CONTEMPT

ID.

A. BUCKLEY.

AGREEMENT TO INFLUENCE DECISION OF COURT EviDENCE. The proceeding was brought to punish the defendant for an alleged contempt of the Supreme Court. The accusation charged in effect that the defendant, well knowing that the judg ments in certain cases then pending before the court had been affirmed, in consideration of a sum of money to be paid him, undertook and agreed with one of the respondents therein to procure the court to render judgments in the respective cases in their favor. The accusation further charged that the defendant, at the time of the alleged agreement, assured the person with whom he made it, and induced him to believe, that he possessed such influence with the court and the members thereof that he could procure the judgments to be so rendered. Held, that the conduct charged in the accusation constituted a contempt of court, but that the guilt of the defendant was not established by the evidence.

GUILT MUST BE ESTABLISHED BY CLEAR AND SATISFACTORY EVIDENCE. A proceeding to punish for an alleged contempt, not committed in the presence of the court, is criminal or quasi criminal in its nature, and before a conviction can be had therein the guilt of the accused must be established by clear and satisfactory evidence. A mere preponderance of evidence is not enough.

PROCEEDING to punish for a contempt of court. The facts are stated in the opinion of Mr. Justice Thornton.

LXIX. CAL.-1

William Matthews, E. R. Taylor and H. J. Tilden, Committee of the San Francisco Bar Association, AttorneyGeneral Marshall, A. L. Rhodes, O. P. Evans, and J. C. Cary, for Relators.

Preston & McPike, and D. H. Regensburger, for Respondent.

THORNTON, J. This is a proceeding taken against the respondent, Buckley, for an alleged contempt of this court. The contempt charged relates to the cases of Bonnet v. City and County of San Francisco, and Parker v. City and County of San Francisco, which were pending in this court on appeal before, on and after the tenth day of May, 1884. In each of these causes, judgment of affirmance was rendered by this court on the day last named. These judgments of affirmance were in favor of Bonnet and Parker. The contempt charged is that on the said day the defendant, well knowing that these causes had been decided by this court in favor of the parties above mentioned, affirming judgments in their favor given in the court below, for and in consideration of the sum of five hundred dollars, which Bonnet agreed to pay him, agreed and undertook with Bonnet that he, Buckley, would procure to be given and made by this court a judgment in favor of Bonnet and Parker, respectively, in the cases above stated; that Bonnet was at the same time assured by Buckley, and was made to believe, that he (Buckley) possessed such influence with this court and the members thereof that he could procure through his influence said judgments in said actions to be given and made respectively in favor of said Bonnet and Parker.

Buckley, in obedience to an order to show cause, appeared herein, and in a verified answer denied the charge in every particular.

That the conduct with which respondent is here charged is a contempt of this court, we have no doubt.

This is a proposition of law to us so plain that we think it unnecessary to discuss it further.

The material question to be considered relates to the guilt of respondent. The guilt of respondent must be established as a fact by clear and satisfactory evidence. If not so established, this court has no right to punish him.

It should be remembered that the proceeding here taken is criminal or quasi criminal. It was so held by this court in Ex parte Crittenden, 62 Cal. 534, following New Orleans v. Steamship Co., 20 Wall. 387, where it is said: "Contempt of court is a specific criminal offense." (See also Hummel's Case, 9 Watts, 421; Cartwright's Case, 114 Mass. 230; Durant v. Supervisors, 1 Woolw. 377; Com. Dig., tit. Attachment, 4; 4 Bla. Com. 288.)

The punishment for a contempt may be fine or imprisonment, or both, - a punishment appropriate to criminal offenses. (See Code Civ. Proc., secs. 1218, 1219.) Under such circumstances, the guilt of the party charged should be proved and established by clear and satisfactory evidence. A mere preponderance of evidence would not be sufficient to warrant the infliction of so serious a punishment. We know of no rule of law in this state authorizing any court to fine and imprison a person on a mere preponderance of evidence as to his guilt. The guilt must be established by clear and satisfactory proof, and generally, if not always, in criminal actions, beyond a reasonable doubt. It would be against all correct rules of law and principles of justice to permit guilt, under such circumstances, on a conviction of which punishment so serious and severe may follow, to be established by less than clear and satisfactory proofs.

In the matter of the application to disbar R. E. Houghton, an attorney of this court (67 Cal. 511), it was said: “A judgment against the respondent will deprive him of personal and property rights. Unless we are clearly satisfied of respondent's guilt, we ought not to remove

or suspend him from the practice of his profession. As we are not so satisfied, we decline to strike his name from the roll." These remarks apply to this case. Such, in our judgment, is the legal result deducible from our statute relating to contempts (Code Civ. Proc. secs. 1209, 1210, etc.), by which an issue is required to be made up and tried as to the guilt of the accused. (Code Civ. Proc. secs. 1217-1219.)

It may be remarked that this was not so at common law. In such proceedings in courts of law not committed in facie curiæ, if a party charged with contempt cleared himself by his oath denying his guilt, he was by a court of law discharged. If, however, in making such oath, he was perjured, he might be prosecuted for perjury. Such is the statement of Blackstone as to proceedings upon such contempt in courts of law (see 4 Bla. Com. 287); and this is confirmed by the authorities.

But in this state the subject is regulated by statute as stated above. And of contempts not in face of the court an issue is made up by answer and witnesses are called and examined as in other causes. In other words, a trial is had as in other cases.

In this case the contempt charged not having been committed in the face of the court, a trial was had on the pleadings and evidence.

The evidence in regard to the transaction in which the contempt is said to have been committed is found in the testimony of B. Bonnet, J. W. Taylor, and the respondent. Bonnet was the plaintiff in the above-named case of Bonnet v. The City and County of San Francisco. Bonnet testified that "on the 10th of May, 1884, he and Joseph W. Taylor met Buckley at his saloon in the city of San Francisco, about 8 o'clock in the evening. Buckley invited them inside his private place, and then the respondent said to him: 'You got a case in the Supreme Court.' 'I told him yes'; Taylor told him before they got to Buckley's saloon, 'Buckley could get a judgment

for you right away,' and when we got there, Buckley in his private room said: 'I can get judgment for or against you in this case '; and Taylor said: 'I suppose the judges will be down here to-night or to-morrow,' to which Buckley said: 'O yes, there is two already here.' Taylor asked him (Bonnet): 'Well, suppose we make a note for five hundred dollars.' He asked him if five hundred dollars was satisfactory to him, or something of that kind, and said, 'Suppose we make a note for five hundred dollars and give it to him.' I says, 'I won't pay no five hundred dollars. I won't pay it. My brother won't authorize me to do so.' 'Well,' he (Taylor) says, 'I will pay half of it.' 'Well,' I says, 'all right, if you pay half of it we will pay it,' and then Taylor drew a note himself and gave it to me to sign. I signed the note. I told him, says I, ‘Ain't you going to sign?' He says, 'No, I don't want my name to appear, but it is understood I pay half of it.' And I said, 'Mr. Buckley, is that correct? You won't make my brother responsible for more than two hundred and fifty dollars?' 'Yes,' he says, ' and Taylor will pay over the other half.' 'Well,' he (Buckley) says, 'I can have this judgment rendered immediately, and date it to-day, to-morrow, or Monday, or any time you want it.' I says, 'It is not particular about the date; I don't care about that.' So we met and parted that way, I think. Taylor gave the note to Buckley in his presence, and it was left with him."

The witness, at request of the prosecuting counsel, explained the reference to his brother. The money, he said, belonged to his brother, Eli Bonnet. It appeared that the claims belonged to Eli Bonnet, who had assigned them over to him, which he had assigned to Taylor. The claims in both the cases of Bonnet and Parker had been assigned to Taylor some time before as security for money advanced, and the witness was acting for his brother, who was sick. When a settlement was had with Taylor he was present, and two hundred and fifty