No. 14926 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE CONTEMPT OF 

CHARLES GRAVELEY AND RICHARD HAMMERBACKER. 

Appeal from: District Court of the First Judicial District, 

In and For the County of Lewis and Clark. 

Honorable Joseph B. Gary, Judge presiding. 

Counsel of Record: 

For Appellant: 

McCabe and Weingartner, Helena, Montana 

J. C. Weingartner argued, Helena, Montana 

For Respondent:. 

Hull and Sherlock, Helena, Montana 

Jeffrey Sherlock argued, Helena, Montana 

Filed: 

Submitted: February 28, 1980 

Decided: July 22, 1980 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Petitioners Charles Graveley and Richard Hammerbacker 

filed a petition with this Court seeking a writ of review of 

a judgment of contempt found against them in the District 

Court, First Judicial District, Lewis and Clark County, 

before presiding Judge Joseph B. Gary. 

The District Court found the petitioners guilty of 

civil contempt of court in the matters hereafter stated and 

ordered that each pay the sum of $200 to Lewis and Clark 

County to purge the contempt. 

At first petitioners attempted to appeal the judgment 

of contempt of this Court. Upon discovering that a judgment 

of contempt was not appealable, State v. District Court 

(1919), 56 Mont. 578, 185 P. 1112, petitioners dismissed the 

appeal and filed this petition for review. 

The facts, in the light most favorable to the decision 

of the District Court, are these: 

Ricky Worden and Criss Allen Case were two of four 

defendants to be arraigned in Lewis and Clark County ~istrict 

Court in December 1978 in connection with a robbery that 

had occurred in a bar in Wolf Creek, Montana. The arraignment 

was to take place before District Judge Peter G. Meloy. 

David Hull, of Helena, had been appointed to represent Ricky 

Worden, and Jeffrey Sherlock, also of Helena, had been 

appointed to represent Criss Case. 

On December 13, 1978, Ricky Worden and Criss Allen Case 

were brought to the Lewis and Clark County District Court 

courtroom for arraignment. They had previously been jailed in 

Malta, Montana. 

The arraignment of Ricky Worden commenced sometime 

between 9:00 and 9:30 a.m. on December 13, 1978. At the 
time of the arraignment, Worden's attorney filed his written 

notice of intent to rely on the defense of mental disease or 

defect. Upon the filing of that notice, Judge Meloy entered 

a verbal order that the sheriff of Lewis and Clark County 

transport the defendant to Warm Springs State Hospital for 

an evaluation examination. 

The next defendant, Criss Allen Case, was also arraigned 

on the same charge, and his attorney, Jeffrey Sherlock filed 

a like notice of intent to rely on the defense of mental 

disease or defect. Again at this arraignment, Judge Meloy 

entered a verbal order that the sheriff of Lewis and Clark 

County immediately transport this defendant to Warm Springs 

State Hospital for an examination. 

Charles Graveley was the county attorney acting for the 

state in connection with the arraignments, and Deputy 

Sheriff Richard Hammerbacker was the officer in charge of 

the two defendants at the time. 

A written order for the transporting of Worden to Warm 

Springs was presented to Judge Meloy at the time of the 

Worden arraignment; however, he did not agree with the language 

of the proposed order and asked that it be redrafted. 

Immediately following the arraignments, at approximately 

9:30, Deputy Sheriff Hammerbacker took the defendants Worden 

and Case from the District Court Courtroom, across the 

street to the sheriff's office, where they were "booked 

out". They were then taken by Deputy Sheriff Hammerbacker 

to the Helena Airport, where an airplane was already warmed 

and gassed for the transportation of Worden and Case back to 

Malta. The airplane used was a four passenger craft. The 

pilot, Hammerbacker, and the two prisoners constituted the 

passenger complement on the flight. 

-3- 
In the meantime, two other defendants involved in the 

same charge were also arraigned, and similar notices of 

intent to rely on the defense of mental disease or defect 

were filed in those cases. They were represented by other 

attorneys. The court also orally ordered their examinations 

at Warm Springs. Immediately following their arraignments, 

they were taken to the sheriff's office, booked out and 

placed in an automobile. Two members of the sheriff's staff 

drove these two defendants to Big Sandy, Montana, where they 

met the airplane in which Deputy Hammerbacker was a passenger. 

There the two remaining defendants were transferred to the 

airplane and taken to Glasgow, Montana, where they were 

incarcerated. Deputy Hammerbacker then returned in the 

airplane to Helena, Montana, arriving there at about 6:00 

p.m. 

When attorneys Sherlock and Hull learned that their 

clients had been transported out of Helena, in the morning 

of December 13, 1978, they immediately met with Judge Peter 

G. Meloy, who called in County Attorney Charles Graveley. 

There, certain conversations occurred to which we will advert 

later. 

On December 28, 1978, both Sherlock and Hull filed 

affidavits in the criminal cause involving Worden, alleging 

that the County Attorney had purposely defied the court's 

order and instead of transporting the defendants to Warm 

Springs for evaluation, had caused their transportation to 

Malta. Both Lewis and Clark District Court judges disqualified 

themselves in connection with the criminal contempt proceedings 

and Judge Gary was called in to preside. 

Judge Gary met with the parties on January 15, 1979. 

It was then agreed that the civil contempt proceedings would 

-4- 
be dismissed and that attorneys Sherlock and Hull would file 

petitions to find Graveley and Hammerbacker guilty of civil 

contempt. Such petitions were filed. The matter came on for 

hearing before Judge Gary on February 28, 1979. After hearing, 

and after having received briefs and proposed findings, Judge 

Gary on April 24, 1979 issued his order finding both County 

Attorney Graveley and Deputy Sheriff Hammerbacker guilty of 

civil contempt of court. The District Court ordered the parties 

could purge themselves of contempt by each paying a fine to 

the Clerk of the Court. This petition for writ of review ensued. 

In the February 28, 1979 hearing before Judge Gary, County 

Attorney Charles Graveley was first called as a witness. His 

counsel requested the District Court to inform him that while 

this was a civil contempt, it had criminal implications and 

that Graveley could refuse to answer any questions upon the 

ground that it might incriminate him. The Court so advised 

him. Subsequently, Graveley refused to answer questions on 

the grounds that the answers might incriminate him as to whether 

he was in the courtroom at the arraignment of Ricky Worden and 

Criss Case and others; as to what he heard Judge Meloy say to 

the various people in the courtroom with respect to the defendants 

referred to; as to whether he had conversations with any other 

person about where the defendants were to be transported; as to 

whether he knew where the defendants were on the date of the 

hearing; as to whether he knew who took the various defendants 

from Lewis and Clark County to where they were at that time; as 

to whether he had been in Judge Meloy's chambers after the 

arraignment was held; and as to whether Judge Meloy at that 

time asked him if he had ordered the defendants to be taken back 

to Glasgow, Malta, and Wolf Point. 

The next witness called was Deputy Sheriff Richard 

Hammerbacker. He took the same tack, refusing to testify as 

-5- 
to any questions with respect to the four defendants, upon 

the grounds that his answers might incriminate him. 

Attorney Hull was then called to the stand. He testified 

that he had been appointed to represent Ricky Worden. At the 

arraignment proceedings on December 13, 1978, he had filed a 

notice of intent to rely upon the defense of mental defect, 

or disease, and had prepared an order for the court to have his 

client placed in Warm Springs State Hospital. Hull testified 

that the judge ordered the defendants sent to Warm Springs 

State Hospital and asked Hull to rewrite the order to include a 

specific date. The oral order was made in open court on that 

day. At the time the oral order was made, Hull testified that 

the county attorney and Hammerbacker were both present. Hull 

testified that Graveley told the court that he wanted to send the 

prisoners back to Malta and the judge replied he had made the 

order and that these men were to be sent to Warm Springs. After 

the arraignment, Hull proceeded to the doorway of the courtroom 

where he met Hammerbacker. Hammerbacker told him, "I'm just 

informing you that your client is returning to Malta within the 

hour." Hull said to him, "You heard, the judge ordered he was 

going to Warm Springs today." Hammerbacker replied, "I don't 

care about that. I am merely informing you that your client is 

returning to Malta within the hour." Hull was also present in 

the courtroom during the arraignments of the other three defendants, 

and in each case, Hull testified the same verbal order was 

entered by the district judge to the effect that the men were 

to be sent to Warm Springs for evaluation. 

On cross-examination, Hull testified positively that 

Hammerbacker was in the courtroom when the oral order was made, 

and that the statements attributed to Hammerbacker were made 

in the doorway of the courtroom on the way out. 

Attorney Sherlock also testified. He had been appointed 

to represent Criss Allen Case. On December 13, 1978, Sherlock 

-6- 
testified that the four defendants were present in court and 

that Graveley was there throughout. Hammerbacker was in the 

courtroom off and on and other members of the Lewis and Clark 

County Sheriff's Office were there, including one of the fulltime 

jailers. Sherlock testified to the oral order of Judge Meloy 

in each case that the defendants be transferred to Warm Springs 

for evaluation, the objections made by the county attorney and 

the overruling of those objections by the District Court, continuing in effect his order for the transport to Warm Springs. 

Attorney Sherlock testified that later in Judge Meloy's 

chambers, before noon but following the arraignments, he was 

present when Graveley had a discussion with Judge Meloy about 

the fact that the prisoners had already been taken to Malta 

instead of Warm Springs. He stated that Graveley had told the 

District Court on that day that it was at Graveley's direction 

that the prisoners were taken to places outside Lewis and Clark 

County, and not to Warm Springs. 

Attorney Larry Murphy, who represented one of the other 

two defendants involved, testified that he was also present in 

the court at the time of the arraignments and heard the oral 

orders of Judge Meloy. He was also present in Judge Meloy's 

courtroom at the meeting before noon. He testified that Graveley 

stated emphatically that he had an agreement with the county 

attorney in Malta that the prisoners would be transported there 

immediately and that even though Judge Meloy ordered that the 

prisoners be transported to Warm Springs immediately, Graveley 

was going to have them transported to Malta. 

Sheriff Charles M. O'Reilly, who took office December 

15, and was not involved in the incidents of December 13, 

testified from the records of the sheriff's office that 

defendant Worden was "booked out" of the sheriff's office at 

9:40 a.m. December 13, 1978; that defendant Case was "booked out" 
at 9:55 a.m. on that day; and that the sheriff's office was 

served with a written order regarding Worden at 10:15 a.m. 

on December 13, 1978. He had no written orders for the other 

defendants until later. 

After attorneys Hull and Sherlock had rested, the 

respondents Graveley and Hammerbacker put on their case. 

They called the weatherman, Max Baumgartner, who indicated 

that weather was closing in on December 13 and that it would 

have been impractical to fly a small airplane on that date; 

also that he had informed the pilot of the airplane of the 

adverse weather conditions and that if any flights were to 

be made they were to be made on December 13, 1978. 

Deputy Sheriff Hammerbacker then took the stand. This 

time he did not refuse to answer under the Fifth Amendment 

of the United States Constitution. He testified that he 

understood that the defendants were to be transported back 

to Malta; that he had made the arrangements through the 

instructions of the county attorney in the week before the 

December 13 arraignments; and that he understood the defendants 

would have to be back in Malta no later than December 15, 

1978. Hammerbacker testified that he was not in the courtroom 

when Judge Meloy issued his orders respecting the defendants. 

He stated that he had gone over to the sheriff's office at 

the request of the county attorney to research the "rap 

sheet" on defendant Worden. He said he was first made aware 

of the alleged oral order by Hull in the doorway of the 

courtroom. At first he testified that they had been in 

the sheriff's office and they had not returned to the courtroom 

before he met Hull. Later in his cross-examination, 

he stated that he had in fact come into the courtroom and talked 

to County Attorney Graveley before coming out again to the 

doorway where he met Hull. He stated that he does not take 

the word of defense counsel because he has been lied to so 
often by defense counsel. He further described how the 

prisoners were taken from Lewis and Clark County and transported 

to their various destinations. 

After the pilot of the airplane testified substantially 

to what we have stated foregoing, Graveley took the stand. 

This time he did not refuse to answer under the Fifth Amendment. 

He testified that arrangements had been made before the 

defendants had been brought to Lewis and Clark County, 

that they would be immediately returned to Malta. That he 

had made these arrangements for the four defense counsel in 

Malta and with the county attorney there. He stated the 

arrangement was that they would all be returned before 

December 15, 1978. (It should be stated that all four 

defendants were under homicide charges pending in the District 

Court of Phillips County.) 

He testified that the first two defendants were arraigned 

by 9:25 a.m. on the morning of December 13; that he had 

asked Hammerbacker to check on the rap sheet of Ricky Worden; 

and that he had no other conversation with Hammerbacker. He 

knew that the plans had been arranged for flying the defendants 

out of Lewis and Clark County. He had been advised that 

the sheriff's office would fly the defendants from Helena as soon 

as possible. On his direct examination, Graveley testified he never 

told the sheriff's officers that under Judge Meloy's order, 

they were not supposed to transport the prisoners. He felt 

that any notice to the sheriff was the defendant's obligation 

or the defendant's attorney's obligation to serve the sheriff's 

office. 

On cross-examination County Attorney Graveley testified 

that he had no court order to return the defendants to 

Malta or Glasgow. He further testified that it was not his 
obligation to enforce any orders obtained by defense counsel. 

He testified that he made no attempt to inform the sheriff's 

office of the oral orders of Judge Meloy. 

When Graveley was asked whether he had any conversation 

with the sheriff's office after the arraignment concerning 

the transport of the defendants to Malta, in spite of the 

court orders, Graveley answered he could not recall. He was 

then faced with a transcript from an earlier hearing in 

which he was asked the following questions: 

"Q. And then Judge Meloy asked you, 'Did 

you direct them to take them despite the order 

made by this court'? 

"And your answer was, 'We had some conversation 

about it. Yes. I fail to see how an oral 

order can be directed . . .' 

"Does that refresh your recollection for you as 

to the fact that you directed them after the 

order was made to transport the prisoners out 

of the county. A. Yes. 

"Q. Did you make it a formal explanation why 

to Judge Meloy? Why did you direct them to 

take them despite the order made by that court. 

A. I did not direct them to take anybody out 

of the county after the order was made by that 

court. 

"Q. You answered yes. A. I'm answering I 

did not direct anybody to take them out of the 

county. 

"Q. Do you want to change the answer you made? 

A. No I don't." 

So much for the record. In this cause, Attorneys Hull 

and Sherlock have moved this Court to dismiss the petition 

for writ of review on the ground that such a writ may not 

issue where the District Court has not acted in excess of 

its jurisdiction. It is true that a writ of review or certiorari 

may be granted only when a trial court has exceeded its jurisdiction. State v. District Court of Second Judicial District 

(1900), 24 Mont. 494, 62 P. 820. However, we will follow the 

procedure of State v. District Court (1929), 85 Mont. 215, 
278 P. 122 and treat the petition here as one for an alternative 

writ, in this case one for supervisory control. On that 

basis, we do not dismiss these proceedings on the ground 

that a writ of review is improvidently sought by the petitioners. 

On the other hand, petitioners Graveley and Hammerbacker seek to have the judgment of the District Court 

vacated on the ground that their contempt is not proven 

beyond a reasonable doubt. However, substantial evidence is 

all that is required to support a judgment for contempt. In 

Re Burns (1928), 83 Mont. 200, 208, 271 P. 439. It is the 

rule that on review of contempt proceedings, the Supreme 

Court determines only whether the District Court acted 

within jurisdiction, and whether or not the evidence supports 

the finding and order. State v. District Court of Twelfth 

Judicial Dist. (1968), 151 Mont. 41, 43, 438 P.2d 563; State 

v. Second Judicial Dist. Court (1935), 99 Mont. 209, 41 P.2d 

1113. 

Petitioners also contend that the contempt proceedings 

should be dismissed because this is a case of criminal 

contempt, and the procedures for instituting a civil contempt 

case were not followed. 

Section 3-1-501, MCA, defines what acts or omissions 

are contempts. Section 45-7-309, MCA, defines what offenses 

constitute criminal contempt. In general, the definitions 

include the same kinds of acts or omissions which tend to 

interrupt the orderly flow of trials or proceedings before 

courts or to abuse their authority. The punishment for a 

contempt under section 3-1-501, must not exceed five days in 

jail, or a fine of $500 or both. The punishment for criminal 

contempt is not to exceed a six month sentence or $500 or 

both. 
Section 3-1-511, MCA, provides for the procedure to be 

followed when contempt is committed in the presence of the 

court. In that situation, the contempt may be punished 

summarily but an order must be made by the court reciting 

the facts which occurred. Section 3-1-512, MCA, sets out 

the procedures to be followed when a contempt is made outside 

the presence of the court. This section calls for the 

submission of affidavits of the facts constituting contempt, 

after which a warrant is to be issued. In this case, instead 

of arresting Graveley and Hammerbacker by warrant of attachment, 

the District Court issued an order to show cause. 

The United States District Court of Montana in 1957 

held that contempts are neither wholly civil nor altogether 

criminal. See United States v. Montgomery (D. Mont. 19571, 

155 F.Supp. 633. 

It appears in this case that the petitioners were 

charged with an indirect or constructive contempt. That is, 

the contempt occurred outside the presence of the court. In 

a constructive contempt, the essence of whether the court's 

order has been abused is whether the party accused had 

knowledge of the order. Hand v. Hand (1957), 131 Mont. 571, 

312 P.2d 990. 

We do not find a jurisdictional defect in the contempt 

proceedings against the petitioners because an order to show 

cause was issued instead of a warrant. The court took 

judicial notice of the affidavits that had been filed in the 

criminal contempt charges against the petitioners, and the 

jurisdiction of the District Court to hear the matter was 

affirmed when the petitioners appeared in response to the 

order to show cause. 

The question of the knowledge of the petitioners of the 

District Court's oral order was one for determination in 

-12- 
the contempt proceedings before the District Court. It is 

certain that County Attorney Graveley had knowledge of the 

order because he was in court when the order was made, The 

testimony of Hull and Sherlock, which the District Court 

apparently accepted, also reflected that Hammerbacker was in 

fact present when the order was made. Substantial evidence 

supports the findings and order of the District Court. State 

v. District Court of Twelfth Judicial Dist., supra. The motion 

of Graveley and Hammerbacker in the District Court to dismiss 

the contempt proceedings is the same as contending that the 

evidence is insufficient to sustain the findings of the 

court. As we have already stated there is substantial 

evidence supporting the judgment. 

The petitioners also claim that the court erred in 

refusing an offer of proof respecting deceptions by other 

attorneys involving Deputy Sheriff Hammerbacker. The District 

Court refused to hear such evidence unless it involved 

the attorneys in this case, which was not the situation. 

The court did not commit error in refusing that offer of 

proof. 

The court also refused evidence of statements made to 

Hammerbacker by pilot Donald Thelan. Thelan testified fully 

as to the weather situation and the necessity of making both 

flights on December 13, 1978. The proferred evidence had 

no probative value as to whether both Graveley and Hammerbacker 

were acting in spite of the court's oral order and so was 

properly refused by the court as irrelevant. 

In the civil contempt proceedings, the type, character and 

extent of punishment rests on the trial court's discretion 

as measured by the showing made. United States v. Montgomery, 

supra. In light of the findings made by the court and the 

-13- 
evidence supporting them in this case, the District Court 

was justified in assessing a sum of $200 against each of the 

petitioners in order to purge the contempts. 

The petition for writ is denied in any form. These 

proceedings are dismissed. 

.............................. Justice 

We Concur: 

Chief Justice 

Justices 1