HARRIET COTTON MILLS
v.
LOCAL NO. 578, TEXTILE WORKERS UNION OF AMERICA et al.
No. 385.
Supreme Court of North Carolina.
November 25, 1959.*460 W. M. Nicholson, James B. Ledford, Charlotte, James J. Randleman, Elkin, and L. Glen Ledford, Charlotte, for appellants.
Perry & Kittrell, Henderson, Chas. P. Green, Louisburg, and A. W. Gholson, Jr., Henderson, for plaintiff-appellee.
RODMAN, Justice.
The exception quoted in the statement of facts is the only one appearing in the record. Nonetheless, appellants, in the assignments of error, attempt to break this single exception into four parts and refer to four exceptions.
The single exception is broadside. It does not draw into focus any particular finding of fact. It deprives this Court of that assistance it is rightfully entitled to expect if an appellant seriously intends to challenge the sufficiency of the evidence to support the findings of fact. It does not challenge the admissibility of the evidence on which the findings are made nor the probative value of the evidence to establish the facts found. See Rules 19(3) and 21 of this Court, 221 N.C. 546, Vol. 4A, p. 171 et seq. of the General Statutes; Columbus County v. Thompson, 249 N.C. 607, 107 S.E.2d 302; Caldwell v. Bradford, 248 N.C. 48, 102 S.E.2d 399; In re McWhirter, 248 N.C. 324, 103 S.E.2d 293; In re Estate of Cogdill, 246 N.C. 602, 99 S.E.2d 785; Weddle v. Weddle, 246 N.C. 336, 98 S.E.2d 302; Kovacs v. Brewer, 245 N.C. 630, 97 S.E.2d 96; Putnam v. Triangle Publications, Inc., 245 N.C. 432, 96 S.E.2d 445; Travis v. Johnston, 244 N.C. 713, 95 S.E.2d 94; Merrell v. Jenkins, 242 N.C. 636, 89 S.E.2d 242; Grandy v. Walker, 234 N.C. 734, 68 S.E.2d 807; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351.
The questions presented in this and related appeals heard at this term grow out *461 of a strike of employees at cotton mills in Henderson. The strike began in 1958. Early in 1959 the situation at Henderson was tense. There was much violence. Local law enforcement officers were unable to cope with the situation and maintain order. A large segment of the Highway Patrol was assigned to the Henderson area so that they might assist the local officers. Finally it became necessary to send the National Guard to Henderson. No one wished a declaration of martial law. To the contrary, every one wanted civil authorities to continue in control and civil liberties to continue in force. To accomplish this purpose and to make effective use of the Guard, the Legislature gave the Guard, when called to duty by the Governor, "such power of arrest as may be reasonably necessary to accomplish the purpose for which they have been called out." Chapter 453, S.L.1959. The Legislature made a special appropriation of $750,000 for the purpose of defraying expenses of the National Guard in emergencies. Chapter 1053, S.L.1959.
Because of the wide interest and importance in this and related cases and the nature and character of questions attempted to be presented, we feel justified in relaxing the rule so as to consider the factual situation described by the evidence as well as the legal questions enumerated in the assignments of error.
The orders holding appellants in contempt are based on events occurring on 2 and 16 March. Some of appellants participated in the acts occurring on 2 March, others in the acts occurring on 16 March.
The order holding Douglas Rose in contempt is based on findings that he took part in prohibited acts on each of these days. Because descriptive of conditions and typical of the facts found by the court which form the basis for the orders punishing for contempt, we quote from the findings in the Douglas Rose order: "* * the said Douglas Rose willfully, knowingly, and intentionally on March 2, 1959, shortly after 3 o'clock p. m. violated the Restraining Order by being a member of a group or mob of approximately fifteen or twenty people, which group or mob followed Marcus Davis, an employee of the Harriet Cotton Mill, from the plaintiff mill's gate to his home, and which group or mob stood in the street in front of Marcus Davis' house and threw bricks and bottles at the said Marcus Davis' car, one of which objects hit his car and damaged the same.
"That the Court further finds as a fact that the said Douglas Rose willfully, knowingly and intentionally on March 16, 1959, at or about 3 o'clock p. m. violated the terms of the Restraining Order by throwing rocks or other objects at cars of persons who work in or seek to work in plaintiff's plant, and was a member of a group or mob of approximately fifty or sixty men, the members of which mob were armed with sticks, rocks, bottles, bricks and clubs, and which said mob was threatening employees of plaintiff, and were stoning the cars of employees of plaintiff as they were leaving work, and blocking Alexander Avenue so that the cars of employees and persons working in the Harriet Cotton Mills could not pass along said street but had to come to a complete stop for several minutes. It is further found as a fact that Douglas Rose, while a part of this mob, participated directly in blocking Alexander Avenue, and was also acting in concert with others in this group or mob in furtherence of the common purpose of willfully, knowingly and intentionally intimidating and threatening persons working in the Harriet Cotton Mills, interfering with the free egress from plaintiff's premises, assaulting, damaging and abusing the property of persons who work in the Harriet Cotton Mills, and interfering with and impeding motor vehicles leaving plaintiff's premises, and that the said Douglas Rose was a party to what the other members of the mob did in violation of the Restraining Order.
"The Court further finds that the above acts committed by the said Douglas Rose were committed for the purpose of willfully, *462 knowingly and intentionally intimidating employees and persons who work in or seek to work in plaintiff's plant, and interfering with and impeding motor vehicles leaving plaintiff's premises, and interfering with free ingress and egress to and from plaintiff's plant. That respondent, Douglas Rose, on the 16th day of March, 1959, did willfully, knowingly and intentionally violate the terms of the Restraining Order theretofore issued in this cause."
The facts found assuredly suffice to hold appellant in contempt, and since the only question presented by the single exception is the validity of the judgment based on the facts found, it follows that the exception is without merit.
But appellants say that conceding the facts found establish a prohibited act, there is no competent evidence to support the findings, and the findings are therefore a nullity.
To support the charge of contempt the State offered in evidence affidavits of Marcus E. Davis, victim of the mob action of 2 March, and Roy Thomas Edwards and Linwood Sledge, victims of the mob action of 16 March. These affidavits stated in detail acts of violence consisting of throwing rocks, bricks, and other missiles, resulting in damage to the motor vehicles they were operating on the streets of Henderson. The affidavit of Marcus Davis gave the names of five persons who were part of that mob. Edwards and Sledge did not name any members of the mob who attacked them. In addition to these affidavits, 22 affidavits made by members of the State Highway Patrol were introduced in evidence. These affidavits describe the conditions observed by them on 2 and 16 March and the parts which the different persons played in the happenings on those days. The conditions described and appellants' participation therein are sufficient to support the findings. An affidavit of the sheriff of Vance County was put in evidence which stated that copies of the restraining orders had been posted at or near the mills and at the courthouse, published in the local newspaper, and publicized over the radio. Copies of all these affidavits accompanied the show cause order which was served on appellants. No objection was taken when these affidavits were offered in evidence. The record is barren of any suggestion that it was ever intimated to Judge Bickett that the affidavits were not admissible or that it was in any manner inappropriate to use them for the purpose for which they were offered. So far as the record discloses, the first time the right to use the affidavits was questioned was on 3 July when the case on appeal, which included the assignments of error, was served on appellee.
Appellants now urge us to reverse the order holding them in contempt because, as they assert, the affidavits offered to support the findings of fact were incompetent and should have been rejected by the court sua sponte since proof in that manner constituted a denial of due process guaranteed by both State and Federal Constitutions.
They assert the conduct charged amounts to criminal contempt, Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822; Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S. Ct. 665, 48 L. Ed. 997; hence proof of the charges by the affidavits deprived them of the right of confrontation and cross-examination, rights guaranteed by the Constitution.
As stated by appellants, it has been the practice of courts and litigants in this State to use affidavits in contempt proceedings to establish or negative the commission of the asserted contumacious act. In In re Deaton, 105 N.C. 59, 11 S.E. 244, 245, respondent had been held in contempt by the mayor of Troy. He appealed to the Superior Court. That court declined to review the findings on which the order holding him in contempt was based. On appeal to this Court, Clark, J., said: "In this class of contempts from the superior court, the findings of the judge as to the facts are conclusive, and this court can *463 only review the law applicable to such state of facts. It is otherwise, however, on appeals from a subordinate court to the superior court. In that case it is the duty of the judge to review the findings of fact of the court below, as well as the rulings of law; and when in furtherance of justice it may be required, the judge can hear additional testimony either orally or by affidavit, in making up his own findings of fact." At least since the decision in that case it appears to have been the practice to use affidavits and parol testimony indiscriminately. In re Parker, 177 N.C. 463, 99 S.E. 342; Erwin Mills Inc. v. Textile Workers Union, 234 N.C. 321, 67 S.E.2d 372; and Royal Cotton Mill Co. v. Textile Workers Union, 234 N.C. 545, 67 S.E.2d 755, illustrate the practice. Just as in the trial of this case the right to use affidavits has heretofore gone unchallenged. Their use has been looked upon as a means of facilitating disposition of the causes.
Not until this and related cases growing out of the Henderson situation has the right to use affidavits been challenged in this Court. The right to use affidavits for the purpose of establishing contumacious conduct has been considered in a few cases outside of North Carolina. The use of such affidavits has been sanctioned in Georgia, Warner v. Martin, 124 Ga. 387, 52 S.E. 446, 4 Ann.Cas. 180; Tennessee, Bowdon v. Bowdon, 198 Tenn. 143, 278 S.W.2d 670; California, Ex parte Wenzler, 23 Cal. App. 2d 726, 74 P.2d 297; Illinois, O'Neil v. People, 113 Ill.App. 195; North Dakota, State v. Harris, 14 N.D. 501, 105 N.W. 621. They have been held inadmissible in New Jersey, Staley v. South Jersey Realty Co., 83 N.J.Eq. 300, 90 A. 1042, L.R.A.1917B, 113; Connecticut, Welch v. Barber, 52 Conn. 147, 52 Am.Rep. 567; Texas, Ex parte Kilgore, 3 White & W. 247; Minnesota, State ex rel. Russell v. District Court, 60 Minn. 478, 62 N.W. 831; by the Circuit Court for the 8th Circuit, New Jersey Patent Co. v. Martin, 166 F. 1010. The different conclusions reached are noted in 17 C.J.S. Contempt § 84, p. 112 and 12 Am.Jur. 441.
In our opinion, the "law of the land" guaranteed by Art. I, § 17 of our Constitution, synonymous with due process of law, guarantees to one charged with contempt of court by an asserted willful violation of a restraining order a right, when he denies the asserted violation, to confront and cross-examine witnesses by whose testimony the asserted violation is to be established. Such right of confrontation and cross-examination has been repeatedly declared in analogous situations. In re Gibbons, 245 N.C. 24, 95 S.E.2d 85; In re Gamble, 244 N.C. 149, 93 S.E.2d 66; Roediger v. Sapos, 217 N.C. 95, 6 S.E.2d 801; Citizens Bank & Trust Co. v. Reid Motor Co., 216 N.C. 432, 5 S.E.2d 318; State v. Hightower, 187 N.C. 300, 121 S.E. 616; Cason v. Glass Bottle Blowers Ass'n, 37 Cal. 2d 134, 231 P.2d 6, 21 A.L.R. 2d 1387. Our decisions accord with "due process of law" guaranteed by the Federal Constitution, Amend. 14 as that phrase has been interpreted by the Supreme Court of the United States. In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682.
But recognition of the right to confront and cross-examine does not establish prejudice to appellants by the method here pursued. Appellants had the privilege of waiving these constitutional rights. "It is the general rule, subject to certain exceptions, that a defendant may waive the benefit of a constitutional as well as a statutory provision. Sedgewick, Stat. and Const.Law, p. 111. And this may be done by express consent, by failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it. State v. Mitchell, supra, 119 N.C. 784, 25 S.E. 783, 1020.
"In this jurisdiction, the more important privilege of being present in person, so as to confront one's accusers on trial for a criminal offense, may, in felonies other than capital, be waived by the defendant *464 himself, but not by his counsel, while in misdemeanors such waiver may be made through counsel with the consent of the court." State v. Hartsfield, 188 N.C. 357, 124 S.E. 629, 631; State v. Grundler, N.C., 111 S.E.2d 1; Cameron v. McDonald, 216 N.C. 712, 6 S.E.2d 497; State v. Harris, 181 N.C. 600, 107 S.E. 466; State v. Mitchell, supra; Miller v. State, 237 N.C. 29, 74 S.E.2d 513, certiorari denied 345 U.S. 930, 73 S. Ct. 792, 97 L. Ed. 1360.
"No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right." Yakus v. United States, 321 U.S. 414, 64 S. Ct. 660, 677, 88 L. Ed. 834; Michel v. State of Louisiana, 350 U.S. 91, 76 S. Ct. 158, 100 L. Ed. 83; Jennings v. State of Illinois, 342 U.S. 104, 72 S. Ct. 123, 96 L. Ed. 119.
Appellants have been represented throughout by experienced counsel. The briefs here filed and the argument made in behalf of their clients demonstrate their ability. No one would suggest that these attorneys were not aware of the proper way to protect the rights of their clients.
Each appellant, with the exception of Jimmie J. Mulchi, was a witness in his own behalf. Mulchi, so far as the record discloses, did not testify. Each respondent appellant testifying stated that he had knowledge of the restraining order. Their testimony, read in connection with their answer, is sufficient to justify the court's finding that the acts were done willfully, knowingly, and intentionally violated the terms of the restraining order. It was not necessary to establish that they had knowledge of the exact words used in the order. Knowledge of its substance and meaning was sufficient. Weston v. John L. Roper Lumber Co., 158 N.C. 270, 73 S.E. 799. Service of the restraining order on defendant appellants fixed them with knowledge of its provisions.
If appellants wished to challenge the evidence offered for the purpose of establishing their guilt, they should have objected when the evidence was offered. The affidavits came principally from law enforcement officers. Whether they or any of them were in court when the hearing was had does not appear; but we think it certain if appellants had indicated any desire to cross-examine any affiant, permission would have been granted and the affiant brought to court for that purpose. In the absence of an exception the evidence offered was properly received and considered.
"Conceding that, as a piece of independent testimony, a mere affidavit was not admissible, it was competent for defendant to waive this objection." Connecticut Mut. Life Ins. Co. v. Hillmon, 188 U.S. 208, 23 S. Ct. 294, 296, 47 L. Ed. 446.
Johnson, J., in Lambros v. Zrakas, 234 N.C. 287, 66 S.E.2d 895, 896, quotes Wigmore as follows: "The initiative in excluding improper evidence is left entirely to the opponent,so far at least as concerns his right to appeal on that ground to another tribunal. The judge may of his own motion deal with offered evidence; but for all subsequent purposes it must appear that the opponent invoked some rule of Evidence. A rule of Evidence not invoked is waived." Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326; Grandy v. Walker, supra; Brewer v. Ring and Valk, 177 N.C. 476, 99 S.E. 358; Tyner v. Barnes, 142 N.C. 110, 54 S.E. 1008; Holder v. Cannon Mfg. Co., 135 N.C. 392, 47 S.E. 481; Gudger v. Penland, 118 N.C. 832, 23 S.E. 921; Gibbs v. Lyon, 95 N.C. 146; Williamson v. Lock's Creek Canal Co., 78 N.C. 156; Goodwin v. Fox, 129 U.S. 601, 9 S. Ct. 367, 32 L. Ed. 805; Neal v. State of Delaware, 103 U.S. 370, 26 L. Ed. 567; Evans v. Hettich, 7 Wheat. 453, 5 L. Ed. 496.
Respondent appellants correctly concede that if they had knowledge of the restraining order and willfully participated in a violation of its provisions they are subject to punishment for their contumacious acts. Erwin Mills, Inc. v. Textile *465 Workers Union, supra; Hart Cotton Mills v. Abrams, 231 N.C. 431, 57 S.E.2d 803; Ex parte Lennon, 166 U.S. 548, 17 S. Ct. 658, 41 L. Ed. 1110; State ex rel. Lindsley v. Grady, 114 Wash. 692, 195 P. 1049, 15 A.L.R. 383.
Jimmie J. Mulchi is not a party defendant. There is, in our opinion, no evidence in the record sufficient to support the finding that he had knowledge of the restraining order, its purpose, terms and provisions.
The order holding Jimmie J. Mulchi in contempt is
Reversed.
As to the other appellants the orders are
Affirmed.
HIGGINS, J., not sitting.