In Re Edison

190 S.E.2d 235 (1972)

15 N.C. App. 354

In the Matter of The Imprisonment of Eugene EDISON.

No. 7227SC520.

Court of Appeals of North Carolina.

August 2, 1972.

*238 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Russell G. Walker, Jr., for the State.

Hollowell, Stott & Hollowell, Frank P. Cooke and Steve B. Dolley, Jr. by Grady B. Stott, Gastonia, for petitioner appellant.

BRITT, Judge.

Edison assigns as error (1) the entry by the district court of its order of 17 April 1972 committing Edison to jail for contempt and (2) the failure of Judge Martin to vacate the order and grant Edison's petition for habeas corpus. Our writ of certiorari brings the entire matter before us for review.

The first question for consideration is whether the district court followed the proper procedure in adjudging Edison in contempt. We hold that it did not.

If the facts found by the district court constitute contempt of court under G.S. § 5-1, it is not a direct contempt, therefore, the procedure for indirect contempt must be followed including an order to show cause. The law concerning contempt in North Carolina can become somewhat confusing. Contempts of court are classified in two main divisions known as direct and indirect contempt. A direct contempt consists of words spoken or acts committed in the actual or constructive presence of the court while it is in session or during recess which tend to subvert or prevent justice. Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822 (1954). An indirect contempt is one committed outside the presence of the court, usually at a distance from it, which tends to degrade the court or interrupt, prevent, or impede the administration of justice. Galyon v. Stutts, supra.

Proceedings for contempt are further classified as criminal and civil. In Galyon the court said: "With us contempts are defined and classified generally by two statutes: G.S. § 5-1 and G.S. § 5-8. These statutes recognize and preserve the fundamental distinction between civil and criminal contempt in substance but not in name. Acts or omissions which ordinarily constitute *239 criminal contempt as defined in the textbooks are designated by our statute, G. S. § 5-1, as punishable `for contempt,' without further designation; the acts or omissions which ordinarily constitute civil contempt as defined in the books are designated by our statute, G.S. § 5-8, as punishable `as for contempt.' Thus, under our statutes the proceedings for criminal and civil contempt are `for contempt' and `as for contempt', respectively." G.S. § 5-1(6) provides punishment "for contempt" upon "(T)he contumacious and unlawful refusal of any person to be sworn as a witness, or, when so sworn, the like refusal to answer any legal and proper interrogatory."

G.S. § 5-8(4) provides for punishment "as for contempt" "(a)ll persons summoned as witnesses in refusing or neglecting to obey such summons to attend, be sworn, or answer, as such witness."

The court goes on in Galyon to say: "(I)t is thus noted, from the tenor of the latter two statutes, that the refusal of a witness to testify at all or to answer any legal or proper question is made punishable both `as contempt' and `as for contempt'. And since the power of the court over a witness in requiring proper responses is inherent and necessary for the furtherance of justice, it must be conceded that testimony which is obviously false or evasive is equivalent to a refusal to testify within the intent and meaning of the foregoing statutes, and therefore punishable `as contempt' or `as for contempt', depending upon the facts of the particular case." (Emphasis added.)

Since giving "obviously false" testimony can be punishable by contempt civilly or criminally our concern here is whether the contempt, if any, was direct or indirect, without attempting to equate direct or indirect contempt with civil or criminal contempt. We distinguish the facts of this case from direct contempt in that all the facts necessary to establish the false testimony were not before the court, therefore, it is impossible to say that there were words spoken or acts committed in the actual presence of the court which would constitute direct contempt. "When the conduct complained of was before a commissioner or other subordinate officer of the court and the court has no direct knowledge of the facts constituting the alleged contempt, in order for the court to take original cognizance thereof and determine the question of contempt, the proceedings must follow the procedural requirements as prescribed for indirect contempt. . . and be based on rule to show cause or other process constituting an initiatory accusation meeting the requirements of due process as prescribed by our statutes." (Emphasis added.) Galyon v. Stutts, supra.

Assuming, arguendo, that the conduct in question would amount to direct contempt the recent case of Groppi v. Leslie, 404 U.S. 496, 92 S. Ct. 582, 30 L. Ed. 2d 632 (1972) would indicate that regardless of what kind of contempt was involved that under the facts in this case notice and a hearing would be required as is the practice in our state when an order to show cause is issued in an indirect contempt. In Groppi, the Wisconsin legislature cited the petitioner for contempt for conduct on the floor of the State Assembly that occurred two days previous to the contempt resolution. This procedure was held to violate petitioner's due process since he was readily available, but was given no notice before the resolution was adopted or afforded any opportunity to respond by way of defense or extenuation.

Quoting from Groppi, at 404 U.S. 503, at 92 S. Ct. 587, at 30 L. Ed. 2d 639, we find:

A legislature, like a court, must, of necessity, possess the power to act "immediately" and "instantly" to quell disorders in the chamber if it is to be able to maintain its authority and continue with the proper dispatch of its business. (Citations.) Where, however, the contemptuous episode has occurred two days previously, it is much more difficult to *240 argue that action without notice or hearing of any kind is necessary to preserve order and enable a legislative body to proceed with its business. * * * * * * Where a court acts immediately to punish for contemptuous conduct committed under its eye, the contemnor is present of course. There is then no question of identity, nor is hearing in a formal sense necessary because the judge has personally seen the offense and is acting on the basis of his own observations. (Emphasis added.) Moreover, in such a situation, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution. (Citations.) . . . . Where, however, a legislative body acts two days after the event, in the absence of the contemnor, and without notice to him, there is no assurance that the members of the legislature are acting, as a judge does in a contempt case, on the basis of personal observation and identification of the contemnor engaging in the conduct charged, nor is there any opportunity whatsoever for him to speak in defense or mitigation, if he is in fact the offender.

In the case of Ex Parte Savin, 131 U.S. 267, 9 S. Ct. 699, 33 L. Ed. 150, 153 (1888) the U. S. Supreme Court said:

Where the contempt is committed directly under the eye or within the view of the court, it may proceed "upon its own knowledge of the facts, and punish the offender, without further proof, and without issue or trial in any form," (Ex parte Terry, 128 U.S. 289, 309, 9 S. Ct. 77, 32 L.Ed. 405) [32:405, 410]; whereas, in cases of misbehavior of which the judge cannot have such personal knowledge, and is informed thereof only by the confession of the party, or by the testimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished. 4 Bl.Com. 286.

We hold that the facts in the case at bar, where more than three full weeks elapsed between the conduct charged and the sentencing for contempt, fall sufficiently within the facts in Groppi to render the giving of notice and a hearing to Edison imperative.

The next question that arises is whether the alleged conduct of Edison constitutes contempt of court. In 17 Am.Jur.2d, Contempt, § 33, p. 38, it is said: "Making a false statement under oath may constitute contempt, notwithstanding that the conduct may also be a crime, such as perjury or false swearing." In Galyon v. Stutts, supra, the court indicated that the giving of testimony which is "obviously false" can constitute contempt. However, since we are invalidating the contempt order on procedural grounds, and due to the limited record before us, we do not pass upon this question.

The alleged conduct of Edison and his associates if true was reprehensible and appropriate action should be taken against those implicated in practicing a fraud on the courts. Nevertheless, those guilty or accused of the most reprehensible conduct are entitled to due process and on the record before us we hold that due process requires that Edison have his day in court.

For the reasons stated we declare invalid the order of the district court adjudging Edison in contempt and reverse the order of Judge Martin denying Edison's petition for habeas corpus.

Reversed.

MALLARD, C. J., and CAMPBELL, J., concur.