# Opposition Brief — McGowan v. Mississippi

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1006

## Text

INDEX

Opinion Below 1
Jurisdiction sisaiiansinssaiaibiliis 1
Question Presented .................. 2
Statement of Facts . 2
Argument—
The Petitioner Had No Constitutional Right to a
Trial by Jury on His Contempt Citation Where-
in He Was Ultimately Sentenced to Serve a
Term of Five Months in the County Jail and
Was Ordered to Pay a Five Hundred Dollar
Fine 3
II ccc cece vssnssenvesiscnennemesnsniiencnanennemnminnninee 15
Table of Authorities
CASES
Anderson v. Shackelford, 74 Fla. 36, 76 So. 343 ............ 9
Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26
L.Ed.2d 437 (1970) .....................-.. cahiceaithiiaee 6, 8, 9, 11, 12
Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d
BERRA ENE TERESA eneeeenes 6, 8,12
Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523,
OS yee 3, 6, 11, 14
Church v. State, 239 Miss. 1, 111 So.2d 228 (1959) ... 8
Commonwealth v. Fletcher, 269 A.2d 727 (Pa. 1970) ... 8
Commonwealth v. Snyder, 275 A.2d 312 (Pa. 1971) ... 6
District of Columbia v. Clawans, 380 U.S. at 628, 81
L.Ed. at 848 ... 5
Duncan v. Louisiana, 391 U.S. 145, 48 S.Ct. 1444, 20
L.Ed.2d 491 (1968) .......................... 4,5, 6, 12

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ORS TE NE EISEN LS

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Ex parte Bryant, 24 Fla. 278, 4 So. 854 9
Ex parte Wilson, 114 US. 417, 55 S.Ct. 935, 29 L.Ed. 89 9 ~
Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23

LEd.2d 162 (1969) 5
Gompers v. Buck’s Stove and Range Company, 221 US.

418, 31 S.Ct. 492, 55 L.Ed. 797 (1911) 10
Hinton v. State, 222 So.2d 690 (Miss. 1969) -. 6,8
Holland Furnace Co. v. Schnackenberg, 321 US. 924,

85 S.Ct. 1559, 14 L.Ed.2d 683 (1965) 12
In re Duehrer, 236 A.2d 592 (N.J. 1967) 13
In re Jersey City Education Association, 278 A.2d 206

(N.J. 1971) 14
Matter of McKinley v. Hamilton, 282 N.Y. 393, 26 N.E.

2d 949 g
Morris v. Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26

L.Ed.2d 773 (1970) 10
Murphy v. State, 202 Miss. 890, 32 So.2d 875 (1948) .... 8
People v. Bellinger, 269 N.W. 265, 199 N.E. 215 ............ 9
Rankin v. Shanker, 23 N.Y.2d 111, 295 N.Y.S.2d 625,

242 N.E.2d 802 (Ct. App. 1968) 13

TExTs AND STATUTES
127 ALR 1283 9
21 Am. Jur. 2d, Criminal Law, §603, p. 557 ......------------- 9
"Mississippi Code of 1942 Annotated (1956)—
Section 1278 8
Section 2540 9
Section 2646 2,8
Section 7899 9
Section 7906 9
18 U.S.C., §1 11, 12, 14

In the Supreme Court of the United States

OCTOBER TERM

No.

GEORGE McGOWAN,
Petitioner,

vs.

STATE OF MISSISSIPPI,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
To THE SUPREME COURT OF
MISSISSIPPI

BRIEF IN OPPOSITION

OPINION BELOW
The opinion of the Supreme Court of Mississippi (Peti-
tioner’s Appendix “A”) is reported as McGowan v. State,
258 So.2d 801 (Miss. 1972).

JURISDICTION

The jurisdiction requisites are adequately set forth in
the Petition.

QUESTION PRESENTED

Does the right to trial by jury extend to a case where-
in the defendant is sentenced to a five-month term of im-
prisonment and is fined Five Hundred Dollars ($500.00)?

STATEMENT OF FACTS

On March 27, 1971, in the Chancery Court of Jeffer-
son Davis County, Mississippi, the Petitioner and his prem-
ises were found to be a common nuisance in that Petitioner
was keeping and selling intoxicating liquor. Petitioner
was enjoined from having unlawful intoxicating liquor on
his premises as provided by §2646, Mississippi Code of
1942, Annotated (1956). Petitioner was then cited for
contempt of court for violating the injunction and there-
upon moved the court to grant a jury trial on the contempt
issue. A motion for a jury trial was overruled and the
issue was tried before the Chancery Judge who found the
Petitioner guilty of contempt and imposed a penalty of five
months imprisonment in the County jail and a fine of
Seven Hundred Fifty Dollars ($750.00). Petitioner ap-
pealed his conviction to the Supreme Court of Mississippi
wherein his conviction was affirmed with the sentence be-
ing reduced to five months imprisonment in the County
jail and a fine of Five Hundred Dollars ($500.00).

Petitioner now seeks to have this Court grant Cer-
tiorari in order to determine whether he could receive a
five-months jail sentence and a Five Hundred Dollar
($500.00) fine without having been tried by a jury.

ARGUMENT

The Petitioner Had No Constitutional Right to a Trial

by Jury on His Contempt Citation Wherein He Was

Ultimately Sentenced to Serve a Term of Five Months

in the County Jail and Was Ordered to Pay a Five
Hundred Dollar Fine.

Of primary concern in this case is the determination
of what crime should be considered a “petty” crime and
what crime should be considered a “serious” crime for pur-
poses of deciding whether or not a defendant is entitled to
a trial by jury. The cases cited by the petitioner are the
principal cases wherein this Court has considered the ques-
tion in recent years. These questions taken chronolog-
ically form a basic outline of the attempt of the courts to
form a fair and objective standard by which the right of a
person or corporation to a jury trial may be determined.
At the same time, these decisions have also examined the
peculiar nature of criminal contempt in this regard.

In the case of Cheff v. Schnackenberg, 384 U.S. 373, 86
S.Ct. 1523, 16 L.Ed.2d 629 (1966), the Court first held that
sentences exceeding six months may not be imposed by
federal courts in the absence of a jury trial. It should be
noted that this was decided on the grounds of the super-
visory power of the court (see Cheff, supra, 384 U.S. at
380, 16 L.Ed.2d at 634, and the separate concurring Opin-
ion of Mr. Justice Harlan, 384 U.S. at 381, 382, 16 L.Ed.2d
at 634, 635) and not on constitutional grounds. The Court
held:

“According to 18 U.S.C. §1 (1964 ed.), ‘[a]ny mis-
demeanor, the penalty for which does not exceed im-
prisonment for a period of six months’ is a ‘petty of-

TOMES EE ESTER ILE Sr SAR par a ts cata

4

fense.’ Since Cheff received a sentence of six months
(see District of Columbia v. Clawans,

the statute and our prior decisions.”

Two years later in Duncan v. Louisiana, 391 U.S. 145,
48 S.Ct. 1444, 20 L.Ed2d 491 (1968), this Court held that
where a state statute provided that the appellant could be
sentenced to a period of two years for the crime of simple
battery, that it was a “serious” crime and that the appel-
lant was entitled to a jury trial as a matter of constitu.
tional right under the Sixth and Fourteenth Amendments.

The Court, however, did not attempt to define “petty”
and serious offenses to any greater degree than to say that
an offense which carries a sentence of six months or less
is a petty offense and that a crime punishable by a sentence
of two years in prison is a “serious” one. In that case this
Court stated:

“We need not, however, settle in this case the exact
location of the line between petty offense and serious
crimes. It is sufficient for our purposes to hold that a
crime punishable by two years in prison is, based on
past and contemporary standards in this country, «
serious crime and not a petty offense.”

(391 U.S. 145 at 161, 20 L.Ed.2d 491 at 503)

In Duncan, supra, the Court again distinguished its
treatment of criminal contempt where no statutory max-
imum sentence is prescribed from other crimes with max-
imum sentences fixed by statute. In Note 35, 391 U.S. 145
at 162, 20 L.Ed.2d 491 at 503, the Court explains:

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prosecuted, 18 USC. §401,
punishment as a matter to be determined by the forum

court. It is therefore understandable that this Court

’

made in the test applied to determine the “seriousness” of :
a crime where the legislature has set a maximum penalty ;
by statute, and where the legislature has seen fit to leave ;
the penalty entirely to the courts. In Duncan, supra, the :
- @ourt looked to the maximum sentence that could be im- i
posed where the maximum penalty had been set by stat-
ute. (See also: Frank v. United States, 395 US. 147, 148,
23 LEd.2d 162, 165, 89 S.Ct. 1503 (1969); District of Colum-
bia v. Clawans, 380 US. at 628, 81 L.Ed at 848). In

Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L._Ed2d 522
(1968), decided the same day as Duncan, supra, this Court
looked to the penalty actually imposed as the best guide
in absence of a statutory maximum sentence following the
rule in Cheff, supra.

The Supreme Court of Mississippi in the case of Him-
ton v. State, 222 So2d 690 (Miss. 1969), adopted the ree-
soning of Bloom, supra, in that the punishment imposed
should be looked to in determining whether the offense
is petty or serious and that “.. . where the confinement
is not more than six months and the fine not more than
$500.00, that the offense is a petty one and the accused
not entitled to a jury trial under the Sixth Amendment to
the Constitution of the United States.” Bloom v. Illinois,

supra.

Subsequent to the holding of this Court in Cheff,
Duncan and Bloom, this Court has further defined a “seri-
ous” crime in Baldwin v. New York, 399 US. 66, 26 L.Ed2d
437, 90 S.Ct. 1886 (1970). Whereas, in Duncan, supra, the
Court had held that a potential statutory sentence of two
years made the crime a serious one, the Court in Baldwin,
supra, held a “serious” crime to be one with a potential
sentence of over six months, stating that “. . . no offense
can be deemed ‘petty’ for the purpose of the right to trial
by jury where imprisonment for more than six months is
authorized.” (399 U.S. 66 at 69, 26 L.Ed2d 437 at 440).

Subsequent to these decisions the present state of the
law was clearly rationalized and explained by the Su
preme Court of Pennsylvania in the case of Common
wealth v. Snyder, 275 A2d 312 (Pa. 1971). That case is
very similar to the one at bar. The defendant appealed
on an order of the lower court imposing sentences for two
contempts, each of which was for less than six months
Like Mississippi, Pennsylvania has no statutorily estab-

>

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lished maximum sentence for criminal contempt in the re-
spective areas with which these cases are concerned. The
lucid discussion of the present law applying to the situa-
tion as stated by the Supreme Court of Pennsylvania is
as follows:

“Since the contempt conviction occurred on Oc-
tober 2, 1970, we must determine appellant's right to
jury trial in light of the decision of the Supreme Court
of the United States, especially in Baldwin v. New
York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (June
22, 1970). The decision of the United States Supreme
Court in Duncan v. Louisiana, 391 US. 145, 88 S.Ct.
1444, 20 L.Ed.2d 491, and Bloom v. Illinois, 391 US.
194, 868 S.Ct. 1477, 20 L.Ed. 2d 522, clearly established
that a defendant was entitled to a jury trial for a seri-
ous offense. However, there was much confusion as
to what constituted a serious offense as distinguished
from a petty offense. This confusion was laid to rest
in Baldwin v. New York, 399 US., page 68, 90 S.Ct.
page 1800, supra, in which the court said: ‘* .. we
have concluded that no offense can be deemed “petty”
for purposes of the right to trial by jury where im-
prisonment for more than six months is authorized.”

“Pennsylvania does not have a statutorily estab-
lished maximum sentence for direct criminal con-
tempts and therefore we must look to the length of the
sentence which the court actually imposed to test for
‘seriousness’. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. '
1477, supra. In this case, each of the two sentences
which were imposed for the two separate direct crim- ’

7

inal contempts was less than the ‘more than six
months’ standard which was established as the cut-off
point between ‘petty’ and ‘serious’ crimes. Therefore,
Baldwin v. New York, 399 US. 66, 90 S.Ct 1886,

See 7

supra, in no way required appellant to be given a jury
trial on either of said contempt charges.”

Baldwin, supra, has apparently left the rule of Bloom,
supra, intact; that where no maximum penalty is pre-
scribed by statute the punishment actually imposed will
be looked to in the determination of whether the crime
falls into the category of “petty” or “serious.” (See:
Commonwealth v. Fletcher, 269 A.2d 727 (Pa. 1970)).

In the present case the petitioner was convicted for a
violation of an injunction prohibiting the sale of liquor un-
der the authority of Section 2646, Mississippi Code 1942
Annotated (1956), which does not provide a penalty for
violation of the injunction. The Supreme Court of Mis-
sissippi has held this violation to be criminal contempt,
Church v. State, 239 Miss. 1, 111 So.2d 228 (1959), with
authority to punish derived by the chancery courts of this
State through Section 1278, Mississippi Code of 192
Annotated (1956). Murphy v. State, 202 Miss. 890, 32 So.2d
875 (1948). That statute sets no maximum penalty
for contempt. There being no statutory maximum penalty
in Mississippi in reference to criminal contempt of the na-
ture for which petitioner was found guilty, the rule of
Bloom and Hinton, supra, should be applied and the
penalty actually imposed by the sentencing court will be
looked to in determining whether or not the crime is seri-
ous or petty.

Applying this rule to the sentence received by the peti-
tioner, the five months sentence given in the present case
is less than the six months maximum sentence set for petty
offenses in Hinton and Baldwin, supra, therefore, the crime
is a “petty” one and the petitioner is not entitled to a jury
trial because of the length of his sentence.

_—

.e<~e « ABT ORI ee ee Oe OS ae oe ere

The petitioner, however, goes one step further con-
tending that the $750.00 fine imposed by the lower court
or even a $500.00 fine subjects an individual to a “possible”
sentence of greater than six morths as defined in Baldwin.
The petitioner was ordered to stand committed until his
fine was paid in accordance with Section 2540 and Section
7899, Mississippi Code of 1942 Annotated (1956). The
petitioner, admittedly not an indigent, reasons that should
he refuse to pay his fine he would be required to remain
in jail and receive credit toward the payment of his fine
in the amount of $3.90 per day under Section 7906, Mis-
sissippi Code 1942 Annotated (1956). A $750.00 fine
would thus subject him to an additional 250 days in jail,
or a $500.00 fine would subject him to an additiona] 167
days in jail. This contention of the petitioner is unsup-
ported by reason or by decisions of the courts. WP stori-
cally, a fine which might result in an additional sentence
has not been considered as having any bearing on the ques-
tion of the length of the prison sentence for purposes of
determining the right to trial by jury (See Ex parte Wil-
son, 114 U.S. 417, 428, 55S. 555, 4 LF* 4&8. People v.
Bellinger, 269 N.W. 265, 27! 199 NE 215 °.: Matter of
McKinley v. Hamilton, 282 N.Y. 63. 397. B NE2d 949,
951; 127 ALR 1283.)

Commitment of the convicted defendant to jail until
his fine is paid is no part of the punishment for his offense.
The penalty or the punishment adjudged is the fine, and the
custody adjudged is the mode of executing the sentence,
that is of enforcing the payment of his fine. 21 Am. Jur.
2d, Criminal Law, §603, page 557 (See: Anderson v.
Shackelford, 74 Fla. 36, 76 So. 343; Ex parte Bryant, 24
Fla. 278, 4 So. 854).

Imprisonment for failure to pay a fine does not arise
from the crime committed by the appellant, but from his

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entirely separate and distinct refusal to obey the decree
of the sentencing court. Any refusal to pay by the appel-
lant is an act of disobedience consisting solely in refusing

been prohibited by the Court. That the appellant stand
committed until paying his fine is not intended as punish-
ment but as a method of forcing him to obey the order of
the court. As was ably put by the Court in Gompers v.
Buck’s Stove and Range Company, 221 U.S. 418 at 441; 55
LEd. 797 at 806, 31 S.Ct. 492 (1911), the petitioner “. . .
carries the keys of his prison in his own pocket He
can end the sentence and discharge himself at any mo-
ment by doing what he had previously refused to do.”

As previously stated, the petitioner is not an indigent
and would be imprisoned in excess of five months only
because of his refusal to obey an order of the court and pay
his fine. The courts have held in recent years that an in-
digent may not be imprisoned beyond a maximum term
specified by statute solely because of his failure to pay a
fine and court costs; however, as stated in Morris v.
Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26 LEd2d 773,
774 (1970), these cases do “. . . not mean that a state can- |
not jail a person who has the means to pay a fine but
refuses or neglects to do so.” |

be imposed in the trial of the crime without a jury is lim
ited to $500.00, and that the imposition of the $750.00 fine
is sufficient to take a crime out of the category “petty”
crime and make it a “serious” crime which would require
a jury trial.

a determining factor in considering the seriousness of a
crime. The issue is what bearing the recent decisions of

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11

the courts, beginning with Cheff, supra, have had on the
role of a fine in determining the seriousness of an offense.

The recent decisions of this Court on the determina-
tion of the seriousness of a crime have made only brief
mentions of fines, and none of these cases have considered
fines as a factor in making the determination. In fact,
the Court, beginning with Cheff, supra, and going down
through Baldwin, supra, have avoided including the question
of fines in determining the line between petty and serious
crimes.

In Cheff, supra, no mention was made of a crime in
determining the seriousness of a crime. The decision of
the six months limitation in federal cases was based on
18 US.C., §1, part of which provides:

“Any misdemeanor, the penalty for which does
not exceed imprisonment for a period of six months
or a fine of not more than $500.00, or both, is a petty
offense.”

Until the decision in Cheff, supra, this statute had not
been regarded as a maximum limit for determination of a
petty offense in regard to the length of imprisonment or
the amount of fine, but rather as a minimum standard for
determining a serious offense. A petty offense could still
be greater than that provided in 18 US.C., §1. When
Cheff, supra, set the maximum limit of a petty offense at
six months imprisonment along the lines of 18 U.S.C., §1,
it made no mention whatsoever of that portion of the
statute dealing with fines.

At the same time, the Court in Cheff, supra, did not
mention the fact that Cheff had been charged with con-
tempt of court along with Holland Furnace Company,
which was fined $100,000.00. Although Cheff was granted
a petition for certiorari, for a determination of whether

CUMS

owe O° TRS DTM PORE Crean

12

his six months imprisonment without a jury trial was a
violation of the constitutional right, the petition of the Hol-
land Company, of which he was formerly President and
a Chairman of the Board, was denied at Holland Furnace
Co. v. Schnackenberg, 381 U.S. 924, 14 L.Ed.2d 683, 8
S.Ct. 1559 (1965). Thus, the $100,000.00 fine given the
corporation apparently was not considered by the Court
to be of the nature requiring review for purposes of deter-
mining the right to a jury trial.

In the case of Duncan v. Louisiana, supra, in holding
the Sixth Amendment right to a jury trial applicable to
the states, the Court refused to follow the guidelines of 18
U.S.C., §1, regarding even the six month limitation which
_ it had upheld under the supervisory powers of the court
regarding the federal-SyStem 4 Here "was no mention
whatsoever of the fine except in a one sentence reference
to the 18 U.S.C., §1, definition of petty offense. Likewise,
in the case of Bloom, supra, where the Court held the Sixth
Amendment right to a jury trial applicable to serious con-
tempts, there was no mention made of the fine.

In the case of Baldwin, supra, where the Court held
that there is a Sixth Amendment right to a trial by jury
for any offense where the authorized punishment is over
six months, the question of fines is examined only in regard
to the 18 U.S.C., §1, definition of petty offense in the federal
system and there was no holding by the Court that the
amount of a fine can take the crime out of the category
of “petty” and place it in the “serious” category.

In case of a prison sentence, there is little variance in
the harshness of penalty from place to place and over a
period of time as applied to an individual. However, there
is a great variance in the financial situation of different
individuals depending on class, education and geographi-
cal location which might render a set fine inconsequential

13

jn impact for some and not for others. In addition, the
great fluctuation and monetary value over a period of time
makes an additional factor of instability. It is not difficult
to understand that the Courts have refused to consider the
amount of a fine in the determination of whether an of-
fense is petty or serious for purposes of the right to trial
by jury.

In the case of In re Duehrer, 236 A.2d 592 (N.J. 1967),
the Supreme Court of New Jersey considered the question
in the determination of the “outer limits of punishment
with respect to offenses below the grade of crime” and
found that “the amount of the fine presents no problem.”

This question was also considered by the New York
Supreme Court in the case of Rankin v. Shanker, 23 N.Y.2d
111, 295 N.Y.S.2d 625, 242 N.E.2d 802 (Ct. App. 1968),
wherein an individual and a union were found guilty of
contempt of court in violating a temporary injunction
against a strike. In considering the fine imposed on the
union, the Court made the following statement:

“Nor does the penalty to which defendant unions
are subject—a fine of $10,000.00, a day or 1/52 of the
total amount of annual membership dues, ‘whichever
is the lesser’ (Judiciary Law §751, subd. 2, par. [a])—
render the contempt a ‘serious’ crime. The determina-
tion of whether it is serious or petty under the decision,
turns not on the amount of the fine which may be
imposed but solely on the length of the prison sentence
. . . Consequently, as the cases reveal, the fine, even
though sizeable in amount, furnishes no valid criterion
for the defendant’s claim that the contempt charged
against them constitutes a serious crime. Further,
even if the amount of the permissible fine had any

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Jerre aes rater Fv CMDS

14

relevance, the fine—which in the last analysis must be
borne by the union membership (See e.g. Martin v.
Curran, 303 N.Y. 276, 281, 101 N.E.2d 683, 686) —is
actually small, amounting, at most, to no more than a
member’s weekly union dues for each day of the con-
tempt.” See also: In re Jersey City Education Asso-
ciation, 278 A.2d 206 (N.J. 1971).

However, in Cheff, supra, wherein this Court held that
through its supervisory powers over the federal courts a
sentence exceeding six months might not be imposed by
federal courts absent a jury or waiver thereof, this Court
stated:

“Nothing we have said, however, restricts the
power of a reviewing court, in appropriate circum-
stances, to revise sentences in contempt cases tried
with or without juries.”

(384 U.S. 373 at 380, 16 L.Ed2d 629 at 634)

The Supreme Court of Mississippi, in considering the
petitioner’s appeal reduced the petitioner’s sentence of five
months imprisonment and $750.00 fine to a five month
sentence and a $500.00 fine. Such sentence was well with-
in the boundaries of 18 U.S.C., §1, which defined a petty
offense as any offense wherein the penalty does not ex-
ceed imprisonment for a period of six months or a fine
of not more than $500.00 or both. And, in such cases, an
individual has no guaranteed right to a trial by jury.

Therefore, the respondent respectfully submits the
petitioner was afforded every constitutional right and the
Petition for Writ of Certiorari now before this Court should
be denied.

a

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15

CONCLUSION

The sentence received by the petitioner on his con-
viction of contempt of court was well within the boundaries
of a petty offense, and in such cases there is no vested

right to a trial by jury.
Respectfully submitted,

A. F. SUMMER
Attorney General

By:
TIMMIE HANCOCK
Special Assistant Attorney Gen-

eral

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1326%3A2. Public record. Not legal advice.