Burnett v. State

• Decision Date: 15 February 1913
• Citation: 129 P. 1110,8 Okla.Crim. 639,1913 OK CR 36
• Parties: BURNETT ET AL. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

129 P. 1110

8 Okla.Crim. 639, 1913 OK CR 36

BURNETT ET AL. v. STATE.

Court of Criminal Appeals of Oklahoma

February 15, 1913

Syllabus by the Court.

Under the Constitution (article 7, § 2 [section 187 Williams']) and the statute (sections 1916 and 1917 Snyder's Sts.), the Criminal Court of Appeals has exclusive appellate jurisdiction in criminal cases; and a proceeding and judgment for criminal contempt is reviewable on appeal to this court.

"Criminal contempts" are all those acts or conduct in disrespect of the court or its process, or which obstruct the due administration of justice, or tend to bring the court into disrepute.

The power to punish contempts is inherent in all courts of justice, and is expressly conferred upon them by the Constitution. Section 25, Bill of Rights. The exercise of this power has a twofold aspect, namely: First, the proper punishment of the guilty party for his disrespect to the court, or its order; and, second, to compel his performance of some act or duty required of him by the court, which he refuses to perform.

In proceedings for contempt for disobedience to an order of court, the sworn answer of the party charged with contempt is evidence to purge him thereof; but it is not conclusive. It may be contradicted and supported by other evidence, and the question whether or not the party charged has purged himself of the contempt is for the determination of the court, upon the consideration of all the evidence adduced for and against him; and if, upon such hearing, the court is satisfied that it is within the power of the contemner to comply with its order, the court should enforce the order by appropriate punishment.

A party to a suit, who willfully destroys, removes, conceals, or disposes of its subject-matter pending the proceeding, with intent to withdraw it from the jurisdiction of the court, and to render futile any order or decree concerning it unavoidably defies the power and offends the dignity of the court, and thereby renders himself liable to punishment for "criminal contempt."

Under the act "creating a state banking board, establishing a depositors' guaranty fund to insure depositors against loss when the bank becomes insolvent," etc., all of the books, records, and papers of the failed or insolvent bank taken over by the Bank Commissioner are public records, and become the property of the state.

The officers of an insolvent state bank cannot disobey, on the ground of the constitutional protection against self-crimination, the order to produce and deliver the books records, and papers of such bank to the State Bank Commissioner.

The privilege against self-crimination afforded by section 21 of the Bill of Rights, "that no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided," does not protect the officers of an insolvent state bank in resisting the compulsory production of its books, records, and papers because such documents may tend to incriminate them. And such officers may be compelled, in a judicial proceeding, to produce the books, records, and papers of such bank for inspection, even though to do so would tend to incriminate them.

Additional Syllabus by Editorial Staff.

"Civil contempts" are those quasi contempts which consist in failing to do something which the contemner is ordered by the court to do for the benefit or advantage of another party to the proceedings.

Error from District Court, Creek County; A. H. Huston, Judge.

Bates B. Burnett and another were convicted of criminal contempt, and bring error. Affirmed, and order allowing bail as supersedeas revoked.

The privilege against self-crimination afforded by a Bill of Rights, art 2,§ 21 (Okl.St.Ann.), does not protect the officers of an insolvent state bank in resisting production of its books, records, and papers, because such documents may tend to incriminate them.

On the 7th day of October, 1912, there was filed in the district court of Creek county a case entitled "The State of Oklahoma, on relation of Chas. West, Attorney General, and J. D. Lankford, Bank Commissioner of the State of Oklahoma, Plaintiffs, v. Farmers' & Merchants' Bank of Sapulpa, a Banking Corporation, Bates B. Burnett, Birch C. Burnett, A. P. Crawford, S. C. Nigh, Thomas Wills, Charles W. Wills, the Big Pond Oil Company, the Boggy Oil Company, the Brown Real Estate Company, the Creek County Investment Company, Elbert Oil & Gas Company, the Sapulpa Interurban Railway Company, and Dannie Ross Burnett, Defendants."

The petition, among other things, alleges that the Farmers' & Merchants' Bank of Sapulpa, prior to September 9, 1912, was conducting a general banking business at Sapulpa as a state bank on which said date said bank was taken over by the State Bank Commissioner; that the defendants Bates B. Burnett and Birch C. Burnett are stockholders of said bank.

Listed among the assets of said bank, among bills and notes, as alleged in the petition, are the following items:

Big Pond Oil & Gas Co.........

$ 10,000 00

Brown Real Estate Co............

29,753 75

Creek County Investment Co......

40,986 00

Elbert Oil & Gas Co..............

9,250 00

Sapulpa Interurban Ry..........

107,402 56

Wade S. Stanfield ...............

3,815 82

Paragraph 3 of said petition is as follows: "(3) That the defendants the Big Pond Oil Company, the Boggy Oil Company the Brown Real Estate Company, the Creek County Investment Company, and the Elbert Oil & Gas Company are oil and gas and real estate corporations controlled and operated, in whole or in part, by the officers, directors, and stockholders of said Farmers' & Merchants' Bank, and have been financed, in whole or in part, from the funds and assets of said Farmers' & Merchants' Bank; and at the close of business on September, 9, 1912, there was listed among the assets of said Farmers' & Merchants' Bank notes and bills aggragating $90,989, given by said companies, which are now held by the Bank Commissioner of the state of Oklahoma as the property of the state of Oklahoma, for the use and benefit of the bank guaranty fund of said state. That said bills and notes represent funds of the said Farmers' & Merchants' Bank which were advanced to said companies in violation of law, and with the intent that the stockholders of said bank would profit personally, to the injury of the bank."

Paragraphs 6 and 7 are as follows:

"(6) That the property, assets, and business of the defendants the Big Pond Oil Company, the Boggy Oil Company, the Brown Real Estate Company, the Creek County Investment Company, the Sapulpa Interurban Railway Company, and the Elbert Oil & Gas Company, which are in fact the property and assets of the Farmers' & Merchants' Bank, are being mismanaged and mishandled by the persons in control of same, and are in imminent danger of being entirely lost, and will be dissipated, unless prevented by the appointment of a receiver for all of said defendant corporations by this court in this action, to take charge of all the property and assets of said defendants, and to hold and manage same under the orders and direction of this court.

(7) That the books of said Farmers' & Merchants' Bank, including the daily statement of resources and liabilities from February, 1908, to September 3, 1912, all remittance records for the years 1910, 1911, and 1912, journal of daily business in detail from 1910 to September 3, 1912, note register, and the personal accounts in the individual ledger of B. C. Burnett, B. B. Burnett, and the companies in which they are interested, have all been taken from the building occupied by said bank, and, although demand has been made on the officers, directors, and stockholders of said bank that they return said books to the Bank Commissioner, they have failed and refused, and still fail and refuse, so to do. That it is believed by relator that said books are now in the custody and under the control of the persons acting as officers and directors of said Farmers' & Merchants' Bank when same was taken over by the Bank Commissioner on September 9, 1912, and are being secreted in order to hinder and embarrass the state in administering the affairs of said Farmers' & Merchants' Bank."

The prayer of the petition is that the court appoint the Bank Commissioner of the state of Oklahoma as receiver for said defendants the Farmers' & Merchants' Bank and the corporations named, and then prays for judgment against certain stockholders for an amount equal to the par value of the shares of stock held by each, and that the court order and direct that the officers and directors of said Farmers' & Merchants' Bank turn over to the State Bank Commissioner all books, records, and papers pertaining to the business and affairs of said Farmers' & Merchants' Bank, and that the plaintiff have such other and further relief in the premises as may be deemed proper.

The record shows that on the 11th day of October, in said case, in open court, the following order was made:

"Order to Produce Books, etc.

The above cause coming on to be heard upon the application of the plaintiff for the appointment of a receiver for the defendant the Farmers' & Merchants' Bank, and for an order directing that the officers, directors, and employés of the defendant the Farmers' & Merchants' Bank, at the time same was taken over by the Bank Commissioner, turn over and deliver to the Bank Commissioner of the state of Oklahoma all books, records, and papers belonging to said bank, and the plaintiff being represented by W. C. Reeves, Assistant Attorney General of the state of Oklahoma, and the defendants being represented by Messrs. Rutherford and Lawrence, their attorneys, and the court being fully...