Decided: January 5, 1959.
JULIA SARNER, PLAINTIFF,
SIDNEY SARNER, DEFENDANT. IN THE MATTER OF SIDNEY SARNER, CHARGED WITH CONTEMPT, APPELLANT
For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None.
[28 NJ Page 526]
The judgment is affirmed for the reasons expressed in the opinion of Judge Conford in the court below.
On appeal from a judgment of the Superior Court, Appellate Division, whose opinion is as follows. "Defendant appeals from an adjudication of his guilt of criminal contempt of court.
"The proceedings grow out of a matrimonial litigation in the Chancery Division wherein a determination had been made by Judge Hegarty that defendant had abandoned his wife. On December 3, 1957 he was called as a witness by his wife's attorney for the purpose of establishing facts relative to his ability to pay alimony and counsel fees. Upon taking the witness stand the following transpired:
'Sidney Sarner, previously sworn, testifies as follows:
The Witness: May I first have something to say to the Court?
The Court: What is it you want to say, Mr. Sarner?
The Witness: I mean, I have taken an oath here, your Honor, to tell the truth.
The Court: That is why I say you have been sworn.
The Witness: I have something further to say.
The Court: You may sit down.
The Witness: In this proceeding you are sustaining your oath to uphold the law. This, sir, you have failed to do.
You have condoned in this Court perjury, thievery, collusion and contempt for this Court, but not only it becomes my duty to sustain the truth and to oppose such justice but to expose it. Therefore, you may if you wish, I will not further testify under the jurisdiction of this Court. You may by your inclination on my behalf do as you see fit. I will not testify any further.'
"After some discussion, in the course of which plaintiff's counsel asked that defendant be committed for contempt at once, and the court indicated it would consider the matter at an appropriate time, the witness volunteered the following:
'The Witness: May I say this by reason of what I voiced. I am in contempt on such justice and will stand in contempt of such justice. By such reason I have a right, and not only a right but a duty to do so. On this basis I will defend myself in contempt. First, before we continue, I am not in contempt of the Court. I am in contempt of the abomination of the justice there. That is what I am in contempt of.
"Upon being asked a question on the merits of the application, the witness refused to answer, stating he would stand on his previously stated position.
"The hearing was recessed. It was resumed the next day, and, at one point, defendant said, in reference to his remark of the previous day:
'* * * I had thought about what I was going to do before. It was not spontaneous.'
"The trial judge certified the defendant for contempt and the matter was assigned to Judge Nimmo for trial. Defendant was attended in court by the attorney who represents him on this appeal but chose to defend himself at the contempt hearing pro se. He pleaded not guilty and asked to be informed whether the contempt was civil or criminal. The court asked the prosecutor to respond, and the latter stated it was a charge for criminal contempt. The defendant then undertook to state his defense, which, in substance, was that he had been given permission to make a statement and had not intended to 'reflect disrespect for the Court,' but he also said that the testimony in the principal case 'clearly indicates that my right to justice had been transgressed by acts that the Judge condoned.'
"Defendant admitted the certification of the transcript of the proceedings before Judge Hegarty was correct but objected to it on the ground that it did not contain the transcript of the testimony of the principal case. The court stated that it had determined that the contempt was criminal. Defendant then requested a jury trial and this was denied. No further defense being tendered by defendant, the court determined that the defendant was guilty of criminal contempt of court. Thereupon the court took up the matter of sentence. The court asked defendant why he had not retracted his remarks, and the defendant replied that it would be 'dishonest' and 'immoral' for him to do so. The prosecutor recommended a six-months' jail sentence. The court fixed 60 days in the Hudson County jail.
"The first point of appeal is that the conviction violated the defendant's constitutional right of free speech. This contention is specious. The right of free speech is always subject to subsequently applicable sanctions for abuse of the right, see New Jersey Constitution, Art. I, par. 6, and one of these is a contempt citation for contemptuous remarks to a judge in a courtroom. The subject is fully discussed in State v. Gussman, 34 N.J. Super. 408 (App. Div. 1955), and requires no present elaboration.
"The second contention is that the evidence does not establish guilt of criminal contempt. We disagree. To condone means to overlook or pardon voluntarily. To charge a judge with voluntarily overlooking 'perjury, thievery, collusion and contempt' of court in the making of a judicial determination is to accuse him of gross misfeasance in office. To do so in his face at a convened session of the court aggravates the calumny. And when the justification offered by the witness is that the remarks explain his refusal to answer proper questions as a witness in a proceeding before that judge, the attempt is to sustain one contempt on a foundation of the quicksand of another. This is behavior so obviously calculated to breed disrespect for the court as to clearly exemplify the rationale of the legal offense of criminal contempt as conduct tending to obstruct the administration of justice. See Offcut v. United States, 348 U.S. 11, 14 [75 S. Ct. 11, 99 L. Ed. 11] (1954); Van Sweringen v. Van Sweringen, 22 N.J. 440, 447, 448 (1956).
"The defendant next assigns the refusal of a jury trial as a denial of rights under both State and Federal Constitutions. The unsoundness of this argument in respect to a contempt in the actual presence of the court is so well established as to require no further discussion. Green v. United States, 356 U.S. [165, 78 S. Ct. 632, 2 L. Ed. 2 d 672] (1958); Van Sweringen v. Van Sweringen, supra (22 N.J., at page 450).
"The matter of a jury trial was committed to the discretion of the trial judge. R.R. 3:8-3. The exercise of discretion in the present case is not shown to have been mistaken.
"Defendant asserts he cannot be bound by anything he said at the trial as he was not sworn as a witness, and because the conviction in effect rested on his unsworn statements, improperly used against him as a defendant. The defendant chose to appear as his own counsel, although he had counsel in court. Some of his remarks at the trial betray his sophistication with the procedural niceties involved. He will not be permitted now to disavow a position deliberately taken at the trial in the manner of an advocate. He conceded the accuracy of the transcript of his contemptuous remarks. If he had not, it could have been verified by the State. He offered no proofs on his own behalf, only argument as to the effect of his statements. It was conceded at the oral argument that he did not come to the trial prepared to offer the transcript of the principal case. He made no offer thereof, and there was no error on the part of the court in proceeding to judgment on the limited defense thus voluntarily adduced by the defendant. It would appear, moreover, that the transcript of the principal proceedings could not possibly derogate from the nature of the contempt here involved. Defendant's recourse for the asserted injustice on the merits was an appeal, not to insult the judge in open court.
"Lastly, the defendant cites the failure of the trial court to make findings of fact and to enter a formal judgment of conviction. There were adequate findings. The court found the remarks in question were made. It determined that their character was contemptuous. We are adequately apprised by this record whether the conviction is supported by the facts and as to the court's jurisdiction. See Annotation, 154 A.L.R. 1227, 1228 (1945). The rules make express requirement of a recital of the facts found in a formal signed order of contempt only in case of summary punishment for criminal contempt in the presence of the court and observed by the judge. R.R. 3:8-1. In criminal contempt proceedings generally, there is only a requirement for the entry of an order finding guilt and fixing punishment. R.R. 3:8-3. While it is preferable practice for the court to enter a formal judgment of conviction or adjudication of contempt in every contempt case, cf. R.R. 3:7-10 (d), together with appropriate findings of fact in all cases tried without a jury, so as to facilitate review, this defendant was in nowise prejudiced by the failure to enter a formal order here.
"As required by N.J.S. 2 A:10-3 and R.R. 1:5-2 on an appeal of a summary conviction of criminal contempt, we express our concurrence in the adjudication of guilt of criminal contempt. Sentence will be imposed in due course."