Plaintiff in error was found guilty of *Page 104 contempt of court by the common pleas court. He seeks a reversal. The finding of the court was:
"That Robert Hegelaw is found guilty of contempt of court because of his contumacious conduct in the presence and hearing of the court while testifying as such witness and because of his giving untruthful, prevaricating and evasive testimony as such witness."
It appears that Margaret Hegelaw, former wife of Robert Hegelaw, commenced an action in the court of common pleas against the Cleveland Trust Company to recover approximately $1,800, the same being one-half of a bank account standing in the name and to the credit of Robert and Margaret Hegelaw. This bank account had been withdrawn some months before upon a withdrawal slip purported to be signed by Robert and Margaret Hegelaw, and the claim was made in Margaret Hegelaw's petition that she had never signed her name thereto, but that her signature was a forgery. The Cleveland Trust Company answered denying that the withdrawal slip was a forgery, and alleging that it contained the valid signature of the plaintiff Margaret Hegelaw. This cause upon these issues came on for trial before Judge Harrison W. Ewing.
Robert Hegelaw was offered as a witness on behalf of the defendant, the Cleveland Trust Company. He testified that Margaret Hegelaw signed the withdrawal slip. He further stated that the money was withdrawn from the bank by Margaret Hegelaw and himself; that it was thereupon given to Margaret Hegelaw and taken to her home and placed in a sideboard drawer. This cash so withdrawn consisted of three $1,000 bills and one $500 bill; and he testified that after it remained for *Page 105 several days in the sideboard drawer, he took it himself to the Society for Savings Bank and there deposited it to his own individual credit. After being closely interrogated with reference to it, he finally stated that he did not know the exact time, and could not remember it; that if the parties would examine the record of the Society for Savings Bank they could ascertain the exact date that the deposit was made. This was done, and an examination of the record showed that the withdrawal from the Cleveland Trust Company and the deposit in the Society for Savings Bank were both on the same day; the withdrawal being in the forenoon and the deposit in the afternoon.
The trial judge thereupon ordered the arrest of Hegelaw and filed charges — charging direct and positive perjury. He appointed counsel as a prosecuting committee. Hegelaw was cited to appear in court and show cause why he should not be punished. He filed an answer denying the charge against him. At the request of Judge Ewing, this contempt case was assigned to another judge. After the case was heard and argued, amended charges were filed, which amended charges differed but slightly from the original charges. The former described the testimony of Hegelaw as perjury. The amended charges described it as perjury and evasive and obstructive testimony. Upon this state of the record, a finding of guilty was entered against Robert Hegelaw.
The contempt proceeding was based upon Section 12136, General Code, which is as follows:
"A court, or a judge at chambers, summarily may punish a person guilty of misbehavior in the *Page 106 presence of or so near the court or judge as to obstruct the administration of justice."
The question presented to this court is whether the record discloses that plaintiff in error was guilty of misbehavior in the presence of the court.
We are cited to the case of Edwards v. Edwards, 87 N.J. Eq. 546, 100 A. 608, wherein the court held that perjury, although it may also be punished as a crime, is a contempt and may be punished as such; that the one act constitutes two offenses, one against the state, the other against the court, just as an assault committed in court may be both contempt and a crime. Also, Berkson v. People, 154 Ill. 81, 39 N.E. 1079. This subject of the power of the court to commit a witness for contempt for giving false testimony is treated by Mr. Chamberlyne in his Modern Law of Evidence, Vol. 1, Sections 249 to 255, inclusive. We quote therefrom as follows:
Section 249. "Of possible acts, few are so antagonistic to the objects of judicial administration as the intentional false swearing which seeks to baffle the search for truth, without which justice is impossible. Such swearing is a flagrant insult to the dignity of the court."
Section 254. "Criminal contempts are those which are committed in presence of the court and disturb its administration of justice either physically and directly, as by disorderly conduct, or morally and indirectly by bringing the administration of justice into public disgrace. Criminal contempts are all acts committed against the majesty of the law, or against the court as an agency of *Page 107 the government, and in which, therefore, the whole people are concerned."
To justify a finding of guilty of contempt in cases similar to the case at bar the following elements must subsist: (1) That the alleged false answer had an obstructive effect. (2) Judicial knowledge of the falsity of the testimony. (3) The question must be pertinent to the issues.
In nearly every case issues of fact are made up by the pleadings, each side seeking by testimony to maintain its part. 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 can be no difference of opinion. If the alleged false statement is merely a matter of the court's opinion, as distinguished from its knowledge, contempt proceedings will not lie.
In the case at bar there was a clean-cut issue between Margaret Hegelaw and the Cleveland Trust Company as to whether she signed the withdrawal slip. There was evidence to support her contention. The court possessed no judicial knowledge on that subject. All it could do is to form its opinion and determine where the greater probability lay. *Page 108
As to the statement of Robert Hegelaw concerning the time he deposited the funds so withdrawn from the Cleveland Trust Company with the Society for Savings Bank, it appears in the final analysis that he was not quite definite on the subject. In addition, the question of when he deposited the funds so withdrawn with the Society for Savings Bank was not a material issue in this case. In what manner it obstructed the administration of justice, even if proven to be false and to have been made with knowledge of its falsity, is difficult to say.
Upon a reading of the record we are of the opinion that the charges against Robert Hegelaw were not sustained by the evidence in view of the settled law of the subject.
The judgment of the common pleas court will therefore be reversed, and plaintiff in error is ordered discharged.
Judgment reversed.
SULLIVAN, P.J., concurs.
VICKERY, J., not participating. *Page 109