EATON v. CITY OF TULSA
No. 73-5925.
Decided March 25, 1974
Per Curiam.
In answering a question on cross-examination at his trial, in the Municipal Court of Tulsa, Oklahoma, for violating a municipal ordinance, petitioner referred to an alleged assailant as “chicken shit.” In consequence he was prosecuted and convicted under an information that charged him with “direct contempt,” in violation of another Tulsa ordinance, “by his insolent behavior during open court and in the presence of [the judge], to wit: by using the language 'chicken-shit’ . . . .” The Oklahoma Court of Criminal Appeals, in an unreported order and opinion, affirmed.
This single isolated usage of street vernacular, not directed at the judge or any officer of the court, cannot constitutionally support the conviction of criminal contempt. “The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice.” Craig v. Harney, 331 U. S. 367, 376 (1947). In using the expletive in answering the question on cross-examination “[i]t is not charged that [petitioner] here disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties.” Holt v. Virginia, 381 U. S. 131, 136 (1965); see also In re Little, 404 U. S. 553 (1972). In the circumstances, the use of the expletive thus cannot be held to “constitute an imminent . . . threat to the administration of justice.”
In affirming, however, the Court of Criminal Appeals rejected petitioner’s contention that the conviction must be taken as resting solely on the use of the expletive. Rather, that court concluded from its examination of the trial record that, in addition to the use of the expletive, petitioner made “discourteous responses” to the trial judge. The court therefore held that the conviction should be affirmed because “[c]oupling defendant’s expletive with the discourteous responses, it is this Court’s opinion there was sufficient evidence upon which the trial court could find defendant was in direct contempt of court.” (Emphasis supplied.)
However, the question is not upon what evidence the trial judge could find petitioner guilty but upon what evidence the trial judge did find petitioner guilty. There is no transcript of the contempt proceeding since the proceeding was not stenographically recorded. The trial judge did, however, enter a “Judgment and Sentence,” and we read that document clearly to establish that the trial judge rested the -.conviction upon the use of the expletive only. For the single charge of “insolent behavior” specified in the information was “to wit: by using the language 'chicken-shit^ . . . ,” and the Judgment and Sentence, referring expressly to the information, records that petitioner was “duly and legally tried and convicted of said offense” and, further, that “the Court does now hereby adjudge and sentence the said defendant for the said offense by him committed.” (Emphasis supplied.) The Court of Criminal Appeals thus denied petitioner constitutional due process in sustaining the trial court by treating the conviction as a conviction upon a charge not made. Cole v. Arkansas, 333 U. S. 196 (1948).
The motion to proceed in forma pauperis and the petition for certiorari are granted, the judgment is reversed, and the case is remanded for further proceeding not inconsistent with this opinion.
It is so ordered.
Assuming, arguendo, (1) that the information sufficiently charged petitioner for both use of the expletive and his allegedly “discourteous responses,” and (2) that there was evidence of the latter offense, reversal is still required, since the record fails to “negate the possibility,” Street v. New York, 394 U. S. 576, 588 (1969), that the conviction was based solely or in part on the use of the expletive. “[W]hen a single-count . . . information charges the commission of a crime by virtue of the defendant’s having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as 'intertwined’ and have rested the conviction on both together.” Ibid. Cf. Stromberg v. California, 283 U. S. 359 (1931); Thomas v. Collins, 323 U. S. 516 (1945); Bachellar v. Maryland, 397 U. S. 564 (1970). And this principle is not limited, nor should it be, to cases in which the conviction may have been based on protected speech. See Williams v. North Carolina, 317 U. S. 287, 291-292 (1942). Here, the “Judgment and Sentence” not only does not dispel the possibility that petitioner’s conviction was based solely or partially on the use of the expletive, but plainly supports the opposite conclusion.
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