Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Jacobs, S.j.a.d.
This is an appeal from an order entered by the Magistrate of the Municipal Court of the Township of Bridgewater adjudging the defendant guilty of contempt of court.
On April 9, 1950, words passed between the defendant Clarence Illario and his neighbors, the Blackfords. A complaint was filed by the Blackfords charging the defendant with using vile, profane and insulting language in violation of an ordinance of the Township of Bridgewater which declared such action to be disorderly conduct. At the hearing the Blackfords testified that the defendant had used the improper language and they were supported by Kathryn Brennan who lived next door. On the other hand, the defendant testified that he had not used any vile, profane and insulting language and he was supported by his wife Helen. At the close of the testimony on defendant's behalf the magistrate, on his own motion, called for testimony by Mrs. Brennan, clerk of his court and mother of Kathryn Brennan; she corroborated her daughter. The magistrate found the defendant guilty of disorderly conduct and assessed a fine and costs which were paid. Thereafter, the magistrate issued an order directing the defendant to show cause why he should not be adjudged guilty of contempt of court for having falsely testified when, in the course of his defense on the disorderly conduct charge, he denied he had used the improper language. Hearing was held, the Blackfords and Brennans again testified that the defendant had used the improper language, the defendant and his wife Helen again testified to the contrary, and the magistrate again disbelieved the defendant's denial. This time he adjudged the defendant guilty of contempt and the present appeal is from this action.
The problem as to when the giving of false testimony in a judicial proceeding constitutes contempt has given courts much concern. As Justice Black said in Matter of Michael , 326 U.S. 224, 227, 90 L. Ed. 30, 33 (1945), it is clear that "all perjured relevant testimony is at war with justice, since it
may produce a judgment not resting on truth" and as a crime it is indictable and triable by jury with constitutional and traditional safeguards. However, when dealt with as contempt it becomes subject to the awesome power of the court to deal with it in its discretion, summarily and without fixed limit of punishment -- a power described by Justice Depue as, at best, "an arbitrary power, and liable to great abuses." Rhinehart v. Lance , 43 N.J.L. 311, 321 (Sup. Ct. 1881).
In the light of the foregoing the Supreme Judicial Court of Maine in Ex parte Holbrook , 133 Me. 276, 177 A. 418 (1935), denied to itself power to deal with the giving of perjured testimony as contempt, declaring that while perjury is an abhorrent crime it would be "unsafe and unwarranted" to deal with it in any manner other than as a crime triable by jury. See State v. Lazarus , 37 La. Ann. 314 (1885). Similarly, the United States Supreme Court has declined to sanction contempt proceedings based solely on the giving of false testimony. See Ex Parte Hudgings , 249 U.S. 378, 63 L. Ed. 656 (1919); Clark v. United States , 289 U.S. 1, 11, 77 L. Ed. 993, 998 (1933); Matter of Michael, supra. In the Clark case Justice Cardozo expressed the Supreme Court's doctrine in the following language:
"Perjury by a witness has been thought to be not enough where the obstruction to judicial power is only that inherent in the wrong of testifying falsely. * * * For offenses of that order the remedy by indictment is appropriate and adequate. On the other hand, obstruction to judicial power will not lose the quality of contempt though one of its aggravations be the commission of perjury."
Recent applications of this doctrine may be found in United States v. Goldstein , 158 F.2d 916 (7 th Cir. 1947), and Howard v. United States , 182 F.2d 908 (8 th Cir. 1950).
In several states, courts have taken the position that although the power to treat the giving of false testimony as contempt exists it will not be exercised unless the court has "judicial notice of the falsity," e.g. , where it is admitted by the contemnor or otherwise appears incontrovertibly. See People v. Harrison , 403 Ill. 320, 86 N.E. 2d 208 (1949);
Hegelaw v. State , 24 Ohio App. 103, 155 N.E. 620 (1927); McInnis v. State , 32 So. 2d 444 (Miss. Sup. Ct. Div. A 1947). In the Hegelaw case the court said:
"In nearly every case issues of fact are made up by the pleadings, each side seeking by testimony to maintain its side. 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 ...