Ex Parte Calhoun

• Decision Date: 11 March 1936
• Docket Number: No. 7044.,7044.
• Citation: 91 S.W.2d 1047
• Parties: Ex parte CALHOUN.
• Court: Texas Supreme Court

Page 1047

91 S.W.2d 1047

Ex parte CALHOUN.

No. 7044.

Supreme Court of Texas.

March 11, 1936.

Original application for a writ of habeas corpus by Mrs. C. W. Compton Calhoun.

Application dismissed.

Fred Erisman, of Longview, for relator.

Clay Cooke, of Fort Worth, C. L. McCartney, of Brownwood, Jones & Jones, of Marshall, Julian P. Moseley, of Longview, and Carlton Smith and Leonard Cox, both of Waco, for respondent W. H. Hayes, sheriff of Gregg county.

CRITZ, Justice.

On January 5, 1936, Mrs. C. W. Compton Calhoun, relator herein was adjudged in constructive contempt of court by the district court of Gregg county, Tex., on account of certain acts she was alleged to have committed affecting the trial of a civil case then pending in such court. Under the view we take of this case, as it now stands, it is unnecessary to go into detail with reference to such matters. It is sufficient to say that the judgment of contempt assessed against relator a jail sentence of three days, and fined her $100. Also, she was ordered to release certain civil contracts held by her, alleged to affect the trial of the civil case just mentioned. It further appears that the judgment of contempt on its face in effect provided that no commitment should issue on same until 9 a. m., January 24, 1936.

On the morning of January 24, 1936, an application for writ of habeas corpus was presented to this court for and on behalf of relator, wherein it was alleged that she was illegally restrained of her liberty by the sheriff of Gregg county, Tex., by virtue of the above judgment. On the same day the application was presented, this court granted the writ as prayed for, and ordered relator admitted to bail in the sum of $1,000.

Since the granting of the writ, the sheriff of Gregg county has filed in this court his answer, wherein he states under oath:

"That he is the duly elected and qualified sheriff of Gregg county, Texas, and has been for the past three years;

"That he is full well cognizant of the persons that have been incarcerated in the jail and were in January of 1936;

"That he knows it to be a fact that he has never had any order or commitment to put Mrs. W. C. Compton Calhoun in jail and knows, further, that Mrs. W. C. Compton Calhoun has never been in jail in Gregg county, Texas, and was not in jail on January 24, 1936, nor on January 25, 1936. Affiant had not arrested Mrs. W. C. Compton Calhoun on January 24th, 1936, nor on January 25, 1936, and did not have her under any kind of confinement or restraint on such dates.

"Affiant further says that he knows Mrs. W. C. Compton Calhoun personally and has known her for the past three years and during all of such three years that affiant has never had any order or commitment to put Mrs. W. C. Compton Calhoun in jail and that he knows that she has never been in jail in Gregg county, Texas, during that period of time."

Relator herein has replied under oath to the answer of the sheriff. In such reply she states:

"My name is Mrs. C. W. Compton Calhoun, I am the respondent in a certain contempt proceeding held in the 124th District Court of Gregg county, Texas, and the same person for whom an application for a writ of Habeas Corpus was filed in the Supreme Court of Texas on the 24th day of January, A. D. 1936.

"On the 3rd day of January A. D. 1936 at the conclusion of a contempt proceeding against me in the case of Zanie Howell Jackson et al. vs. Ann Oliver Hart et al. in the 124th District Court of Gregg county, Texas, the Honorable Will C. Hurst Judge of said Court, after hearing the evidence advised me in open court in words to this effect `the Court is not certain that the evidence shows you to be in contempt of court, but the testimony shows acts that are, at least, contemptible, and I am going to allow you a reasonable time to prepare the record in this case to present to a higher court.' It was my understanding that the Court had adjudged me in contempt of court, I immediately ordered a transcript of the testimony from Mrs. Ben Allred, official Court Reporter of said Court paying for the same the sum of $100.00, and thereafter I was advised that Judge Will C. Hurst had adjudged me in contempt of court assessing a fine of $100.00 ordering that I be placed in jail for three days and that the instrument described in the contempt proceedings be by me removed from recording and released within five days. That such judgment was entered on the 5th day of January, 1936, but a stay order was made on the same so that it would become effective at 9 A. M. on January 24th, 1936.

"On Friday January 24th, 1936, about nine o'clock I reported to the Sheriff's office at Longview, Gregg...