State v. Gibson

10 S.E. 58, 33 W. Va. 97, 1889 W. Va. LEXIS 12

• Court: West Virginia Supreme Court
• Decided: September 14, 1889
• Status: Published

Opinion

GrbbN, Judse :

. The appellant’s counsel insist, that the Circuit Court of Cabell county had no authority to issue the rule it did on August 23, 1887, to show cause why he should not be fined for a contempt offered by him to said court “in .this: that in the recess of that day for dinner, in the court-house yard, in public, he used disrespectful, abusive and slanderous language about and of the judge of said court in relation to his official conduct in the discharge of his duties on the bench whilst conducting the business of the court.” The objection to the issuing of this rule is, that it was not supported by proper affidavits. But neither the statute-law nor the cora-mon-la'w makes it absolutely necessary, that affidavits should be filed, on which to base such a rule. Such rule is usually properly based on affidavits, but I do not regard it as absolutely necessary in every case. See Dandridge’s Case, 2 Va. Cas. 408; State v. Frew, 24 W. Va. 416.

The record in this case shows that Thomas'H. Harvey, A. B. Palmer, I. F. Stewart, and N. S. Thornburg made sworn statements in open court, that Eustace Gibson, during the recess of the court that day for dinner, in the courthouse yard, in the presence of divers persons, and before the public, in loud aud boisterous voice used disrespectful? abusive and slanderous language about the judge of the said court in relation to his official conduct in the discharge of his duties on the bench in conducting the business of said court. The real objection to these affidavits as the basis of such rule is, that they do not state the particular language used by the defendant and claimed to have been contempt of the court. But the record shows, that on the next day there was filed in court a paper, in which the words constituting this particular contempt complained of were set out, and an answer filed by the defendant, Gibson, in which he denied, that he in any way or manner used the language set out in the said paper as used by him.

The object in setting out in the rule the particular language used by the defendant is to afford him a proper opportunity to take issue on the truth of such allegations. This opportunity was given the defendant in this case, when the court set out in a written paper filed the next day the particular language constituting the contempt charged; and the defendant availed himself of the opportunity by pleading “not guilty” to the charges. The bill of exceptions shows that on the trial of these issues the defendant offered to prove that each of the said denials in said answers were true, and that he did not use or utter such language, either in words or substance, as so charged against him; and that the court refused to permit said proofs to be introduced, “so far as the charge against the defendant consisted of contemptuous language used in the court in the presence of the judge.” The court properly refused to permit the defendant to prove, that he had not used any such language, as he was charged to have used in court, for the language having been used in the presence of the court could be rendered no 'more certain by any proof that could be introduced. But the court erred when it refused to permit the defendant to prove that he had not used any such language as he was charged to have used out of the presence of the court. What this language out of the presence of the court was had been proven by witnesses on the part of the State. Their statements were open to denial by witnesses on behalf of the defendant. How, the court fined the defendant $50.00, and imprisoned him ten days, for his contempt in using the language he did use about the court in his presence and also in his absence, as charged and proven. As the defendant was not permitted to prove what was tholanguage he actually used during the recess of the court, we Can not say how much the judgment would have been or ought to have been modified had such proof been received, as it should have' been. We must therefore set aside, reverse and annul the judgment rendered against the defendant on August 24, 1887, and the case must be remanded to the Circuit Court of Cabell county, to be proceeded with in the manner and on the principles laid down in this opinion.

BeveRsed — Remanded.