Mullin v. People

Me. Justice Hatt

delivered the opinion, of the court.

As the information in this case is verified, it may properly be allowed to perforin the office of the affidavit made necessary by the statute as the foundation of a proceeding for constructive contempt. The record shows that the petition for a change of venue was presented in a respectful manner; that in fact it was not read to the court, but was handed to the presiding judge for his perusal; and that there was nothing in the petition itself that was regarded, or that could properly have been regarded, as contemptuous. If, therefore, any contempt was committed, it was constructive rather than direct. This was determined in the cause of Thomas v. People, 14 Colo. 254 .

We will therefore inquire as to whether or not the facts alleged in the verified information are sufficient to constitute a constructive contempt of court. If the facts charged do not show affirmatively that a contempt has been committed, the judgment of the district court against the plaintiff in error must be reversed.

In the case of Cooper v. People, 13 Colo. 337 , it was said: “ When an affidavit is presented as the basis of a proceeding for contempt, the court must, in the first instance, examine the same, and, if the facts presented do not show that a contempt has been committed, the court will be without jurisdiction to proceed; but, if the facts are sufficient, the court may take jurisdiction, and its subsequent orders will not be reviewed for mere error.”

In the case at bar we must assume that the statement set forth in the verified petition for a change of venue as having been made by the wife of the presiding judge was in fact so made, for the reason that, in the affidavit or information filed, it is not denied that such language was used by her. In some jurisdictions, when a change of venue is asked on account of the prejudice of the presiding judge, it is not necessary to set forth in the petition the fact or facts on which the party bases his fears that he will not receive *441 a fair trial in the court wherein the cause is pending. But in this state such facts must be stated, although with not the same particularity as is required in cases in which the application is based upon the alleged prejudice of the inhabitants of the county. Hughes v. People, 5 Colo. 436 .

Assuming then, for the purposes of this case, that the wife of the presiding judge made the statement attributed to her, plaintiff in error had the-undoubted right to embody such statement in his petition for a change of venue without subjecting himself to being punished for contempt. The principal ground relied upon to sustain the action of the court below therefore fails. Had it been charged that the affidavit was false in this respect, and that such false statements were made wilfully and maliciously, as argued, a different case would have been presented.

It is alleged, however, that the charge contained in the following language is false: “That at said time, as petitioner was informed, -the judge of this court and his wife were boarding at the house and the guests of Mr. and Mrs. Davis.” Issue upon this statement seems to have been taken upon the time only, and does not deny that plaintiff in error had received information as stated in his affidavit. The judgment cannot, therefore, rest upon this charge.

The only remaining matter contained in said information necessary to be considered is as follows, to wit: “ That the charge contained in and written upon said petition for a change of venue and herein set out, to wit, ‘and your petitioner believes that from the rulings of said court, and the instructions of the court to the jury in said cause, this court is prejudiced in favor of the plaintiff herein,’ is and was made without any foundation in fact for such belief.”

On account of the rulings and instructions in the cause previously tried, the plaintiff in error may have concluded that the judge was prejudiced against him, and yet the rulings may have been correct, and the instructions proper.

As we have seen, this language is not per se contemptuous, and there is no charge made in the information going *442 to show that plaintiff’s conduct was not consistent with his entire innocence of evil' intent. "We must therefore conclude that no contempt is charged in the information. It should therefore have been quashed upon plaintiff’s motion.

It is probable that, if the district court had refused to grant the petition for a change of the place of trial of the case of Davis v. Bowman, its judgment would not have been disturbed upon appeal. And yet we cannot say from anything charged in this information that plaintiff in error had not the right to present his petition to the district court, and obtain its judgment thereon. We can readily see why a judge, who had enjoyed a long and honorable career upon the bench, might feel that the charge that he could be influenced by the matters set forth in the affidavit was wholly unwarranted, and yet in our opinion the facts stated in the information, if true, will not sustain the judgment for contempt. The judgment will therefore be reversed, and the cause remanded.

Beversed.