Ex Parte Olson

• Decision Date: 24 June 1922
• Docket Number: (No. 3812.)
• Citation: 243 S.W. 773
• Parties: Ex parts OLSON.
• Court: Texas Supreme Court

Page 773

243 S.W. 773

Ex parts OLSON.

(No. 3812.)

Supreme Court of Texas.

June 24, 1922.

Ex parte application for writ of habeas corpus by Oscar Olson. Relator remanded to custody of sheriff.

Miller & Haworth, of Breckenridge, for applicant.

W. A. Keeling, Atty. Gen., S. J. Osborne, Dist. Atty., of Breckenridge, and L. C. Sutton, Asst. Atty. Gen., for the State.

CURETON, C. J.

A writ of habeas corpus was issued in this proceeding on the application of relator, Oscar Olson, complaining that he was restrained of his liberty by the sheriff of Stephens county under an order and commitment of the Ninetieth district court of that county issued on the 2d day of June, 1922. The case was heard in this court on June 14, 1922, on the application, answer, and agreed record. The relator was committed for contempt for an alleged violation of an injunction issued by the said district court. We will now state the facts leading up to the relator's imprisonment.

On the 16th of February, 1922, Hon. S. J. Osborne, district attorney of Stephens county, Tex., prepared and presented to Hon. C. O. Hamlin, judge of the Ninetieth judicial district, a sworn petition for a temporary injunction against the relator, the substance of which is, briefly, as follows: The petition is in the name of the state of Texas, through its district attorney, and alleges that the relator, Oscar Olson, resides in the city of Breckenridge, Stephens county, and pretends to operate a drug store in that city, but that in truth and in fact he was engaged in the business of an unlawful intoxicating liquor seller, and used the name of drug store as cover for his unlawful and illegal business of selling intoxicating liquor in violation of the laws of the state. The petition further stated that relator would continue to engage in the business of selling spirituous, vinous, and malt liquors and medicated bitters, in violation of law unless restrained by the court. It was alleged that relator sold Jamaica ginger, an intoxicant containing more than 2 per cent. alcohol, for beverage purposes, and would continue to do so, unless restrained. The petition further declared that relator was in the business of selling, and sold to the public, a drink called "Jake," which is an intoxicant containing more than 1 per cent. alcohol; that he had made many sales of this drink to divers person in open defiance of the laws of the state, and would continue so to do, unless restrained by the court. The petition likewise declared that the relator had a house in the city of Breckenridge, in Stephens county, in which he conducted the unlawful business alleged, that said business was a public nuisance, and that he had in the house counters, glasses, bottles, jugs, and paraphernalia used in the unlawful business. It was declared that relator would continue this unlawful business unless restrained by the court, and that it was necessary for a temporary injunction to issue at once. The state asked, among other things, that relator's house be closed, as required by law, and the property used by him in the conduct of the unlawful business alleged, including the liquors found and ordered destroyed by the court. The state prayed also:

"That the court issue a temporary injunction restraining the defendant from selling any intoxicating liquors whatsoever, including the sale of Jamaica ginger of the drink called `Jake,' or intoxicating liquor mixed with any other drink, and that on hearing hereof said injunction be made permanent, and for such other relief, in law or in equity, as the state may be entitled to, together with judgment for costs."

The petition was properly sworn to by the district attorney. It was presented to the district judge on the date above stated, who indorsed thereon his fiat, as follows:

"The foregoing petition examined by me this, the 16th day of February, 1922, and temporary injunction as prayed for granted, and the clerk of this court will issue writ restraining the defendant, Oscar Olson, from selling intoxicating liquors of any kind, or selling Jamaica ginger or the drink called `Jake,' or Jamaica ginger mixed with any other substance or liquid."

The injunction was clearly, authorized by the statute. Articles 4649, 4650, Vernon's Complete Statutes 1920; articles 588¼a1, 588¼b, 588¼c, 588¼rr, Vernon's Texas Statutes Supp. 1922. This petition, with the fiat of Judge Hamlin, was filed in the district court on the 16th of February, 1922. On the same day that this petition was filed the clerk issued a citation in the usual form, addressed to the relator, Oscar Olson. The substance of the petition was set up in the citation, including the prayer for temporary injunction. The citation was served on relator on the day of issuance. On the same day the clerk issued a temporary injunction addressed to relator, Oscar Olson, which contained the substance of the petition and a copy of the judge's fiat heretofore quoted in the opinion. The temporary injunction was served on the relator on the day it was issued. This was all in compliance with the statute. Articles 4652, 4653, 4655, 4656, 4658, 4659, Vernon's Complete Texas Statutes. On March 18, 1922, relator made his appearance in response to the petition filed against him, by filing an answer in the cause as permitted by article 4663, Vernon's Complete Texas Statutes; but, since the case has not heretofore been tried on the petition, and this proceeding in no way relates to the actual final determination of the controversy, it is unnecessary to state the substance of the answer. On May 30, 1922, the district attorney prepared and presented to the district judge an affidavit directing attention to the filing of the petition above described, the granting of the temporary injunction, the issuance of the writ, service of citation on the relator, and the filing of his answer in the cause. The affidavit then alleged:

That on or about the 20th day of May, 1922, relator, in open defiance of the temporary writ of injunction "which he well knew, and one Rock Weaver, an employee of said Oscar Olson, acting together, sold to E. J. Kiker spiritous and intoxicating liquors and the drink called `Jake,' and Jamaica ginger, in violation of your honor's writ of injunction, which was in full force and effect and not vacated; * * * that, in addition to said sale as aforesaid, the said Oscar Olson and the said Rock Weaver have never desisted from selling any of the liquors prohibited by your honor's writ, but that each of them have, in open defiance of your honor's writ, openly defied your honor's authority and your writ of injunction, and have sold to divers persons, whose names are unknown to me, intoxicating liquors, Jake and Jamaica ginger; and that said sale to said Kiker and to the divers other persons whose names are unknown to me was not for medical purposes, but for beverage purposes, and in plain violation of the prohibition laws of Texas."

Prayer was made in the affidavit for a warrant of arrest, and that relator be brought before the court and punished for contempt, as provided by law. This affidavit was presented to Judge Hamlin, who directed the clerk of the court to issue an order citing relator to appear before him in the district court room of Stephens county on June 1, 1922, at 9 o'clock a. m. to show cause, if any, why he should be adjudged in contempt of court, and at which hearing full inquiry would be made as to whether he should be punished by the court for violation of the writ of injunction issued by the court. Citation in proper form issued to relator by the clerk of the court commanding him to appear at the time and place named by the district judge to show cause why he should not be punished as for contempt. The substance of previous proceedings and of the affidavit referred to was embraced in the citation to show cause, which was served on relator on May 30, 1922. This was all plainly authorized by the statutes and the general rules of equity. Articles 4669, 4671, Vernon's Complete Texas Statutes; 9 Cyc. p. 39; Ex parte Ireland, 38 Tex. 351.

The trial of the contempt case came on to be heard, however, before Judge Hamlin on June 2, 1922, who proceeded to hear proof, as provided by article 4670, Vernon's Complete Texas Statutes. The relator appeared at the trial, but filed no answer, and did not testify. His counsel, however, took an active part in the trial, cross-examining the state's witnesses and placing on the witness stand witnesses for relator.

Upon this hearing the court found relator guilty of contempt and punished him therefor by fine of $500, and, in addition, by confinement in the county jail for 120 days, under article 588¼s, Vernon's Statutes, Supp. 1922. Upon this judgment commitment issued, and relator applied to this court for relief by habeas corpus. Articles, 4670, 1529, Vernon's Complete Texas Statutes.

It is unnecessary for us to state the evidence in detail, in view of the law which governs us in the consideration of a case of this character, but, for the purpose of showing that relator was given such a trial as is contemplated by the constitutional guaranty of due process, we will advert to some of the testimony.

E. J. Kiker, who was on the grand jury of Stephens county in May of this year, testified that on the 4th of May he went to relator's place of business and purchased from relator's clerk there four bottles of Jamaica ginger, which were identified and introduced in evidence in this case. He stated that be bought the ginger from a man who was working behind the soda fountain, whose name the record discloses was Rock Weaver, the relator in another case pending in this court. Mr. Kiker paid $2 for the four ounces of Jamaica ginger. The witness said in part:

"I went into the store and asked him [the clerk] if he had any Jake, and he said `Yes,' he could fix me a drink, and started to mix it with a Coca-Cola, or in a Coca-Cola glass, and I told him I did not want to drink it...