State ex rel. Morrill v. Massey
| Citation | 86 N.W. 225,10 N.D. 154 |
| Decision Date | 29 May 1901 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Contempt proceedings by the State of North Dakota, on the relation of Fred B. Morrill, state's attorney, against Melvina Massey. From a judgment of conviction, defendant appeals.
Affirmed.
J. W Tilly, for appellant.
Emerson H. Smith, State's Atty., and Geo. W. Newton, Asst State's Atty., for respondent.
This is a contempt proceeding arising under § 7605, of the Rev. Codes of 1899. The record shows that appellant, after a trial in the District Court, was convicted of the offense of a criminal contempt of court, and was sentenced to confinement in the penitentiary for a period of one year. From such judgment defendant has appealed to this court. The record contains a statement of the case embracing the evidence and proceedings had in the trial court. A trial anew in this court, under § 5630, Rev. Codes 1895, is demanded in the statement; but such trial cannot be accorded. Section 5630 governs the proceedings in a civil action tried in the District Court without a jury, and has no reference to a proceeding instituted to punish a criminal contempt of court. Such proceedings are summary criminal proceedings, and are in no sense civil actions. See Noble Tp. v Aasen, (N.D.) 86 N.W. 742. Nor does the fact that a proceeding instituted to punish a criminal contempt, which arises out of a violation of an injunction issued in a civil action, change the character of the proceeding. In the absence of a statute authorizing appeals in criminal contempt cases, no appeal will lie. Such was the rule at common law. Tyler v. Connolly, 65 Cal. 28, 2 P. 414. But in this state, under the statute, any final order of conviction in a contempt case may be reviewed in the Supreme Court. Section 5954, Rev. Codes 1899. On appeal this court is authorized to review all the proceedings and evidence, but the statute confers no authority upon this court to try the proceeding anew, and, without express authority to sit as a trial court, the functions of this court, as an appellate tribunal, are limited to a review of the record for the correction of errors.
The section authorizing an appeal in contempt cases provides for the settlement of a statement of the case, as in jury cases, and where a review of the evidence is sought the appellant is required to specify particulars wherein the evidence is deemed to be insufficient. In this case proper specifications are inserted in the statement, and hence the evidence is before this court for review as to its sufficiency to sustain the conviction. Sitting merely as a court for the review of errors, our inquiries will be limited, as to matters of fact, to the question whether there is competent evidence in the record which tends to establish the guilt of the accused. To this inquiry we shall be compelled to give an affirmative answer.
Appellant was charged with the offense of contempt of court in this that she violated an injunctional order issued in this action, and served upon her, on the 8th day of January, 1898. The injunctional order contains a description of a certain city lot situated in the city of Fargo, and the appellant, her agents, servants, clerks, and employes, were by the terms of the order restrained and enjoined, during the pendency of the action, and until the further order of the court, from using, or permitting to be used, said lot, or the buildings situated thereon, as a place where intoxicating liquors are or may be sold, bartered,...
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