In Re Patterson

6 S.E. 643, 99 N.C. 407

• Court: Supreme Court of North Carolina
• Decided: February 5, 1888
• Status: Published

Opinion

Smith, C. J.,

(after stating the case). The Judge finds as a fact that the prisoner Goocllake is out of the State and beyond the control of said Patterson, who, with the co-respondent Deaver, against whom the proceedings are directed, “cannot produce him.” The action now taken is not, therefore, to compel obedience to any mandate of the Court, for this has become impracticable, but as punitory only in its aims and operation. The parties still remain exposed to a criminal prosecution for the offence, in which, upon conviction by a jury, ample punishment can be awarded. Neither is it a means of coercing obedience, in the power of the party to render, to an order of the Court properly entered in a proceeding before the Court, in furtherance of its object. If it were, the power to imprison, reasonable in duration, would be commensurate with the attainment of its purpose, as is decided in Cromartie v. Commissioners of Bladen, 85 N. C., 211. But as a means of punishment merely, in addition to that which may be inflicted upon an indictment, and this upon facts found by the Judge without a jury, Baker v. Cordon, 86 N. C., 116, limits have been fixed by law upon the exercise of the power. The Code, § 649.

In declaring what acts, omissions and neglects may be punished for contempt, and excluding all others, are enumerated, § 648, pars. 4 and 5, “willful disobedience of any process or order lawfully issued by any Court; ” “ resistance willfully offered by any person to the lawful order or process of any Court;” and in § 651, the power is declared to belong to “ every Justice of the Peace, referee, commissioner, Clerk of a Superior, Inferior and Criminal Court,” as well as to the Justices of the Supreme and Judges of the Superior Court, “while sitting for the trial of causes or engaged in official duties.” In re Brinson, 73 N. C., 278.

As the authority is conferred upon so large a class of officers, while exercising judicial functions, and when the guilt of the offender is to be ascertained without the intervention of a jury, as the right and at the instance of the accused; Baker v. Cordon, ante, there have been limits assigned as well as the kinds of punishment allowed, and it is declared in § 649, that it “ shall be by fine or imprisonment, or both, in the discretion of the Court; the fine not to exceed two hundred and fifty dollars and the imprisonment not to exceed thirty days.” In re Walker, 82 N. C., 95.

The present case falls directly within the terms of the statute, and we are at a loss to find upon what grounds the able and learned Judge, who imposed the sentence of imprisonment for sixty days and a fine of two thousand dollars, on each of the offending parties, felt warranted in doing so, unless he overlooked the distinction we have pointed out, in the cases referred to in this opinion. We have no hesitancy in recognizing 'the right of the General Assembly to pass the act defining and punishing contempts, as is done in the provisions we have cited, inasmuch as they do not undertake lo deprive the Court, nor could they do so, of any of its inherent and essential functions, without which their •duties, as judicial tribunals, could not be performed.

This renders necessary the reversal of the judgment en tered by the .Judge below, and disposes of the appeal, without further examination of the case in reference to numerous other exceptions; but as it may facilitate the final settlement of the controversy, we will notice one of them, and that is to the effect that there is no evidence of a willful disobedience of the mandate, nor of a willful resistance to its enforcement, the first of which is found by the Judge as a fact.

It is quite apparent that the legal custody of Goodlake was with the agent Conner, and the execution of the writ consisted in making it known to the party, detaining the prisoner, and this is done by leaving him a copy. It was thus served upon the agent, and the respondent could not legally take the control and possession of the prisoner from him, for whose defence against lawless and overpowering force if required, he was on the train. There is no evidence of his having the custody, so as to be able to produce the body without invading the rightful authority of the agent, conferred by the writ of extradition, that was being exercised in conveying the fugitive to the State wherein his alleged offence was committed. If he had counseled, or in any way aided in, the disobedience of the writ, so that the agent was induced or enabled to evade the requisition made upon him, he might, perhaps, have been responsible for the non-production of the body, or for resisting the order, a result willfully brought about by such participation in the conduct of • the agent, by which the purposes of the writ were frustrated. But we see no evidence of this in the proofs offered, nor of opposition to the service of the order, unless it be in the objection to the Sheriff’s entering the cars, and this plainly proceeded from the belief that he was not an officer or armed with authority, for as soon as the Sheriff announced his official character, no resistance was made to his entering and executing the order. It is true, the agent had secreted himself in another part of the train, leaving his prisoner in the seat by the side of his assistant Howard, upon whom service was made, as it was afterwards made upon the agent himself; but it is not shown that the respondent, by act or word, interposed any obstacle in the Sheriff’s way or hindrance to his executing the writ. We do not, therefore, find any testimony to support or to warrant an inference of a willful disobedience of the order of the Court, upon which the respondent was adjudged to he in contempt. This is the finding, and not that of resistance to the officer, upon which the penalty has been adjudged, and we must sustain this exception to the ruling.

While implicit submission to judicial authority, lawfully used, is an inexorable requirement of every one, and the Judge acted rightly in awarding the writ upon the verified statements in the application, the process of the Court had been grossly abused by the prisoner, in his repeated efforts to thwart the proceeding for extradition required by the Constitution of the United States, and enforced by the statute in this State, in the three different suings out of the writ, in each of which he was required, in order to obtain it, to swear “ that the legality of his imprisonment or restraint has not been already adjudged,” and imposing upon the Judge, from whom it was last sued out. It was his duty to issue it. and enforce obedience, notwithstanding he would have dismissed the proceeding when regularly brought before him, and it was seen that the prisoner was in lawful custody of the agent under the highest authority, which had already been twice before adjudged to be lawful, yet it was rightly ruled that this defence’ was only available when the case was before the Judge, and formed no excuse for the conduct of the agent in carrying away the prisoner in defiance of the order, and he would, doubtless, have been held amenable to the heaviest penalties of a violated law. And so would have been his associate, who had charge of the prisoner, in fact was a confederate, as we understand his relations to the cause, in the criminal misbehavior of his principal. But the testimony does not establish the finding of his participation in it, and for this reason, also, as well as for the excess in the punishment, the judgment must be reversed, and the error corrected. It is so adjudged.

Error.