Petition for Writ of Certiorari — McGowan v. Mississippi

COF" 712156 fsee

FILED

WAY 27 i972

— MICHAEL RODAK, JR.,CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Mississippi

W. S. MOORE

CHARLES 0. JONES

514 Barnett Building

Jackson, Mississippi 39201

Counsel for Petitioner

St. Louis Law Printing Co., Inc., 411-15 N. Bighth St. 68101 814-231-4477

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TABLE OF CONTENTS

Page

Introductory Statement .............. 0c. cece ceeeee 1

Jurisdictional Statement .....................006-. 2

Question Presented for Review .................... 2

Applicable Mississippi Statutes .................... 2

Statement of the Case .............. ccc ccc ccccues 5

Reasons for Granting the Writ .................... 7

Argument

Did the Trial Court Deny the Rights Guaranteed to

the Petitioner by Article 3, § 2, of the Constitution

of the United States, and the Fifth, Sixth and

Fourteenth Amendments to the Constitution of

the United States, by Denying Petitioner’s Re-

quest for Jury Trial, in View of the Severity of

the Sentence, and Was the Denial Cured by the

Action, of the Appellate Court in Merely Reduc-

ing the Amount of the Fine? .................. 7

NE + stinvkcdodudekubetdawebancebiadaneenesnes 14

Appendix A |

Opinion of Supreme Court of Mississippi ......... A-1

Appendix B

SE Livan ebadeedia tabbatink bint nemiuaind A-5

Appendix C

Judgment Denying Rehearing .................... A-6

Appendix D

Order Permitting the Petitioner to Remain at Large

on Bail Pending a Determination of This Petition A:7

RON ate

Table of Cases Cited

Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26

ee Ge GUE nos ai csad deccse ccdcdosewens 7,12

Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.

Pe CED kcesdanscanccdsarcusesctnenans 7,10

Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523,

Be Be Gee CED dou ccasadsccscvccveseses 7, 9, 11

Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20

Bede GRE CED veces casccccsscescessceses 7, 10, 11

Hinton v. State, 222 So.2d 690 (Miss. 1969) .......... 7

BD Re GD cn ccccccscvadesersscncvessivcraccsscce 9, 10

TB UBL. GIBB CB) nnccccccccccessvcccscesscccess 2

Fifth Amendment ............. e6bcesuedebaeeunbed 2,7,8

its BOING. «oc on cin vcccccsccssoscesscacceses 2, 7,8

Fourteenth Amendment ............cccccsccccccees 2, 7,8

§ 1152, Mississippi Code of 1942 ...........e.eeeeee 2

§ 1278, Mississippi Code of 1942 .............eeeees 3, 12

§ 2540, Mississippi Code of 1942 ...............005. 4

§ 2562, Mississippi Code of 1942 ................66- 4,12

§ 7899, Mississippi Code of 1942 ...............008- 4

§ 7906, Mississippi Code of 1942 ...........0eeeees 4

a ey a ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM

POO sinnanns

GEORGE McGOWAN,

Petitioner,

VS.

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Mississippi

INTRODUCTORY STATEMENT

The Petitioner, George McGowan, respectfully petitions

for a writ of certiorari to review a judgment and order

made by the Supreme Court of Mississippi, unofficially re-

ported as McGowan v. State, 258 So.2d 801. A copy of the

opinion is appended and marked Appendix A. A copy of

the judgment is appended and marked Appendix B.

Rehearing was denied March 20, 1972, without opinion.

A copy of the judgment denying rehearing is appended

and marked Appendix C,

i pane ny ee Senree Oe ee ee

A copy of an order permitting the petitioner to remain

at large on bail pending a determination of this petition

is attached and marked Appendix D.

The petitioner was convicted of criminal contempt of

the Chancery Court of Jefferson Davis County, Mississippi,

after his request for a jury trial was overruled.

The petitioner was sentenced by the trial court to pay

a fine of $750.00 and to serve five months in the county

jail, and to stand committed until the sentence was served,

and the fine was paid. The Mississippi Supreme Court af-

firmed the conviction and reduced the fine to $500.00.

JURISDICTIONAL STATEMENT

Petitioner believes this Court has jurisdiction to review

the decision by writ of certiorari by virtue of 28 U.S.C.

§ 1257 (3).

QUESTION PRESENTED FOR REVIEW

Did the trial court deny the rights guaranteed to the

petitioner by Article 3, §2, of the Constitution of the

United States, and the Fifth, Sixth and Fourteenth Amend-

ments to the Constitution of the United States, by denying

petitioner’s request for jury trial, in view of the severity

of the sentence, and was the denial cured by the action of

the appellate court in merely reducing the amount of the

fine?

APPLICABLE MISSISSIPPI STATUTES

§ 1152, Mississippi Code of 1942, as amended, provides

as follows:

A person ordered by any tribunal, except the Sn-

preme Court, to be punished for a contempt, may ap-

peal to the court to which other cases are appealable

from said tribunal, and may supersede any fine im-

posed by the execution of a bond, payable to the state,

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-

with two sufficient sureties, to be approved by the

tribunal appealed from, in a penalty to be fixed by

said tribunal, not exceeding three hundred dollars,

conditioned to pay the fine and costs, in case of af-

firmance in whole or in part; and the appellant shall

be entitled to bail in such cases upon the execution

of an appearance bond, with two or more such sure-

ties, in the penalty of three hundred dollars, payable

to the state, conditioned to appear in the court to

which his appeal is prosecuted and to abide the result

of such an appeal, which may be approved by the

sheriff or other officer in whose custody the appellant

may be; and on such appeal the question shall be

whether the appellant was guilty of contempt; and

the sentence or decree or order of the court below

may be affirmed, reversed, annulled, or modified, ac-

cording to the judgment of the appellate court. All

such appeals shall be tried on the record, and the pre-

siding officers of all tribunals condemning any person

for contempt shall within one day thereafter, sign

bills of exception, if demanded showing all the facts

and evidence upon which such judgment was predi-

cated.

§1278, Mississippi Code of 1942, as amended, provides P

as follows:

— on

SE ELON AERO EN LR rah Ste ate ~

POA RP ak 32

Ig

The chancery court, or the chancellor in vacation,

or judge granting the writ, shall have power to pun-

ish any person for breach of injunction, or any other

order, decree, or process of the court, by fine or im-

prisonment, or both, or the chancellor or judge grant-

ing the writ may require bail for the appearance of

the party at the next term of the court to answer for

the contempt; but such person shall be first cited to

appear and answer. And any person so punished by

order of the chancellor in vacation, may on five days’

* notice to the opposite party, apply to a judge of the

ee BS a AS Cr Ae a cas tae

—- ©

Supreme Court, who, for good cause shown, may su-

persede the punishment until the meeting of the said

chancery court.

§2540, Mississippi Code of 1942, as amended, provides

as follows:

In cases not capital the court shall order the con-

vict to stand committed until the fine, costs, and jail

fees be paid.

§2562, Mississippi Code of 1942, as amended, provides

| as follows:

Offenses for which a penalty is not provided else.

where by statute, and offenses indictable at common

law, and for which a statutory penalty is not else-

where prescribed, shall be punished by fine of not

more than five hundred dollars and imprisonment in

the county jail not more than six months, or either.

§7899, Mississippi Code of 1942, as amended, provides

as follows:

Every convict sentenced to imprisonment in the

county jail, or to such imprisonment and the payment

of a fine, or the payment of a fine, shall be committed

to jail, and shall remain in close confinement for the

full time specified for imprisonment in the sentence

of the court, and in like confinement until the fine,

costs and jail fees be fully paid, unless discharged in

due course of law, or as hereinafter provided. But no

convict shall be held in continuous confinement under

a conviction for any one offense for failure to pay

fine and costs in such for a period of more than two

years.

§7906, Mississippi Code of 1942, as amended, provides

as follows:

Every county or municipal convict shall be comfort-

ably clothed at the expense of the county or munici-

——

a ven .

pality, but all clothing furnished shall remain the -

property of the county or municipality, and shall be

thoroughly fumigated and disinfected before being

allotted to a convict after having been used by an-

other, and every convict shall be sufficiently fed, to

maintain his body and induce his good health, with

substantial and suitable food to be furnished and pre-

pared and paid for by the county or municipality.

And every convict for each day’s work he is required

to do shall receive credit on his fine and costs assessed

against him of Three Dollars ($3.00) per day, until

such fine and costs are fully paid. And in case the

convict is serving a sentence of imprisonment, each

day that he works in serving such sentence shall -en- .

title him credit for equal time on his sentence of

imprisonment, but in no instance shall a convict re-

ceive credit on the fine and costs and on the time

sentenced to imprisonment for the same work. No

convict shall be allowed to labor more than eight

hours per day, but shall be required, when able, to

perform eight hours labor each day.

* ESR os

STATEMENT OF THE CASE

The State of Mississippi, acting by and through the

District Attorney of the Fifteenth District, and the Sheriff

of Jefferson Davis County, filed a bill on February 16, 1971

in the Chancery Court of Jefferson Davis County, to abate

a common nuisance and praying that the petitioner’s

house and lot be abated as a:common nuisance, A tem-

porary writ of injunction was issued by the Chancery

Court of Jefferson Davis County against the petitioner

on February 19, 1971. On March 27, 1971, a consent final

decree was entered finding that the petitioner used his

house and lot as‘a place of storage of intoxicating liquors

for the purpose of sale and adjudging them, the petitioner,

his house and lot, to be a common nuisance. The petitioner

SETURL T Ssmireyecgmer tierce orm ts sen ne ccna ss

oe

was enjoined and restrained from March 27, 1971 until the

March, 1972, term of the Chancery Court of Jefferson

Davis County, from having unlawful intoxicating liquor

in his possession or under his control on his lot or in his

house, and from further operation and use of the premises

as a place where intoxicating liquor was kept, possessed,

used, sold or given away.

On May 26, 1971, the District Attorney and the Sheriff

of Jefferson Davis County, filed a motion for citation for

contempt, charging that the petitioner had violated the

terms of the consent final decree of March 27, 1971.

On July 2, 1971, the petitioner filed a motion for a jury

trial, stating that in the event the petitioner was con-

victed of contempt, there was no limit by statute or com-

mon law to the term of imprisonment or fine which may

be imposed and that a sentence in excess of six months

imprisonment for criminal contempt was of such severity

by itself to take the offense out of the category of “‘ petty”

as it relates to the rights of a jury trial The Chancery

Court, after hearing arguments on July 2, 1971, denied

the motion for a jury trial.

The case proceeded to trial on July 15, 1971 and, after

hearing and considering the evidence, the Chancellor en-

tered a final decree adjudging the petitioner to be guilty

of criminal contempt and ordering petitioner to pay the

costs and to serve five months in the Jefferson Davis

County Jail; to pay a fine of $750.00; and to stand com-

mitted until the sentence was served and the fine paid

An appeal was perfected to the Supreme Court of Mis

sissippi, raising the same Federal Constitutional question

raised here. The Supreme Court of Mississippi affirmed

petitioner’s conviction, but reduced the fine to $500.00, on

February 28, 1972 (258 So.2d 801). A petition for re

hearing was denied without a written opinion on March

20, 1972. The petitioner has exhausted his state remedies

Saal SE

=

Pe i ow ae © ead

=

The Mississippi Supreme Court in this case has denied

petitioner’s personal rights protected by United States

Constitution by denying petitioner’s request for a jury

trial to determine his guilt or innocence.

Did the Trial Court Deny the Rights Guaranteed to the

Petitioner by Article 3, §2, of the Constitution of the

United States, and the Fifth, Sixth and Fourteenth Amend-

ments to the Constitution of the United States, by Deny-

ing Petitioner’s Request for Jury Trial, in View of the

Severity of the Sentence, and Was the Denial Cured by

the Action of the Appellate Court in Merely Reducing the

Amount of the Fine?

The petitioner relies on five cases, Cheff v. Schnacken-

berg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966);

Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20

L.Ed.2d 491 (1968); Bloom v. Illinois, 391 U.S. 194, 88

S.Ct. 1477, 20 L.Ed.2d 522 (1968); Hinton v. State, 222

So.2d 690 (Miss. 1969); and Baldwin v. New York, 399

US. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). These

eases concern the right of trial by jury, and the extent

to which a jury trial is required by subsection 3 of Article

3, §2 of the Constitution of the United States, and the

Fifth, Sixth and Fourteenth Amendments to the Con-

stitution of the United States.

Subsection 3 of Article 3, §2, provides:

“The trial of al] Crimes, except in Cases of Im-

peachment, shall be by Jury: and such Trial shall

be held in the State where the said Crimes shal] have

been committed; but when not committed within any

OE RT OR PrRREET Brat Dmyy mi ——

State, the Trial shall be at such Place or Places as

the Congress may by Law have directed.”

The Fifth Amendment provides:

‘No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases aris

ing in the land or naval forces, or in the Militia,

when in actual service in time of War or public

danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any Criminal Case to be a

witness against himself, not be deprived of life,

liberty, or property be taken for public use, without

just compensation.’’

The Sixth Amendment provides:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by a

impartial jury of the State and district wherein the

crime shal] have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to

have compulsory process for obtaining Witnesses in

his favor, and to have the Assistance of Counsel for

his defense.’’

Section 1 of the Fourteenth Amendment provides:

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, ar

citizens of the United States and of the State wherem

they reside. No states shall make or enforce any lav

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with

out due process of law; nor deny to any person with

its jurisdiction the equal protection of the laws”

Mr. Justice Stewart joined the concurring opinion in part.

Mr. Justice White took no part in the decision and Justices

Black and Douglas dissented.

This Court, in Cheff v. Schnackenberg, cited 18 U.S.C.,

41, which provides:

(2) Any other offense is a misdemeanor.

(3) Any misdemeanor, the penalty for which

does not exceed imprisonment for a period of six

months or a fine of not more than $500, or both,

is a petty offense.”’

The four member majority stated:

““* * © im the exercise of the Court’s supervisory

power and under the peculiar power of the federal

courts to revise sentences in contempt cases, we rule

further that sentences exceeding six months for crimi-

nal contempt may not be imposed by federal courts

absent a jury trial or waiver thereof. Nothing we

have said, however, restricts the power of a reviewing

court, in appropriate circumstances, to revise sen-

tences in contempt cases tried with or without juries.’’

The Cheff decision apparently left open the question of

whether a fine could be imposed which would result in

=

— 10 —

imprisonment over the six month limitation and left out

of its quotation of 18 U.S.C. §1 any reference to the $500

maximum fine, which could be imposed in addition to the

six months, and have the offense remain a ‘‘petty offense.”

On the same day, May 20, 1968, that Duncan v. Loui-

siana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)

was decided, this Court decided Bloom v. Illinois, 391 U.S.

194, 88 S.Ct. 1447, 20 L.Ed.2d 522 (1968) case. Bloom was

convicted in an Illinois state court of criminal contempt

and sentenced to imprisonment for 24 months for willfully

petitioning to admit to probate a will falsely prepared and

executed after the death of the punative testator. He made

a timely demand for jury trial which was refused.

Mr. Justice White delivered the opinion in the Bloom

case. He was joined by the Chief Justice Warren and

Justices Black, Douglas, Brennan and Marshall. Mr. Jus-

tice Fortas delivered a concurring opinion and Justices

Harlan and Stewart dissented.

This Court held in Bloom that ‘‘* * * serious contempts

are so nearly like other serious crimes that they are sub-

ject to the jury trial provisions of the Constitution, now

binding on the States, and that the traditional rule is

constitutionally infirm insofar as it permits other than

petty contempts to be tried without honoring a demand

for a jury trial.” (391 US 198, 88 S.Ct. 1480).

The Court further held in Bloom:

“Tt is old law that the guarantees of jury trial

found in Article III and the Sixth Amendment do

not apply to petty offenses. Only today we have re

affirmed that position. Duncan v. State of Louisiana,

supra, 391 U.S. at 159-162, 88 S.Ct. at 1452-1454, 20

L.Ed. 2d 491. By deciding to treat criminal contempt

like other crimes insofar as the right to jury trial is

——

= =

concerned, we similarly place it under the rule that

petty crimes need not be tried to a jury’? (391 US.

210, 88 S.Ct. 1486).

‘‘Under Illinois law no maximum punishment is

provided for convictions for criminal contempt. Peo-

ple v. Stollar, 31 I1l.2d 154, 201 N.E.2d 97 (1964). In

Duncan we have said that we need not settle ‘the

exact location of the line between petty offenses and

serious crimes’ but that ‘a crime punishable by two

years in prison is * * * a serious crime and not a

petty offense.’ 391 U.S. at 161, 162, 88 S.Ct. at 1454.

Bloom was sentenced to imprisonment for two years.

Our analysis of Barnett, supra, and Cheff v. Schnack-

enberg, 387 U.S. 373, 86 S.Ct. 1523, 16 L.Ed. 629,

makes it clear that criminal contempt is not a crime

of the sort that requires the right to jury trial re

gardless of the penalty involved. Under the rule in

Cheff, when the legislature has not expressed a judg-

ment as to the seriousness of an offense by fixing a

maximum penalty which may be imposed as the best

evidence of the seriousness of the offense. See Dun-

can, supra, 391 U.S. at 162, n. 35, 88 S.Ct. at 1454.

Under this rule it is clear that Bloom was entitled

to the right to trial by jury, and it was constitutional

error to deny him that right. Accordingly, we re-

verse and remand for proceedings not inconsistent

with this opinion.’’

The petitioner here contends that when he was fined

$750, that took hix criminal contempt case out of the

“petty’’ offense category and placed it in the ‘‘serious”’

offen: category, requiring a jury trial. The fact that

he was ~w!. wi to ‘tonly’’ five months instead of six

months cows wet render the imposition of a $750 fine any

less serious, The petitioner here did not move the trial

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court to reduce the fine, and there is no authority under

Mississippi law for so doing.

The Mississippi Supreme Court has held that 42562

does not apply to the Chancery Court’s power to punish

for violation of an injunction prohibiting gambling oper-

ations and abating establishments as nuisances, but that

an accused could be punished under § 1278, Mississippi

Code of 1942.

There is a possibility that the imposition of a fine in

excess of $90, coupled with a sentence to serve five months,

might be excessive, in light of Baldwin v. New York. Mr.

Justice White delivered the ‘‘majority’’ decision in the

Baldwin case. He was joined by Justices Brennan and

Marshall. Mr. Justice Black concurred in the judgment

and filed an opinion in which Mr. Justice Douglas joined,

399 U.S. 74, 90 S.Ct. 1891. Mr. Justice Blackmun took

no part in the decision. The Chief Justice dissented and

filed an opinion at 399 U.S. 76, 90 S.Ct. 1892. Mr. Justice

Harlan filed a dissenting opinion, 399 U.S. 117, 90 S.Ct.

1914, 26 L.Ed.2d 463. Mr. Justice Stewart also filed a

dissenting opinion, 399 U.S. 143, 90 S.Ct. 1928, 26 L.Ed.2d

478.

Justices Black and Douglas were of the opinion that the

Constitution guarantees a right of trial by jury, whether

the offense is petty or serious. The three-justice majority

opinion held that ‘‘* * * no offense can be deemed ‘petty’

for purposes of the right to trial by jury where imprison-

ment for more than six months is authorized’ (399 US.

69, 90 S.Ct. 1888).

This Court further held:

“Where the accused cannot possibly face more than

six months’ imprisonment, we have held that these

disadvantages, onerous though they may be, may be

—_— -

—13—

outweighed by the benefits that result from speedy

and inexpensive non-jury adjudications. We cannot,

however, conclude that these administrative con-

veniences, in light of the practices that now exist in

every one of the 50 States as well as in the federal

courts, can similarly justify denying an accused the

important right to trial by jury where the possible

penalty exceeds six months’ imprisonment.” (399 U.S.

73, 90 S.Ct. 1890)

The trial court determined the guilt or innocence of

the petitioner at the same time that the trial court decided

whether the offense was a “petty” one or a serious one.

The “petty” offender in Mississippi is not entitled to a

jury trial and a “petty” offense provides for punishment

by fine of not more than five hundred dollars and im-

prisonment in the county jail not more than six months

or either. The trial court found the petitioner guilty of

a serious crime, without the protection afforded by a

jury. He was convicted of a serious offense.

The Mississippi Supreme Court should have sent this

ease back for retrial; however, it simply reduced the

sentence but that act, which did not diminish the fact

that the trial judge had determined by its discretion that

the offense was a serious one.

A convict only receives a credit of $3.00 per day toward

the payment of a fine until such fine and costs are fully

paid. He must also serve the sentence imposed upon him

but no convict shall receive credit on the fine and costs

and on the time sentenced for the same work. A $750

fine would subject him to an additional 250 days to serve

over the five months, and the imposition of the fine of

$500 would subject him to serve an additional 167 days

over the five months. The sentence plus either fine would

exceed a “possible six months’ imprisonment.”

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—i4—

CONCLUSION a

The petitioner respectfully requests this Court that this

case be reversed and remanded to the Chancery Court of

Jefferson Davis County for a new trial. Be

Respectfully submitted

W. 8. MOORE

CHARLES 0O. JONES

514 Barnett Building |

Jackson, Mississippi 39201 _— |

Counsel for Petitioner

——

— so

APPENDIX A

IN THE SUPREME COURT OF MISSISSIPPI

GEORGE McGOWAN

v. No. 46,705

STATE OF MISSISSIPPI

Gillespie, Chief Justice:

George McGowan was enjoined by the Chancery Court

of Jefferson Davis County from conducting the unlawful

business of keeping and selling intoxicating liquor on cer-

tain premises. Miss. Code 1942 Ann., § 2646 (1957). He

was cited for contempt of court for violating the injunc-

tion and thereupon moved the court to grant a jury trial

on the contempt issue. The motion was overruled and

the issue was tried before the chancellor, who found

McGowan guilty of contempt and imposed a penalty of

five months’ imprisonment in the county jail and a fine

of $750. Miss. Code 1942 Ann., §1278 (1957).

The sole question presented in this case is whether

under the Constitution of the United States, Article III,

Section 2, and under the Mississippi Constitution, Article

II, Sections 26, 31, the trial court erred in overruling

- MeGowan’s motion for a jury trial. Appellant contends fs

that his fine in the amount of $750 takes this criminal

contempt case of the petty offense category and places it

in the serious offense category, requiring a jury trial.

The United States Supreme Court has enunciated the 4

rule that in determining whether a contempt is to be

:

treated as serious or petty, the court should look to the

maximum sentence which could be imposed under a state

statute where the maximum penalty has been set there-

under; and where a state statute provides no maximum

a

punishment, the court should look to the penalty actually

imposed as the best evidence of the seriousness of the of.

fense. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 2

L.Ed.2d 522 (1968); Duncan v. La., 391 U.S. 145, 88 S.Ct.

1444, 20 L.Ed.2d 491 (1968); and Cheff v. Schnackenberg,

384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). Bald.

win v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed2d

437 (1970), further clarified the distinction between seri-

ous and petty crimes by holding that ‘‘no offense can be

deemed ‘petty’ for purposes of the right to trial by jury

where imprisonment for -more than six months is au

thorized’? (26 L.Ed. at 440). In each of these cases, the

Supreme Court was considering the constitutional right

of an individual to a jury trial in relation to the length

of his prison term, rather than the amount of his fine,

The United States Supreme Court only made brief mer-

tion of fines, and did not consider the question of whether

fines are a factor in determining the seriousness of a

crime.

We find no case in which the United States Supreme

Court has limited the amount of a fine to $500 without

a jury trial, where only a fine was imposed for criminal

contempt. However, that Court upheld convictions for

criminal contempt where a fine in excess of $500 was im-

posed as a sole punishment. Cheff v. Schnackenberg,

supra; United States v. United Mine Workers of America,

330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1946). Cf. In Re

Jersey City Education Ass’n., 115 N.J.Super. 42, 278 A.2d

206 (1971); Rankin v. Shanker, 295 N.Y.S. 2d 625, 242

NE. 2d 802 (Ct.App. 1968). We feel that there is an

important distinction here which charts a line of demarca-

tion between crimes of serious and petty nature. What is

significant is whether, as in the case at bar, there was not

only a fine imposed, but also a jail term.

In Hinton v. State, 222 So.2d 690 (Miss. 1969), this Court

quoted at length from the Bloom case, supra, and held:

a ———_ ald Fa ie ee 0 RO Oe ee ee ee

=

We conclude that where the confinement is not more

than six months and the fine for not more than $500,

that the offense is a petty one and the accused is not

entitled to a jury trial under the Sixth Amendment

to the Constitution of the United States (222 So.2d

at 692).

Thus this Court adopted six months’ imprisonment and

$500 fine as the maximum punishment which may be im-

posed in this state upon an individual without a jury trial.

We did not, nor do we now, consider the situation where

only a fine is imposed. However, we do recognize a strong

precedent for approving fines exceeding $500 without a

jury trial where only a fine is imposed as punishment.

Cheff and United Mine Workers, supra.

We have read and considered carefully the case of

United States v. R. L. Polk & Co., 438 F.2d 377 (6th Cir.

1971), which involved a motion by a corporation to cor-

rect a sentence under which it was fined $35,000 for crim-

inal contempt. The corporation contended and the Court

so held that the imposition of a fine on a corporation in

excess of $500 no longer permitted the offense to be char-

acterized as petty. The Court concluded that the test in

determining whether an offense is petty or serious is to

look at the objective criteria found in the existing laws

of the nation. The Court further stated:

However, no existing laws of the nation, other than

18 U.S.C. $1,’ have been disclosed to us which would

provide any other objective standard of what con-

stitutes a ‘‘serious’’ financial penalty to a corporation

(438 F.2d at 380).

The rationale of the Court in the Polk case is not persua-

sive on us.

ARNE PRY

1 18 U.S.C. § 1 defines a petty offense as “[a]ny misdemeanor, ‘

the penalty for which does not exceed imprisonment for a

period of six months or a fine of not more than $500, or

both. ...”

So ried ee eee

—_v

This Court recognizes a further distinction between

criminal contempt cases such as the one before us where

punishment is imposed retrospectively, and those where

punishment is imposed prospectively. In the latter, the

defendant has the power to avoid the imposition of any

fine; and if he chooses to ignore the Court’s directions and

proceeds or pursues a prohibited course of action, then

the imposition of a fine is by his own choosing. This is

analogous to appellant’s second contention, namely, that

where a non-indigent defendant fails to pay a fine and is

imprisoned therefor, if his term in prison should exceed

six months, he is entitled to a jury trial. In this instance

the defendant also has the power to prevent further pun-

ishment, and the fact that he chooses not to pay the fine

should not inure to his benefit so as to entitle him toa

jury trial.

“The only relief sought by the defendant on this appeal

is the remand of the case for resentencing. However Mis

sissippi Code 1942 Annotated, section 1152 (1957) governs

the scope of review on appeals from convictions for con-

tempt and provides in part as follows:

[A]nd on such appeal the question shall be whether

the appellant was guilty of contempt; and the sen

tence or decree or order of the court below may be

affirmed, reversed, annulled, or modified, according

to the judgment of the appellate court.

Ordinarily sentencing is a matter for the trial court, but

in view of the foregoing provisions of the statute, the de-

cree in this case is modified, thus reducing the fine by

$250. The conviction is therefore affirmed with punish

ment fixed at imprisonment in the county jail for five

months and a fine of $500.”

AFFIRMED AS MODIFIED.

JONES, BRADY, INZER AND ROBERTSON, JJ,

CONCUR.

URE ETRE. OG TS ae

IN THE SUPREME COURT OF MISSISSIPPI

MONDAY, FEBRUARY 28, 1972 Court Sitting : : :: :

George McGowan

46,705 v.

State

This cause having been submitted at a former day of

this Term on the record herein from the Chancery Court

of Jefferson Davis County and this Court having suffi-

ciently examined and considered the same and being of

the opinion that this cause should be affirmed as modified

doth order and adjudge that the judgment of said Circuit

Court rendered in this cause on the 15th day of July

1971—be and the same is hereby affirmed with punishment

fixed at imprisonment in the county jail for five months

and a fine of $500.00. It is further ordered and adjudged

that the State of Mississippi do have and recover of and

from the appellant and Glynn Rogers, Mrs. Glynn Rogers

and Ruby Johnson, sureties on the appeal bond herein,

all of the costs of this appeal to be taxed for which let

proper process issue.

MINUTE BOOK “‘BP”’ PAGE 520

-

7S RPE TE omy ys acre gy

aniiiius

IN THE SUPREME COURT OF MISSISSIPPI

MONDAY, MARCH 20, 1972 Court Sitting : :::::::

George McGowan

46,705 v.

State

This cause this day came on to be heard on the petition

for a rehearing filed herein and this Court having suff

ciently examined and considered the same and being of

the opinion that the same should be denied doth order

and adjudge that said petition be and the same is hereby

denied.

MINUTE BOOK “BP”? PAGE 535