Ex Parte Duncan

• Decision Date: 12 January 1916
• Docket Number: (No. 3899.)
• Citation: 182 S.W. 313
• Parties: Ex parte DUNCAN.
• Court: Texas Court of Criminal Appeals

182 S.W. 313

Ex parte DUNCAN.

(No. 3899.)

Court of Criminal Appeals of Texas.

January 12, 1916.

Original application by John T. Duncan for a writ of habeas corpus. Writ issued, and relator discharged.

Dickens & Dickens, of Austin, and A. Burleson, of Smithville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Relator was adjudged guilty of contempt of court by Hon. Frank S. Roberts, judge of the district court of the Twenty-Second judicial district, and his punishment assessed at a fine of $50 and one day's imprisonment in the county jail.

Relator made application to this court for a writ of habeas corpus, but inasmuch as the petition showed that the alleged contempt was certain statements contained in a brief in a civil cause on appeal, we first declined to issue the writ until it was presented to our Supreme Court, deeming it probable that that court had jurisdiction under article 1529 of the Revised Civil Statutes, as the alleged contempt grew out of proceedings had in a civil case. However, upon consideration, one of the justices of the Supreme Court indorsed on the application that the Supreme Court declined to issue the writ for lack of jurisdiction, and as there could be no doubt that this court had jurisdiction under the Constitution to issue the writ, after the Supreme Court had held it was without jurisdiction, we ordered the writ to issue, returnable on January 5, 1916. On that day the cause was heard, and it was made to appear that in the case of Isolda Zapp v. Y. F. Mossop, in the district court of Fayette county, the said Hon. Frank S. Roberts, as judge of that court, on the 18th day of December, 1914, entered a certain judgment in favor of plaintiff. Notice of appeal was given, but no appeal perfected. However, in September, 1915, the defendant Y. F. Mossop sued out a writ of error to the First Court of Civil Appeals at Galveston, and filed a brief in said cause on September 23, 1915, and also filed a copy of the brief with the clerk of the district court, in Fayette county, as he was required by law to do. It is a portion of the language used in this brief by relator, as attorney for Mossop, that is held to improperly reflect on the trial court, and for the use of which language he was held to be in contempt of court.

It is agreed that the district court of Fayette county was not in session when the brief was filed, and that the language was not used in the presence and hearing of the court; but, if the language was improper, it constituted what in law is termed constructive contempt. Relator earnestly insists that the language used was in no wise intended to reflect on the trial judge, but was intended to be but an earnest plea for his client. As Hon. Frank S. Roberts has held said language to be contemptuous, we will not discuss that question, but only inquire into whether or not the necessary and proper steps were taken to confer jurisdiction on the judge of the Twenty-Second judicial district to adjudge relator guilty. If the proper steps were not taken to confer jurisdiction on that court, relator is entitled to be discharged.

After the brief had been filed, Mr. C. D. Krause, an attorney of the Fayette county bar, having his attention called to the brief (it also using language that he contended improperly reflected on him), addressed a petition to the judge, calling his attention to the language used in the brief. Upon the filing of this petition, Judge Roberts ordered process to issue summoning relator to appear before him and show cause why he should not be adjudged to be guilty of contempt for making use of such language. On the day named relator appeared, and filed an answer, first pleading that the court had no jurisdiction, in that the petition filed was not sworn to by Mr. Krause, nor any other person. We are of the opinion this plea should have been sustained, and this court so held in Ex parte Foster, 44 Tex. Cr. R. 425, 71 S. W. 593, 60 L. R. A. 631, 100 Am. St. Rep. 866, and Ex parte Landry, 144 S. W. 962. In this latter case Judge Davidson exhaustively reviewed the authorities and held:

"If the acts or conduct occur in the presence or hearing of the court, it may deal summarily with the contemnor without a written statement charging the contempt; but, where the contempt does not occur in its presence and hearing, the better practice is to present the contempt by written charges, which should be sworn to, unless presented in writing by the district attorney in his official capacity."

State's counsel contends that we were wrong in so holding, in an able brief, and that those decisions should not be followed. In deference to the earnest insistence, we have again investigated this question, and we think the great weight of authority is with the holding of the court. In Rapalje on Contempt, § 93, it is said:

"In the United States the almost universal practice in this matter is to present to the court an affidavit setting forth the facts and circumstances constituting the alleged contempt, sworn to by some person who witnessed or had knowledge of the offense. Unless such an affidavit be presented, process will not be granted. The issuing of process without the filing of the proper affidavit is erroneous, and the error is...