Burke v. Territory Oklahoma

CourtSupreme Court of Oklahoma
Writing for the CourtBIERER, J.
Citation37 P. 829,1894 OK 13,2 Okla. 499
Decision Date07 September 1894

1894 OK 13
37 P. 829
2 Okla. 499


Supreme Court of Oklahoma

Decided: September 7, 1894


¶0 1. CONTEMPT--Power of Court--Enactment Not a Limitation--The legislature did not purpose, by the provisions of the criminal statutes which makes certain contempts of court a misdemeanor punishable by indictment, to take away from the court the power to punish such contempts, in the usual manner.

2. CONTEMPT -- Power to Punish Inherent -- The power to punish for contempt is inherent in all courts of record.

3. CONTEMPT -- Power to Punish -- The legislature has not power, in the absence of constitutional provisions, to limit or regulate the inherent power of the courts to punish for contempt.

4. CONTEMPT-- Jury Trial -- No Right of -- The party accused has no right of a trial by jury in a contempt proceeding.

5. CONTEMPT PROCEEDINGS-- Judicial Notice--Courts take judicial notice of their own proceedings, and in a contempt proceeding, where the contempt consists of an improper publication concerning matters pending in court, the publication being admitted, the court may determine all the necessary facts without other evidence of what occurred in court than the court's judicial knowledge, and without the necessity of a formal trial, including the introduction of evidence.

6. CONTEMPT--Appeal, Questions Considered on--On appeal from a judgment in a contempt proceeding only questions of law will be considered and questions of fact will not be reviewed.

7. CONTEMPT--Act of March 2, 1831, Limitation of--The act of March 2, 1831, and which is embodied in § 725 of the revised statutes of the United States, limiting the power of the courts of the United States to inflict summary punishment for contempt of court, is not applicable to the courts of this territory, these courts not being one of the courts of the United States to which this provision of the acts of congress is applicable.

8. CONTEMPT OF COURT--What Constitutes--Publications made in a daily newspaper, while a matter is pending in court, as to whether or not a certain report, presented by the grand jury, shall be received by the court or returned to the grand jury for further proper action and correction, to the effect that the actions of the judge seemed to indicate that he intends to withhold the report, and that if the judge persists in carrying out such intention, by suppressing the report of the grand jury, the act might be characterized as a flagrant violation of the people's rights, and charging by direct implication that the action of the court "is an effort to brow-beat the grand jury, an effort to Bend the grand jury to the will of the judge" and "a serious matter," constitute a contempt of court.


On the 23d day of February, 1894, an information sworn to by W. H. Ebey, clerk of the district court of Oklahoma county, Oklahoma Territory, was filed in the district court of said county, charging defendants, J. J. Burke and E. E. Brown with contempt of court, in the publication of two certain articles in the "Times-Journal," a daily newspaper published at Oklahoma City, and in writing a certain letter to the judge of the district court, the writing of the letter being a part of the commission of contempt. The allegations of the information are all substantially contained in the findings of fact hereinafter given. The defendants, after demurring to the information and after the demurrer was overruled, filed their answer denying that the publication of the articles set out in the information related to matters pending in court, denying that the statements in the articles were inaccurate or untrue, and denying the legal effect of these publications, and the letter written the judge of the court. The defendants in their answer admitted the publication of the articles and the writing of the letter referred to, to the judge of the court, and alleged "that since the publication referred to in the information, said Henry W. Scott, judge of the district court, had announced, in open court to the grand jury, that the matters and things, in the paper or report contained, were not matters or things within the jurisdiction of the grand jury, or of said court." The answer contained a specific paragraph as follows:

"4. For a further defense to the matters and things in the said information alleged, these defendants allege the truth to be that, as publishers and proprietors of the newspaper referred to in the information, they published the facts, that the grand jury had returned to the Hon. Henry W. Scott, as the judge of said court, a paper which was neither an indictment nor accusation in writing against public officers, but what was supposed to be a report of some kind or nature, as a matter of public news to patrons, as well also as the fact that the judge had not made public the contents of the paper up to the hour of going to press, of that edition of the defendants paper, as well also of the fact that the defendants, as enterprising and energetic caterers to a news- loving and enlightened public had addressed a respectful letter to the Honorable Henry W. Scott, requesting to be permitted to give to its patrons the contents of said paper, so handed in by the grand jury, as aforesaid, as well, also, as the fact that up to the hour of going to press of the said edition no answer had been received from the honorable judge. The defendants further say that they published the criticisms and animadversions upon the judge's actions and refusals hereinbefore specified, believing that they were the proper subject of criticism and newspaper comment, and without any inten- tion or desire to, in the leastwise interfere with, hinder, delay, impede, warp or control the administration of justice in, said court, or to in anywise affect the action of the grand jury or said judge in the administration of justice, and not seeing how said criticisms could have any such effect, and not intending to reflect upon the integrity of said judge, the Honorable Henry W. Scott, in the administration of any of the affairs of his said office, or the conduct of said court."

The record shows that after defendants filed their answer and after hearing the defendants fully and the arguments of counsel and being fully advised in the premises, the court made the following findings of fact:

"1. That the district court of the Third judicial district of Oklahoma Territory, sitting in and for the county of Oklahoma, in the Territory of Oklahoma, was in session on the 21st day of February, 1894, and had been so in session for a long time before then, under the law, and is to so remain in session for a long time thereafter.

"2. That the grand jury for said county was also in session on said 21st day of February, 1894, long before, and thereafter.

"3. That said grand jury, on said 21st day of Feb- ruary, 1894, returned into court the matters remaining in their hands as a territorial grand jury, and reported that they had no further business in their hands.

"4. That among the matters returned by said grand jury, at that time, was a return, report and proceedings of their examination of the jail and poor house, with the recommendations concerning the jail, and their proceedings in the premises.

(Accompanying said report, return and proceedings, and as a part thereof, was matter entirely foreign to the subject of said report and return, which foreign matter cast mere reflections upon certain individuals and persons.)

"5. That at the time of the reception, by the court, of said report and return, a hasty reading of the matter led the court to doubt the propriety of placing it on the records thereof; and the court, at said time, was engaged in the trial of a jury case, and it was not thought proper to delay the trial to take the time to consider the report and the return, or that part of it deemed to be objectionable, and the court directed the grand jury, that, as they had to report on the 23d day of February, next thereafter, as a grand jury for the United States, they would not be discharged as a territorial grand jury until that time.

"6. That such action as to said grand jury was taken to enable the court to refer to said report, and return back to the jury in the meantime, if the court con- cluded it should be so referred back.

"7. That on the morning of the said 23d day of February, 1894, the court referred said report and return back to the grand jury, with instructions to separate the foreign matter from the matter on the jail and poor house, and make further return to the court. And further instructed the grand jury that if they were in possession of sufficient evidence of crime, on the part of any persons or individuals whomsoever, to return to the court an indictment or accusation in form of law, so that the court could have the matter judicially investigated and the guilty party punished.

"8. That the 22d day of said February, 1894, was a legal holiday, and the court was not in session on that day.

"9. That on the morning of said 22d day of February, 1894, the said article, set out in the complaint herein, was published by the defendants in their newspaper, "The Oklahoma Times-Journal," printed, published and circulated in Oklahoma City, Oklahoma county, and Territory of Oklahoma, and reads as follows, to- wit:


"Yesterday forenoon the grand jury filed into the court and the foreman handed the judge a package of papers. The judge looked them over carefully, and one paper he seemed to scan a second time. Then he turned to the foreman and asked, 'Who prepared this report?' Mr. Trosper, foreman of the grand jury, answered, 'A committee composed of Mr. Welch, Mr. McCartney and myself.'

"The extraordinary question caused every attorney in the court room to start with surprise, and further developments were awaited with interest. The grand jury announced, through their foreman, that they...

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9 cases
  • State ex rel. Attorney Gen. v. Owens, Case Number: 18081
    • United States
    • Supreme Court of Oklahoma
    • 24 Mayo 1927
    ...a judge as a witness in a cause where the court is held by a single judge and thus destroy the court." ¶13 In Burke et al. v. Territory, 2 Okla. 499, 37 P. 829, it was held that courts take judicial notice of their own proceedings, and in a contempt proceeding, where the contempt consisted ......
  • State ex rel. Attorney Gen. v. Martin, Case Number: 18080
    • United States
    • Supreme Court of Oklahoma
    • 21 Mayo 1927
    ...until an adverse judgment was rendered against him. ¶77 We can and should, by the decisions of this court as cited in Burke v. Territory, 2 Okla. 499, 37 P. 829, take judicial notice of every stage of the proceedings as applied to the Riverside Case. We judicially know that the respondent M......
  • Vogel v. Corp., Case Number: 29592
    • United States
    • Supreme Court of Oklahoma
    • 13 Enero 1942
    ...of court may be summarily tried without a jury, and this applies to both direct and indirect contempt. See Burke & Brown v. Territory, 2 Okla. 499, 37 P. 829; 35 C. J. 194, note 19; 6 R.C.L. 522, note 11; 12 Am. Jur. 429, note 17. However, this rule was modified by section 25, article 2, of......
  • Hughes v. Territory of Arizona, Criminal 225
    • United States
    • Supreme Court of Arizona
    • 30 Marzo 1906
    ...Ex parte Rowe, 7 Cal. 176; Ware v. Robinson, 9 Cal. 108; Whittem v. State, 36 Ind. 196; In re Spofford, 62 F. 443; Burke v. Territory, 2 Okla. 499, 37 P. 829; Wyatt v. People, 17 Colo. 252, 28 P. 961; In re Millington, 24 Kan. 214; Stuart v. People, 3 Scam. 395; Shannon v. State, 18 Wis. 60......
  • Request a trial to view additional results

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