Brown v. State

• Decision Date: 07 September 1949
• Docket Number: A-11001.
• Citation: 209 P.2d 715,89 Okla.Crim. 443
• Parties: BROWN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

209 P.2d 715

89 Okla.Crim. 443

BROWN v. STATE.

No. A-11001.

Court of Criminal Appeals of Oklahoma

September 7, 1949

Roy Brown was convicted of contempt for violation of an injunction, and was sentenced to one year in the State Penitentiary by the District Court of McCurtain County Howard Phillips, J.

On the defendant's appeal, the Criminal Court of Appeals, Brett J., vacated the judgment, sentence and order of commitment on the grounds that the sentence of the defendant to the penitentiary was in excess of the court's power and that the order for confinement was void because it failed to set forth the offense.

Syllabus by the Court.

1. Disobedience of an order made by a court within its jurisdiction and power is a contempt, although the order may be clearly erroneous, or was improvidently granted or irregularly obtained.

2. An order, judgment, or decree of a court having jurisdiction of the parties and the subject matter cannot be collaterally attacked in the contempt proceedings, but must be modified or vacated if erroneous, by a direct proceeding.

3. Contempts are defined as direct and indirect. Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view, and presence, and of the unlawful and wilful refusal of any person to be sworn as a witness and of the refusal to answer any legal or proper question; and any breach of the peace, noise or disturbance, so near to it as to interrupt its proceedings, may be summarily punished. Indirect contempts of court shall consist of wilful disobedience of any process or order lawfully issued or made by court; resistance wilfully offered by any person to the execution of a lawful order or process of a court. Title 21 O.S.A.1941 § 565.

4. Contempt cases are further classified in law as civil contempts and criminal contempts. The former consists in disobeying some judicial order made in the interest of another party to a proceeding. The latter consists of acts disrespectful to the court, or obstructive to the administration of justice, or calculated to bring the court into disrepute.

5. Criminal contempt is a crime, and when the contemnor is found guilty, punishment therefor is a sentence in a criminal case, and the adjudication therefor in law is a conviction, and commitment therefor is in execution of a sentence for a criminal offense.

6. In all cases of indirect contempt the party charged with contempt shall be notified in writing of the accusation and have a reasonable time for defense; and the party so charged shall, upon demand, have a trial by jury.

7. Power to punish for contempt is inherent in the courts, but such power is to be exercise only when absolutely essential in the proper protection of the dignity of the court and enable it to administer justice and transact its business with decorum, and any such proceeding is controlled by mandatory constitutional and statutory provisions and not be common law rules.

8. Whenever a person shall be imprisoned for contempt the substance of the offense shall be set forth in the order for his confinement, and made a matter of record in the court, and the order of commitment must set forth facts constituting the contempt, and is void unless it shows on its face acts sufficient to constitute a legal contempt; mere conclusions being insufficient. Title 21 O.S.A.1941 § 568.

9. An injunction granted by a judge, may be enforced as the act of the court. Disobedience of any injunction may be punished as a contempt, by the court or any judge who might have granted it in vacation. An attachment may be issued by the court or judge, upon being satisfied, by affidavit, of the breach of the injunction, against the party guilty of the same, who may be required, to pay a fine not exceeding two hundred dollars, for the use of the county, to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody, until he shall fully comply with such requirements, or be otherwise legally discharged. Title 12 O.S.A.1941 § 1390.

10. In the absence of express provisions making the offense a felony, one found guilty of contempt cannot be punished by confinement in the penitentiary.

Geo. T. Arnett, Idabel, for plaintiff in error.

Mac Q. Williamson, Attorney General, Sam H. Lattimore, Asst. Atty. General, for defendant in error.

BRETT Judge.

This is an appeal by Roy Brown defendant below, from the trial, conviction, judgment and sentence to one year in the State penitentiary for the crime of contempt of court, arising by reason of the violation of the court's order of injunction.

The defendant questions some phases of the proceeding leading up to the entry of the order of injunction which he is alleged in the sworn application or complaint to have violated. With these questions we have nothing here to do, for mere errors in the proceeding in which the order of injunction is granted, or irregularities in the form of said order, do not constitute grounds or justification for disobeying the order of injunction or relieve one from punishment for contempt where the proceedings are not void. State v. Pierce, 51 Kan. 241, 32 P. 924. Where the order of injunction is not void the same is not subject to collateral attack. See 17 C.J.S., Contempt, § 14, p. 21, on erroneous judgment or order as a predicate for contempt proceedings as follows, to-wit:

'* * * an order, judgment, or decree of a court having jurisdiction of the parties and the subject matter cannot be collaterally attacked in the contempt proceedings, but must be modified or vacated if erroneous, by a direct proceeding, disobedience of an order made by a court within its jurisdiction and power is a contempt, although the order may be clearly erroneous.' Or 'was improvidently granted, or irregularly obtained.' Citing numerous authorities in support thereof.

In State v. Wilson, 162 Kan. 507, 178 P.2d 277, 282, the Kansas Supreme Court said:

'Since the trial court had jurisdiction of the defendant and of the subject matter, any irregularities in the original injunction are not subject to collateral attack. * * * an injunction order which is not void but is merely irregular or erroneous must be obeyed unless it is set aside by direct proceedings as distinguished from collateral.'

Here, the order was based upon jurisdiction of the person, of the subject matter, and authority under the law to enter the order, and we will not go behind the same. But had it been erroneously entered, with the first two elements of jurisdiction present the fact of erroneous entry alone would not constitute a justification for the violation of the order or injunction, Billard v. Erhart, 35 Kan. 616, 12 P. 42, for only dissolution of the order would afford protection. See 43 C.J.S., Injunctions, § 259, p. 1007, Notes 65 and 66, on validity and regularity of injunctions as follows:

'Where the court had jurisdiction, the fact that the injunction or restraining order, or the order for the same is merely erroneous, or was improvidently granted or irregularly obtained, is no excuse for violating it; and this rule applies with equal force to a prosecution for contempt instituted for the purpose of punishing a person for disobeying an order of the court on the ground that its authority or dignity is in question, and one which is instituted to enforce the authority of the court in the administration of justice between litigants.' Citing numerous authorities in support thereof. Consequently, we are only concerned in the case at bar with the proceedings for contempt and not the proceedings leading up to the entry of the order of injunction.

The record reveals, that the court on August 15, 1947 after hearing evidence, entered its permanent order of injunction against the defendant Roy Brown's continued operation of the dance being conducted at his home, in McCurtain County, Oklahoma. The evidence in support thereof discloses that his home was a place of public resort attended by women of loose morals and bootleggers, where liquor was freely consumed, and acts of immorality and indecency were indulged in in close proximity thereto, and children both boys and girls were permitted to loiter and dance. The record further shows that, on August 16 and 18 in violation of the court's injunction the defendant continued the operation of the dance at said place. Upon these violations the application for citation was predicated.

Contempts are defined in Title 21 O.S.1941 § 565, as direct and indirect:

'* * * Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view, and presence, and of the unlawful and wilful refusal of any person to be sworn as a witness, and of the refusal to answer any legal or proper question; and any breach of the peace, noise or disturbance, so near to it as to interrupt its proceedings, * * * and may be summarily punished * * *. Indirect contempts of court shall consist of wilful disobedience of any process or order lawfully issued or made by court; resistance wilfully offered by any person to the execution of a lawful order or process of a court.'

Contempt cases are further classified in law as civil contempts and criminal contempts. The distinction being:

'The former consists in disobeying some judicial order made in the interest of another party to a proceeding. The latter consists of acts disrespectful to the court, or obstructive to administration of justice, or calculated to bring the court into disrepute. * * *

'A civil contempt may be either direct or indirect, and a criminal contempt may be either direct or indirect.' Blanton v....