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Settle, J., delivered the opinion of the the same term of the court, the appellant court:

filed his own and other affidavits and moved The appellant, T. F. Brannon, under a the court to set aside the order overrul. rule from the Bourbon circuit court, was ing the motion for a new trial, and renewed tried by a jury and convicted of criminal the motion for a new trial, both of which contempt; his punishment being fixed by motions the court overruled, to which rulthe verdict of the jury and judgment of the ing the appellant excepted. The latter, becourt at a fine of $1,000 and six months' ing dissatisfied with the judgment of conimprisonment in the county jail. Following viction and the several rulings of the court the return of the verdict, appellant filed referred to, has appealed. motion and grounds for a new trial; the The ruling of the court as to the supplegrounds being: (1) The acts proved did not mental motion for a new trial will first be constitute a contempt of court; (2) the disposed of. The affidavits filed in support court erred in instructing the jury; (3) the of this motion stated, in substance, that punishment was so excessive as to show one of the jurors had previous to the trial that the jury were actuated by passion or said in their presence “that he believed that prejudice in fixing it. The motion for a the defendant should be given the limit.” new trial was overruled. Thereafter, at'The juror by affidavit denied making the violence, or of personal injury, to induce, court shall have power to punish as for persuade, entice, or procure one whom he contempt any person unlawfully interfering knows to be in the city for the purpose of with the proceedings in any action, it is a attending a term of court as a witness in contempt of court to approach and suggest a pending action, having been duly sum- to a complainant who has been recognized moned to attend the court as such witness, to appear as a witness against one bound to absent himself from the court, and to over to the court upon a criminal charge, leave and depart from the city, and from and who is a necessary witness for the state, the county, and go beyond and out of the with the intent to prevent her from attendjurisdiction of the court. French v. Com. 30 ing court as a witness against the accused, Ky. L. Rep. 98, 97 S. W. 427.

that she settle and compromise the matter, And under a statute making punishable and not attend court, telling her that, if as contempt any "unlawful interference she will do this, the accused will probably with the proceedings in any action,” and pay her money. State v. Moore, 146 N. Č. such acts as "tend to defeat, impair, impede, 653, 61 S. E. 463. or prejudice” rights or remedies "in an ac- Likewise, under a statute providing that tion then pending,” it is contempt of court a court of record has power to punish as a for the defendant in a pending criminal ac- criminal contempt, wilful disobedience, or tion to try to persuade a witness duly rec- resistance wilfully offered, to its lawful ognized to appear and testify against him mandate, it is a criminal contempt of court therein, to leave the state and not appear to advise and attempt to procure a witness in court against him, offering to assist the to disobey a subpena duces tecum, which witness in going and to give him money to is a lawful mandate of the court, by de pay his way, and to indemnify him for the stroying or hiding and wilfully failing to apprehended forfeit of his bond for appear- produce the books and papers called for by ance at court as a witness. Re Young, 137 the subpæna, notwithstanding the attempt N. C. 552, 50 S. E. 220.

to procure the disobedience of the subpæna So, in Re Whetstone, 9 Utah, 156, 36 Pac. fails, and the witness does produce the 633, the supreme court of the territory of books and papers in accordance therewith. Utah, without opinion, denied an applica- People ex rel. Drake v. Andrews, 197 N. Y. tion for a writ of habeas corpus to review 53, 90 N. E. 347, 18 Ann. Cas. 317, reversan adjudication of contempt of court, made ing 134 App. Div. 32, 118 N, Y. Supp. 37, by a district court of the territory while which reversed, on the ground that the subexercising the powers of a Federal court, pana in question was not a lawful “manunder a statute limiting the power of the date” of the court, the order of the trial Federal courts to punish contempt of their court committing the relator for contempt. authority to certain cases, including misbe- And see also Re Brule and People v. Jack. havior of any person in their presence or son, supra, under “Bribery.” so near thereto as to obstruct the adminis. tration of justice, and the resistance by any

Preventing appearance. person to any lawful writ, process, order, rule, decree, or command of the courts, It is contempt of court to use means to the alleged contempt having been committed prevent, and to prevent, one who has been by persuading and inducing a witness duly summoned to attend court as a witknown to have been duly subpænaed to ap- ness from thus attending to give evidence. pear and testify before a grand jury of the Com. v. Feely, 2 Va. Cas. 1. district, while it was examining into a So, it is a contempt of court to remove a criminal charge under the laws of the witness from the county of his residence, United States, to leave the territory in where he is under subpæna to attend upon order that he might not so appear.

the trial of a pending cause, with the pur. And under a statute providing that the pose and effect of preventing his appearance

statement, or that he entertained prejudice | flicted by the verdict was incompetent, but toward appellant, admitting, however, that we do not so regard it. The competency of he had inquired of a former commonwealth's such evidence was considered by us in Gleaattorney what punishment could be inflicted son v. Com. 145 Ky. 128, 140 S. W. 63, Ann. for criminal contempt, and was told by the Cas. 1913B, 757. In the opinion it is said: latter that it was unlimited. It also ap- "By the affidavits of three persons filed pears from his affidavit that this admission, in support of this ground [disqualification with the further statement that he had not of a juror], it was stated that J. M. Mormade up his mind as to the guilt or inno- ris, a member of the jury by which appelcence of appellant, was made by him when lant was tried, expressed before the trial, taken upon the jury, and that on appellant's and before he was accepted as a juror, the trial he unavailingly exerted his influence opinion that appellant was ‘guilty of the with other members of the jury to reduce murder of George Courtney, and should be the punishment below that fixed by the ver- punished therefor by being hanged or sent dict.

to the penitentiary for life.' Morris gave It is, however, insisted for appellant that an affidavit denying that he formed or exto his efforts to reduce the punishment in- pressed any opinion as to appellant's guilt so much of the juror's affidavit as related 'or innocence before the trial. In addition, upon the day of trial. Hale v. State, 55 , ity, since testifying, to return to his home. Ohio St. 210, 36 L.R.A. 254, 60 Am. St. Rep. Re Healey, 53 Ďt. 694, 38 Am. Rep. 713. 691, 45 N. E. 199.

So, it is a contempt of court to serve civil But, although it is contempt of court for process, after the termination of a criminal one, knowing that a certain person has been prosecution, on witnesses for the governsubpænaed by the state to appear and give ment who were brought by it to the place testimony before the grand jury in a crimi- of trial from another state and were regunal case, to decoy such person out of the larly subpænaed as witnesses in the cause, state with the purpose of preventing his ap-before they had left, or had reasonable oppearance as a witness, one who thus decoys portunity to leave, the place of trial on à supposed witness is not punishable for their return journey to their homes. United contempt, under a statute limiting the pow. States v. Zavelo, 177 Fed. 536. er of the courts of the state to punish for And this is misbehavior so near the court contempts of this nature to cases of abuse as to obstruct the administration of jusof, or unlawful interference with, the proc. tice, within the meaning of the statute ess of proceedings of the court, where the limiting the power of the Federal courts to supposed witness had not, in fact, been law. punish summarily for contempt, notwithfully subpænaed, although he was decoyed standing the acts were not committed in out of the state under the belief that a law- the court room or its immediate vicinity. ful subpæna had been served on him. Scott Ibid. v. State, 109 Tenn. 390, 71 S. W. 824, 14 But the service upon a nonresident witAm. Crim. Rep. 292.

ness in a pending action in a Federal court,

of a writ of garnishment from a state court Publication accusing of perjury. in a suit between other parties, while he is The publication in a newspaper, after the proceeding, from the court room to his filing of the bill and affidavits, but before a

boarding place at the noon recess, is not "a hearing, in a suit in chancery, of an article misbehavior in the presence of the court or

so near thereto as to obstruct the adminisattributing falsehood and perjury to the witnesses who made the affidavits, is a con

tration of justice," within the meaning of tempt of court. Felkin v. Herbert, 9 L. T. the statute limiting the jurisdiction of the N. S. 635, 10 Jur. N. S. 62, 12 Week. Rep. parte Schulenburg, 25 Fed. 211.

Federal courts in cases of contempt.

Ex 332.

And the publication in a trade gazette, pending the progress of a cause in court, of

Subornation of perjury. articles reflecting on the plaintiff's witnesses and representing their affidavits, up: pending prosecution, by persuasion and

Procuring a witness for the state in a on which the plaintiff had obtained an in threats of personal violence, to testify falsejunction, as containing glaring misrepre. sentations which the editor believed, and ly as to the time of the alleged offense, so heartily hoped, would lead to an indictment as to make it appear to be barred by the for perjury, is a contempt of court, Littler within the meaning of a statute giving the

statute of limitation, is contempt of court v. Thomson, 2 Beav. 129.

court power to punish, as contempt, an un.

lawful abuse of or interference with the Service of process.

process or proceedings of the court. RickIt is contempt of court to cause process etts v. State, 111 Tenn. 380, 77 S. W. 1076, of summons to be served upon a material 14 Am. Crim. Rep. 301. witness in a pending suit, who is a nonresi- And see also Fisher v. McDaniel, supra, dent of the state and is in the state solely under “Bribery." to attend the trial of the cause and testify But one who, having instigated a neglias a witness, and has not had an opportun- gence action, made and delivered to the witthere were filed the affidavits of several mem- did not influence the verdict), here the other bers of the jury, from which it appeared principle (ante, § 2349) applies to forbid that Morris, at no time during the trial, this. The distinction is that in the former manifested any bias or prejudice against case the juror's expressions are not conappellant, but that, on the contrary, he sidered in their aspect in .establishing mowas largely instrumental in influencing sev- tives for the verdict, but merely as part eral of the jury, who were in favor of find- of his whole conduct going to determine the ing appellant guilty of murder and punish - question of his former bias.' 11 Am. & Eng. ing him accordingly, to agree to a verdict ! Enc. Law, 1008." of voluntary manslaughter. We are of opin- If the conduct of the juror in attempting ion that the affidavits of the other jurors to influence the jury to inflict a lighter were properly admitted as evidence on the punishment than was awarded by the vercharge of bias against Morris. The affidavit dict could properly have been shown by the or oral testimony of a juror will not be re- affidavit of other members of the jury, as ceived to impeach a verdict or to impeach held by the authorities, supra, it was cleara fellow juror's conduct, but will be ad- ly competent to show it, as was done in mitted in support of a verdict attempted to this case, by the aflidavit of the juror himbe impeached by other testimony, whether self. Under the circumstances, it was necthe juror's testimony goes to deny or ex. essary for the trial court to determine plain ... misconduct during retirement. whether the juror alleged to be biased was We are aware that this doctrine does not disqualified to such an extent as to impeach meet with favor in some of the states, but the verdict and give cause for setting it we gave it our approval in Howard v. Com. aside. The matter was one that addressed 24 Ky. L. Rep. 612, 69 S. W. 721, and have itself to the discretion of the court. Some since adhered to it. In elaboration of this weight must be given to the court's knowldoctrine Mr. Wigmore, in his valuable work edge of the conduct of the juror during the on Evidence (vol. 4, § 2354, subsec. 4), says: trial and its acquaintance with the characMoreover, this object of disproving bias ter of the juror and those of the three peralleged to have existed before trial may be sonal friends of appellant by whose affidaattained by showing expressions and con- vits his disqualification for service upon the duct during retirement as an evidential fact jury was attempted to be shown; and the relating back and negativing the supposed fact that the court accepted the statements prior bias. But where the object is to de contained in the juror's affidavit in prefer. termine the grounds or motives of the ver- ence to those contained in the affidavits of dict as in themselves important for sus- the three witnesses of appellant gives us taining it (for example, to show that a no ground for holding that the ruling of certain illegal paper or erroneous charge the court on this point against appellant nesses who were to testify for the plaintiff, | ters involved, are likely to be called as wittypewritten statements of what they were nesses in the action, and one of whom has to swear when called at the trial, which already actually been subpænaed. Welby statements were false, and were furnished v. Still, 66 L. T. N. S. 523. to aid the plaintiff in obtaining a verdict by Where, owing to sickness of one false and perjured testimony, is not guilty moned as a witness, and his inability to at. of a civil contempt, under a statute giving tend court, his bookkeeper has been subcourts of record the power to punish as a pænaed to appear and bring with him into civil contempt, in certain cases, misconduct court one of his employer's books, which he by which a right or remedy of a party to a brings, in obedience to the summons, it is pending civil action may be defeated, im- contempt of court for another to take the paired, impeded, or prejudiced, where the book from him, and carry it out of court defendant has succeeded at the trial. Nos- and to the employer, although the employee ter v. Metropolitan Street R. Co. 30 Misc. brought the book into court without con722, 63 N. Y. Supp. 501.

sulting his employer, or obtaining the lat.

ter's permission to take it. Com. v. Bray. Miscellaneous.

nard, Thacher, Crim. Cas. 146. It is contempt of court for the defendant

But it is not a contempt of court merely in a pending civil action to prevent the serv- to write to one who may become a material ice of a subpæna upon, and to keep out of witness for the plaintiff in a pending civil the way, a material and necessary witness action, and attempt to persuade him not to for the plaintiff, who resides with the de- give evidence at the trial, where it is not fendant as a part of his family and is en

shown that such conduct interferes in any tirely under his care and control. Clements way with the plaintiff's serving the witv. Williams, 2 Scott, 814.

ness with a subpæna, or that the witness, if And it is contempt of court to endeavor served, will not appear and furnish the evi. to warp the minds of possible witnesses in dence desired by the plaintiff. Schlesinger a pending action, by writing letters to per

v. Flersheim, 2 Dowl. & L. 737, 14 L. J. Q.

B, N. S. 97. sons who, from their knowledge of the mat

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was error. In other words, we are uncon- A. Nothing whatever. And said nothing. vinced, by anything appearing in the record, that the ruling of the court in refusing to Q. Did you or not have an opportunity set aside the previous order overruling the to defend yourself before he struck you? motion for a new trial was an abuse of dis- A. No, sir; he struck me just as he said cretion, or prejudicial to the rights of ap-1-he says, “You God damned spellant. McKee v. Cincinnati, F. & S. E. b--, I ought to whip you, and I am going R. Co. 161 Ky. 711, 171 S. W. 425.

to;" and with that he struck me. Appellant's main contention that the acts for which he was convicted did not consti- lant testified as follows:

With respect to this transaction, appeltute contempt cannot prevail. To intelli

Q. Now, tell just how you met Mr. Cook gently pass upon this contention, considera- there at the corner of Seventh and Main tion of the evidence will be necessary. It streets, and what was said between you appears that there were three indictments

there, and what was done? returned in the Bourbon circuit court against appellant, who was the keeper of of Main street, from the court here. When

A. Well, I was going up on the west side a saloon, each charging him with an unlaw. I left the courthouse I went up Main street ful sale of liquor. C. P. Cook was an important witness for the commonwealth in street. My place is on the opposite side of

on the west side until I got to Seventh each of the three cases referred to. Two the street, and I was crossing over and ! of the cases had been tried, one of the trials met-I never saw Mr. Cook until I run right resulting in appellant's acquittal and the into him between Seventh street, between other in his conviction; Cook being the prin- the two corners. cipal witness against him in each of the

Q. You mean on the north side or the cases. The third case was continued.

south side of Seventh street ? The following excerpts from the testi- A. Yes, sir. Right in the middle of the mony of Cook in the instant case will indi. crossing. I said to him: "You dirty little cate the acts constituting the alleged con cur, you lied. You know you lied.” And tempt :

he called me another liar, and as he did I Q. This rule charges Mr. Brannon with hit him. I never hit him but once. I hit contempt of court for striking you after you him the first time this way, then I hit him had left the court room here. Just tell with the left hand the second time, and what those facts were, if he struck you, Mr. that was all that I done. Cook, how it came up, and how long after Q. Did you knock him down? the trial of this case was it?

A. Yes, sir. He fell on his back. A. A very few minutes. I walked up Q. Did you kick him at all? street before the jury had brought in a ver- A. I did not, sir. dict. After I testified I walked up street,

Q. What else did you say to him there and I stopped on the corner of Seventh and at the time? Did you say that you were Main to talk to Mrs. Sims Wilson. She going to whip him every time you saw

him? stopped me and asked me about a certain matter. I have forgotten what it was now

A. I don't think I did. -perhaps an order—and just as I started Appellant also testified, in substance, that to walk on to get on the other side of the he did not threaten Cook with any violence; street-Seventh street, going up-Mr. Bran- that he had no purpose of intimidating him non came diagonally across the street. I from testifying in the remaining case pendturned and saw him. He was almost to ing against him; and that he intended no me; and he says, “God damn you, I ought contempt of the court, to whip you, and I am going to do it.” And On cross-examination he was asked: with that he struck me on the jaw here, and Q. You say that you didn't strike Mr. then he struck me here, and knocked me Cook for the purpose of intimidating him down and kicked me twice.

from giving any further testimony. It is Q. Where did he kick you?

a fact that you did strike him for having A. Kicked me in the back.

testified? A. As soon as I got up, he shook his fist A. No, sir. Never. in my face, and says, “God damn you, I am Q. What did you strike him for ? going to give you this every time that I A. Just because he told a lie. That's it. meet you."

Q. Then you did strike him for the purA. When he first struck me he said, "You pose of punishing him for having testified God damned s- of a b - I ought to against you, if you struck him for having whip you, and I'm going to do it.”

told a lie, didn't you? Q. What did you do?

A. I thought it was all over and every

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thing settied, and I had no idea of doing meetings between them, that the purpose of anything to wrong this court.

the attack upon the latter was not only to Cook's testimony was corroborated in the punish him for previously testifying against main by three eyewitnesses of the assault, appellant in the two cases which had been one of whom heard appellant use the insult- tried, and one of which had not been finally ing and abusive epithets and language ap

disposed of, but also to intimidate him with plied to Cook and saw him knock him down

a view of influencing his testimony, or of and kick him. The others were not close preventing his giving it, on any future trial enough to hear what was said, but they saw

that might take place under the indictment

which had been continued. Cook knocked down and kicked by appellant, and all three witnesses testified that the

There appears to be no authority in this assault was unprovoked by anything that jurisdiction, other than Melton v. Com. 160 Cook did, and that he made no effort to Ky. 642, L.R.A. 1915B, 689, 170 S. W. 37,

as to what constitutes the pendency or nondefend himself against the attack.

It should here be remarked that, at the pendency of an action or proceeding, with time the assault and battery was committed respect to which a contempt was charged

to have been committed; but the question by appellant upon Cook, there was still pending one of the indictments against the seems to have been decided in other jurisformer, under which he had not been tried, dictions, a leading case on the subject being and that Cook's name appeared on this in that of State v. Tugwell, 19 Wash. 238, 43 dictment as a witness; and it was known

L.R.A. 717, 52 Pac. 1056. In that case the to appellant that he would, upon the trial

respondent was accused of publishing a of the case at the next term, be called on

libelous article six days after the reversal to again testify as a witness in behalf of of a judgment by the supreme court of the the commonwealth against him. Appellant's state of Washington, which attacked the trial under one of the other indictments court because of the reversal. It appeared, had, as previously stated, resulted in a ver

however, that the publication, though ocdict in his behalf, but the tria of the case

curring after the reversal, was made before in which he was convicted had, according to the court had acted upon a petition for a his testimony, been concluded but a few modification of the opinion, final judgment minutes before he committed the assault upon which was not rendered until March 2, and battery upon Cook. According to Cook's 1898, the remittitur issuing March 9, 1898. testimony, the attack

In rejecting the respondent's contention in upon him occurred

the contempt proceeding, that the case, with very soon after he had left the court house for his place of business, and that, at the respect to which the contempt was charged time of his leaving the court house, the to have been committed, was not pending

on jury which convicted appellant had not re

appeal at the time the article was written,

the court said: turned a verdict. It is true the case in which appellant was convicted of unlawfully lowed by a petition for rehearing on the

"The first opinion in the cause was folselling liquor had, at the time of the asgault, been tried, but it had not been finally lile additional briefs was granted by the

part of the appellant. Leave to print and disposed of, for the judgment had not then been entered upon the verdict; and as, under court, and the case assigned regularly, and $ 273, Criminal Code, appellant had the reargued orally in the court

, and the opinright to make application for a new trial ion of the majority of the court then filed, at any time during the term, which con

reversing the judgment of the superior tinued for some days thereafter, the case

court. A petition was then filed by counsel cannot be said to have been finally disposed modification of the opinion filed, and subse.

for respondent, praying for an important of until the time allowed by the Code for filing motion and grounds for a new trial quently an opinion filed denying such modi.

fication. expired, which ended with the close of the jurisdiction of this court over the cause and

There can be no doubt of the term. So it is apparent that, at the time of the

the power to make any modification of its assault upon Cook by appellant, there were dered, and until the remittitur issued. Un

opinion, until the final judgment was rentwo cases pending against him in the Bour. der the law, the courts in this state are bon circuit court-one of which had been always in session, in legal contemplation. disposed of only in part, and the other con- 'An action is "pending”

until the tinued for trial at the succeeding term—in judgment is fully certified.' Anderson's which Cook was an important witness for Law Dict. verb. Pend. See Ulshafer v. Stew. the commonwealth; and it is manifest from art, 71 Pa. 170; Holland v. Fox, 3 El. & Bl. what he said to Cook at the time of assault. 977; Wegman v. Childs, 41 N. Y. 159." ing and knocking him down and kicking In the elaborate abstract of brief aphim, and his threat to repeat it at all future' pended to the case, in [43 L.R.A. 718), will

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