# Petition for Writ of Certiorari — McGowan v. Mississippi

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1006

## Text

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

>

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,

- —
-

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

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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.”

“==

—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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1326%3A1. Public record. Not legal advice.