State v. Edwards

446 P.2d 659 (1968)

STATE of Oregon, Respondent, v. Teddy EDWARDS, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 6, 1968.

Decided November 8, 1968.

Paul K. Davis, Portland, argued the cause and filed briefs for appellant.

Billy L. Williamson, Deputy Dist. Atty., Portland, argued the cause for respondent; with him on the brief was George Van Hoomissen, Dist. Atty.

Before PERRY, C.J., and McALLISTER, O'CONNELL, DENECKE and RODMAN, JJ.

McALLISTER, Justice.

The circuit court for Multnomah county found the defendant, Teddy Edwards, in contempt of court and sentenced him to six months in jail. Defendant appeals.

It appears from the record that defendant was indicted in Multnomah county of three felonies and bail was fixed at $20,000 in two cases and at $25,000 in the third. Defendant moved to have his bail reduced and on June 2, 1967, after a hearing, bail was reduced to $10,000 on each charge.

Defendant was still dissatisfied and filed a second motion for the reduction of his bail. In both applications for bail reduction and repeatedly at the hearing on the second motion the defendant told the court that he had no prior criminal record. The defendant's statements were challenged by the prosecutor who told the court that defendant had a criminal record in California under another name. At a subsequent hearing the state established to the satisfaction of the court that defendant had twice been convicted of felonies in California.

The record does not show with certainty whether any of defendant's statements concerning his prior record were made under oath or affirmation. At one point the defendant expressly declined to testify under oath when requested to do so by the court.

The court found "that defendant falsely represented to the court that he had no prior convictions," found the defendant in contempt of court and sentenced him to six months in the county jail.

The defendant does not challenge the finding of contempt and we, therefore, express no opinion about that aspect of the *660 case.[1] In this court the defendant contends only that the sentence of six months was greater than the court could impose.

Punishment for contempt of court is limited under ORS 33.020 to a fine not exceeding $100 unless (a) "the right or remedy of a party to an action, suit or proceeding was defeated or prejudiced thereby," or (b) the contempt is one of those "mentioned in paragraphs (a) and (b) of subsection (1) of ORS 33.010 or in subsection (1) of ORS 1.240." The statutes just mentioned, insofar as pertinent, read as follows:

ORS 1.240: "Every judicial officer has power: "(1) To preserve and enforce order in his immediate presence, and in the proceedings before him, when he is performing a duty imposed upon him by statute."

ORS 33.010:

"(1) The following acts or omissions, in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: "(a) Disorderly, contemptuous or insolent behavior toward the judge, while holding the court, tending to impair its authority or to interrupt the due course of a trial or other judicial proceeding. "(b) A breach of the peace, boisterous conduct or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding."

The state argues that the six-month sentence was authorized because defendant's conduct was "disorderly, contemptuous or insolent behavior toward the judge," as proscribed by ORS 33.010(1) (a). The contention is unsound for two reasons: (1) defendant was not found guilty of disorderly, contemptuous or insolent behavior, and (2) the record shows that defendant at all times comported himself in an orderly and respectful manner. Defendant's conduct may have constituted deceit as proscribed by ORS 33.010(1) (d), but the record simply would not support a finding of disorderly or contemptuous behavior.

If defendant was guilty of perjury or false swearing he should be prosecuted therefor. This contempt proceeding, however, cannot be used as a substitute for a criminal prosecution. Defendant has been found guilty only of false representations to the court concerning his prior record. Assuming that defendant's conduct constituted a contempt the applicable statutes clearly limit the authority of the court to the imposition of a fine not exceeding $100.

The judgment is reversed and the cause remanded for the imposition of a sentence authorized by law.

NOTES

[1] For a comprehensive annotation on perjury or false swearing as contempt see 89 A.L.R.2d 1258.