dissenting.
I dissent.
This case involves an appeal from a district court charge which states, “This is a proceeding in indirect criminal contempt [of court].” The charge is based on the failure of the prosecutor to comply with an order of discovery pursuant to NMSA 1978, Crim.P.Rule 27 (Repl.Pamp.1980).
In order to reach the issues of this case, we must first reflect on the terminology “indirect criminal contempt” which the district court used in its charge. The word “indirect” simply means that “it is an act committed, not in the presence of the court but a distance from it.” 17 Am.Jur.2d, Contempt, § 6, p. 12 (1964). The word “criminal” means that the purpose of the contempt is to vindicate the authority of the court. State v. Greenwood, 63 N.M. 156, 315 P.2d 223 (1957). Contempt is defined as
[A] wilful disregard or disobedience of a public authority. [To be even more specific, it is an act] committed by a person who does any act in wilful contravention of [the court’s] authority or dignity, or tending to impede or frustrate the administration of justice, or by one who, being under the court’s authority as a party to a proceeding therein, unlfully disobeys its lawful orders or fails to comply with an undertaking which he has given.
Black’s Law Dictionary, 390 (4th ed. 1968). (Emphasis added.)
The issues to be considered in this appeal are (1) what constitutes criminal contempt of court, and (2) what is the burden of proof required.
As to the first issue, wilfulness is an essential element of contempt of court. This Court defined wilfulness in the case of Rio Grande Gas Co. v. Gilbert, 83 N.M. 274, 278, 491 P.2d 162, 166 (1971) as “* * * a wilful violation of a provision of a statute or regulation is any conscious or intentional failure to comply therewith * * * and that no wrongful intent need be shown to make such a failure wilful.” (Emphasis added.)
In this case the district court found no intentional violation of the court order or Rule, and I quote “I do find that there was no intent on anyone to fail to comply with the court order or the Criminal Rules of Court Procedure.”
The majority in their opinion cite the cases of Seven Rivers Farm, Inc. v. Reynolds, 84 N.M. 789, 508 P.2d 1276 (1973), State ex rel. Neumann v. Keller, 36 N.M. 81, 8 P.2d 786 (1932), and State v. Kayser, 25 N.M. 245, 181 P. 278 (1919).
The Neumann case stands for the proposition that “[i]t is unnecessary for the accusation to charge the intent in a contempt proceeding,” 36 N.M. at 82, 8 P.2d at 787 (quoting State v. Kayser, 25 N.M. 245, 181 P. 278, 281). The Seven Rivers Farm case, using Neumann and Kayser as the basis for its reasoning, reached the incorrect conclusion that intent is not an essential element of contempt.
To the extent that the case of Seven Rivers Farm is construed to hold that intent is not an element of wilfulness in the definition of contempt it is contrary to the majority view and should be overruled.
The record is clear that there is no wilfulness in this case.
We next consider what is the burden of proof required in a criminal contempt proceeding.
This Court stated in the case of State ex rel. Bliss v. Greenwood, 63 N.M. 156, 315 P.2d 223 (1957) that a proceeding for “criminal contempt” is governed by the Rules of Criminal Procedure and defendant’s guilt has to be proved beyond a reasonable doubt.
The federal district court also stated that, “In criminal contempt cases, the burden of proof requires the evidence show contempt beyond a reasonable doubt.” In re Contempt Proceedings Against Acuff, 331 F.Supp. 819 (D.N.M.1971). See also Yates v. United States, 316 F.2d 718, 725 (10th Cir.1963).
In the case of People v. Ziporyn, 121 Ill.App.3d 1051, 77 Ill.Dec. 329, 332, 460 N.E.2d 385, 388 (1984), the court stated, “Where, as here, defendant has been accused of indirect criminal contempt and where a punitive sanction is sought, the State has the burden of proving the accused guilty beyond a reasonable doubt.” The Ziporyn court also stated that, “Criminal contempt is a crime and, as such, consists of an intent and an act, both of which must be proved beyond a reasonable doubt.” People v. Ziporyn, 329 Ill.Dec. 333, 460 N.E.2d at 389.
There is' no such evidence in this record.
The district court had several courses of action at its disposal; however, when the district court chose to proceed in indirect criminal contempt, it was bound by law to establish the necessary elements of contempt. One of the elements the district court failed to establish was wilfulness. The district court also failed to apply the burden of proof which requires the evidence to show contempt beyond a reasonable doubt.
Therefore, I agree with the opinion of the Court of Appeals. The district court should be reversed.