In Re Lee

Bond, C. J., filed the following dissenting opinion in the case of Frank, No. 58: As the appellant Frank declined to answer and purge or clear himself of the contempt if he could, I have not been able to agree that a distinction may be made in his favor. The evidence of statements made by him tends to implicate rather than to clear him. Shehan, J., delivered the opinion of the Court. The Circuit Court for Montgomery County passed orders on the 26th day of June, 1935, adjudging the American Newspapers, Inc., Pat Frank, and David Lee, guilty of contempt of that court.

The American Newspapers, Inc., was sentenced to pay a fine of $5,000, and Pat Frank and David Lee were each sentenced to be confined in the jail of Montgomery County for the period of ninety days. From this judgment and sentence David Lee and Pat Frank entered an appeal, and these cases are Nos. 57 and 58. The American Newspapers, Inc., paid its fine of $5,000. On the 17th day of June,, 1935, Pat Frank and David Lee filed motions to quash the writs of attachment, and to dismiss the order citing and requiring each of them to appear and show cause why they should not be held in contempt of court.

Both of the motions were overruled. On July 1st, 1935, David Lee and Pat Frank filed motions to strike out the judgment and sentence of the court, both of which were overruled, and Lee and Frank appealed. These appeals are Nos. 81 and 82. The cases were heard in this court on the same assignment, one brief being filed upon the part of the appellants.

These four appeals will be disposed of in this opinion. The appeals in 81 and 82 present no questions that require consideration other than those in Nos. 57 and 58. In the beginning it should be stated that a flagrant and inexcusable contempt upon the authority and dignity of the Circuit Court for Montgomery County was practiced. ⁴⁶ In-the briefs and oral arguments, and in the proceedings, there is no denial that the newspaper publications set out in the record amounted to a contempt. There are two questions raised for consideration: First: The validity of the procedure adopted and followed with respect to the prosecution of these cases; and Second: Whether there is'sufficient evidence to warrant the commitment of these two appellants for contempt.

At common law there was no appeal from the judgments or orders of the court in matters of contempt. Kelly v. Montebello Park Co., 141 Md. 194 , 118 A. 600 ; Ex parte Sturm, 152 Md. 114, 124 , 136 A. 312 , and cases there cited; Rapalje on Contempt, p. 141. But section 105 of article 5 of the Code (Supplement 1929) provides for an appeal by any person adjudged in contempt by any order or judgment passed to preserve the power or to vindicate the dignity of the court, and this right to appeal relates both to direct and indirect-contempts. This section also provides that ‘‘upon -appeal to the Court of Appeals, in cases of both 'direct and constructive contempts, the Court of Appeals shall consider and pass upon the law and,the facts and said court shall make such order as to it may seem proper, including the right to reverse or modify the order appealed from.” The power and authority to punish contempts is one of common law origin and has existed in courts of law and equity since áncient times.

It is an inherent right, and not dependent upon legislative authority, and relates to criminal, as well as civil, contempts, and to direct and indirect contempts alike. It is a power reposed in courts of civil, as well as criminal, jurisdiction. Ex parte Maulsby, 13 Md. 625 , appendix; Kelly v. Montebello Park Co., supra; Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 298 , 52 N.E. 445 ; State v. Howell, 80 Conn. 668 , 69 A. 1057 . The divulging of judicial secrets has always been regarded as an interference with a proper functioning of courts and the administration of justice.

The secrets of ⁴⁷ the grand jury room, the proceedings of courts in camera and the like, must be respected and remain inviolate, and any persons violating these features of judicial, proceedings are properly held in contempt. 6 R.C.L., p. 514; Telegram Newspaper Co. v. Commonwealth, supra. The power and authority possessed by courts may not be destroyed or abridged by legislative enactment. It is recognized as a constitutional attribute, and is preserved as a necessary function, of the judiciary. Rapalje on Contempts, sec. 11 (1884 Ed.) ; Ex parte Maulsby, supra.

Contempts are classified, first, as to the place of their commission. Direct contempts are those committed in the actual presence of the court, or so near to it as to interfere with the due and proper administration of justice, or in direct defiance of the dignity and authority of the judicial tribunal in question. Indirect or constructive contempts are those which do not occur in the presence of the court, or near it, as above stated, but at some other place out of the presence of the court and beyond a place where the contempt would directly interfere with the proper functioning of the court. This class of contempts has been designated in article 5, section 105, as such as “have been committed not in the presence of the Court, or not so near to the Court as to interrupt its proceedings.” Again contempts have been divided into two classes with regard to their inherent character or nature, namely, criminal and civil, or punitive and coercive.

In spite of the verbiage used to designate them, they are “neither wholly civil nor criminal.” Gompers v. Buck’s Stove & Range Co., 221 U. S. 418 , 31 S.Ct. 492 , 55 L.Ed. 797 . This classification has been the source of confusion and misunderstanding resultingin extensive litigation. Nevertheless, they are so recognized by this court (Ex parte Sturm, 152 Md. 114 , 136 A. 312 , and cases there cited), as well as by the Supreme Court of the United States, Cooke v. United States, 267 U.S. 517 , 45 S.Ct. 390 , 69 L.Ed. 767 . Criminal contempts at times were dealt with at common law by presentment, indictment, and trial, as ⁴⁸ were other misdemeanors, and they were so regarded, but this did not deprive the court whose dignity had been assailed, or authority frustrated, of the right to deal with contempts of all classes, in accordance with the rules and procedure recognized since ancient times by the common law. 'Courts have authority to institute upon their own motion contempt proceedings against those persons whom the court has reasonable ground to suspect of contempt.

Not only has. the court this right, but as a judicial tribunal .it is its duty to do so, / In this case the technical distinction between direct and indirect contempts is of little importance from a procedural standpoint, because the Circuit Court for Montgomery County has jurisdiction and authority to deal with contempts. The Code expressly says, in dealing with indirect or constructive contempts, that “If ¡any such alleged contempt be a constructive contempt, alleged to have been committed not in the presence of the Court, or not so near to the Court as to interrupt its proceedings, then the Court shall issue a citation to the person alleged to be in contempt, requiring such person to show cause why an order adjudging such person in contempt should not be passed within a time named therein. If no cause is shown, within the time so named, such order shall be final; but if such person shall 'answer and show cause within the time named, then testimony shall be taken and the matter tried by the Court without a jury.” The entire defense was taken upon procedural and technical grounds and not upon the issue of fact as to whether or not Pat Frank and David Lee had perpetrated a contempt in obtaining the facts contained in the newspaper for which they were reporters, or in supplying information to enable that newspaper to wrongfully publish the article complained of. No answer denying or avoiding the charges was filed to the citation or to the affidavit of the state’s attorney.

This paper seems to have been the only one publishing or carrying these articles, and this is substantiated by its statement: “The Washington Herald learned exclu- ■ ⁴⁹ sively last night.” Then follows in detail the statement of facts that the paper claimed it had “learned exclusively.” The order issued is as follows: “Order of Court. “(Filed June 12, 1935.) “In the Circuit Court for Montgomery County: “Ordered by the Circuit Court for Montgomery County, this 12th day of June, 1935, that a citation issue to Pat Frank and David Lee and The American Newspapers Incorporated and Michael W. Flynn, its Managing Editor, and Eay Helgesen, its night City Editor, requiring them and each of them to show cause, on or before June 17th, 1935, why they should not be adjudged in contempt of this Court for making and publishing reports purporting to make disclosures as to a private conference of the judges of this Court in Chambers upon an issue to be determined by their verdict, and stating a conclusion alleged to have been reached in such conference, and for thus embarrassing and obstructing the administration of justice.” On the 21st day of June, 1934, the state’s attorney for Montgomery County filed a comprehensive statement of facts concerning the alleged contempts, filing therewith as exhibits copies of the articles appearing in the Washington Herald. This statement, under the oath of the state’s attorney, was served upon Miss Simpson, attorney for David Lee and Pat Frank, on the 21st day of June, 1935. In this case there is no contention that there was insufficient time for the preparation of the defense, nor can it be contended that the statement under oath of the state’s attorney, and the citation issued by the court, do not fully and fairly apprise the accused of the charges against them. These parties cannot contend that they are surprised or without knowledge of the nature of the contempt with ⁵⁰ which they were charged, for it is an admitted fact that, during the preparation of the citation, counsel for both these men appeared before the court in their behalf and identified them as reporters for the Washington Herald, assigned to the case or cases on trial at Rockville.

It would be idle to assume that counsel and accused alike did not definitely know the charge for which they were being cited, and then, too, within five days after the citation, there was a motion to dismiss the citation and quash the attachment, setting forth at length six different reasons why the citation should be dismissed and the writ of attachment quashed, thus showing complete knowledge of the charge. Testimony was not taken until fourteen days after the service of this citation. The defendants offered no testimony, although afforded ample time and opportunity to do so. The appellants were fully apprised of the nature of the charge, a fair trial was accorded to them, the procedure adopted afforded every reasonable opportunity for these parties to purge themselves of their alleged contempt, or to offer such testimony as they might think proper to clear them of the charges preferred.

The procedure 'adopted was in accordance with the practice in many cases. The procedural requirements are stated in the case of Cooke v. United States, 267 U.S. 517 , 45 S.Ct. 390, 395 , 69 L.Ed. 767 , where the Supreme Court said: “When the contempt is not in open court, however, there is no such right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument. The exact form of procedure in the prosecution of such con-tempts is not important. * * * ‘All that is requisite to their validity is that, when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defense. The manner in which the proceeding shall be concluded, so that it be without oppression or unfairness, is a matter of judicial regulation.’ ⁵¹ “The court in Re Savin, 131 U.S. 267 , 9 S.Ct. 699 , 33 L.Ed. 150 , applied this rule to proceedings for contempt. “Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation.

We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either, to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed. See Hollingsworth v. Duane [Wall, Sr. 77] 12 Fed. Cas. 359, 360 [No. 6,616] ; In re Stewart, 118 La. 827 , 43 So. 455 ; Re Clark, 208 Mo. 121 , 106 S.W. 990 .” See, also, case of Kelley v. Montebello Park Co., 141 Md. 194 , 118 A. 600 , for procedure there recognized and adopted. Aside from this, the Circuit Court for Montgomery County could adopt its own procedure, as none is fully prescribed by statute, so long as that procedure afforded to the accused a fair and reasonable opportunity to present their defense and to be informed of the substance of the charges against them, all of which was done; nor can it be contended that there was not due process of law within the rule laid down as above cited. The accused were ultimately given every advantage by the court, in not acting summarily, but by filing the citation, followed by the affidavit of the state’s attorney setting forth at length and in detail the charges, and then by a trial before the court in which the accused were represented by counsel, confronted by witnesses, afforded an opportunity to cross-examine, which they accepted; and to produce witnesses, offer testimony and to be heard in argument by counsel.

These opportunities they declined. In discussing the publication of articles in newspapers circulated in the place where a case is pending, which articles would have a tendency to influence such case, it has been recognized that the court will proceed on its ⁵² own knowledge of the facts, and upon its own motion pass a show cause order. This is supported by the case of the Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294 , 52 N.E. 445 . In that case it was held to be unnecessary that a formal complaint be filed as a prerequisite to the issuance of a citation for contempt, because, just as in this case, there were facts and circumstances peculiarly within the knowledge of the court.

When such publications come to the knowledge of the presiding judge of the court, which are calculated to prevent a fair trial, or to improperly influence the court or jury, or tending in any manner to interfere with the administration of justice, such court may, upon its own motion, institute proceedings for contempt. Such a contempt, interfering with the administration of justice, is analagous to a contempt committed in the presence of the court. It may be contended that obtaining 'the information so published, which must have been done in or about the court, in itself would be a ¡direct contempt. It is held that the eavesdropping upon the deliberations of a jury or the court in chambers is a direct contempt, and in the case of Ex parte Sturm, supra, there was a direct contempt, even though not committed in the courtroom, consisting of taking pictures of an accused in the court house at Baltimore, but not in the immediate presence of the presiding judge.

It has been decided by the Supreme Court of the United States, in the case of Cooke v. United States, 267 U.S. 517 , 45 S.Ct. 390 , 69 L.Ed. 767 , and also in Gompers v. Buck’s Stove & Range Co., 221 U.S. 418 , 31 S.Ct. 492, 499 , 55 L.Ed. 797 , “that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself.” It is equally true that cases and text-writers agree that a person, when charged with contempt and cited to appear and show cause, must substantially comply with this order. In the instant case the attack upon the procedure adopted was' futile, and, as above stated, there has been ⁵³ an entire failure on the part of the appellants to comply with this order. When their motions had been overruled, they had one of two courses to pursue. They could have then filed an answer or could have stood upon their rights as presented by their motions.

The latter course they pursued, and having so chosen, they must abide the consequences. Hochheimer’s Criminal Law, sec. 300; Tidd’s Practice, sec. 479 ; Blackstone’s Commentaries, 4th vol., 286; 6 Ruling Case Law, p. 534; 13 Corpus Juris, p. 78, are to the effect that the passage of an order to show cause why one should not be held in contempt is not a mere gesture of the court, but has in it force and meaning, and places upon the accused an obligation to comply, that is, to deny or avoid the act which constituted the alleged contempt. In Murdock’s Case, 2 Bland, 461 , 486, the Chancellor said: “If the party attached makes a full and frank answer to all the facts, and positively denies or justifies all that is alleged against him, he must be at once discharged, as having entirely acquitted himself of the contempt imputed to him. I know of no instance in this court in which proofs and affidavits have been allowed to be introduced in opposition to the answer of the accused.

If, on the other hand, the accused does not, by his answer, fully deny or justify the acts charged against him, he may be fined and imprisoned, or such terms imposed upon him as the justice of the case may require.” In this connection we now have the effect of the statute above mentioned to consider. Under the procedure adopted, it was open to appellants to deny their guilt by answer or in the motions filed by them. In this they