Ex Parte O'Fiel

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Lattimore
• Citation: Ex Parte O'Fiel, 246 S.W. 664 (Tex. Crim. App. 1923)
• Decision Date: 10 January 1923
• Docket Number: (No. 6947.)
• Parties: Ex parte O'FIEL.

246 S.W. 664

Ex parte O'FIEL.

(No. 6947.)

Court of Criminal Appeals of Texas.

January 10, 1923.

Original application by David O'Fiel for a writ of habeas corpus. Writ issued, and relator discharged.

Brooks, Hart & Woodward, of Austin, and David E. O'Fiel, of Beaumont, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

This is a direct application to this court for the issuance of a writ of habeas corpus. Relator was the attorney for one Anderson, who was upon trial for a felony in the district court at Beaumont, Tex., and following conviction thereof said attorney filed his motion for a new trial, one paragraph of which charged the trial court in strong language with partiality toward the state, and acts and conduct in detail during the trial in the presence and hearing of the jury, which, as alleged in said paragraph of said motion, greatly prejudiced the rights of relator's client and made it impossible for him to obtain a fair and impartial trial. Said motion was presented to the court for his action by another member of relator's law firm. When the objectionable paragraph was reached and read, the court halted further proceeding, ascertained that relator had written and filed said motion, sent for him, and asked him if he had so written and filed same, and upon affirmative answer said court directed the withdrawal of said paragraph from the motion, and upon the refusal of relator so to do entered an order and judgment of contempt against him, remanding him to the custody of the sheriff until a fine in the sum of $100 should be paid. Upon the usual allegation of illegal restraint this court issued its writ of habeas corpus.

From the agreed statement of facts on file it appears that the judgment of contempt was excepted to by relator upon the ground that he had been served with no notice of any charge of contempt, nor given any opportunity to present testimony in support of the truth of the facts set out in said paragraph of his said motion, nor had he been accorded any trial upon the merits of the matter of the alleged contempt. From the facts appearing in said agreed statement, we are led to believe this exception to rest upon good ground.

That the filing of an offensive paper in a court proceeding is a constructive contempt seems held in Ex parte Ireland, 38 Tex. 357; Ex parte Kilgore, 3 Tex. App. 253; Ex parte Landry, 65 Tex. Cr. R. 440, 144 S. W. 962; Ex parte Duncan, 78 Tex. Cr. R. 447, 182 S. W. 313, 2 A. L. R. 222. Many authorities are collated in support of this proposition in Ruling Case Law, vol. 13, C. J. p. 5. We do not think the fact that relator came to the courthouse in obedience to...