Ex Parte McGraw, (No. 9898.)

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: Morrow
• Citation: 277 S.W. 699
• Parties: Ex parte McGRAW.
• Docket Number: (No. 9898.)
• Decision Date: 18 November 1925

277 S.W. 699 Ex parte McGRAW. (No. 9898.) Court of Criminal Appeals of Texas. November 18, 1925.

Original application for writ of habeas corpus by William M. McGraw seeking release from custody under judgment for contempt. Writ denied.

Grover Adams, of Dallas, for relator.

Phillips, Townsend & Phillips and Allen, Callaway & Allen, all of Dallas, Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

MORROW, P. J.

This is an original habeas corpus proceeding in which relator seeks release from custody under a judgment for contempt.

On the 30th day of October, at about 5 o'clock p. m., relator, an attorney at law, was, in open court by verbal announcement from the bench by the trial judge, adjudged guilty of contempt of court because of certain remarks made in the presence and hearing of the court while in session. After making the verbal announcement, the court at once prepared in writing the judgment reciting the facts constituting the contempt and the punishment. This judgment was signed by the judge in his official capacity, delivered to the clerk of the court, filed by him and placed in the records of the court, and on the following morning, at about 10 o'clock, was transcribed by him upon the minute book of the court. Upon receipt of the judgment prepared and signed, the clerk issued a commitment for the relator, directed to the sheriff. The relator was not taken in custody at once, but on the following morning, at 8 o'clock, he surrendered himself to the sheriff and was by him held in custody. At about 9 o'clock, on the morning of the 31st day of October, a writ of habeas corpus was issued by the presiding judge of this court. At what time the commitment came into the hands of the sheriff is not revealed, but in his return filed in this court, the statement is made that the relator was held by virtue of the commitment mentioned and the judgment described. Certified copies of both the commitment and judgment are attached to the sheriff's return, the latter showing it to be of record in the minutes of the court.

Upon this hearing the facts are not in dispute. It is not contended that the conduct of the relator did not warrant the judgment, but the sole question presented grows out of the procedure. Relator contends that his detention is illegal because at the time he was taken in custody the order adjudging him guilty of contempt had not been spread upon the minutes of the court by the clerk, and that its record in the minutes after the issuance of the writ of habeas corpus did not validate the detention. The respondent contends that before the relator was taken in custody, he had been adjudged guilty of

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contempt in open court, the amount of punishment fixed, and a formal order of the court reduced to writing, signed by the judge in his official capacity, delivered to the clerk, and filed by him as a record of the court; that the commitment issued thereon is a valid warrant for the detention of the relator, although at the time of the issuance of the commitment and at the time the relator was taken in custody the clerk had not copied in the minutes of the court the aforesaid order written and signed by the judge and filed by the clerk.

The district court, by statute, is given the power to punish for contempt by imprisonment not...