Ex parte Dawes

• Citation: 239 P. 689,31 Okla.Crim. 397
• Decision Date: 29 September 1925
• Docket Number: A-5510.
• Parties: Ex parte DAWES.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

239 P. 689

31 Okla.Crim. 397

Ex parte DAWES.

No. A-5510.

Court of Criminal Appeals of Oklahoma

September 29, 1925

Syllabus by the Court.

Contempts of court in this state are governed by constitutional and statutory provisions, and not by common-law rules.

Under that clause of section 25 of the Bill of Rights providing "In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given," an opportunity to be heard before a penalty or punishment is imposed for contempt is an indispensable essential to the administration of due process of law as contemplated by the constitutional inhibition that "no person shall be deprived of life, liberty or property, without due process of law." Section 7, Bill of Rights.

The constitutional "right to be heard," in a contempt proceeding, means the right of the accused to introduce evidence in a formal, orderly manner, in justification or in mitigation of the offense, and to have such evidence considered before judgment in contempt is rendered.

The courts in inflicting punishment for contempts must observe the modes of procedure prescribed by the statute.

When a person is held under a commitment for contempt of court, such person may, by habeas corpus, secure a determination as to the jurisdiction of the court in ordering the commitment. It matters not what the general powers or jurisdiction of the court may be, if it acts without authority in a particular case, its judgment and order is a mere nullity.

Under section 1700, C. S. 1921, providing, "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," in a case of direct contempt, 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.

Additional Syllabus by Editorial Staff.

Judgment or order committing contemner to jail on charge of direct contempt, made in absence of contemner, is void as a denial of the constitutional right to be heard. Bill of Rights, §§ 7, 25.

Judgments and orders of commitment issued thereon for direct contempt held void for failure of court to state facts constituting alleged contempt and to make the same a matter of record in the court and to set forth the substance of the offense in the orders of commitment.

Original application by Lee Dawes, for a writ of habeas corpus, to be directed to the Sheriff of Cherokee county. Writ allowed, and petitioner discharged.

Bruce L. Keenan, of Tahlequah, for petitioner.

George F. Short, Atty, Gen., and G. B. Fulton, Asst. Atty. Gen., for respondent.

DOYLE J.

The petitioner, Lee Dawes, under the writ of habeas corpus issued herein seeks to obtain his release from the custody of the sheriff of Cherokee county.

The petitioner avers that the cause of his unlawful restraint is as follows: That J. T. Parks, district judge for the First judicial district, at Tahlequah, Cherokee county, February 6 1925, as said district judge, sentenced petitioner to be imprisoned and to pay fines for alleged direct contempts of court, and ordered the sheriff to take him from the room to the county jail; that, after petitioner had been removed from the courtroom, the said J. T. Parks presumed to have filed certain charges in writing against him, by W. W. Miller, the county attorney, each of which charged him with the commission of the crime of direct contempt of court.

It is further averred that on the said 6th day of February the only matters before the court were the contempt accusations against petitioner; that the first-mentioned charge was for an alleged statement by petitioner at a prior term of the court, and the second charge was for his statement to the court on February 5, 1925.

A duly certified transcript of the proceedings, attached to the petition and made a part thereof, is as follows:

"The Court: The reporter will take the proceedings. This is a matter of contempt proceedings before the district court against Lee Dawes. On yesterday, the 5th of February, 1925, Lee Dawes appeared in this court when it was duly and regularly convened at the February, 1925, term of said court and during the trial of causes appeared in the courtroom and addressed remarks to the judge of this court as follows: 'That you are the one that ought to go to jail, and I will see that you go there.' Previous to this time, and during the regular term of court in September, 1924, Lee Dawes, at that time appeared before this court, and asserted, in the presence of the court and in the presence of the people who were then in court in the courtroom, and during the regular September, 1924, term of court, and when this court was regularly and duly convened, and made the remark to this court: 'You are not honest. You can't look me in the eye.' For this attitude towards the court and the language used by the said Lee Dawes constitutes and appears to be direct contempt. Lee Dawes, now being before the court, is asked what he has to say to the charge herein contained.

Lee Dawes: Your honor, Lee Dawes is the defendant in the said cause, and asks this judge to be disqualified, as he is prejudiced towards the defendant now, and has been throughout the entire trial of all cases pending against him in said court.

The Court: Anything further?

Lee Dawes: No, sir.

The Court: This case being a contempt case, it is not one to be tried or submitted to any other court under the law; and it is the sentence and judgment of this court that Lee Dawes be commited to confinement in the county jail and there remain for a period of 90 days, and in addition thereto a fine of $500 is imposed upon him, and, if not paid, to be served out in the county jail at $1 per day, and he is placed in charge of the sheriff of Cherokee county at this time, to be thus confined and to begin his sentence at once, and it is so ordered, and the sheriff will take charge of him and confine him in the county jail.

Lee Dawes: If I had paid you $300, everything would have been all right.

The Court: Just wait a minute. Lee Dawes at this time states that, if he had paid this court $300, everything would be all right. Do you know any reason why you should not be held in contempt for this assertion and this contemptuous remark before this court at this time? For this remark before this court at this time and this contempt Lee Dawes is sentenced and ordered to be confined on the sentence in the county jail for the term of six months from the date of the expiration of the 90 days given in the previous case and fined in the sum of $250 in addition thereto; thus making three charges and offenses of contempt that have been committed by the said Lee Dawes before this court. (Lee Dawes taken into custody by sheriff and taken from courtroom.)

'The Court: The record should show, in rendering judgment in the Lee Dawes Case-it should be modified so as to show $250 fine and 30 days in jail on the September, 1924, offense of contempt; and a fine of $250 and 60 days in jail on the February 5, 1925, offense, that was yesterday, and then 6 months in jail and a fine of $500 on the offense committed today."

It is further averred that, after he was taken from the courtroom, and wholly without his knowledge, there now seems to have been made three charges of contempt against him, each entitled "State of Oklahoma v. Lee Dawes," and numbered 1348, 1349, and 1350, as the transcript attached hereto and made a part hereof shows.

It is further averred:

"That, for the failure of the court to punish the alleged direct contempts summarily at the time the court condoned and lost jurisdiction to punish on said 6th day of February for the direct contempt alleged to have been committed on the 15th day of September, 1924, and neither would the court have jurisdiction to punish on the 6th day of February for a contempt committed on the 5th day of February, unless the court noticed the contempt and summarily laid the foundation at that time for

contempt proceedings."

It is further averred:

That the judgments of conviction and commitments thereon are void:

"First. Because made apparently from separate and distinct charges of a crime committed against the peace and dignity of the state of Oklahoma, without notice or knowledge of him and not in his presence, and upon which he has never had a hearing.

Second. Because the several

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