In re Application of Wright

• Decision Date: 04 November 1929
• Docket Number: Civil 2890
• Citation: 36 Ariz. 8,281 P. 944
• Parties: In the Matter of the Application of LORENZO WRIGHT for Writ of Habeas Corpus
• Court: Arizona Supreme Court

281 P. 944

36 Ariz. 8

In the Matter of the Application of LORENZO WRIGHT for Writ of Habeas Corpus

Civil No. 2890

Supreme Court of Arizona

November 4, 1929

Original proceeding. Petition for writ of habeas corpus. On final hearing writ quashed.

Messrs Flanigan & Fields, for Relator.

Messrs Struckmeyer & Jennings, for Respondent.

OPINION

ROSS, J.

Lorenzo Wright, superintendent of the state prison at Florence, was found guilty of contempt of the superior court of Maricopa county for permitting to run at large one William Brown, who had been theretofore convicted in said court of the crime of robbery and sentenced to serve from five to six years in the state prison, the term of said imprisonment not having expired and he not being otherwise legally entitled to his liberty. He was fined $1,000, or to serve six months in the county jail in default of payment. He has applied to this court for admission to bail pending the determination of his right to appeal from such contempt judgment. Upon the hearing of said application and pending the determination of the question we ordered the petitioner admitted to bail in the sum of $2,000, and allowed the parties five days in which to file their memoranda of authorities. These are now on file, and the case is ready for disposition.

The merits of the case cannot be gone into in this proceeding. That, if at all, will have to be done by a different form of writ. The sole question now for decision is, as above indicated, the right of appeal.

In two very recent cases we have had occasion to consider contempt charges against a predecessor of petitioner as superintendent of the state prison. In Howard v. State, 28 Ariz. 433, 40 A.L.R. 1275, 237 P. 203, 204, decided in June, 1925, we had this to say of his powers and duties as also his amenability to the courts for his official conduct:

"When, therefore, the superintendent of the prison receives the commitment, which is his only authority for detaining any man within that prison, he may only do what that commitment orders him, to wit, 'receive and safely keep' the defendant for the time specified therein. If, without legal justification, he does more than is necessary to so safely keep him, he is violating the law just as much as he is in releasing him before the expiration of his minimum term of sentence unless he has been legally pardoned. On the other hand, he not only may but must do what is necessary to 'safely keep' the prisoner. If, for example, a prisoner attempts to escape from the mild confinement now prescribed by our law, and to our personal knowledge generally enforced by our prison authorities, it is highly proper that such stricter confinement be imposed as may be necessary to hold him. . . .

"The superintendent of the state prison is ex officio an officer of each superior court of the state for the purpose of carrying out its proper sentences, and is subject to attachment for contempt if he departs therefrom, either on the side of excessive leniency or severity, without legal excuse therefor."

In State v. Superior Court, 30 Ariz. 332, 47 A.L.R. 401, 246 P. 1033, 1036, decided in June, 1926, this court affirmed a judgment of conviction of the superintendent who had been found guilty of contempt of the superior court in releasing a prisoner on the recommendation of the board of pardons and paroles, it appearing that the recommendation was premature, the prisoner not having served his minimum sentence. We said:

"The superintendent's duty was to observe and enforce the court's mandate, and, when he violated its terms by releasing the prisoner before the minimum sentence was served, his act was contemptuous."

In neither of these cases was the procedural question here raised involved.

The answer to the problem we have to solve depends upon the construction of our statutes on contempt. Those statutes, which we shall presently quote, for procedural purposes divide contempts into two classes. In one class the accused is entitled to a jury trial and has the right of appeal, and pending appeal is entitled to bail. In the other class he is not entitled to a jury trial and is not granted the right of appeal. The applicable statute to contempts of the former class is section 4471, Revised Code of 1928, reading:

"Any person who shall wilfully disobey any lawful writ, process, order or judgment of a superior court of this state, by doing any act thereby forbidden to be done, if the act done by him also constitute a criminal offense, shall be proceeded against for his contempt as herein provided."

If the contempt is of the kind described in the above section, the procedure is set out in sections 4472 and 4473. An appeal as in criminal cases may be taken, which stays the execution of the judgment, and the accused is entitled to bail.

The contempts of the other class are those mentioned in section 4474, Id., reading as follows:

"Contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, and contempts committed by the failure to obey any lawful writ, process, order, (or) judgment of the court, and all other contempts not specifically embraced within this chapter may be punished in conformity to the practice and usage of the common law."

Into which one of these classes does the present case fall? It is the contention of the relator that it falls within the first class, whereas the opposition asserts that it falls within the second.

If it was intended by sections 4471, 4472 and 4473 that an accused in any and all cases in which his contemptuous conduct is also a criminal offense should be given a jury trial on demand and an appeal upon conviction, plainly the present facts sustain the relator's contention. The act of which relator is charged, to wit, wilful disobedience of a court order or judgment, is defined as a misdemeanor by section 4572, Revised Code of 1928. Also, if relator negligently or voluntarily permitted the prisoner to escape from custody, the same act would constitute a criminal offense under section 4540, Id. The failure to obey the judgment and sentence of conviction of prisoner Brown, aside from being a contempt of the court rendering such judgment and sentence, was certainly a misdemeanor and probably also the more serious offense of escape. Swepston v. United States, 251 F. 205, 210, 163 C.C.A. 361; United States v. Hoffman, (D.C.) 13 F.2d 269, affirmed on appeal, (C.C.A.) at page 278 of 13 Fed. (2d). But, as we understand section 4471, before the accused can invoke its procedure it must not only appear that his act is a criminal offense, but also that his act must consist in doing something forbidden by "lawful writ, process, order or judgment." The commitment under which relator held Brown in custody did not forbid the relator from extending to him freedom of restraint and imprisonment; the commitment was mandatory in its language, that is, it directed the superintendent of the state prison "to receive and safely keep" Brown until he was legally discharged. We cannot bring ourselves to think that the legislature intended that an officer of the court who had failed or refused to execute a lawful writ, process, order or judgment of such court, commanding or directing him to do something, could, when "called on the carpet" for such failure or refusal, demand a jury trial and bail. Such disobediences were evidently intended to be covered and taken care of by section 4474.

We cannot think of any criminal case in which a prohibitive process, writ, order or judgment would issue or be entered. Courts of equity never prohibit or forbid parties from committing crime; they do sometimes forbid or prohibit parties from destroying, injuring or interfering with property and property rights and thereby incidentally forbid and prohibit the commission of crime, but the latter feature is only incidental, the main purpose of the writ, process, order or judgment being to preserve property rights. City of Bisbee v. Arizona Ins. Agency, 14 Ariz. 313, 127 P. 722; 32 C.J. 275, §§ 436-443, inclusive. With the one exception, so far as we can think, prohibitive writs, processes, orders and judgments forbidding the doing of any act or thing issue only in civil cases and to prevent civil wrongs. The commitment or judgment for the violation of whose mandate the relator is charged issued out of a criminal cause, to wit, State of Arizona v. William Brown. It is mandatory process imposing upon the superintendent of the state prison the duty of safety keeping the prisoner until he is legally discharged.

Cases falling within ...