
    Hegelaw v. The State of Ohio et al.
    
      Contempt—Obstructing justice by false testimony—Section 12186, General Code—Proof required for conviction— Obstructive effect of answer, judicial knowledge of falsity, and materiality—Court’s opinion that witness falsely testifying on disputed fact, insufficient—Action involving forgery of bank withdrawal slips—False testimony as to withdrawing and redepositing funds immaterial.
    
    1. Conviction for contempt under Section 12136, General Code, for obstructing administration of justice by false testimony, requires showing that false answer had an obstructive eifect, that court had judicial knowledge of falsity of testimony, and that question was pertinent to issues in case.
    2. That court chooses to believe one side in preference to another, as to issue of fact on ground of greater proba- - bility, would not justify holding witness supporting losing side guilty of contempt of court which requires patent falsehood, not merely one based on opinion of court.
    3. In an action involving forgery of withdrawal slip not within court’s judicial knowledge, testimony by defendant to withdrawing funds and depositing same to own account, but uncertain as to exact time thereof, not being on material issue, and though false and probably made with knowledge of falsity, did not justify conviction for contempt for obstructing administration of justice under Section 12136, General Code.
    (Decided February 14, 1927.)
    Error: Court of Appeals for Cuyahoga county.
    
      Mr. Stephen M. Young and Mr. Don J. Young, for plaintiff in error.
    
      Mr. Richard S. Douglas and Mr. F. B. Fults, for defendants in error.
   Levine, J.

Plaintiff in error was found guilty of contempt of court by tbe common pleas court. He seeks a reversal. The finding of tbe court was:

“That Robert Hegelaw is found guilty of contempt of court because of bis contumacious conduct in tbe presence and bearing of tbe court while testifying as sucb witness and because of bis giving untruthful, prevaricating and evasive testimony as sucb witness.”

It appears that Margaret Hegelaw, former wife of Robert Hegelaw, commenced an action in tbe court of common pleas against tbe Cleveland Trust Company to recover approximately $1,800, the same being one-half of a bank account standing in tbe name and to tbe credit of Robert and Margaret Hegelaw. This bank account bad been withdrawn some months before upon a withdrawal slip purported to be signed by Robert and Margaret Hegelaw, and tbe claim was made in Margaret Hegelaw ’s petition that she bad never signed her name thereto, but that her signature was a forgery. Tbe Cleveland Trust Company answered denying that tbe withdrawal slip was a forgery, and alleging that it contained tbe valid signature of tbe plaintiff Margaret Hegelaw. This cause upon these issues came on for trial before Judge Harrison W. Ewing.

Robert Hegelaw was offered as a witness on behalf of tbe defendant, tbe Cleveland Trust Company. He testified that Margaret Hegelaw signed tbe withdrawal slip. He further stated that tbe money was withdrawn from tbe bank by Margaret Hegelaw and himself; that it was thereupon given to Margaret Hegelaw and taken to her home and placed in a sideboard drawer. This cash so withdrawn consisted of three $1,000 bills and one $500 bill; and be testified that after it remained for several days in the sideboard drawer, he took it himself to the Society for Savings Bank and there deposited it to his own individual credit. After being closely interrogated with reference to it, he finally stated that he did not know the exact time, and could not remember it; that if the parties would examine the record of the Society for Savings Bank they could ascertain the exact date that the deposit was made. This was done, and an examination of the record showed that the withdrawal from the Cleveland Trust Company and the deposit in the Society for Savings Bank were both on the same day; the withdrawal being in the forenoon and the deposit in the afternoon.

The trial judge thereupon ordered the arrest of Hegelaw and filed charges—charging direct and positive perjury. He appointed counsel as a prosecuting committee. Hegelaw was cited to appear in court and show cause why he should not be punished. He filed an answer denying the charge against him. At the request of Judge Ewing, this contempt case was assigned to another judge. After the case was heard and argued, amended charges were filed, which amended charges differed but slightly from the original charges. The former described the testimony of Hegelaw as perjury. The amended charges described it as perjury and evasive and obstructive testimony. Upon this state of the record, a finding of guilty was entered against Bobert Hegelaw.

The contempt proceeding was based upon Section 12136, General Code, which is as follows:

“A court, or a judge at chambers, summarily may punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.”

The question presented to this court is whether the record discloses that plaintiff in error was guilty of misbehavior in the presence of the court.

We are cited to the case of Edwards v. Edwards, 87 N. J. Eq., 546, 100 A., 608, wherein the court held that perjury, although it may also be punished as a crime, is a contempt and may be punished as such; that the one act constitutes two offenses, one against the state, the other against the court, just as an assault committed in court may be both contempt and a crime. Also, Berkson v. People, 154 Ill., 81, 39 N. E., 1079. This subject of the power of the court to commit a witness for contempt for giving false testimony is treated by Mr. Chamberlyne in his Modern Law of Evidence, Yol. 1, Sections 249 to 255, inclusive. We quote therefrom as follows:

Section 249. “Of possible acts, few are so antagonistic to the objects -of judicial administration as the intentional false swearing which seeks to baffle the search for truth, without which justice is impossible. Such swearing is a flagrant insult to the dignity of the court.”

Section 254. “Criminal contempts are those which are committed in presence of the court and disturb its administration of justice either physically and directly, as by disorderly conduct, or morally and indirectly by bringing the administration of justice into public disgrace. Criminal con-tempts are all acts committed against the majesty of the law, or against the court as an agency of the government, and in which, therefore, the whole people are concerned.”

To justify a finding of guilty of contempt in cases similar to the case at bar the following elements must subsist: (1) That the alleged false answer had an obstructive effect. (2) Judicial knowledge of the falsity of the testimony. (3) The question must be pertinent to the issues.

In nearly every ease issues of fact are made up by the pleadings, each side seeking by testimony to maintain its part. The court or jury, in rendering judgment or verdict, bases its finding upon the testimony which seems the more probable. Merely because the court chose to believe the one side in preference to the other as to an issue of fact, upon grounds of greater probability, would not justify the court in holding the witness who supported the losing side guilty of contempt of court. To justify such action by the court the falsity of the witness’ testimony, given in open court, must be a matter of judicial knowledge, not merely of opinion. In other words, it must be a patent falsehood upon which there can be no difference of opinion. If the alleged false statement is merely a matter of the court’s opinion, as distinguished from its knowledge, contempt proceedings will not lie.

In the case at bar there was a clean-cut issue between Margaret Hegelaw and the Cleveland Trust Company as to whether she signed the withdrawal slip. There was evidence to support her contention. The court possessed no judicial knowledge on that subject. All it could do is to form its opinion and determine where the greater probability lay.

As to the statement of Robert Hegelaw concerning the time he deposited the funds so withdrawn from the Cleveland Trust Company with the Society for Savings Bank, it appears in the final analysis that he was not quite definite on the subject. In addition, the question of when he deposited the funds so withdrawn with the Society for Savings Bank was not a material issue in this case. In what manner it obstructed the administration of justice, even if proven to be false and to have been made with knowledge of its falsity, is difficult to say.

Upon a reading of the record we are of the opinion that the charges against Robert Hegelaw were not sustained by the evidence in view of the settled law of the subject.

The judgment of the common pleas court will therefore be reversed, and plaintiff in error is ordered discharged.

Judgment reversed.

Sullivan, P. J., concurs.

Vickery, J., not participating.  