Ex parte Gudenoge
| Decision Date | 03 March 1909 |
| Citation | 100 P. 39,2 Okla.Crim. 110,1909 OK CR 39 |
| Parties | Ex parte GUDENOGE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Under section 21 of the Bill of Rights (Bunn's Ed. § 30), which declares that "no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided," and section 27 of the Bill of Rights (Bunn's Ed. § 36), which provides that "any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing, concerning which he may so testify or produce evidence"-where a person is under examination before a county judge in an investigation into supposed violations of the prohibitory law, otherwise known as the "Enforcement Act" (Laws 1907-08, p. 604, c 69), under the provisions of section 4 of said act, he is not obliged to answer questions where his answers will tend to incriminate him, unless the inquisition is held for the purpose of inquiring into a complaint made, supported by affidavit, charging an offense against the provisions of the prohibitory law.
[Ed Note.-For other cases, see Witnesses, Dec. Dig. § 304 [*]]
Section 27 of the Bill of Rights (Bunn's Ed. § 36) removes the protection of the constitutional privilege as set forth by section 21 of the Bill of Rights (Bunn's Ed. § 30), and said section 27 must be construed as declaring that no evidence obtained from a witness by means of a judicial proceeding shall be given in evidence or in any manner used against him or his property or estate, in any court of the state, in any criminal proceeding, or for the enforcement of any penalty or forfeiture; provided, that on an inquisition held under section 4, art. 3, c. 69, p. 604, Sess. Laws 1907-08, otherwise known as the "Enforcement Act," the proceeding so held shall be predicated upon a complaint made, supported by affidavit, that there has been a violation of the penal provisions, or some one of them, of said act charging some person or persons with said violation.
[Ed Note.-For other cases, see Witnesses, Dec. Dig. § 304. [*]]
The manifest purpose of the constitutional provisions, both of the United States and of this state, is to prohibit the compelling of testimony of a self-criminating kind from a party or witness.
[Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1014; Dec. Dig. § 293. [*]]
An inquisition under the provisions of section 4 of said enforcement act (Laws 1907-08, p. 604, c. 69) is a proceeding special in its nature, and no presumption can attach in favor of its jurisdiction.
[Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 198. [*]]
No statute, which leaves a party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution. To be valid the statute must afford absolute immunity against future prosecution for the offense to which the question relates.
[Ed. Note.-For other cases, see Witnesses, Dec. Dig. § 304. [*]]
Contempts of court are divided into direct and indirect contempts, and are classified as civil and criminal. The distinction between "civil" and "criminal" contempts is plainly drawn. The former consists in disobeying some judicial order made in the interest of another party to the proceeding; the latter, of acts disrespectful to the court or obstructive to the administration of justice, or calculated to bring the court into disrepute.
[Ed. Note.-For other cases, see Contempt, Dec. Dig. § 2; [*] Witnesses, Cent. Dig. § 39; Dec. Dig. § 21. [*]
For other definitions, see Words and Phrases, vol. 2, pp. 1194, 1195, 1747, 1748.]
The power of courts to punish for contempt is inherent. Refusal to answer questions in a criminal proceeding is a criminal contempt, and the punishment therefor is governed by the provisions of the Criminal Code, and where the statute limits the duration of the punishment the punishment may conform to such limitation, but cannot exceed it.
[Ed. Note.-For other cases, see Contempt, Cent. Dig. §§ 91, 93; Dec. Dig. § 30; [*] Witnesses, Cent. Dig. § 39; Dec. Dig. § 21. [*]]
Where the court or judge thereof was without jurisdiction or power to render the judgment or issue process for the imprisonment of a party, the imprisonment is illegal, and this court will grant relief by habeas corpus.
[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 22; Dec. Dig. § 27. [*]]
Jurisdiction of the person and of the subject-matter are not alone conclusive, but the jurisdiction of the court or judge thereof to render the particular judgment is a proper subject of inquiry, and if, upon the whole record, it appears that the judgment was unwarranted by law, the contemnor will be released on the hearing of a writ of habeas corpus.
[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 21; Dec. Dig. § 26[*]]
Original application for habeas corpus by J. P. Gudenoge. Writ allowed, and petitioner discharged.
No statute, which leaves a party or witness the subject of prosecution after he answers the incriminating question put to him, can have the effect of supplanting the privilege conferred by Bill of Rights, § 21, Bunn's Ed. § 30, declaring that no person shall be compelled to give evidence which will tend to incriminate him, except as in the Constitution provided; but to be valid the statute must afford absolute immunity against future prosecution.
The petitioner, J. P. Gudenoge, was on the 19th day of December 1908, committed to the county jail by L. R. Shean, county judge of Washita county, for a period of 60 days, as for contempt of court. On February 25, 1909, petitioner filed in this court a petition signed and verified by his oath, and which, omitting the formal parts, reads as follows: "Your petitioner, J. P. Gudenoge, represents and states: That he is a citizen of the state of Oklahoma, and that he is restrained of his liberty and is unlawfully imprisoned and restrained at the county jail of Washita county in the city of New Cordell, in said state, by W. H. Griffin, sheriff of said Washita county. That the cause of said restraint, according to the best of the knowledge and belief of your petitioner is: A commitment issued on the 19th day of December, 1908, by L. R. Shean, county judge of said Washita county, committing your petitioner to said county jail for a period of 60 days from said 19th day of December, 1908, upon a pretended conviction of your petitioner for a contempt of court. A copy of said commitments is hereto attached, marked 'Exhibit A,' and made a part hereof. That the proceeding in which said alleged contempt of court took place was a pretended prosecution before said county judge, entitled as State of Oklahoma v. John Doe and Richard Roe, and was a wholly fictitious and nonexisting cause, no person being charged with the violation of law, but was an inquisition being held by said county judge, under authority given by section 4, art. 3, p. 604, of the prohibition law of Oklahoma for the years 1907 and 1908; and your petitioner was prior to the said 19th day of December, 1908, to wit, on the 10th day of December, 1908, subpoenaed to appear before said county judge to give evidence in said last above entitled proceeding as a witness. That on said date, to wit, December 10, 1908, your petitioner appeared before said county judge in obedience to said subpoena, and was sworn as a witness. That he did not refuse to produce any books or papers, nor did he refuse to answer any proper or legal question propounded to him as such witness, pertinent to the case, but did decline to answer certain impertinent, improper, and illegal questions; whereupon said county judge issued a commitment committing your petitioner to the county jail for a period of 10 days, as for contempt of court. That petitioner has been unable to obtain a copy of said last-named commitment, but avers that the same is in substance the same as 'Exhibit A' hereto, except that the time of imprisonment was fixed at 10 days, instead of 60 days, as in 'Exhibit A.' That on, to wit, the 19th day of December, 1908, your petitioner was taken before said county judge, the county attorney being present, and was asked to be sworn in the same matter, and your petitioner informed said county judge that he had been once sworn, and could see no use in again being sworn; whereupon the county attorney asked him to affirm, which your petitioner declined to do on the ground that he had already been sworn in the matter, and stated that he did not see any use in being sworn again; whereupon said county judge at once signed the commitment, 'Exhibit A' hereto, the same being all made out with the exception of the signature of said county judge, committing your petitioner for contempt to the county jail, as shown by said commitment 'Exhibit A,' and your petitioner avers that he has been imprisoned on said proceedings in the county jail of said county ever since said 10th day of December, 1908, a period of about 55 days, and that he is still confined in said jail on said commitment, 'Exhibit A' hereto. That said commitment, 'Exhibit A,' is wholly void, and said county judge had no jurisdiction or power under the Constitution and laws of this state to issue the same imprisoning your petitioner for a period of 60 days. That there was no order made adjudging your ...
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