on trial was a member of a “gang of criminals,” and one of a trio who, in the commission of a robbery, had killed the deceased, a popular and • prominent young man, that one of them had confessed, implicating all three, and giving to such veniremen a copy of the confession signed and witnessed. That such conduct naturally tends to pollute and obstruct the administration of the law cannot be questioned. Not that it is an affront to the court or judge, but because of its natural tendency to create a prejudice against a litigant, and to embarrass him in the prosecution of his cause or defense, by generating in the minds of the court or jury by whom the merits of the controversy, upon the law and the evidence adduced in open court, must be determined. With such conduct and such acts were the accused here charged. That they were journalists matters not, for they, no more than another, may commit such acts with impunity. The portions of the publications complained of published under the circumstances averred of and concerning a cause then on trial and while a jury was being impaneled, and [205] which, were neither publications of news nor of proceedings of the canse, were, we think, calculated to influence judicial action or proceedings before the court. But that, in view of the charge and the denials and averments of the answers, was not the end of the investigation. The accused nevertheless were entitled to a trial, and to be heard on the questions of intent and motive and the circumstances under which the publications were made. And, though it be suggested that the burden in such particulars was on the accused, yet it also must be conceded that a hearing for such purpose must be had and an opportunity afforded to make such defense. 6 A judgment cannot be rendered on pleadings on the theory that intent, motive, and circumstances of the publication were wholly immaterial, and then defended on the theory that the burden of proof as to such matters was on the accused. 7 The charge, however, being criminal, and the answers putting in issue at least many material allegations of the contempt as charged — certainly not confessing it — we think the prosecution had the burden, as in other criminal cases, to make out a, prima, facie case. And in view of the charge, as heretofore shown, such a case was not made by the mere admissions of the publications. But it matters not whether on the issues as raised the prosecution or the accused had the burden of proceeding or going forward with evidence, for the record shows that no hearing whatever was had, and that the court proceeded on the theory that as the publications were admitted, and since they in themselves were calculated to influence, or interfere with, judicial action or proceedings, they in law were contemptuous; hence all questions of intent or motive or circumstances under which the publications were made, and all other allegations denied by or averred in the answer were wholly immaterial, and therefore the court, without any investigation of the charge, without “hearing” the answers of the accused, and without a trial of any kind, rendered a judgment on the pleadings against the accused', and visited on two of them the maximum [206] penalty of the law. In so doing we think the court was neither justified nor authorized. Sections 3366 and 3367, heretofore referred to, are identical with sections 1217 and 1218 of the Code of Civil Procedure of California, except as to the penalty. In Roe v. Superior Court, 60 Cal. 93, the court said: “It is contended that according to the statute witnesses must be examined (C. C. P. sec. 1217), and the judgment must he on the answer and evidence (Id. sec. 1218). That is so, but it does not appear that this course was not pursued.” Here it does appear that such a course was not pursued. In Re Buckley, 69 Cal. .1, 10 Pac. 69, that court again observed that at common law, if a party charged with contempt, not committed fmcie curiae, cleared himself by his oath denying his guilt, he was by a court of law discharged, “but in this state the subject is regulated by statute as stated above. And of contempts not in the face of the court an issue is made up by answer, and witnesses are called and examined as in other causes. In other words, a trial is had as in other cases.” The court in that case further held that “A proceeding to punish for an alleged contempt not committed in the presence of the court is criminal or quasi criminal in its nature, and, before a conviction can be had therein, the guilt of the accused must be established by clear and satisfactory evidence. A mere preponderance of evidence is not enough.” These views were reaffirmed by that court in McClatchy v. Superior Court, 119 Cal. 413, 51 Pac. 696, 39 L. R. A. 691. In that case one of the proprietors and the editor of a newspaper was ordered to show cause why he should not be punished for contempt for making certain publications, which, as alleged, constituted, among other things, “unlawful interferences with the proceedings of the court” in a pending cause on trial. There, as here, the publications were admitted. As there stated by the court: “The substantive defense was. that the publications were in fact trae, and not made with any wrongful intent,” and “were not made for the purpose of interfering with the ad [207] ministration of justice.” After the prosecution had put in its evidence, the accused offered to show “truth.” This offer was excluded. Then he offered evidence “in support of the various subdivisions of his answer.” This also was denied, “except to the extent to show that the publications were 'without malice.’ This privilege was declined as of no avail, unless the petitioner was allowed to put in his entire defense.” Said the appellate court: “The result of this action. . . . was in substance and effect to deprive the petitioner of the right to he heard in his defense. . . . It had the effect to deprive him of a constitutional right,” and that such a departure from recognized and established requirements of law “is as much an excess of jurisdiction as where there exists an inceptive lack of power.” The court further observed: “Contempt of court is a specific criminal offense (citing cases) and a party charged therewith, although the proceeding is more or less summary in character, has the same inalienable right to be heard in his defense, especially in instances like the present, of mere constructive contempt, as he would against a charge of murder or any other crime.” In that case the court also held that the rulings complained of were reviewable on certiorari, and upon a review of the record annulled the judgment of conviction. The decision was not unanimous. The dissenting members took the view that the rulings were mere error and not reviewable on cer-tiorari, and, further, that no error was committed by the refusal of the proffered evidence, on the theory that it was irrelevant to the issue. But the dissenting members in their opinion make this significant statement: Had the court “refused to receive any evidence on his behalf in defense of his charge, its judgment against him would have been unauthorized.” The minority members held that “the court gave biin permission to show that the publication was made without malice, and that he believed it to be true, and also that he believed that he had a right to publish it, and to state his motive therefor,” and to show the circumstances under which the publication was made. So what chiefly there divided the [208] court on the merits was the question of whether the accused was given a trial and afforded an opportunity to make his defense; the majority members holding the negative, and the dissenting the affirmative, of the proposition. 8 Here it is "not pretended that any kind1 of a trial was had, and no claim made that any evidence whatever was taken, or that the court, in the language of. the statute, “proceeded to investigate the charge” or to “hear” the answers of the accused, or that the court adjudged the accused guilty “upon the answer and evidence taken.” To the contrary, the record shows that the court adjudged them guilty on the affidavits and the. answers, not upon the “answer and evidence taken,” and did so, too, notwithstanding the answers put in issue about every averment of the charged contempt, except the publications complained of. Contempts such as here were charged — wrongful acts not committed in facie curiae, to influence or interfere with judicial action or proceedings — are criminal. Hence rules of pleading applicable to civil cases permitting judgment on the pleadings are not here applicable. The proceedings cannot be regarded as criminal for one purpose and civil for another. While the issues were made by the affidavits and the answers, yet the statute does not contemplate the rendition of a judgment on pleadings as in civil cases. The statute not only permits the accused to file an answer, but it in clear terms provides that the court “must hear any answer” which the accused may make to the charge; and nothing short of a plea of guilt, or its equivalent, will justify a judgment of conviction without evidence, and without an investigation of the charge. From the recitals of the first judgment it appears that “the matter” with respect to the first publication “is submitted upon the affidavit and the admissions made in the answer.” But from further recitals it also appears that the court did not find or adjudge the accused guilty merely of the acts or conduct so admitted. The recitals show that the court found and adjudged: the accused “guilty of contempt as charged in the affidavit,” not as admitted in the answer; found and ad [209] judged tbe accused guilty of tbe acts and conduct as alleged in tbe affidavit, not as admitted by tbe answer. What was tbe contempt charged ? Not tbat tbe accused published something which was calculated to produce tbe -charged injurious effect and consequences, tbe only allegations claimed to be admitted; but tbat they, well knowing such charged injurious effect and consequences, caused copies of tbe paper containing such publications to be delivered to veniremen, by reason of which many of them were greatly prejudiced and biased against tbe defendant on trial, and tbe obtaining of qualified jurors rendered difficult. And, as shown by tbe recitals of tbe second judgment, a final judgment of conviction was rendered against all of tbe accused, not on tbe admissions of tbe answers, but on tbe whole of tbe charge — “guilty of contempt as charged in tbe affidavit”— on tbe theory tbat tbe answers tendered no defense whatever to tbe charge or any part thereof. From these recitals it cannot be said tbat the court found or adjudged tbe accused guilty merely of acts and conduct expressly admitted or confessed. To tbe contrary,'they, in effect, show tbat tbe accused were found and adjudged guilty of all tbe acts and conduct alleged in tbe affidavit. Whatever presumption might be indulged tbat tbe court adjudged tbe accused guilty only of such acts and conduct as were expressly admitted, yet, when tbe judgments are looked to, tbe presumption is dissipated, and tbe fact made to appear tbat tbe accused were found; and adjudged guilty of contempt, not npon acts and conduct as expressly admitted, but “as charged in tbe affidavit.” Of course, one charged with an offeuse may be convicted of a lesser necessarily included within tbe charge. But a conviction of the greater cannot be upheld on an admission or proof only of tbe lesser. If tbe court here was of tbe opinion tbat tbe pnblications were in themselves contemptuous, and not subject to explanation, and tbat motive, intent, purpose, and ■circumstances under which they were made were wholly immaterial and irrelevant to tbe issue, tbe judgment ought to have been founded on tbat, and not as was done on tbe con [210] tempt as charged in the affidavit. While findings as in civil cases are.not required, yet a court ought, at least in effect, do what a jury in a criminal case is required to do when finding an accused guilty of a lesser offense included within the charge, to state in the verdict the offense of which he is so found guilty — here to state the acts and conduct of which the accused were adjudged guilty if it was attempted to adjudge them guilty of some only, and not of all the acts and conduct of the contempt as charged. 9 Nor does the recital in the judgment that the accused “having stated that they had no legal reason to give why judgment should not be pronounced against them,” etc., show that they were given an opportunity to be heard. Heard on what? “Legal reasons” why judgment should not be pronounced against them after they had been found guilty. The right which an accused’ has to be heard on merits is before, not after, he is condemned. Such recital cannot support a contention of a trial, or a hearing, or an investigation, or an opportunity to be heard. 10 Neither does the recital that “the matter is submitted upon its merits upon the affidavit and the answers,” etc., show a waiver of a trial or a hearing, or a consent to render a final judgment in the cause on the pleadings and without a trial. In a proceeding like this, the legal effect of such a submission but invoked the action of the court to determine the sufficiency of the pleadings, the sufficiency of facts stated in the affidavit to constitute a contempt, and of the denials contained and' facts stated in the answer to constitute a defense thereto, or in justification, or in mitigation thereof. Such a submission did not justify the court in rendering a final judgment in the cause and on the whole charge, unless no defense whatever was tendered, either by way of denials, or in justification, or excuse, or in mitigation, and unless what was tendered constituted a plea of guilty to the offense as charged. There is a further question not free from difficulty: [210] Whether the rulings complained of, and here considered, are reviewable on certiorari, whether they relate to mere error [211] not involving want or excess of jurisdiction, and whether the judgment complained of is appealable. Our Constitution provides that in criminal prosecutions the defendant shall have the right to appeal in all cases; our statute, to appeal from all final judgments of conviction. As has been seen, the charged constructive contempt is criminal requiring a trial as in all other cases. Because of the provisions of our Constitution and statute, I am rather inclined to the view that the judgment is appealable, and therefore not reviewable on certiorari; our statute (Comp. Laws 1907, section 3630) providing that the writ of certiorari may he granted “when there is no appeal,” etc. But the case of Rohwer v. District Court, 41 Utah, 279, 125 Pac. 671, the latest expression of this court on the subject, is good and binding authority for a holding that the rulings are here reviewable on certiorari. While I dissented in that case, I, nevertheless, now feel bound by the prevailing opinion until it be modified or overruled'. And, as has been seen, the •majority opinion is supported by the California court (McClatchy v. Superior Court, supra) and other courts under a policy to enlarge rather than to restrict the functions of the writ of certiorari. That, to a greater or less degree, has also been the policy of this court from an early day. (Gilbert v. Board, 11 Utah, 378, 40 Pac. 264.) We therefore have reached the conclusion that the rulings complained of are reviewable on certiorari, and upon a review thereof the further - conclusion, for the reasons heretofore •stated, that the judgment complained! of ought to be annulled ■and vacated. Such therefore is the order.