Appellant was convicted upon a charge of direct contempt of court and sentenced to pay a fine of $250 and be imprisoned for 45 days. The alleged contemptuous conduct consisted of a certain radio newscast reporting an interview with a defendant in a criminal case then pending in LaPorte Circuit Court, in which the defendant was allegedly offered a suspended
Following the newscast both the state and the defense joined in a motion for mistrial, which motion was granted. The special judge trying the case thereupon filed a charge for direct contempt against appellant, setting out the facts concerning the newscast and
As cause for a new trial, appellant asserts that his conduct, if contemptuous at all, was indirect contempt at most, and that in the trial of the case he was denied the procedural safeguards which are guaranteed to him by statute.
The power to punish for contempt is inherent in every court of superior jurisdiction in Indiana. This power is essential to the existence and functioning of our judicial system, and the legislature has no power to take away or materially impair it. Little v. The State (1883), 90 Ind. 338; Holman v. The State (1886), 105 Ind. 513, 5 N.E.
For procedural purposes, the Indiana Legislature has classified actions for contempt generally into two categories — direct, under §§ 3-901 and 3-902, and indirect under §§ 3-903, 3-904 and 3-905. The Legislature has also provided for two distinct and different forms of trials in such actions. Section 3-907 prescribes the practice and procedure for direct contempt,
However, in other cases courts have held that, under the inherent power theory, the above statutory definitions of contempt are not so all-inclusive as to exclude other acts or conduct which may constitute contempt. For example, contemptuous statements in pleadings or official reports filed in court but not read in open court have also been held by this court to constitute direct contempt as analogous to oral statements made in open court. See Kerr v. State (1923), 194 Ind. 147, 141 N.E. 308; Coons v. State (1922), 191 Ind. 580, 134 N.E. 194. Also, it has been held that an assault upon a judge by a litigant, away from the court, after the judge refused to discuss the case with him, constituted direct contempt. Turquette v. State (1927), 174 Ark. 875, 298 S.W. 15, 55 A.L.R. 1227. In each instance the misconduct was within the personal knowledge of the judge and was directly
The question which this court must determine is whether, on the basis of the statute and prior decisions, which have defined direct contempt of court, appellant's conduct, although reprehensible, constituted direct contempt, for which he was tried in the manner prescribed by the statute for direct contempt.
In support of his position that the conduct of the appellant constituted direct contempt, for which he was tried, appellee relies heavily upon the case of Dale v. State (1926), 198 Ind. 110, 150 N.E. 781, in which a conviction of contempt for publication of an article imputing corruption and favoritism to a grand jury, was upheld. In that case the only procedural holding was that the defendant had no right to a change of venue from the judge. [In 1926 there was no right to such change of venue in any case of contempt.] The opinion in the Dale case, supra, does contain language which indictes the case could properly be treated as one of direct contempt. It is not clear from the opinion just what procedure was followed. It does appear that a verified answer was filed denying any contemptuous intent, which procedure is contemplated only in indirect contempt proceedings. However, apart from the case of Dale v. State, supra, to our knowledge every Indiana case, in which the publication of a newspaper report or comment was charged as constituting contempt, the contempt has been treated as indirect or constructive, and the action has followed the procedure
In the recent case of Stanton v. State (1952), 231 Ind. 223, 108 N.E.2d 251, in which this court viewed the publication of a newspaper article as the underlying basis of the charge, a conviction of direct contempt was reversed. Also, in cases from other jurisdictions involving contempt by publication, the procedure followed was for indirect or constructive contempt under the law of those jurisdictions. See Bridges v. Superior Court (1939), 14 Cal.2d 464, 94 P.2d 983; The Times Mirror Co. v. Superior Court (1940), 15 Cal.2d 99, 98 P.2d 1029; Pennekamp et al. v. State (1945), 156 Fla. 227, 22 So.2d 875; Ex Parte Craig (1946), 150 Tex. Cr. 598, 193 S.W.2d 278.
Considerations, applicable to publication in a newspaper, would seem to apply with equal force to radio newscasts. In both instances the act alleged to be contemptuous takes place away from the courtroom. Therefore, there is no greater likelihood of psyhical disturbance of court proceedings nor to coerce or influence
Therefore, insofar as the Dale case, supra (198 Ind. 110), may be thought to hold that the summary procedure of direct contempt may be employed in cases of contempt by ordinary publication, it is inconsistent with earlier and later Indiana cases and is disapproved.
It follows from the foregoing discussion that the charge against appellant LaGrange should have been treated as an action for indirect contempt and tried accordingly. This was not done in the instant case. Therefore, judgment must be reversed and a new trial ordered.
Although appellant filed a verified answer in this case, which is in the record, the trial court refused
Furthermore, since this case must be dismissed for failure to follow the proper procedure and was not tried upon its merits, and since this court does not have the benefit of a record of such trial, it would be inappropriate for us to consider appellant's contention that the radio broadcast is constitutionally protected speech under the First and Fourteenth Amendments as applied in Bridges v. California (1940), 314 U.S. 252, 86 L.Ed. 192, 62 S.Ct. 190, 159 A.L.R. 1346; Pennekamp v. Florida (1946), 328 U.S. 331, 90 L.Ed. 1295, 66 S.Ct. 1029; Craig et al. v. Harney (1947), 331 U.S. 367, 91 L.Ed. 1546, 67 S.Ct. 1249. See also, Baltimore Radio Shows, Inc. v. State (1948), 193 Md. 300, 67 A.2d 497, cert. den. with opinion, 338 U.S. 912.
Judgment reversed with directions to sustain appellant's motion to dismiss.
Bobbitt, C.J., Arterburn, Emmert and Landis, JJ., concur.
NOTE. — Reported in 153 N.E.2d 593.