Casey v. State

• Decision Date: 01 January 1860
• Citation: 25 Tex. 380
• Parties: MARTIN CASEY v. THE STATE.
• Court: Texas Supreme Court

25 Tex. 380

MARTIN CASEY

v.THE STATE.

Supreme Court of Texas.

1860.

A contempt of court is not an offense within the meaning of the penal code. Contempts are matters sui generis, and not criminal cases in the sense in which crimes are treated of by writers upon criminal law. They are said to be of a criminal nature, because they are not properly civil suits, and because they involve the idea of the punishment of unauthorized acts.

The conviction of a practicing attorney-at-law for contempt of court, under the statute which authorized a trial by jury for the alleged offense, forms no exception to the rule more than once laid down by this court, that appeals do not lie from judgments of the district courts imposing fines or imprisonment for contempts committed by persons who are not attorneys-at-law.

The right of appeal is given by the statute, in cases where the contempt involves fraudulent or dishonorable conduct, or malpractice on the part of the attorney, and where the district court pronounces judgment striking him from the roll of attorneys. 6 Tex. 55;7 Tex. 215;14 Tex. 436;21 Tex. 668.

APPEAL from Rusk. Tried below before the Hon. C. A. Frazer.

The alleged contempt of the appellant consisted in remarks made to the court in the conduct of a cause then being tried, in which he was acting as counsel for one of the parties, and which were construed as disrepectful to the presiding judge. The proceedings against him involved no question of malpractice, or fraudulent or dishonorable conduct.

Attorney General, for the state. In this case a fine of one hundred dollars was imposed on the appellant for contempt of court. A trial by jury was demanded, and the case was accordingly submitted to a jury (see art. 53, O. & W. Dig.), and a verdict of fifty dollars was returned. It is from the judgment of the court founded on the verdict that the appeal was taken to this court.

The proposition I submit is that an appeal will not lie from an order of the court imposing a fine for contempt in a case like the present. It is true that this court has entertained appeals from judgments for contempt in several cases. But it is believed that the appeal in each of these cases was under a special statute authorizing appeals in cases where the effect of the penalty was to strike an attorney from the roll. Art. 51, O. & W. Dig.; Dillon v. The State, 6 Tex. 55;Floyd v. The State, 7 Tex. 215; Jackson v. The State, 21 Tex.

There is no statute of this state authorizing appeals from the imposition of fines for contempt in cases like this. On the contrary, art. 468, Hart. Dig., expressly denies the right of appeal in cases of contempt of court. The legislature, aside from any other consideration or ground, has the right under the 3d section of the 4th art. of the state constitution to pass the law. Floyd v. The State, 7 Tex. 215.

It may be insisted that the article which denies the right of appeal in cases of contempt was repealed by the code of criminal procedure and was superseded by its provisions. But it is believed that this position cannot be maintained. The code of criminal procedure only repeals such laws as it does not embrace, which “regulate or refer to the prevention, suppression, prosecution and proceedings for the punishment of crime.” Sec. 4, final tit. Code Cr. Proc. art. 27, Id., authorizes resort to common law in cases where the code fails to furnish a rule for the purposes mentioned. Art. 1, Id., declares that the code of criminal procedure “is intended to embrace rules applicable to the prevention and prosecution of offenses against the laws of this state,” etc. Laws, then, which do not relate to the suppression or prosecution of offenses do not come within the scope of the code of criminal procedure, and are not repealed or superseded by its provisions. If a contempt, then, is not an offense within the meaning of the penal code, the laws which regulate it are not repealed by the code of criminal procedure. What, then, is an offense? As defined by the penal code, it “is an act or omission forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed in this code.” A contempt cannot come within this definition because no punishment is prescribed for it in the code. Besides this, a contempt is defined to be “a willful disregard or disobedience of a public authority.” Bouv. L. Dic. 308. The law of contempt does not come within the purview of either of the codes. It rests upon its own peculiarity, and while it can not be said to be strictly within the range of the civil law, it is equally distinct from laws relating to crimes and punishments. Yates v. Lansing, 9 Johns. 395.

The legislature, viewing the subject in this light doubtless, classes the act authorizing courts to impose fines for contempt with the civil statutes. See art. 381, O. & W. Dig.

It will hardly be insisted that the article last cited authorizing the imposition of fines for contempt has been repealed by the code of criminal procedure. If so, with what reason can it be urged that a regulation which relates exclusively to the exercise of authority under this law, was repealed by the provisions of the code? That it was not the intention of the legislature to repeal the laws relating to contempts is manifest from the language of the code of criminal procedure itself. See art. 392, C. Cr. Proc.

But, admitting for the sake of argument that the code of criminal procedure repealed all statutory law relating to contempts, it follows that as there are no regulations concerning the power to impose fines for contempt or regulating its exercise prescribed in the code of criminal procedure, that resort must be had to the common law to find the rules by which courts are to accomplish the objects of their institution. Art. 27, C. C. Proc.

The district court in this state was established by the constitution, and it was invested, implicity at least, with the powers necessary to carry out the purposes of its organization. Unless it can impose penalties for contempt, the object of its creation may be easily defeated. It may be well doubted, therefore, if the legislature could deprive the court of this power, even had it attempted such a thing.

Every court of record, and especially the courts established by the constitution, “have the inherent power to fine for contempt, imprison for contumacy and enforce the observance of order,” etc. This power cannot be dispensed with, because it is necessary to the exercise of all other powers, nor is this power derived from the statute. United States v. Hudson & Goodwin, 7 Cranch, 32;Anderson v. Dunn, 6 Wheat. 227; 2 Bac. Abr. 633; 1 Bouv. L. Dic. 302.

Independent of the statute it is a well settled doctrine that appeals will not lie from penalties for contempt in any case. Ex parte Kearney, 7 Wheat. 38, and Mr. Blackstone's opinion therein quoted; see also Ch. Kent's opinion in case of Yates v. The People, 6 Johns. 427.

In the case of Crow v. The State, decided by this court at its last term, the doctrine is broadly announced, that, “appeals will not lie in cases of contempt.” I am unable to perceive any distinction between the principle settled in that case and that involved in the case under consideration.

The appellant gave notice of appeal and entered into recognizance, to abide the judgment of the supreme court, as directed by the code of criminal procedure in cases of appeals; and yet there is nothing in the penal code or code of criminal procedure which authorizes appeals in cases of contempt, or prescribes the manner of perfecting such appeals.

In consideration of the foregoing views it is submitted that this case has been improperly brought to this court. Therefore, it is moved by the attorney general for the state, that this case be stricken from the docket of this court, because this court has no jurisdiction of the same.

BELL, J.

On the 7th day of November, A. D. 1859, the presiding judge of the district court for the county of Rusk imposed a fine of one hundred dollars upon the appellant for a contempt of court. The appellant, who was an attorney and counselor-at-law practicing in the court, demanded a trial by jury under the provisions of the act of the 11th of February, 1854. A jury was called, and the matter was submitted to them, the appellant pleading not guilty of the contempt. The jury found the appellant guilty of the contempt, and assessed his punishment at a fine of fifty dollars. The appellant moved for a new trial, which motion was overruled by the presiding judge.

The appellant gave notice of appeal, and entered into recognizance as in cases of misdemeanor. The attorney general has submitted a motion to dismiss the appeal, on the ground that an appeal does not lie to this court from the judgment of the district court imposing a fine upon an attorney for a contempt.

This court has more than once held that appeals do not lie from judgments of the district courts imposing fines or imprisoning for contempts committed by persons who are not attorneys-at-law. Floyd v. The State, 7 Tex. 215;Jordan v. The State, 14 Tex. 436, and the case of Crow v. The State, decided at the last term at this place. These decisions were founded upon the provision of the first ...