Fulreader v. State

• Citation: 1965 OK 187,408 P.2d 775
• Decision Date: 07 December 1965
• Docket Number: No. 40767,40767
• Parties: John W. FULREADER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 775

408 P.2d 775

1965 OK 187

John W. FULREADER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. 40767.

Supreme Court of Oklahoma.

Dec. 7, 1965.

Syllabus by the Court

1. Statutes providing for appeal upon original record are cumulative and did not amend or change other provisions for appeal. Where notice of intention to appeal is given within 10 day period provided by statute and petition in error is filed in this court within 90 days from rendition of the judgment or order appealed from, fact that appealing party did not state in notice of appeal or advise court clerk within period for giving such notice would be upon the original record will not be considered as grounds for dismissing appeal.

2. The payment of the fine assessed against the party in contempt proceeding, in order to secure his release from jail, bail having been denied, is not voluntary and does not estop the party held in contempt from contesting the validity of the contempt order or prosecuting an appeal to this court.

3. Contempts of court in Oklahoma are defined by constitutional and statutory definitions, and not by common law.

4. Vigorous assertion of the right of his client by an attorney, although unsound, in the absence of other objectionable conduct of the attorney, does not constitute contempt.

5. The phrase 'disorderly and insolent behavior' as used in statute defining contempt of court, means conduct that is unruly, tumultuous, insulting or disrespectful.

Appeal from district court of Cleveland County; Elvin J. Brown, Judge.

Contempt Proceedings. The District Court of Cleveland County, Elvin J. Brown, J., entered an order adjudging the defendant, a member of the bar, guilty of direct contempt of Court and assessed a fine. Defendant appeals. Reversed and remanded with directions.

Walker & George, by Barth P. Walker, and Max H. Lawrence, Oklahoma City, for plaintiff in error.

Preston A. Trimble, County Atty., of Cleveland County, Norman, for defendant in error.

PER CURIAM.

This appeal involves a contempt action wherein the trial judge held the defendant in the court below, a member of the bar, guilty of direct contempt and assessed a fine against him. Parties will be referred to as they appeared in the trial court.

Plaintiff contends this appeal should be dismissed. The alleged contempt occurred during the trial of a civil action in the District Court of Cleveland County on October 17, 1963. On the same day the defendant was adjudged guilty of direct contempt. On October 23, 1963 the defendant filed in the trial court written notice of his intention to appeal to the Supreme Court of Oklahoma. On November 6, 1963, the defendant lodged the present appeal in this Court by the filing of a petition in error with uncertified transcript attached. Although plaintiff in error filed an uncertified transcript with his petition in error, the basic jurisdictional requirements for appealing upon the original record under the provisions of 12 O.S.1961, § 956.1, 2, and 3 were met when the petition in error was filed. Diehl v. Phillips Petroleum Company, Okl., 376 P.2d 203; Garrett v. Watson, Okl., 342 P.2d 560.

Plaintiff next contends that this appeal should be dismissed for the reason that the appeal should have been prosecuted to the Court of Criminal Appeals instead of this Court. The law is well settled by prior decisions of this Court that proceedings for direct contempt are neither civil nor criminal in character but are sui generis and this Court has jurisdiction to review an order adjudging one in contempt and imposing punishment therefor. Best v. Evans, Okl., 297 P.2d 379; Brown v. State, 178 Okl. 506, 62 P.2d 1208; Dancy v. Owens, 126 Okl. 37, 258 P. 879.

Lastly plaintiff contends this appeal should be dismissed for the reason that defendant offered no defense in the trial court and paid the fine assessed. Before finding the defendant guilty of contempt the trial court stated, 'You may show cause at this time, if any, why you should not be punished for direct contempt for knowingly violating the rules of this Court.'

The defendant first stood mute but later offered an explanation for his conduct which the Court found to be 'completely unsatisfactory'. The defendant did not plead guilty or waive his right to contest the validity of the contempt order.

The legal effect of the payment of the fine as it relates to the prosecution of this appeal depends on whether or not the payment was voluntary. If the fine was not paid freely and voluntarily but under protest to prevent the defendant from being deprived of his liberty it cannot be considered voluntary or to constitute a waiver of the right of appeal. Meyberg v. Superior Court of Los Angeles County, 19 Cal.2d 336, 121 P.2d 685; Hume v. Superior Court of Los Angeles County, 17 Cal.2d 506, 110 P.2d 669; State v. Winthrop, 148 Wash. 526, 269 P. 793, 59 A.L.R. 1265, 1270.

In the instant case the trial court after assessing a fine committed the defendant to jail and denied him bail pending appeal. The defendant was incarcerated in jail at the time the fine was paid by his associate attorney Barth P. Walker. Walker states in his affidavit that the fine was paid to secure the release of the defendant from incarceration and was not intended in any respect to be an admission of guilt by the defendant. These facts are not disputed.

Cold logic simply rebels against the payment of the fine under these circumstances being voluntary or constituting an admission of guilt by the defendant.

The motion to dismiss is denied. The case is properly before this Court for decision on the merits.

Turning now to the merits of the controversy. The alleged contempt occurred during the trial of the civil case of Forest Oil Corporation v. Floyd E. Gwin on October 17, 1963. The defendant here was engaged in the cross-examination of the defendant, Gwin. Proceedings occurred as follows:

'By Mr. Fulreader:

Q Do you consider yourself a good driver?

By Mr. Cooper: Objection, invading the province of the Jury.

BY THE COURT: Sustained.

Q Mr. Gwin, have you ever been convicted of a crime for the violation of a State or a Federal Statute?

By Mr. Cooper: Object to that as an incompetent question. I withdraw the objection, I don't want the Jury to think he has and I'm sure he hasn't. Go ahead and answer the question.

A What was the question, sir?

Q Have you ever been convicted of a crime of a State or a Federal Statute?

A What does that mean?

Q Well, have you ever violated any laws?

BY THE COURT: Now, don't answer that question.

By Mr. Cooper: If the Court please, I don't think counsel is asking the proper questions. I have no objection to him asking the proper questions but I don't think these are proper.

BY THE COURT: The question is, have you ever been convicted of a crime?

A No, sir.

Q You have never been convicted of a crime?

A (No answer).

Q Were you brought into the--did you go through a trial in City Court of Norman, when the State was the Plaintiff----

By Mr. Cooper: Object to counsel's question and move that a mistrial be granted.

By Mr. Fulreader: May I approach the Bench, sir?

BY THE COURT: You sure may and you better be prepared to show good cause why this shouldn't be sustained at your expense.

WHEREUPON, counsel approach the Bench and confer with the Court outside the record and the hearing of the Jury, after which the following proceedings were had:

BY THE COURT: The motion for a mistrial is sustained and the costs are taxed against the Plaintiff and you may show cause at this time, if any, why you should not be punished for direct contempt for knowingly violating the rules of this Court.

BY THE COURT: Ladies and gentlemen of the Jury, the Court has declared a mistrial in this case and you are excused from further consideration of the case and excused from further attendance at the Court until nine o'clock in the morning.

WHEREUPON, the Jury left the Box and the Courtroom and the following proceedings were had:

BY THE COURT: Get your arms off this Bench. Do you have any cause to show?

By Mr. Fulreader: No, I have none.

BY THE COURT: Call the Sheriff.

By Mr. Fulreader: May I approach the Bench?

BY THE COURT: You may say whatever you've got to say from right there.

By Mr. Fulreader: My understanding is that the statement of law is that you can show a conviction of a crime, under the Statutes, Title 12--381, and there are cases that set this forth. It allows you to set forth four elements, you can set forth the conviction of the crime, the date, the Court, and the Judge, I believe, the Judge's name.

BY THE COURT: How many jurors reported in this morning, Mrs. Burke?

By Mrs. Burke: (Court Clerk) I will have to check and see.

BY THE COURT: Would you count them up, please?

By Mr. Fulreader: On the basis I was asking this question.

BY THE COURT: Mr. Fulreader, the Court finds your explanation completely unsatisfactory, the Court further finds that this is the second trial of this case in which your firm through its representative, has committed some misconduct requiring the Court to declare a mistrial. Your conduct has been so gross, so out of line that this Court has no choice but to find you in direct contempt of Court. And it will be the judgment of this Court that your punishment be fixed at a fine equivalent to the cost of the Jurors required to pick this panel, or this Jury here this morning. It will be the further Order of the Court, that you be committed to the Custody of the Sheriff until those costs are paid. How many Jurors reported here this morning?

By Mrs. Burke: Sixty-five.

BY THE COURT: My calculation of the cost of the attendance of sixty-five Jurors, at $7.50 per day, totals $487.50. You are ordered committed to the custody of the Sheriff until that sum is paid. You may take him, Blanche.

By Mr....