dissenting.
I respectfully dissent. While the majority has correctly said that a person who "would mount a seurrilous ancestral attack on a judge and verbally abuse court personnel" would be engaging in contemptuous conduct, that particular conduct should not be considered direct criminal contempt of the court. At the time Hopping was held in direct erimi-nal contempt, there was no scheduled hearing, he was not in the courtroom, and the court was not in session. Thus, the judgment of guilt for direct contempt was not supported by the facts and should be reversed.
Direct contempt usually refers to conduct directly interfering with court proceedings while court is in session. IND.CODE 34-4-7-1 and I.C. $4-4-7-2. Such conduct must generally take place in or immediately adjacent to the courtroom, while court is in session, so that the judge has personal knowledge of such conduct in his official capacity. LaGrange v. State (1958), 238 Ind. 689, 153 N.E.2d 593, 596. It could best be described as an act committed in the presence of the *879court or so near it as to interrupt its proceedings while it is in session. No formal charges are filed and no evidentiary hearing is held in a direct contempt proceeding. The findings must be beyond a reasonable doubt.
Indirect contempt is the willful disobedience of any lawfully entered court order of which the offender has notice. I.C. 34-4-7-3. Indirect contempt arises from conduct not occurring in the presence of the court, such as failure of a party to obey a court order or process, whereas direct contempt is committed in the immediate view or presence of the court. Hegedus v. Hegedus (1978), 178 Ind.App. 620, 383 N.E.2d 446, 447. Indirect contempt proceedings are to be filed as independent actions which entitle the accused to notice of the nature and cireumstances of the charges against him or her, and an opportunity to show cause why he or she should not be attached and punished. Such proceedings also allow the defendant to be represented by counsel and if a possibility exists that he or she may be incarcerated and he or she is indigent, the court must appoint an attorney. In Re Marriage of Stariha (1987), Ind.App., 509 N.E.2d 1117, 1121.
The first occurrence of contempt occurred when the defendant became verbally abusive with the court personnel and Judge Witte by attempting to intimidate the court and attacking the integrity of the judge. The defendant had come to the court office to file some pleadings in several small claims actions. He was not there pursuant to a scheduled hearing or other court-ordered process. This incident took place in the court offices and not in the courtroom. This incident did not interrupt any court proceeding nor did it take place in front of the public. The court, because the incident took place outside the court and did not disrupt a court proceeding, should follow the statutory provisions and file a rule to show cause why the defendant should not be attached and punished for his indirect criminal contempt.
The trial judge held a contempt hearing immediately after informing the defendant he was being held in direct contempt of the court for his verbal abuse attacking the reputation and integrity of the court and the judge, his attempts to intimidate the court personnel into scheduling his case as he saw fit, and his failure to follow the judge's orders. Hopping denied the allegations,. This further illustrates the importance of following the procedure for indirect contempt so that the defendant could be heard on the issue and have the benefit of counsel, if he chooses.
As the defendant was being led out of the courtroom by the deputy to begin a sentence of 30 days in the Dearborn County Jail, he was heard to make a remark concerning the Japanese heritage of the judge. Defendant denied making the statement and he was again found guilty of a second count of direct eriminal contempt. Again, it is essential that people appearing before the court be given all the procedural protections entitled to one accused of any criminal act.
Direct criminal contempt must be such an open threat to the court that if it is not instantly suppressed the court's authority will be diminished. The threats made by the defendant were not jeopardizing any proceedings nor were they matters that could not have been formally put in writing and set for hearing. Absent a showing that immediate punishment is required to maintain order in and respect for the court, there is no proof of direct contempt. Brennan v. State (1961), 242 Ind. 79, 173 N.E.2d 312, 313. The determination of whether a contempt of court has been committed does not depend upon the alleged intention of the offending party, but on the act. The discretion of power under actions of this kind must be carefully weighed to preserve the rights of its citizens for whose sole benefit the courts were organized. Coons v. State (1922), 191 Ind. 580, 134 N.E. 194, 198. Hopping's actions did not directly interfere with any court proceedings, did not delay any court proceedings, nor bring the court itself into disrepute. I would reverse the judgment of the trial court.