Ex Parte Miller

• Decision Date: 01 November 1922
• Docket Number: (No. 6885.)
• Citation: 244 S.W. 612
• Parties: Ex parte MILLER.
• Court: Texas Court of Criminal Appeals

244 S.W. 612

Ex parte MILLER.

(No. 6885.)

Court of Criminal Appeals of Texas.

November 1, 1922.

Original application by E. T. Miller for a writ of habeas corpus against the Sheriff of Randall County. Writ granted, and relator ordered discharged.

Stone, Miller & Guleke, of Amarillo, for appellant.

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

LATTIMORE, J.

By direct writ of habeas corpus relator seeks relief at our hands from restraint by the sheriff of Randall county who is holding him by virtue of a judgment of contempt punishing him by a fine of $25. Relator is an attorney, and on the 16th day of September, 1921, was engaged in defending a client then on trial in a criminal case in the district court of said county. Among other defenses relied on was that of former jeopardy, it being alleged in a plea presenting such defense that at a former time said client had been put upon trial for the same offense, and that without having kept the jury trying said case together for a sufficient length of time to render it altogether improbable that they could agree, and over the objection of the accused, the court trying said case had discharged said jury and declared a mistrial. The alleged contempt herein grew out of the argument of the relator on said 16th of September in his discussion before the jury of said plea of jeopardy. It further appears from the record that on the 19th of September, 1921, after the conclusion of the trial last had, the court had the sheriff to summon relator before him, and then and there entered this judgment of contempt, fixing a fine of $100. Relator at once filed a written and sworn statement, disclaiming the use of any language, tone, or manner which either in fact or intent was contemptuous, and asked that the judgment be set aside. This was refused, though the amount of the fine was reduced to $25.

Several interesting questions are suggested in the record, which will not be discussed at length. It may be doubted if a summary judgment for contempt can be sustained which was not entered at the time the alleged contempt was committed, but at a later day, and without any formal summons to the accused, or the entry of any judgment nisi or the hearing of any evidence. It is also true that a judgment entry or other action of a court, the legality of which is attacked in a proper case, and which becomes an issue upon the trial of some other case, or upon another trial of the same case, can be discussed as freely and its illegality urged as strongly as though the court action so attacked was that of a court foreign to the forum then sitting. However, in considering the instant case we observe that neither the judgment of contempt nor the commitment issued thereunder presents the language of the supposed contemptuous utterance. In the judgment we find the following:

"Said E. T. Miller, in a loud voice and arrogant and vehement manner, stated to the said jury in the presence and hearing of said court and judge substantially that he had no complaint against the jury discharged, but did against ...