Mckee v. De Graffenreid
Decision Date | 14 May 1912 |
Docket Number | Case Number: 3555 |
Parties | McKEE et al. v. De GRAFFENREID et al. |
Court | Oklahoma Supreme Court |
¶0 1. MANDAMUS -- Subjects of Relief -- Trial by Jury. Mandamus may issue to require a judge of the district court to grant a "person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or restraint made or entered by" such court or judge, a trial by jury, "before penalty or punishment is imposed."
2. CONSTITUTIONAL LAW--Operation and Effect--Self-Executing Provisions. The proviso to section 25, art. 2 (Bill of Rights), of the Constitution, providing "that any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or restraint made or entered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused," is effective, and, as supplemented by the provisions of the common law as to contempts, which is in force in this state by statute (section 5534, Comp. Laws 1909), and the statutory provisions of our Code relative to jury trials, supplies a sufficient rule by means of which the right given under said proviso may be exercised or enforced.
Blakeney, Maxey & Miley, for plaintiffs.
Kistler, McAdams & Haskell, for defendants.
¶1 The plaintiffs, C. F. McKee, S. McKee, and F. McKee, were duly charged with violating or disobeying, when not in the presence or hearing of the court or judge, an order of injunction or restraint made or rendered by the court or the judge of the said court. Said plaintiffs in due time demanded a trial by jury as to their guilt or innocence of the charge, which was denied. This proceeding in error is brought that the judge of said court may be required to grant said plaintiffs a trial by jury, as provided by section 25, art. 2 (Bill of Rights), of the Constitution of this state. It is essential to determine (1) whether mandamus is the proper remedy, and (2) whether said section 25 is self-enforcing. 1. It is settled in this jurisdiction that a party adjudged guilty of contempt may prosecute an appeal from such order or judgment. Smythe v. Smythe, 28 Okla. 266, 114 P. 257. On review, this court will determine whether any error has been committed against the party appealing, and, if so, and a substantial right is involved, a reversal will follow. In Gompers et al. v. Bucks Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L.R.A. (N.S.) 874, it is said:
* * *" See, also, In re Merchants' Stock & Grain Co. et al., Petitioners, 223 U.S. 639, 32 S. Ct. 339, 56 L. Ed. 584.
¶2 In Ex parte Gudenoge, 2 Okla. Crim. 110, 100 P. 39, section 2125, Wilson's Rev. & Ann. St. 1903, dividing contempts into two classes, direct and indirect, and defining direct contempt as consisting of "disorderly and insolent behavior committed during the session of the court and in its immediate view and presence, and the unlawful and willful refusal of any person to be sworn as a witness," was considered by the Criminal Court of Appeals on the assumption that it was brought over by virtue of the Schedule to the Constitution; the question not being directly passed upon. In Smythe v. Smythe, supra, this question was considered, and, under the authority of Smith v. Speed, 11 Okla. 95, 66 P. 511, 55 L. R. A, 402, wherein said act was held to be in conflict with the organic act and therefore void, it was held that such section was not continued in force after the erection of the state. See De Graff v. State, 2 Okla. Crim. 519, 103 P. 538. In this state the common-law rule as to contempts now applies. In either civil or criminal contempt, punishment by imprisonment may be imposed. That being so, would an appeal be an adequate remedy? In Evans v. Willis, County Judge, 22 Okla. 310, 97 P. 1047, 19 L.R.A. (N.S.) 1050, 18 Ann. Cas. 258, it is said:
See, also, Herndon v. Hammond, 28 Okla. 616, 115 P. 775.
¶3 It seems to be settled in this jurisdiction that the remedy afforded by appeal is not adequate where a party may be imprisoned. In Bardstown v. Hurst, 121 Ky. 119, 89 S.W. 147, 724, the petitioner was being prosecuted for the violation of an ordinance of a municipal corporation in territory which had been illegally annexed to the city; the illegality consisting in the invalidity of the ordinance annexing the same. The court held that a writ of prohibition would issue to restrain the prosecution. In State v. Moultrieville, Rice (S. C.) 158, the court held that a writ of prohibition would issue to restrain the collections of fines imposed for violations of a municipal ordinance, where the court imposing the same, by reason of the amount involved, had no jurisdiction of the case. It has been held that: a prosecution, for the violation...
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