PRESUMPTION OF INNOCENCE IN A CONTEMPT PROCEEDING.

Court of Appeals for Knox County.

#### Judson Loney et al v. J. C. Hall.

Decided, October 25, 1917.

*Finding of a Trial Judge on the Evidence*— Will *Not be Disturbed by a Reviewing Court, When^-Degree of Proof Required to Convict of Contempt.*

1. Tbe judgment of a trial judge who has passed upon tbe sufficiency and weight of the evidence will not be disturbed, where the evidence is such that different minds might reach different conclusions.

*152. A proceeding for contempt is_ gMasi^criminal in its nature with, the presumption in favor of the innocence of the defendant, and conviction can be had only on an affirmative showing of guilt.

*F. O. Levering*and *R. L.*Carr, for plaintiff in error.

*L. C. Stillwell*and *Greer & Cromley,*contra.

Houck, J.

Error is here prosecuted in which it is sought to reverse the finding and judgment of Hon. Park B. Blair, judge of the Common Pleas Court of Knox County, Ohio, in his dismissal of contempt proceedings filed by plaintiffs herein against defendant for alleged violation of a judgment heretofore rendered in the common pleas court in which said J. C. Hall was enjoined and restrained from engaging in the hardware business in Danville or Buckeye City, Ohio.

The proceedings in -contempt were heard by the trial judge upon the evidence offered, which is now before us in the form of a bill of exceptions. The trial court dismissed the action in contempt and held the accused J. C. Hall guiltless. By this proceeding in error it is sought to reverse the judgment of the court below.

It is claimed by counsel for plaintiffs in error that the defendant violated the injunction heretofore granted 'by the common pleas court and that he is now engaged in the hardware business. Counsel for defendant in error insist that said Hall is not engaged in the -hardware business, but is conducting what is known as a racket store.

The only question to be determined in this ease is one of fact, namely: Is J. C. Hall now engaged in the hardware business in the villages of Danville or Buckeye City, Ohio? This question was submitted to the trial judge. It was a question of fact, and he was called upon and did pass upon not only the sufficiency but the weight of the evidence.

The rule of law is well known that a reviewing court will not reverse a judgment on the weight of the evidence unless it manifestly appears that the judgment is against the weight thereof. We have read the testimony of all the witnesses, as embodied in the bill of exceptions, and we find the evidence to be conflicting; *16different minds might arrive at different conclusions therefrom, and as a matter of fact it took this court some time to be unanimous in its conclusion as to whether or not the defendant had violated the former order and judgment of the common pleas court.

Thus it follows that where different minds might arrive at different conclusions or different results, from the same evidence, and the case having been tried to a trial judge who has the same power, authority and right to determine as to the sufficiency as well as" the weight of the evidence as a jury, and having done so, a reviewing court has no authority to reverse such judgment, unless upon the whole record it is clearly manifest that a different judgment should have (been rendered — and this we do not find.

We are of the opinion that this being a gwasi-eriminal case the evidence should be clear, positive and convincing that the one charged with contempt is guilty, before a court so finds. We think the rule of evidence in cases such as the one now under review requires stronger proof in order to find one guilty of contempt than simply a preponderance. In fact, in a *quasi-criminal*proceeding such as the one at bar the presumption is all in favor of the person charged with the offense, namely, in favor of innocence. In such a case it must affirmatively appear in the record that the person so charged with contempt is guilty.

Applying this rule of law to the facts as established by the evidence in the bill of exceptions, and after a careful examination of the entire record in this case, we are bound to and do arrive at the conclusion that the judgment of the trial judge in the present ease is right and should be affirmed.

Judgment affirmed.

Powell, J., and Shields, J., concur.