In Re Hennis

173 S.E.2d 785 (1970)

276 N.C. 571

In the Matter of the Imprisonment of E. H. HENNIS.

No. 34.

Supreme Court of North Carolina.

May 13, 1970.

*786 Atty. Gen. Robert Morgan, Deputy Atty. Gen. Harry W. McGalliard and Staff Atty. James L. Blackburn, Raleigh, for the State.

Norman B. Smith, Greensboro, for petitioner appellant.

PER CURIAM.

The case was before the Court of Appeals on certiorari to review Judge May's order. In response to the writ of certiorari, a transcript of the entire proceedings before Judge Gwyn was included in the record before the Court of Appeals and is now before us. The briefs and the opinion of the Court of Appeals relate primarily to the sufficiency of the findings of fact to support Judge Gwyn's orders. Under these circumstances, we deem it appropriate to treat the case as properly before us for determination of that question.

Judge Gwyn was presiding at the trial of a civil action for the collection of rent. According to his findings, Judge Gwyn observed "the movement of people to the windows. They appeared to be observing something that was happening on the outside." The court reporter informed him "that the court was being picketed by a man walking around the courthouse wearing a placard * * *" He left the bench and went to a window from which he observed Hennis "as he walked slowly around the courthouse wearing a picket sign * * *"

It was stipulated that it was sixty-one feet from the windows of the courtroom from which Hennis could have been observed and the closest point Hennis could have approached the courtroom and at the same time remained on the public sidewalk adjacent to the courthouse grounds. The record is silent as to the portion of the sidewalk on which Hennis was walking when observed from the (second floor) windows of the courtroom.

Pursuant to Judge Gwyn's directive, the sheriff brought Hennis from the sidewalk into the courthouse and into the courtroom where Judge Gwyn was presiding.

The findings of fact made by Judge Gwyn are based on his personal observations and on statements made to him by Hennis after the sheriff had brought Hennis before Judge Gwyn. The record contains a transcript of the colloquies between Judge Gwyn and Hennis in the courtroom. No other person gave testimony as to Hennis' conduct.

Judge May's order is based on well-established principles set forth by Moore, J., in In re Burton, 257 N.C. 534, 540-541, 126 S.E.2d 581, 586. He concluded that he had no authority to reverse or modify judge Gwyn's orders even if he considered they were erroneous, but that he had authority to order the release of Hennis on bond while Hennis sought to have Judge Gwyn's orders reviewed on certiorari by the Court of Appeals.

Examination of the transcript discloses the following: No admonition or directive was given Hennis to discontinue walking along the sidewalks adjacent to the courthouse wearing the sandwich sign. He received no notice or warning that his conduct constituted a disturbance of a court session until brought from the sidewalk to the courtroom and there questioned by Judge Gwyn. In the courtroom, when questioned by Judge Gwyn, he stated he "didn't do it with any intention of contempt," having been advised by the Police *787 Department that this type of protest was permissible. No speaking or other noise was involved. Hennis attracted attention solely on account of the singular spectacle of a man strolling slowly along the sidewalk wearing the sandwich sign. He told Judge Gwyn: "I did not know nothing about whether you were in the courthouse today or not and to have no bearing on whatever is going on here today * * *"

There are no findings and no evidence in the record sufficient to support findings, that Hennis had knowledge that court was in session or that he had knowledge his conduct was interfering with the regular conduct of business at a court session. Absent such findings, there is no support for the conclusion that Hennis' conduct constituted a wilful interference with the orderly functioning of a session of court. In our view, the general findings "that the acts and conduct of the said E. H. Hennis were wilful and malicious and tended to impair the respect due its (the court's) authority" are insufficient.

Upon the record before us, we hold that Judge Gwyn erred in ordering Hennis into custody on July 16, 1969, for direct contempt of court. Accordingly the case is remanded to the Court of Appeals for the entry of an order directing that a judge presiding in the Superior Court of Guilford County enter an order providing for the release of Hennis from custody.

Mindful of Judge Gwyn's long and distinguished career as an enlightened, considerate and compassionate jurist, we are quite sure that he, if he were with us today, would concur in this disposition of the case.

Reversed and remanded.