Ex parte Stidger

• Decision Date: 02 July 1906
• Citation: 86 P. 219,37 Colo. 407
• Parties: Ex parte STIDGER.
• Court: Colorado Supreme Court

86 P. 219

37 Colo. 407

Ex parte STIDGER.

Supreme Court of Colorado, En Banc.

July 2, 1906

Original proceeding by George Stidger for a writ of habeas corpus for his discharge from imprisonment under a judgment for contempt.Writ denied, and proceeding dismissed.

Goddard and Bailey JJ., dissenting.

George S. Redd, Greeley W. Whitford, John H. Chiles, and Harry S Silverstein, for petitioner.

N. C Miller, Atty. Gen., and W. R. Ramsey, Asst. Atty. Gen., for respondents.

GUNTER J.

This is an original proceeding by habeas corpus.Relief is sought from imprisonment under a judgment for contempt by the district court.Upon the filing here of the petition for the writ of habeas corpus, the writ was granted.Among the respondents thereto were the judge of said court and the sheriff in whose custody pursuant to said judgment was the petitioner herein.The sheriff made return wherein he set out the warrant of commitment under which the petitioner was held and wherein he alleged that: 'Said warrant of commitment was issued in the manner and under the circumstances and for the purpose set forth in the petition of the said George Stidger herein.'Whether it was competent for the sheriff to make as a part of his return any other matter than a copy of the warrant of commitment--that is, whether he could conclude us by his admissions that the facts pertinent to the judgment in contempt were as alleged in the petition--we do not decide, but for the purpose of this ruling it will be conceded that he has made the facts set out in the petition a part of his return.The case is submitted on a demurrer, by the petitioner, to the return and the question before us is: Should the petitioner be discharged in this proceeding if the facts be as set out in the return?

The facts so presented material to this ruling are these: Hon. F T. Johnson was one of the five judges of said district court, and at the times herein mentioned was sitting in the fourth division thereof.Petitioner was the district attorney of the same court.September 23, 1905, a petition entitled 'In the Matter of the Enforcement of the Laws in Relation to Gambling' was filed with said judge by the society for the suppression of gambling.The petition recited that the laws in relation to gambling were being violated in the city of Denver with the knowledge of the executive officers of the city and county of Denver and designated five places where gambling was allowed to be carried on.The petition further recited that the several judges of the district court throughout the state had full power under section 1482, Mills' Ann. St., to require the enforcement of the law and suggested that the judge take necessary steps to enforce the same.This petition was supported by two affidavits and was indorsed and filed in the fourth division of said court.Thereupon an order was entered, signed 'F. T. Johnson, Judge of the Second District,' wherein it was recited that whereas it appeared from the petition and affidavits that an open violation of the laws as to gambling existed, particularily at the five places mentioned, the sheriff was ordered to suppress these places.October 25th, an order was entered by the same judge, entitled 'In the Matter of Gambling,' directed to the sheriff and other officers, stating that the judge had been further informed that the saloons were violating the closing and wineroom laws and ordering them to investigate and arrest any violators if they refused to obey the law after being notified.October 27th the sheriff arrested and brought into court five persons charged with keeping open saloons after midnight and with maintaining gambling establishments.These parties were placed under recognizance to appear before the district courtJanuary 16, 1906.January 2, 1906, respondent Johnson, as judge of said court, issued a warrant for the arrest of one Beem.This warrant was based upon an affidavit.Beem was also placed under recognizance to appear before said courtJanuary 16, 1906.In these proceedings said Judge Johnson had been acting under said section 1482.This section gives to district judges in their respective districts power to have parties charged with violating the criminal laws, arrested and brought before them and to place them under bond returnable to the district court.

The following rules of said court are here pertinent: Rule 8: 'For the convenient transaction of business the court will be arranged in 5 divisions, to be designated division 1, division 2, division 3, division 4 and division 5, and all civil business of the court shall be distributed to 1, 2, 3, and 4.'Rule 9: 'Division 5 is hereby designated the criminal division of this court, to which all criminal cases and criminal business shall be assigned.The presiding judge of this division shall hear and determine all petitions for writs of habeas corpus, and all other petitions and proceedings relating to criminal business, and shall have charge of and receive all reports of the grand jury at all times.'

Judge Johnson requested petitioner, the district attorney, should he file informations in the above causes in said fifth division (the criminal division), to ask the judge presiding therein (Judge Palmer) to transfer the cases to the division of Judge Johnson (the fourth division).The district attorney made the request.Judge Palmer declined to make the order.Judge Johnson then asked the district attorney to file the informations in his division.This the district attorney declined to do, assigning as his reason the above rules of court.Later the district attorney filed informations in these cases before Judge Palmer, to which informations the defendants entered a plea of guilty and were fined.Later Judge Palmer remitted the fines.January 20th division 4 of said court, Judge Johnson sitting therein, took up without previous notice the said matter of filing informations in the above cases in division 5, and the disposition of such cases there made.Petitioner was present at the time, as were counsel for defendants in the above causes.Judge Johnson first investigated as to whether the sentences in Judge Palmer's division could be interposed in bar to informations that might be filed upon the same offenses pending in his department.He then, without previous notice, entered into an investigation of whether the petitioner, the district attorney, was guilty of contempt in filing informations in department 5 upon charges which he(the judge) considered as pending before him in division 4.For this purpose he examined several witnesses.After this examination had progressed for a time the following occurred:

Mr. Stidger: 'I desire to ask, if your Honor pleases, if upon the questioning of these witnesses the court intends it as an investigation of the district attorney or to base any action upon it against the district attorney's office, I desire to protest as being unwarranted; that I have had no notice of it and that I desire to state that if this is for this purpose I believe a deliberate advantage has been taken of my by not giving me notice of the proceedings.'

The Court: 'How long a time do you want?'

Mr. Stidger: 'I don't know what the court is investigating, whether the court is investigating my proceedings or my special conduct in the case.'

The court then, inter alia, said: 'This court is of the opinion that it is the judge of its own jurisdiction and the district attorney has no right to judge the jurisdiction of this court; that it is his duty to aid this court in its work rather than obstruct it and up to this time I find the district attorney's conduct has been the greatest obstruction that I have met with in attempting to arrest and punish these men who are violating the law under the conditions as they exist in this city, and to maintain my authority and my dignity as a judge, I think I shall confine the district attorney for contempt and upon the ground that he is obstructing the due administration of justice in this division of the court, that he is so conducting these matters, unknown to this court, and in a manner that tends to bring ridicule and contempt on the workings of this court in the minds of the public, to absolutely belittle it and interfere with the duties of the court and contending that the court has no jurisdiction, which is a question of law, and the district attorney knows that it is a question of law.I will fine the district attorney $500, and will commit him to the county jail until it is paid, and a proper order will be drawn upon this sentence, and the district attorney can have such reasonable time as he desires to take exceptions and appeals.'

Mr. Stidger: 'I do not understand that this was a proceeding in contempt.I have been trying to arrive at what this examination was for, and I asked the court for an explanation of it.Do I understand the court to say that these proceedings are contempt proceedings against me?'

The Court: 'They are now.'

Mr. Stidger: 'Am I not to be heard?'

The Court: 'You have been heard.'

Mr. Stidger: 'Yes, sir; but not with the knowledge that this is a contempt case against me.'

The Court: 'Where the contempt is open, the court does not have to set it down for trial.'

Mr. Stidger: 'Do I not have to be notified if the proceeding is for contempt against me?Should not I be notified when I am questioned and examined?Should I not have the privilege of examining other witnesses that have been placed upon the stand?'

The Court: 'Your sentence is based upon Is there anything further?'

Mr. Stidger: 'I do not know on what part.'

The Court: 'My decision is final.The case will be dismissed at this time.* * * Is there anything further?'

A judgment was then entered of which the following is a...