Handler v. Gordon

Mr. Justice Jackson

delivered the opinion of the court.

Gordon, defendant in error here, as plaintiff in the district court of the City and County of Denver, obtained a judgment against plaintiff in error, defendant in said district court, in the amount of $52,776.62. The former subsequently instituted supplementary proceedings looking toward the discovery of property which could be applied to the satisfaction of the judgment, in the course of which Handler was examined on different occasions as to what money or property he had. In this supplementary proceeding he was adjudged guilty of contempt of court and sentenced to imprisonment for a period of ninety days. The contempt was originally based upon both perjury and contemptuous conduct upon the witness stand. The charge based upon contemptuous conduct was waived by the court. Handler brought the judgment of contempt by reason of perjury here for review by writ of error, and in Handler v. Gordon, 108 Colo. 501, 120 P. (2d) 205, we reversed the judgment conditionally and remanded the case to the district court “without prejudice to the power of the court to proceed further as advised,” holding that the court should “recite the facts constituting the contempt.” Thereafter the district court made a recital of the facts constituting the contempt, which was the basis of finding the defendant guilty, and the case is now before us for final action. The findings are comprehended in six divisions, all dealing solely with the testimony of defendant, Handler, and in each division his testimony is set out in full. These findings are in substance as follows: “1. Perjury about the names and addresses of brothers-in-law. He stated that he had five brothers-in-law and did not know their names. Then he later stated that he did not know the names of any of them or who they were. Then he stated that his wife had one brother and two sisters living in Denver. Then he was asked what are their names and addresses and answered that directly to the contrary of what he had said in stating that he did not know who they were or the names of any of them [setting out their names and addresses].” 2. Perjury about his mother’s drawing checks on the National News Agency account. His testimony in this matter was a statement by him, first, that it did not make any difference to him whether his mother drew a check or not; finally that to his knowledge he did not know if she did. He later testified that she was never down at the business running it; that his mother was too old a woman to run a retail store, and it depended solely on his judgment as to what should be done in the store. “This was a contradiction of his previous testimony and shows that his mother did not draw checks and he knéw she did not draw checks and that she had nothing to do with the business, while he previously stated that he did not know whether she signed checks or not.” 3. Perjury about power of attorney. He first stated he had power of attorney from his mother in the answer, “I have power of attorney from my mother to do whatever I wanted with the account.” Then he later testified, “I said I think I had one.” “Q. But you haven’t got it now? A. No, I haven’t got it now.” The court’s finding accordingly was: “This was, therefore, a statement at one time, T have power of attorney,’ and at a later time T said I think I had one,’ being a direct contradiction.” 4. Perjury as to Joseph D. Lassa. After reciting the testimony

of the witness on this phase, the court’s finding was: “This was perjury in first evading whether he knew him or not, then describing him, then in not recalling whether he was in business with him, and then absolutely denying that he was in business with him, and then admitting that he was in business with him and fixing the number of days, and that he had a bank account with him.” 5. Perjury as to Fred Koehn. After reciting the testimony of the witness on this matter, the court’s finding was: “Hence, he committed perjury in admitting that he had an account at the First National Bank in the name of the National News Agency on which either he or Fred Koehn or others could sign checks, then evading as to whether he knew him or not or as to whether he had dealings with him, as to whether he was in business with him, and then admitting that he knew him and knew him as Freddie.” 6. Perjury in regard to the Douglas County property. After reciting the testimony of the witness on this matter, the court’s finding was: “Hence, he committed perjury in not recalling the transaction, then admitting it [land in Douglas County] was purchased from the Grant Building and Investment Company, then identifying the land, that he helped make the deal and bought it for his mother to build a home so she could have a lot of fresh air and sunshine.” The court then concluded: “The Court, therefore, finds that in these six instances he committed deliberate perjury. And the judgment of the court is that he is guilty of contempt for perjury in the presence of the court, and that he be sentenced to ninety days in the county jail therefor.”

At one point in the proceedings the court warned defendant that he certainly knew more about the records than indicated in the testimony previously given, whereupon he replied “Well, we might as well go to jail. Let’s go.” He then stepped down from the witness box. When counsel for the plaintiff asked that the witness be declared in contempt, defendant said “All right. Let’s go

to jail.” Defendant, at the time of the trial, was serving a jail sentence, having been convicted of gambling, which conviction we affirmed in Handler v. People, 103 Colo. 378, 86 P. (2d) 1119. The testimony of Handler above referred to was not all given on the same day, but was taken over a period of several weeks. He was taken from the jail to the courtroom each time his testimony was sought. The evidence disclosed that he continued to conduct his business from the jail.

The case of Eykelboom v. People, 71 Colo. 318, 206 Pac. 388, is cited by counsel for defendant as controlling. That case began by the filing of a complaint for receivership by the State Bank Commissioner against The Guaranty Securities Company, a corporation of which Eykelboom was an officer. He was also a director and president of the Denver State Bank. Both institutions had the same office in Denver and the commissioner charged that their affairs were wrongfully intermingled, jumbled and confused. A receiver was appointed and in connection with this proceeding a subpoena duces tecum issued ordering Eykelboom to produce a package of letters and correspondence relating to the affairs of the bank. Eykelboom failed to produce the letters as demanded and, while being examined as to the reasons for his failure to so produce, testified in'much the same contradictory manner as did the defendant in the instant case. At the conclusion of Eykelboom’s testimony, the trial court sentenced him to the county jail for not to exceed six months or until such earlier time as the required documents should be produced in court or until he made a satisfactory and truthful explanation of inability to produce such documents.

In the instant case, in an attempt to locate property of defendant that might be subject to the satisfaction of the above mentioned judgment, defendant was served with a subpoena duces tecum to produce his books in court. He did not produce them, and his justification for his failure to do so was that he had kept no books or records. It then developed from his testimony that he did business under the name of the “National News Agency,” and some of the records kept under that name were brought into court by means of attachment proceedings brought by the court. It will be noted that defendant’s relationship to the National News Agency is the subject of one of the statements for which he is alleged to have committed perjury — it appearing that he conducted his own business under that name.

It thus appears that in both cases a subpoena duces tecum issued to produce certain records — in the Eykelboom case the records were never produced; in the instant case some of the records were produced, not through any help of the defendant, but through seizure under order of court.

Counsel for defendant emphasize the point that, in the earlier case, Eykelboom did not produce the documents as ordered, whereas in the instant case Gordon, the judgment creditor, has obtained all of the relief to which he was entitled, namely all of the property of the defendant subject to the execution, that is: defendant’s Buick car, stock in the Handler Realty Company (valued at $10.00), and the Douglas County real estate (valued at $990.00). It is true that those items of property have now been transferred to the judgment creditor in partial liquidation of his judgment, but it cannot be said that such recovery was made possible or easy by defendant. On the contrary, it became possible only through the efforts and vigilance of plaintiff and apparently in spite of the efforts and obstruction of the defendant. Counsel for the defendant speak with assurance of plaintiff having recovered everything he was entitled to, whereas all that can be said is that he has recovered those assets of defendant which have been discovered.

Defendant’s counsel cite Justice Cardozo’s opinion in Clark v. United States, 289 U.S. 1 (53 Sup. Ct. 465, 77 L. Ed. 993), and quote therefrom as follows: “The books propound the question whether perjury is contempt, and answer it with nice distinctions. 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. Ex parte Hudgings, supra. 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.” That proceeding was brought against a juror for obstructing justice and, as indicated, perjury was only an incident in the case; nevertheless, it is true that the federal courts seem to favor the method of information and indictment rather than the summary process.

Mr. Justice Holmes, in Gompers v. United States, 233 U.S. 604 (34 Sup. Ct. 693, 58 L. Ed. 1115), at page 612, in discussing contempts arising from failure to observe injunctions, says: “The English courts seem to think it wise, even when there is much seeming reason for the exercise of a summary power, to leave the punishment of this class of contempts to the regular and formal criminal process.” Nevertheless in Patterson v. Colorado, ex rel., 205 U.S. 454 (27 Sup. Ct. 556, 51 L. Ed. 879), he stated (page 461): “What constitutes contempt, as well as the time during which it may be committed, is a matter of local law.”

In this jurisdiction we have confirmed the use of the summary process in Eykelboom v. People, supra, and Mainland v. People, 111 Colo. 198, 139 P. (2d) 366; by implication in Handler v. Gordon, supra. In the Eykelboom case, supra, we not only affirmed the judgment declaring defendant guilty of contempt for' failure to respond to a subpoena duces tecum, but also held that the trial court had a right to punish him for contempt because of manifest perjury committed in its presence, where it knew judicially and beyond doubt that his testimony was false. It was its very falsity that precluded his excuse for failing to produce the documents called for by . the subpoena. Likewise in People v. Freeman (1930), 256 Ill. App. 233, it was held that a witness in a criminal case, who, after answering a long line of questions on direct examination, subsequently on cross-examination declared such answers to be false, was guilty of contempt of court, as such testimony showed the utter disregard of the witness for the sanctity of his oath. 73 A.L.R. 820.

Counsel for defendant quote from the case of Hegelaw v. State, 24 O. App. 103, 155 N.E. 620, 73 A.L.R. 818, as laying down the rule that in order that perjury may be a contempt of court it must appear that (1) the alleged false answers had an obstructive effect; (2) that there existed judicial knowledge of the falsity of the testimony; and (3) that the question was pertinent to the issue. We believe that the instant case satisfies the requirements therein announced. Certainly the questions were pertinent to the issue of endeavoring to discover property belonging to Handler that was properly subject, to the execution issued upon the judgment; second, there was judicial knowledge of the falsity of the testimony in this case, as in the Eykelboom case, merely from the conflicting statements of the defendant himself, without considering any other evidence than that shown by the trial court in its supplemental findings; and third, we believe that the false answers had an obstructive effect.

On the question as to what constitutes obstruction of justice, authorities differ. Reference has already been made to the case of Clark v. United States, supra; and the Wisconsin Supreme Court has held that the fact that time was consumed in demonstrating the falsity of the witness’s statement was held not to operate- as an obstruction of the administration of justice, so as to make such statement punishable as a contempt of court. State v. Meese (1930), 200 Wis. 454, 229 N.W. 31, 73 A.L.R. 818. On the other hand, it has been stated that the more prevalent rule is that false swearing by a witness is held to be such an obstruction of justice as to constitute a direct contempt of court. 13 C.J. 25, §31, and cases thereunder cited. It appears that even in the federal courts the finding by the trial judge that there was an obstruction, was not set aside by the reviewing court. Schleier v. United, States, 72 F. (2d) 414. In the instant case the original judgment of the trial court read as follows: “The function of the court in punishing for contempt is only to be invoked in cases where, in the opinion of the court, there has been manifest perjury committed. The court can appreciate the mental condition of the defendant and the motives which prompted them and can overlook his insolence to the Court while on the witness stand, but the defendant in this case in his answers to questions properly presented convinces the Court that he has no appreciation of the significance or sacredness of an oath, and that the manifest perjury committed before the Court should be called an obstruction of justice by the Court, therefore, I find the defendant guilty of contempt and sentence him to ninety days in jail.” (italics ours).

We believe it is a fair statement that had defendant spoken the truth it would not have been necessary to have taken the testimony of other witnesses in this proceeding, including the testimony of three witnesses, i.e. Simon, Isaacson and defendant’s mother, Mrs. Ratcher. Nor would defendant himself have had to be recalled as a witness over a period of time. We believe there was just ground for finding that there was an obstruction of justice in this case.

Judgment is accordingly affirmed.

Mr. Chief Justice Young and Mr. Justice Hilliard dissent.