(1) The case was not one of civil but of criminal contempt. P. 42.

(a) A contempt is considered civil "when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public." P. 42.

(b) That the contempt proceeding was entitled in the administrator's suit, and that the United States was not a party until the appeal, are not conclusive as to the nature of the contempt. P. 42. (c) Nor is the fact that one of the petitioners was ordered to pay the costs of the proceeding, including a sum to the administrator's attorney, decisive. P. 42.

(d) The punitive character of the judgment of contempt was dominant. P. 43.

(2) The appeal is not governed by the Criminal Appeals Rules. P. 43.

(a) In this case there was no "plea of guilty," no "verdict of guilt by a jury," and no "finding of guilt by the trial court where a jury is waived." The quoted qualifying language of the Rules does not designate merely the stage of the proceedings in criminal cases when the Rules become applicable, but describes the kinds of cases to which they are to be applied. P. 43.

(b) In the light of the history of the Act authorizing the Rules, and the amendatory Act, the categories embraced in the Rules may not be expanded by interpretation to include the present case. P. 44.

(3) The appeal is governed by § 8 (c) of the Act of February 13, 1925. P. 44.

(4) This Court being equally divided in opinion as to whether the Circuit Court of Appeals had power, in the absence of an application for allowance of the appeal, to decide the case on the merits, the action of that court in taking jurisdiction of the appeal is affirmed. P. 44.

(5) The conduct of petitioners did not constitute "misbehavior so near" the presence of the court "as to obstruct the administration of justice" within the meaning of § 268 of the Judicial Code. P. 52.

So far as the crime of contempt is concerned, the fact that the district judge received the administrator's letter is inconsequential. 2. The words "so near thereto" in § 268 of the Judicial Code are to be construed as having a geographical, rather than a causal, connotation. P. 48.

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Argument for Petitioners.

3. The phrase "so near thereto as to obstruct the administration of justice" likewise connotes that the misbehavior must have occurred in the vicinity of the court. P. 48.

4. The history of §§ 1 and 2 of the Act of March 2, 1831, and of § 135 of the Criminal Code, requires meticulous regard for the separate categories of offenses therein embraced, so that the instances where there is no right to jury trial will be narrowly restricted. P. 49.

5. The phrase "so near thereto" must be restricted to acts in the vicinity of the court and not be construed to apply to all acts which have a "reasonable tendency" to "obstruct the administration of justice." P. 49.

6. Toledo Newspaper Co. v. United States, 247 U. S. 402, overruled. P. 52.

113 F. 2d 1006, reversed.

CERTIORARI, 311 U. S. 643, to review the affirmance of an order upon an adjudication of contempt.

Mr. Lycurgus R. Varser, with whom Messrs. J. Bayard Clark and O. L. Henry were on the brief, for petitioners.

The court had no personal knowledge of the matters shown in the evidence. Therefore, it was necessary that the facts be set forth in an affidavit before the court in order to give the court jurisdiction to issue the order to show cause. In re Deaton, 105 N. C. 59, 64; Sona v. Aluminum Castings Co., 214 F. 326. The testimony of Elmore was given on the defendants' motion to dismiss the suit for wrongful death, and not for the purpose of initiating a contempt proceeding.

The conduct alleged against the petitioners can not be construed as an affront to, or interference with, the court and its functions. Nothing was done in the presence of the court.

The District Court proceeded as in civil contempt. The caption in its findings of fact and judgment, in its order to show cause, in the motion of plaintiff's counsel, in the court minutes showing denial of motions and exceptions, and in the motions filed by the petitioners, is

Argument for Petitioners.

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the caption of the suit for damages for wrongful death. There was no order characterizing the charge as criminal contempt; and the conduct charged took place, if at all, so far from the District Court that it knew nothing about it until the efforts of plaintiff's counsel, and the testimony of Elmore on the motion to dismiss the main action, brought it to the attention of the court.

The District Court proceeded for constructive civil contempt under the "so near thereto" clause of § 268, Jud. Code, when it did not have the power to proceed for civil contempt and did not have power to enter a judgment otherwise. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 448; In re Sixth & Wisconsin Tower, Inc., 108 F.2d 538, 540.

If the conduct of the petitioners was hostile to any court, it was to the probate court. The District Court. could entertain the action for wrongful death only as long as Elmore remained administrator of the estate, and the effect on the District Court of a discharge in the probate court could be only incidental.

If the affidavit and final account had been contemptuously procured by the petitioners and filed in the probate court, the power to punish for such conduct would have been in the probate court and not in the District Court.

The court concluded that all that Nye did by procuring the writing of the letters to the court and to plaintiff's counsel was for the purpose of preventing the prosecution of the civil action on its merits. Though the court says that this caused a long delay, several hearings and expense, there is no finding that Elmore's rights were prejudiced, or that the suit in the federal court was discharged on account of the filing of the final account in the probate court.

The judgment of non-suit rendered void the judgment of contempt.

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Argument for the United States.

Mr. Herbert Wechsler, with whom Solicitor General Biddle, Assistant Attorney General Berge, and Mr. Louis B. Schwartz were on the brief, for the United States.

The contempt adjudicated and charged was unmistakably criminal and the proceeding was appropriate for the purpose. For purposes of appeal, the nature of the judgment is decisive of the criminal or civil character of the contempt. The judgment imposed unconditional fines payable to the United States. Apart from the nature of the sentence, the judgment specifically found the petitioners guilty of misbehavior so near the presence of the court as to obstruct the administration of justice. This was unequivocal evidence that the purpose of the fines and of the adjudication of contempt was to vindicate the authority of the court, not to perfect the remedies of a private suitor.

The proceedings anterior to the judgment support the same conclusion. The prayer of the motion for a rule to show cause was not for remedial punishment in aid of the main suit. It speaks the language of public justice not of private litigation. The acts charged were unmistakably criminal contempt, if contempt at all. They did not violate a court order; they obstructed the work of the court and attempted to deceive the judge. Moreover, the respondents to the rule to show cause were not parties to a pending action; they were strangers. And the movant for the rule was not the plaintiff in the action, but his attorney. While the proceedings were entitled in the original action and the United States was not a party until the appeal, neither circumstance is decisive of the nature of the contempt. The defendants could not have been uncertain that punishment rather than relief was the object in view.

Since the contempt was criminal the jurisdictional objection must prevail. In any event, the proceedings were

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adequate to support the imposition of a criminal penalty. The findings of fact support the conclusion that the petitioners were guilty of misbehavior so near the presence of the court as to obstruct the administration of justice, within the meaning of § 268 of the Judicial Code.

The petitioners' conduct was a deliberate attempt to thwart the prosecution of an action by undue influence exercised on the litigant and misrepresentations made to the court. Such an attempt is a contempt when the means consists of force or threats directed against a suitor; and the type of influence exerted in the present case is indistinguishable. Moreover, the conduct of the petitioners amounted to a misrepresentation. Falsehood may have obstructive qualities which warrant a finding of contempt.

The misbehavior was in the presence of the court or "so near thereto as to obstruct the administration of justice." The early view that the power of summary punishment in cases of misbehavior is confined by the. statute to assuring order and decorum in court has been abandoned. It is also clear that the language is not to be "spatially construed." It is unnecessary to rely upon the majority opinion in Toledo Newspaper Co. v. United States, 247 U. S. 402; the present case falls fairly within the dissenting opinion of Mr. Justice Holmes. A court without plaintiffs can not do business as a court. While the petitioners' efforts to eliminate Elmore as a plaintiff ultimately failed, there was an actual obstruction of the administration of justice. Moreover, the letter which the petitioners had Elmore write to the judge was itself contumacious.

The contention that the District Court was without jurisdiction because the verification was filed a week after the motion for an order to show cause is without merit.