Ex Parte Landry

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtDavidson
Citation144 S.W. 962
Decision Date28 February 1912
PartiesEx Parte LANDRY.
144 S.W. 962
Ex Parte LANDRY.
Court of Criminal Appeals of Texas.
February 28, 1912.

Original application for habeas corpus by Emmett Landry. Accused discharged.

Marsene Johnson, K. C. Barkley, Elmo Johnson, and Roy Johnson, for applicant. Richard G. Maury, Dist. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.


During the trial of Sam Webber in the criminal district court of Harris county, under a charge of cattle theft, C. E. Chriss was the state's witness, and, among other things, testified that this applicant had asked him if he would take $500 and leave the county, further stating that if Chriss would accept that amount and leave the county he (applicant) would pay the witness' way to Beaumont and give him such reference that he could get employment upon his arrival at that point. This conversation,

Page 963

Chriss testified, happened between himself and applicant with no one else present. Applicant testified, denying that he had, "by act, word, or sign, or gesture, at any time, made Chriss any proposition to leave the county." He also denied having intimated to him that he desired him to leave the county, and never offered him any sum of money for that purpose, or any other inducement. He stated that he had a conversation with Chriss about the Webber case "at the instance of old man Webber, father of Sam Webber, who was tried for cattle theft, to ascertain why Chriss was against his son Sam, and wanted to turn him up." At another time, at the request of one of Sam Webber's attorneys, he requested Chriss to call at the office of said attorney. This occurred shortly before the trial of Sam Webber. Chriss did not call, though he consented so to do. During their conversation, applicant informed Chriss that "Webber wanted to make friends with him." Chriss promised to see Webber's counsel at 3 o'clock p. m., but did not do so. Chriss further stated to applicant in the conversation that "there is nothing I can do for Webber but this. He said he is worth $600 — he never said $500 at all — to convict Webber, and if I go up there he is bound to be convicted, and if Webber will give me $600 I will be willing to get out of the way." He also said something about going to Arkansas, where he had a friend. He further stated to applicant that he had been out money already on the case, and was afraid he was going to be arrested. Chriss' evidence constituted him a principal in the cattle theft with Webber, and he testified by turning state's evidence against Webber. The testimony of applicant was corroborated by other witnesses in regard to Chriss' expectation of receiving $600 from the Cattlemen's Association for his services in the Webber case. Chriss denied making any statement to the effect that the Cattlemen's Association was going to pay him $600, as testified by other witnesses. This much has been stated to show that it was an issue between appellant and Chriss as to what occurred between them in regard to the alleged offered bribe to induce Chriss to leave the county. The evidence of Chriss on the Webber trial, therefore, could be only for the purpose of impeaching applicant as a witness, if applicant testified in the trial of the Webber case.

It will be observed from this statement that under the testimony of Chriss this would be both a constructive and a criminal contempt. A criminal contempt is directed against the dignity of the court and as well against the majesty and dignity of the law. Volume 4, Ency. Pl. & Pr. pp. 766-768; Ex parte Robertson, 27 Tex. App. 628, 11 S. W. 669, 11 Am. St. Rep. 207; Gompers v. Buck Stove & Range Co., 221 U. S. 446, 31 Sup. Ct. 492, 55 L. Ed. 808, 34 L. R. A. (N. S.) 874. It is further laid down, and may now be said to be the settled law, that the rules of evidence applicable to the proceedings to punish for contempt are also those of criminal law, mere preponderance of the evidence being insufficient to convict the accused; but, in accordance with the general rule in criminal cases, proof of the alleged offense is required beyond a reasonable doubt. Volume 4, Ency. Pl. & Pr. pp. 768, 769; In re Buckley, 69 Cal. 1, 10 Pac. 69; Benbow v. Kellom, 52 Minn. 433, 54 N. W. 482; Hall v. Young, 37 N. H. 134; Bates' Case, 55 N. H. 325; Probasco v. Probasco, 30 N. J. Eq. 63; Magennis v. Parkhurst, 4 N. J. Eq. 433; State v. Raborg, 5 N. J. Law, 545; Jackson v. Virgil, 3 Johns. (N. Y.) 138; Gage v. Denbow, 49 Hun, 42, 1 N. Y. Supp. 826; Ross v. Butler, 57 Hun, 110, 10 N. Y. Supp. 444; Sutton v. Davis, 6 Hun (N. Y.) 237; Id., 64 N. Y. 633; Harwell v. State, 10 Lea (Tenn.) 544; State v. Cunningham, 33 W. Va. 607, 11 S. E. 76; State v. Ralphsnyder, 34 W. Va. 352, 12 S. E. 721; In re Judson, 3 Blatchf. 148, Fed. Cas. No. 7,563; Accumulator Co. v. Consolidated Electric Storage Co. (C. C.) 53 Fed. 793; United States v. Jose (C. C.) 63 Fed. 951; Birdsell v. Hagerstown Agricultural Implement Mfg. Co., 1 Hughes, 59, Fed. Cas. No. 1,436. It is also now the settled rule that every presumption and intendment of innocence is to be held favorable to the party charged with contempt. Weeks v. Smith, 3 Abb. Prac. (N. Y. Sup. Ct.) 211; Potter v. Low, 16 How. Prac. (N. Y. Sup. Ct.) 549; Slater v. Merritt, 75 N. Y. 268; Whipple v. Hutchinson, 4 Blatchf. 190, Fed. Cas. No. 17,517; Woodruff v. North Bloomfield Gravel Mining Co. (C. C.) 45 Fed. 129; Accumulator Co. v. Consolidated Electric Storage Co. (C. C.) 53 Fed. 793. In Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874, it was said: "If, then, as the Court of Appeals correctly held, the sentence was wholly punitive, it could have been properly imposed only in a proceeding instituted and tried as for criminal contempt. The question as to the character of such proceedings has generally been raised in the appellate court to determine whether the case could be reviewed by writ of error or on appeal. Bessette v. W. B. Conkey Co., 194 U. S. 324, 24 Sup. Ct. 665, 48 L. Ed. 997. But it may involve much more than mere matters of practice. For, notwithstanding the many elements of similarity in procedure and in punishment, there are some differences between the two classes of proceedings which involve substantial rights and constitutional privileges. Without deciding what may be the rule in civil contempts, it is certain that in proceedings for criminal contempts, the defendant is presumed to be innocent. He must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself. Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; U. S. v. Jose [C. C.] 63

Page 964

Fed. 951; State v. Davis, 50 W. Va. 100, 40 S. E. 331; King v. Ohio & M. R. R. Co., 7 Biss. 529, Fed. Cas. No. 7,800; Sabin v. Fogarty [C. C.] 70 Fed. 482; Drakeford v. Adams, 98 Ga. 724, 25 S. E. 833." The authorities cited would seem all-sufficient to leave it clear that in a criminal action or criminal contempt the state or the prosecution is required to assume the burden of proof to overcome the presumption of innocence to the exclusion of the reasonable doubt. In this case, the state was demanding punitive punishment, and the judgment shows that the penalty inflicted was three days confinement in jail and a fine of $100.

2. It is urged that it is a prerequisite in criminal contempts that an affidavit, charging the essential elements of such contempt, shall be made as a basis for the prosecution and trial of the case. If applicant is correct in this proposition — that is, that an affidavit is necessary — then it is unquestionably correct that such affidavit should and must state a prima facie case of contempt. Volume 4, Ency. Pl. & Pr. 780; Ex parte Ah Men, 77 Cal. 198, 19 Pac. 380, 11 Am. St. Rep. 263; Ex parte Fong Yen You, 77 Cal. xix, 19 Pac. 500; Whitten v. State, 36 Ind. 196; McConnell v. State, 46 Ind. 298; Worland v. State, 82 Ind. 49; State v. Myers, 44 Iowa, 580; In re Cheeseman, 49 N. J. Law, 115, 6 Atl. 513, 60 Am. Rep. 596; People ex rel. Barnes v. Ct. of Sessions, 82 Hun, 242, 31 N. Y. Supp. 373; People v. Wilson, 5 Johns. (N. Y.) 368; State v. Mitchell, 3 S. D. 223, 52 N. W. 1052; Young v. Cannon, 2 Utah, 560. These cases lay down the correct rule in regard to pleading and the essential elements which must form a basis for the prosecution of criminal contempt, and that rule is that the affidavit must set forth a prima facie case. Among other things, it must state and show knowledge on the part of the contemnor that he had committed contempt, and wherein he had done so. It must charge him of knowledge, among other things, of the violated process or order of the court, where that is the basis of contempt. People v. District Court, 19 Colo. 343, 35 Pac. 731; Wyatt v. People, 17 Colo. 252, 28 Pac. 961; Hodges v. Sup. Ct., 67 Cal. 405, 7 Pac. 767; Ex parte Willand, 20 Eng. L. & Eq. 293, 9 Cyc. p. 38, and cases cited in note 2.

Recurring now to what is necessary pleading as a basis for instituting contempt, it may be thus stated: "The almost universal method by which contempt proceedings are begun is by an affidavit, and an examination of the authorities will generally disclose that in all contempt proceedings, save such as are committed in the court's immediate presence, an affidavit is necessary." Volume 4, Ency. Pl. & Pr. 779; Batchelder v. Moore, 42 Cal. 412; Hughes v. People, 5 Colo. 436; Thomas v. People, 14 Colo. 254, 23 Pac. 326, 9 L. R. A. 569; Wyatt v. People, 17 Colo. 252, 28 Pac. 961; Whitten v. State, 36 Ind. 196; State v. Vincent, 46 Kan. 618, 26 Pac. 939; Murdock's Case, 2 Bland (Md.) 461, 20 Am. Dec. 381; In re Wood, 82 Mich. 75, 45 N. W. 1113; Phillips v. Welsh, 12 Nev. 158; People v. Brower, 4 Paige (N. Y.) 405; People v. Murphy, 1 Daly (N. Y.) 462; Baker v. Williams, 12 Barb. (N. Y.) 527; State v. Kaiser, 20 Or. 50, 23 Pac. 964, 8 L. R. A. 584; State v. Blackwell, 10 S. C. 35; Young v. Cannon, 2 Utah, 560; Wilson v. Ter., 1 Wyo....

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18 practice notes
  • Robertson v. State, 6 Div. 643
    • United States
    • Alabama Court of Appeals
    • December 16, 1924
    ...62 P. 289; Freeman v. Huron, 8 S.D. 436, 66 N.W. 928; Belangee v. State, 97 Neb. 184, 149 N.W. 415; Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962; In re Rice (C.C.) 181 F. 217; State v. Gallup, 1 Kan.App. 618, 42 P. 406; Russell v. Wayne, Circuit Judge, 136 Mich. 624, 99 N.W. 864. In Bela......
  • Ex parte Krupps, No. 69491
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 11, 1986
    ...is an affront to the dignity of the court or is disruptive in the courtroom, Ex parte Gordon, supra; Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962 (1912); Ex parte Wolters, 64 Tex.Cr.R. 238, 144 S.W. 531 (1911), or "tends to bring the authority and administration of the law into disrespec......
  • Ex Parte Craig, No. 23232.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 13, 1946
    ...Tex.App. 247; Ex parte Foster, 44 Tex. Cr.R. 423, 71 S.W. 593, 594, 60 L.R.A. 631, 100 Am.St.Rep. 866; 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; Ex parte O'Fiel, 93 Tex.Cr. R. 214, 246 S.W. 664; and many Judge Greenwood, ......
  • Creekmore v. United States, 4591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 17, 1916
    ...to answer an essentially criminal charge based merely upon the belief of a private prosecutor.' In Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962, in the Texas Court of Criminal Appeals, in the opinion may be found an expression that the affidavit should be positive, and not on information......
  • Request a trial to view additional results
18 cases
  • Robertson v. State, 6 Div. 643
    • United States
    • Alabama Court of Appeals
    • December 16, 1924
    ...62 P. 289; Freeman v. Huron, 8 S.D. 436, 66 N.W. 928; Belangee v. State, 97 Neb. 184, 149 N.W. 415; Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962; In re Rice (C.C.) 181 F. 217; State v. Gallup, 1 Kan.App. 618, 42 P. 406; Russell v. Wayne, Circuit Judge, 136 Mich. 624, 99 N.W. 864. In Bela......
  • Ex parte Krupps, No. 69491
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 11, 1986
    ...is an affront to the dignity of the court or is disruptive in the courtroom, Ex parte Gordon, supra; Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962 (1912); Ex parte Wolters, 64 Tex.Cr.R. 238, 144 S.W. 531 (1911), or "tends to bring the authority and administration of the law into disrespec......
  • Ex Parte Craig, No. 23232.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 13, 1946
    ...Tex.App. 247; Ex parte Foster, 44 Tex. Cr.R. 423, 71 S.W. 593, 594, 60 L.R.A. 631, 100 Am.St.Rep. 866; 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; Ex parte O'Fiel, 93 Tex.Cr. R. 214, 246 S.W. 664; and many Judge Greenwood, ......
  • Creekmore v. United States, 4591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 17, 1916
    ...to answer an essentially criminal charge based merely upon the belief of a private prosecutor.' In Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962, in the Texas Court of Criminal Appeals, in the opinion may be found an expression that the affidavit should be positive, and not on information......
  • Request a trial to view additional results

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