Harvey v. Commonwealth Brief on Behalf of the Commonwealth

    Supreme Court of Appeals 
of Virginia

AT RICHMOND

R ecord N o. 6782

RUTH L. HARVEY,

v.
Appellant,

COMMONWEALTH OF VIRGINIA,
Appellee.

BRIEF ON BEHALF OF THE COMMONWEALTH

R obert Y. B u tton

Attorney General of Virginia■
R ich a rd  N . H arris 

Assistant Attorney General

Supreme Court-State Library Building 
Richmond, Virginia 23219



Printed Letterpress by 
LEWIS PRINTING COMPANY 
Richmond, Virginia



Page
TABLE OF CONTENTS

P r e lim in a r y  S ta te m e n t  ............................................... ...... ............... 1

Q u estio n s  P resented  by t h is  A p p e a l ......................................... 2

A r g u m en t

I. The Court Possessed the Power to Summarily Punish 
for Contempt and No Constitutional Guarantees are
Involved............................. ..... ...................... ............ ..... . 2

II. Summary Punishment was Fully Warranted ...............  11

Conclusio n  ...................................................................................... ...........  15

C er tific a te 16

TABLE OF CITATIONS
Cases

Burdett v. Commonwealth, 103 Va. 838, 48 S.E. 878 (1904) .. 12

Carter v. Commonwealth, 96 Va. 791, 32 S.E. 780 (1899) .. 7, 15

Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 67 L.Ed.
767 (1925) ............................................................... ............. . 10

Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888) 7

Fisher v. Pace, 336 U.S. 155, 93 L.Ed. 569......................... . 8

Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.
2d 672 (1958) ......... ............. ..................... ........................ . 9

Higginbotham v. Commonwealth, 206 Va. 291, 141 S.E.2d 
746 (1965) ..............................................................................  5

Holt v. Commonwealth, 205 Va. 332, 136 S.E.2d 809 (1964), 
rev’d on other grounds, 381 U.S. 131, 85 S.Ct. 1375, 14 
L.Ed.2d 290 (1965) ......................................................  2, 5, 12

In re Matter of Ruffalo,..... U.S....... , 88 S.Ct. 1222, 20 L.Ed.
2d 117 (1968) 10



Page

In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948 ) 9

In re Osborn, 344 F.2d 611 (9th Cir. 1965) ........................... . 9

Kidd v. Safe Deposit, etc., Corp., 113 Va. 612, 75 S.E, 145 
(1912) ......................................................................................  12

Olimpius v. Butler, 248 F.2d 169 (4th Cir. 1957) ............. .....  9

Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed.
717 (1952) ..............................................  9

Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 
921 (1964) .................................................       9

United States v. Anonymous, 214 F.Supp. I l l  (E.D. Tenn. 
1963) .................- ........................................... ....................... 9

Yoder v. Commonwealth, 107 Va. 823, 57 S.E.2d 581 (1907) .. 12

Statutes

Section 18.1-292, Code of Virginia (1950) ................... 4, 12, 15

Other Authorities

4 Mich. Jur., Contempt,

§ 4 ...................................................................................... 7, 12

§ 14 ........................................................    15

§ 22 ................................................................................................................................  12

§ 26 ............................................ ............................................. 12



IN THE

Supreme Court of Appeals of Virginia
AT RICHMOND

R ecord No. 6782

RUTH L. HARVEY,
Appellant,

v.

COMMONWEALTH OF VIRGINIA,
Appellee.

BRIEF ON BEHALF OF THE COMMONWEALTH

PRELIMINARY STATEMENT

The Commonwealth contends that the order of judg­
ment of the Corporation Court of the City of Danville, 
entered December 20, 1966, convicting Ruth L. Harvey 
(hereinafter referred to as the “appellant” ) of contempt 
of that court and ordering her to pay a fine of $25.00 is 
plainly correct and should be affirmed. It is from this 
order that this appeal is taken. The statement of the 
proceedings in the court below and the statement of facts 
in the appellant’s brief are essentially correct. However, 
the Commonwealth adopts the Additional Statement of 
Facts in the printed record (R. 18, 19) as its basic



2

statement of facts. The Additional Statement of Facts 
was certified by the court below and is, of course, in­
cluded in the manuscript record. Additional and sig­
nificant facts, pertinent to the questions presented, will 
be referred to in the Argument. References to the printed 
record will be designated as “R......”

QUESTIONS PRESENTED BY THIS APPEAL

The several errors assigned by the appellant present 
two fundamental issues:

(1) The power of the court to summarily punish for 
contempt; and

(2) Whether summary punishment was warranted.

ARGUMENT
I.

The Court Possessed The Power To Summarily Punish for
Contempt and No Constitutional Guarantees Are Involved

The power of a court to punish for contempt was clear­
ly stated by this court in Holt v. Commonwealth, 205 Va. 
332, 136 S. E. 2d 809 (1964), revd on other grounds, 
381 U. S. 131, 85 S. Ct. 1375, 14 L. Ed. 2d 290 (1965), 
at 205 Va., pp. 336-8:

“The power of the court to punish for contempt 
can no longer be challenged. Such power is inherent 
in the nature and constitution of a court. It is a 
power not derived from any statute, but arising from 
from the exercise of all other powers. Without such 
power the administration of the law would be in 
continual danger of being thwarted by the lawless. 
The power to fine and imprison for contempt is 
incident to every court of record. Such courts ex 
necessitate rei have the power of protecting the ad-



3

ministration of justice with a promptitude calculated 
to meet the exigency of the particular case. The right 
of punishing contempts by summary conviction is a 
necessary attribute of judicial power. See Common­
wealth v. Dandridge (1824) 2 Va. Cas. (4 Va.) 408; 
4 M.J., Contempt, Sec. 5 pages 244-245.

‘That the English courts have exercised the power 
in question from the remotest period does not ad­
mit of doubt. Said Chief Justice Wilmot: “The 
power which the courts in Westminster Hall have 
of vindicating their own authority is coeval with 
their first foundation and institution; it is a neces­
sary incident to every court of justice, whether of 
record or not, to fine and imprison for a contempt 
acted in the face of the court; and the issuing of 
attachments by the Supreme Court of Justice in 
Westminster Hall for contempts out of court, stands 
on the same immemorial usage which supports the 
whole fabric of the common law; it is as much the 
lex terrae, and within the exception of Magna 
Charta, as the issuing of any other legal process 
whatsoever,” ’ Carter v Commonwealth, 96 Va. 791, 
806, 807, 32 S.E. 780,45 L.R.A. 310.

3 Campbell’s Lives of Chief Justices, 153; United 
States v. Hudson, 7 Cranch (11 U.S.) 32, 3 L. ed. 
259; Wells v. Commonwealth, 21 Gratt. (62 Va.) 
500.

The ingrained principles above recorded had their 
origin in the genesis of the court itself, having been 
settled long before the founding of this country. 
The moment the courts of the United States were 
called into existence and invested with jurisdiction 
over any subject, they became possessed of the power 
to protect themselves and the dignity and authority 
of the court. Ex parte Robinson, (Ark.) 86 U.S. 
(19 Wall.) 505, 22 L. ed. 205.

One of the earliest, if not the earliest, United



4

States cases was decided in 1788. This involved a 
contempt citation against a newspaper, the style of 
the case being Respublica v. Oszvald, 1 U.S. (1 
Dali.) 319, 1 L. ed. 155, 1 Arn. Dec. 246. There, the 
Chief Justice had this to say:

‘Having yesterday considered the charge against 
you, we were unanimously of opinion, that it 
amounted to a contempt of the Court. Some doubts 
were suggested, whether even a contempt of the 
Court was punishable by attachments; but, not only 
my brethren and myself but, likewise, all the judges 
of England, think, that without this power no Court 
could possibly exist:—nay, that no contempt could 
indeed, be committed against us, we should be so 
truly contemptible. The law upon the subject is of 
immemorial antiquity; and there is not any period 
when it can be said to have ceased, or discontinued. 
On this point, therefore, we entertain no doubt.’

See Board of Supervisors v. Bazile, 195 Va. 739, 
80 S.E 2d 566, 12 Am. Jur., Contempt § 3, at page 
390, 17 C.J.S. § 8, page 16, et seq.”

It is unnecessary to consider whether the conduct of 
the appellant here warrants summary punishment at com­
mon law, for her offense is clearly within the purview of 
§ 18.1-292 of the Code of Virginia (1950), as amended. 
That section prescribes the instances in which the court 
may punish summarily for contempt, and reads in part 
as follows:

“The courts and judges may issue attachments for 
contempt, and punish them summarily, only in the 
cases following:

(1) Misbehavior in the presence of the court, 
or so near thereto as to obstruct or interrupt the 
administration of justice;

*  *  *



5

(4) Misbehavior of an officer of the court in 
his official character.”

The appellant has sought to inject into this proceeding 
the suggestion that her constitutional rights under the 
due process clause of the Fourteenth Amendment are 
impinged upon by the summary manner in which the 
court below called her to task. Specifically she contends 
that the trial court should have accorded her a formal 
hearing and permitted her to call and cross-examine wit­
nesses in her behalf. This identical contention was made 
in Holt v. Commonwealth, supra, and in Higginbotham 
v. Commonwealth, 206 Va. 291, 141 S. E 2d 746 (1965). 
In Higginbotham this court disposed of this argument 
at 206 Va., pp. 295-6:

“Defendant says that the trial judge should have 
accorded him a formal hearing and permitted him to 
call witnesses in his behalf.

Code § 18.1-292 gives a judge the power to 
punish summarily for disobedience of his rulings 
and orders and the intemperate behavior of any at­
torney which obstructs the course of a trial, but the 
power to punish for contempt without a hearing is 
discretionary under the statute.”

And in Holt v. Commonwealth, supra, the argument 
was rejected at 205 Va., p. 341:

“Lastly, appellants have sought to inject into this 
proceeding the suggestion that their constitutional 
rights are impinged upon by the summary manner 
in which the trial court called them to task.

Their arguments are devoted to a dissertation on 
questions which do not exist in this case and, even 
if present, have long been settled. The conduct for



6

which they are being punished was a direct and open 
criminal contempt of court and as such was punish­
able summarily by the court when committed. No 
constitutional guaranties relating to indictment, 
rights to counsel, and trial by jury are here involved 
and appellants’ effort to raise these questions indicate 
either a lack of knowledge of the established law, 
or a novel attempt to avoid the force of the doctrine 
of stare decisis on a point where the law has been 
settled for hundreds of years.

In Local 333B, United Marine Division of I.L.A. 
(A.F.L.) v. Commonwealth, 193 Va. 773, 71 S.E. 2d 
159, it is said:

‘(1) Proceedings for contempt of court are of 
two classes,—those prosecuted to preserve the power 
and vindicate the dignity of the court and those to 
preserve and enforce the rights of private parties. 
The former are criminal and punitive in their nature; 
the latter are civil, remedial and coercive in their 
nature, and the parties chiefly interested in their 
conduct and prosecution are those individuals for 
the enforcement of whose private rights and remedies 
the original suit was instituted. Roanoke Water 
Works Co. v. Roanoke Glass Co., 151 Va. 229, 144 
S.E. 460; Deeds v. Gilmer, 162 Va. 157, 261, 174 
S.E. 37; Drake v. National Bank of Commerce, 168 
Va. 230, 190 S.E. 302, 109 A.L.R 1517; Gloth v. 
Gloth, 158 Va. 98, 163 S.E. 351; * * * Michie’s 
Jur., Contempt, sec. 3, p. 242; 12 Am. Jur., Con­
tempt, sec. 6, p 392.’ Gompers v. Bucks Stove, etc. 
Co., 221 U.S. 418, 441, 31 S. Ct. 492, 55 L. ed. 797, 
34 L.R.A. (N.S.) 874; Bessette v. Conkey Co., 194 
U.S. 324, 329, 24 S. Ct. 665,48 L, ed. 997.”

Thus, a direct and open contempt of court is punish­
able summarily by the court when committed. In such 
cases no necessity exists to proceed by indictment or to



7

impanel a jury or to call witnesses. 4 Mich. Jur. Contempt 
§ 4, p. 243. Any effort on the part of the General As­
sembly to so require would meet with the same fate as 
the statute which was vitiated by this court in Carter v. 
Commonwealth, 96 Va. 791, 32 S. E. 780 (1899). It 
is well established that constitutional guarantees relating 
to indictment, right to counsel, trial by jury, and the 
calling of witnesses are not involved in summary punish­
ment for contempt by the courts.

The principle that due process does not require notice 
and hearing in summary punishment for contempt is 
fully supported by the Supreme Court of the United 
States. In Ex Parte Terry, 128 U. S. 289, 9 S. Ct. 77, 32 
L. Ed. 405 (1888), in refusing to grant relief in a 
habeas corpus proceeding, it was held that a court could 
punish summarily for contempt without giving the de­
fendant an opportunity to be heard. The Court stated at 
32 L. Ed. 405, 410:

“We have not overlooked the earnest contention of 
petitioner’s counsel that the circuit court, in dis­
regard of the fundamental principles of Magna 
Charta, in the absence of the accused, and without 
giving him any notice of the accusation against him, 
or any opportunity to be heard, proceeded ‘to accuse, 
to try, and to pronounce judgment, and to order 
him to be imprisoned; this, for an alleged offense 
committed at a time preceding, and separated from, 
the commencement of his prosecution.’ We have 
seen that it is a settled doctrine in the jurisprudence 
both of England and of this country, never supposed 
to be in conflict with the liberty of the citizen, that 
for direct contempts committed in the face of the 
court, at least one of superior jurisdiction, the of­
fender may, in its discretion be instantly apprehended



8

and immediately imprisoned, without trial or issue, 
and without other proof than its actual knowledge 
of what occurred; and that, according to an un­
broken chain of authorities, reaching back to the 
earliest times, such power, although arbitrary in its 
nature and liable to abuse, is absolutely essential to 
the protection of the courts in the discharge of their 
functions. Without it, judicial tribunals would be at 
the mercy of the disorderly and violent, who respect 
neither the laws enacted for the vindication of public 
and private rights, nor the officers charged with the 
duty of administering them. To say, in case of a 
contempt such as is recited in the order below, that 
the offender was accused, tried, adjudged to be guilty, 
and imprisoned, without previous notice of the ac­
cusation against him and without an opportunity to 
be heard, is nothing more than an argument or pro­
test against investing any court, however exalted, 
or however extensive its general jurisdiction, with 
the power of proceeding summarily, without further 
proof or trial, for direct contempts committed in its 
presence.” (128U. S.412.) (Italics supplied.)

In Fisher v. Pace, 336 U. S. 155, 159, 93 L. Ed. 569, 573 :
“Historically and rationally the inherent power of 

courts to punish contempts in the face of the court 
without further proof of facts and without aid of 
jury is not open to question. This attribute of courts 
is essential to preserve their authority and to pre­
vent the administration of justice from falling into 
disrepute. Such summary conviction and punishment 
accords due process of law.”

*  *  *

“The judgment of the Supreme Court of Texas 
must be affirmed. In a case of this type the transcript 
of the record cannot convey to us the complete pic­



9

ture of the courtroom scene. It does not depict such 
elements of misbehavior as expression, manner of 
speaking, bearing, and attitude of the petitioner. 
Reliance must be placed upon the fairness and ob­
jectivity of the presiding judge.”

In addition, see Sacher v. United States, 343 U. S. 1, 
8, 72 S. Ct. 451, 96 L. Ed. 717 (1952); Green v. United 
356 U. S. 165, 78 S. Ct. 632, 2 L. Ed. 2d 672 (1958) 
and Ungar v. Sarafite, 376 U. S. 575, 84 S. Ct. 841, 
11 L. Ed. 2d 921 (1964), in which the Supreme Court 
held that to punish summarily for contempt com­
mitted in the presence of the court does not violate due 
process requirements

Federal courts consistently summarily punish officers 
of the court for contempt committed in the court’s pres­
ence. United States v. Anonymous, 214 F. Supp. I l l  
(E. D. Tenn. 1963) (failure of attorney to appear); In 
re Osborn, 344 F. 2d 611 (9th Cir. 1965) (attorney’s 
refusal to cross-examine); Olimpius v. Butler, 248 F. 
2d 169 (4th Cir. 1957) (improper language to another 
attorney).

Appellant cites In re Oliver, 333 U. S. 257, 68 S. Ct 
499, 92 L. Ed. 682 (1948). (See p. 7 appellant’s brief). 
Similarity between Oliver and the instant case is total­
ly lacking. In Oliver the petitioner appeared before a 
circuit court judge who was conducting a “one-man grand 
jury investigation” in accordance with Michigan law. The 
hearing was conducted in the court’s chambers, the 
public being excluded. After hearing evidence in this 
secret session, the judge did not believe that Oliver was 
telling the truth and therefore summarily held him in 
contempt. The Supreme. Court of the United States re­



10

versed on the ground that Oliver was tried in secret ses­
sion and not in open court. See 68 S. Ct. 503-04. But in 
so doing the Court recognized that summary punishment 
without a hearing does not violate due process require­
ments when the contempt is committed in open court 
and is observed by the judge. 68 S. Ct at 508. Thus 
Oliver is clearly distinguishable from the instant case, 
there being no “secret session” here.

Appellant also relies upon Cooke v. United States, 
267 U. S. 517, 45 S. Ct. 390, 67 L. Ed. 767 (1925). (See 
p. 7, appellants’ brief.) That opinion is also clearly dis­
tinguishable from the facts in the instant appeal. There 
the Supreme Court reversed a summary punishment for 
contempt because the evidence indicated that the act com­
plained of had not been committed in open court. Con­
temptuous remarks had been made in a letter addressed 
to the judge. The Supreme Court reversed the conviction 
on the ground that no contempt had taken place in open 
court. Additionally, the contempt punishment had been 
imposed after an eleven month delay. In the instant 
appeal the contempt clearly occurred in open court and 
there was no delay in the court’s punishment.

Appellant cites In the Matter of John Ruffalo, Jr.,
.....U. S..........88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968).
(See p. 10 appellant’s brief.) This is not remotely anal­
ogous to the instant appeal. It involved a disbarment 
proceeding, not a summary punishment for contempt. Ad­
ditionally, the alleged offense did not occur in open court. 
In a disbarment proceeding before the Ohio Board of 
Bar Commissioners on Grievances and Discipline, the 
petitioner was found to have engaged in misconduct 
consisting of hiring a railroad car inspector, during his



11

off-duty hours, to investigate claims against the in­
spector’s employer under the Federal Employers Lia­
bility Act. However, this charge of misconduct was not 
in the original charges against the petitioner, but was 
added as a result of testimony presented during the dis­
barment hearings. Although the petitioner was granted 
a continuance in order to have time to respond to the 
new charge, his motion to strike the charge was denied. 
Properly, we think, the Supreme Court reversed the 
finding of misconduct and held that since there was a 
lack of fair notice as to the reach of the state disbarment 
proceedings and the precise nature of the charges, the 
petitioner was deprived of procedural due process. But 
we simply cannot imagine why those facts and that finding 
are in any way analogous to the issues in this appeal. 
Clearly a bar grievance committee possesses no inherent 
summary punishment power, and its proceedings must 
therefore conform to procedural due process require­
ments.

In sum, the Commonwealth contends that the appellant 
is not entitled to the guarantees of the due process clause 
of the Fourteenth Amendment. Such guarantees simply 
are not required in summary punishment for contempt 
by the courts.

II.

Summary Punishment Was Fully Warranted

As we have shown, where the contempt is in the 
presence of the court, as here, it may proceed on its own 
knowledge of the facts and punish the offender without 
further proof, and without issue or trial in any form.



12

It is not required that the offender be confronted with 
or have the opportunity to examine witnesses for or 
against him. Burdett v. Commonwealth, 103 Va. 838, 
48 S. E. 878 (1904); Holt v. Commonwealth, supra; 
4 Mich. Jur. Contempt §§ 4, 26, p. 271. Before a party 
can be summarily punished for contempt, he must be 
brought clearly within the terms of the statute by which 
the legislature has delegated this power. See, § 18.1-292, 
quoted supra, p. 4. Kidd v. Safe Deposit, etc., Corp., 
113 Va. 612, 75 S.E. 145 (1912). The power granted 
by the statute to punish summarily for contempt is the 
power to punish without the intervention of a jury or 
other due process requirements and is limited to the 
classes of contempt set forth in the statute. Yoder v. 
Commonwealth, 107 Va. 823, 57 S.E. 2d 581 (1907); 
4 Mich. Jur. Contempt § 22, pp. 267-8.

The Commonwealth contends that the acts of the ap­
pellant clearly fall within the provisions of subparagraphs 
(1) and (4) of § 18.1-292: “ (1) Misbehavior in the 
presence of the court, or so near thereto as to obstruct or 
interrupt the administration of justice . . . .  (4) Mis­
behavior of an officer of the court in his official ca­
pacity . . . . ”

In Virginia, attorneys are officers of the court. Holt 
v. Commonwealth, supra. It is undisputed that Miss 
Harvey is a practicing attorney at law and was acting in 
this capacity at the time of the offense.

The portions of the printed record directly related to 
the questions presented by this appeal are found at R. 6 
through the top of R. 7, at R. 9 through the top of R. 11 
and at the bottom of R. 17 through R.19.

On December 13, 1966, during the calling of the 
docket to ascertain which of the defendants were present



13

and the whereabouts of those absent, Miss Harvey an­
swered on behalf of and as counsel for Leonard W. Holt, 
indicating to the court that Mr. Holt was in Washington, 
D. C., and that she was expecting him to be present for 
trial on December 20 (R. 6). She agreed that his trial 
could take place on December 20 (R. 6-7). During the 
early part of December, 1966, a conference was held in 
the judge’s chambers relative to the trial of those persons 
charged with contempt arising from the court’s restrain­
ing order of June 19, 1963, and during the discussion, 
Miss Harvey indicated that she represented Mr. Holt 
and that he would personally appear for trial (R. 18, 19).

When Mr. Holt’s case was called on December 20, 
1966, he failed to appear and Miss Harvey then stated 
that she did not represent him (R. 9-11, 17-19). Al­
though she had earlier indicated to the court that she had 
contacted him in connection with the December 20 trial 
date (R. 6, 7, 18-19), she now stated to the court for 
the first time that she had not been in direct contact 
with Mr. Holt, but with members of his family at his 
home in Washington, D. C , and that this contact had 
not been made by her personally, but by her secretary 
(R. 10, 11, 17-19). None of this had she previously 
mentioned to the court. She admitted having told the 
court on previous occasions that she represented Mr. 
Holt (R. 10). But when questioned by the court on 
December 20, she, for the first time, admitted that she 
had not seen or talked with Mr. Holt since June 1963, 
over three years previously (R. 10-11, 17-19). The only 
explanation she offered for her statement that she did 
not represent him on December 20 was her inability to 
contact him (R. 10, 18).



14

Viewed in its entirety, the record clearly shows that 
prior to December 20, Miss Harvey led the court to be­
lieve that she was in personal contact with Mr. Holt, 
that she was his counsel and that he would be present 
on December 20 for trial. In fact, it was on this basis 
that the matter was continued from December 13 to 
December 20. It was not until December 20 that she 
revealed to the court her failure to contact Mr. Holt, and 
she made this revelation only as an attempt to explain 
her statement that she did not represent him. In fact, 
it was only after the court had asked for an explanation 
that she offered the information that there had been no 
direct contact with Mr. Holt by her, by her office, or by 
Mr. Williams, her co-counsel since June, 1963.

Her statements on December 20 were verified by Mr. 
Williams, who also attempted to explain the situation 
to the court on December 20 (R. 10).

The Commonwealth contends that the court was 
thoroughly justified in concluding that it had been mis­
led by Miss Harvey. She had stated that she represented 
Mr. Holt, and it was upon that statement, coupled with her 
assurance of Mr. Holt’s appearance on December 20, 
that the continuance on December 13 had been granted. 
It was not until after her December 20 statement of non­
representation and her calling to task by the court that 
she made any attempt to be candid and frank about the 
actual situation. Surely the court has the right to expect 
complete candor from its officers, not deception, direct or 
indirect. The Commonwealth contends that on these facts 
this officer of the court was less than candid and made no 
attempt to be candid and frank until pressed by the court 
for an explanation.



15

Although there are many Virginia cases dealing with 
misconduct of officers of the court ( 4Mich. Jur. Con­
tempt § 14), the case which we believe to be most anal­
ogous is that of Carter v. Commonwealth, 96 Va. 791, 
802-03, 32 S.E. 2d 780 (1899), in which a defendant was 
summarily punished for contempt for obtaining a con­
tinuance of an action against him by means of a telegram 
in which he stated that he was ill with typhoid fever. 
This statement as to his health was false, and he knew 
it to be false. In affirming the conviction for summary 
contempt, this court found that his acts were in cleat- 
violation of what is now § 18.1-292 of the Code, and 
tended directly to impede and obstruct justice.

We contend that the facts in this record demonstrate 
misbehavior by an officer of the court in her official ca­
pacity, and that the misbehavior occurred in the presence 
of the court and tended to obstruct or interrupt the ad­
ministration of justice by the court.

CONCLUSION

For these reasons, summary punishment for contempt 
was clearly warranted, and the judgment of conviction 
should be affirmed and this appeal dismissed.

Respectfully submitted,

R obert Y. B u tton
Attorney General of Virginia

R ic h a r d  N . H arris
Assistant Attorney General

Supreme Court-State Library Building 
Richmond, Virginia 23219



16

CERTIFICATE

I certify that on the 15th day of July, 1968, I mailed 
three copies of the foregoing brief to S. W. Tucker, Esq , 
214 E. Clay Street, Richmond, Virginia 23219, J. L. 
Williams, Esq., 216 North Ridge Street, Danville Vir­
ginia 24541, Jack Greenberg, Esq., 10 Columbus Circle, 
Suite 2030, New York, New York 10019, and James M. 
Nabrit, III, Esq., 10 Columbus Circle, Suite 2030, New 
York, New York 10019, counsel of record for the ap­
pellants, prior to the filing of this brief with the Clerk 
of this Court.

R ich a rd  N. H arris 
Assistant Attorney General