193 S.W.2d 178 (Tex.Crim.App. 1946), 23232-23234, Ex parte Craig

Docket Nº:23232-23234.
Citation:193 S.W.2d 178, 150 Tex.Crim. 598
Opinion Judge:PER CURIAM.
Party Name:Ex parte CRAIG. Ex parte McCRACKEN. Ex parte MULVANEY.
Attorney:Grover Sellers, Atty. Gen., of Texas, Jerry D'Unger, of Corpus Christi, and Ernest S. Goens, State's Atty., of Austin, for the State. DAVIDSON, Judge. On May 29, 1945, Mayes, through his counsel, filed a motion for a new trial, which was, on the 6th day of June, 1945, in all things overruled. The...
Case Date:February 13, 1946
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas

Page 178

193 S.W.2d 178 (Tex.Crim.App. 1946)

150 Tex.Crim. 598

Ex parte CRAIG.

Ex parte McCRACKEN.

Ex parte MULVANEY.

Nos. 23232-23234.

Court of Criminal Appeals of Texas

February 13, 1946

Rehearing Denied April 3, 1946.

Commissioners' Decision.

Original application on the relation of Conway C. Craig, Bob McCracken and Tom Mulvaney, for a writ of habeas corpus by which relators seek to be discharged from custody and imprisonment under a contempt judgment.

Application denied and relators remanded to custody.

Page 179

[150 Tex.Crim. 599] Kleberg, Eckhardt, Mobley & Roberts and Marcellus G. Eckhardt, all of Corpus Christi, and Black, Graves & Stayton and Ireland Graves, all of Austin, for relators.

Grover Sellers, Atty. Gen., of Texas, Jerry D'Unger, of Corpus Christi, and Ernest S. Goens, State's Atty., of Austin, for the State.

Page 180

DAVIDSON, Judge.

This is an original application to this Court for the writ of habeas corpus, by which relators seek to be discharged from custody and imprisonment under a contempt judgment.

At all times hereinafter mentioned, 'The Corpus Christi Caller' and 'The Corpus Christi Times' were newspapers published respectively the morning and afternoon of each day except Sunday in the City of Corpus Christi, Nueces County, Texas. The two papers published each Sunday a combined edition known as 'The Corpus Christi Caller-Times'. Said newspapers were under the same ownership and management. Relator Conway C. Craig is the publisher and directing head thereof. Relator Bob McCracken is the managing editor and the writer of a column therein known as 'The Crow's Nest'. Relator Tom Mulvaney is a news writer and reporter therefor.

On August 9, 1945, after notice and hearing, the relators were each adjudged to be guilty of constructive contempt by the County Court of Nueces County, by reason of publications appearing in the above-named newspapers relative to a suit pending in said court and were condemned to confinement in jail for three days. Said judgments of contempt become final, from which no appeal is authorized.

Relators each applied to this Court for the writ of habeas corpus alleging in the main that the judgment was void and unenforcible because it was in contravention of the due process and freedom of the press provisions of our State and Federal Constitutions. It was by reason of the particular conditions thus existing that we granted the writs.

It is made to affirmatively appear that if the contempt judgment is valid as to any one of the relators, it is valid as to all; and if invalid as to either, it is such as to all. For this reason the three cases have been here consolidated, and are disposed of together.

On May 25, 1945, the case of Jackson v. Mayes proceeded to trial in the County Court of Nueces County before a jury, with the Honorable Joe D. Browning, Judge of said Court, presiding.

The proceeding was one of forcible entry and detainer, whereby Jackson sought to regain possession of a business building in the City of Corpus Christi which, he claimed, Mayes was unlawfully detaining from him.

The pivotal issue in the case was whether Mayes' lease of the building had expired because of nonpayment of rentals, as contracted. Mayes was a member of the armed forces of this country and his business was handled by Burchard, as agent. At the close of the testimony in the case, each party presented a motion for an instructed verdict. That of the plaintiff was granted, and Judge Browning instructed the jury to return a verdict for Jackson. The jury refused to follow Judge Browning's instruction but, to the contrary, attempted to return into court a verdict for Mayes. Judge Browning refused to accept such verdict and again instructed the jury to return a verdict for Jackson. The matter just referred to occurred Saturday evening, May 26, 1945. It was not until Sunday morning following that the jury, after having been admonished by counsel for Mayes, returned the verdict as instructed, and even then noted on the verdict that they had been coerced into so doing. Judgment was duly entered upon the verdict for Jackson.

On May 29, 1945, Mayes, through his counsel, filed a motion for a new trial, which was, on the 6th day of June, 1945, in all things overruled.

On June 4, 1945, after the rendition of the verdict and while Mayes' motion for new trial was pending, one Newt Wright, who, as an officer of the County Court of Nueces County, filed in said court, addressed to the judge thereof, a complaint in [150 Tex.Crim. 600] writing by and through which he charged that the relators were guilty of constructive contempt of said court by reason of the publication by them of certain publications in the newspapers heretofore mentioned. The allegations of the complaint and the publications referred to therein are as follows, that: 'On the 26th day of May, 1945, in the Corpus Christi Caller, there was published a purported news story which included the statement that, 'Burchard further claimed that although he had not known of the option clause, when he learned of it he immediately proffered a check for $275.00 rental.' On the 27th day of May, 1945, in the Corpus Christi Caller-Times, there was written, published and circulated a purported news story of proceedings had that included the following statement: 'At 7 P.M. Browning, without listening to argument from counsel for

Page 181

either side on a plaintiff's motion presented by Dudley Tarlton for Jackson, and without giving the six-man jury opportunity to weigh the evidence, instructed the jury to find against Mayes. W. M. Lewright, Mayes' attorney, protested that the court's arbitrary action had ruled that Tarlton's 'one-page motion' did not need supporting argument and citation of authorities.' On the 28th day of May, 1945, there was written, published and circulated in the Corpus Christi Caller an article which contained the following language: 'Browning accepted Tarlton's one-page motion, and without permitting argument or citation of authorities to support the motion, ruled that it be granted. The effect of this ruling was that Browning took the matter from the jury.'

'The said article also included the following speech made by Walter Lewright, of counsel for the defendants:

"However, I now advise you that under the law, Judge Browning has the right to compel you, even against the dictates of your conscience, to sign the verdict he has ordered.

"As a matter of fact, it is probable that he has the power to put you in jail until such time as you do sign it, and I rather imagine, from what has heretofore taken place in this trial, that unless you do sign the verdict, he will cause you to be put in jail.

[150 Tex.Crim. 601] "As I and my clients feel that you have done all in your power to register your protest and revulsion of feeling at the affect of this decision reached by Judge Browning; as you are helpless to do anything further; and as making you suffer by remaining locked up will not do us a bit of good, I suggest that you sign the verdict and return to your homes with a clear conscience of having done all that you could to protect the rights of the man whom I feel, and evidently you feel, has been done a gross injustice.

"While we have no appeal from the court's decision in this case, we do have the right again to appeal to his conscience by presenting a motion for new trial in this action--and which motion we will file and argue strenuously with the hope that in the meantime he will see the error committed and will rectify the same.

"There cannot be any doubt but that the action of you men in registering your protest against this decision, as you have done, will affect him. At least, I can only hope that it will, I sincerely thank you.'

'On the 30th day of May, 1945, in an article written by the aforesaid Bob McCracken, and published and circulated in the Corpus Christi Caller under the editorial masthead, the Crow's Nest, there was contained the following language: 'Browning's behavior and attitude has brought down the wrath of public opinion upon his head, properly so. Emotions have been aggravated. American people simply don't like the idea of such going on, especially when a man in the service of his country seems to be getting a raw deal.'

'And further:

"Then the plaintiff's counsel offered a motion for an instructed verdict for his client. It was granted immediately, without having him cite his authority or without giving the defendant's attorney a chance to argue against it.

"That was the travesty on justice, the judge's refusal to hear both sides. That's where a legal background would have served him in good stead. It is difficult to believe that any lawyer, even a hack, would have followed such high handed procedure in instructing a jury. It's no wonder that the jury balked and public opinion is outraged.

"The fact that a serviceman is involved lends drama to the event. But it could have happened to [150 Tex.Crim. 602] anyone, it can happen to anyone, with a layman sitting as judge in a case where the fine points of law are involved. True, the idea that only lawyers are qualified to occupy most public offices has been run into the ground, and in most instances, a competent layman would be better qualified, but the county judge's office is an exception. He should be a competent attorney as well as a competent businessman.

"It's the tragedy in a case of this sort that the court where the controversial decision was handed down is the court of last resort. It's too bad that appeal can't be made to a district court and heard by a judge who is familiar with proper procedure and able to interpret and weigh motions and arguments by opposing counsel and to make his decisions accordingly.'

'And further:

"There is no way of knowing whether justice was done, because the first rule of justice, giving both sides an opportunity to be heard, was...

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11 practice notes
  • 200 N.W.2d 913 (Minn. 1972), 43867, In re Daly
    • United States
    • Minnesota Supreme Court of Minnesota
    • 8 Septiembre 1972
    ...two states have held otherwise. Little v. State ex rel. Parsell, 75 Tex. 616, 12 S.W. 965 (1890); Ex parte Craig, 150 Tex.Cr.R. 598, 609, 193 S.W.2d 178, 185 (1946), reversed on other grounds sub nom. Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); and Heard v. Moore, 15......
  • 630 S.W.2d 927 (Tex.Crim.App. 1982), 68904, Houston Chronicle Pub. Co. v. Shaver
    • United States
    • Texas Court of Appeals of Texas Court of Criminal Appeals of Texas
    • 17 Marzo 1982
    ...have the right to publish in informing the public of current events," id., at 107. See also Ex parte Craig, 150 Tex.Cr.R. 598, 193 S.W.2d 178, 184 12 (1946). Article 1.24, V.A.C.C.P., was perceived in Houston Chronicle Publishing Co. v. McMaster to be a "positive statutory imperat......
  • 522 S.W.2d 214 (Tex.Crim.App. 1975), 49856, Ex parte Ross
    • United States
    • Texas Court of Appeals of Texas Court of Criminal Appeals of Texas
    • 16 Abril 1975
    ...held that 'well informed in the law of the State' does not mean that county judges need be lawyers. Ex parte Craig, 150 Tex.Cr.App. 598, 193 S.W.2d 178 (1946); Little v. State ex rel. Parsell, 75 Tex. 616, 12 S.W. 965 (1890). We note that the other courts have construed constitutional quali......
  • 579 S.W.2d 478 (Tex.Crim.App. 1979), 56034, Masquelette v. State
    • United States
    • Texas Court of Appeals of Texas Court of Criminal Appeals of Texas
    • 21 Marzo 1979
    ...also Art. 1927, V.A.C.S. Ex parte Ross, supra, was decided in accordance with two prior Texas cases, Ex parte Craig, 150 Tex.Cr.R. 598, 193 S.W.2d 178 (1946), and Little v. State ex rel. Parsel, 75 Tex. 616, 12 S.W. 965 (1890). The appellant argues that the recent decision of the United Sta......
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11 cases
  • 200 N.W.2d 913 (Minn. 1972), 43867, In re Daly
    • United States
    • Minnesota Supreme Court of Minnesota
    • 8 Septiembre 1972
    ...two states have held otherwise. Little v. State ex rel. Parsell, 75 Tex. 616, 12 S.W. 965 (1890); Ex parte Craig, 150 Tex.Cr.R. 598, 609, 193 S.W.2d 178, 185 (1946), reversed on other grounds sub nom. Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); and Heard v. Moore, 15......
  • 630 S.W.2d 927 (Tex.Crim.App. 1982), 68904, Houston Chronicle Pub. Co. v. Shaver
    • United States
    • Texas Court of Appeals of Texas Court of Criminal Appeals of Texas
    • 17 Marzo 1982
    ...have the right to publish in informing the public of current events," id., at 107. See also Ex parte Craig, 150 Tex.Cr.R. 598, 193 S.W.2d 178, 184 12 (1946). Article 1.24, V.A.C.C.P., was perceived in Houston Chronicle Publishing Co. v. McMaster to be a "positive statutory imperat......
  • 522 S.W.2d 214 (Tex.Crim.App. 1975), 49856, Ex parte Ross
    • United States
    • Texas Court of Appeals of Texas Court of Criminal Appeals of Texas
    • 16 Abril 1975
    ...held that 'well informed in the law of the State' does not mean that county judges need be lawyers. Ex parte Craig, 150 Tex.Cr.App. 598, 193 S.W.2d 178 (1946); Little v. State ex rel. Parsell, 75 Tex. 616, 12 S.W. 965 (1890). We note that the other courts have construed constitutional quali......
  • 579 S.W.2d 478 (Tex.Crim.App. 1979), 56034, Masquelette v. State
    • United States
    • Texas Court of Appeals of Texas Court of Criminal Appeals of Texas
    • 21 Marzo 1979
    ...also Art. 1927, V.A.C.S. Ex parte Ross, supra, was decided in accordance with two prior Texas cases, Ex parte Craig, 150 Tex.Cr.R. 598, 193 S.W.2d 178 (1946), and Little v. State ex rel. Parsel, 75 Tex. 616, 12 S.W. 965 (1890). The appellant argues that the recent decision of the United Sta......
  • Free signup to view additional results