State v. Meyer

• Decision Date: 09 March 1912
• Docket Number: 17,903
• Citation: 122 P. 101,86 Kan. 793
• Parties: THE STATE OF KANSAS, Appellee, v. HENRY MEYER, Appellant
• Court: Kansas Supreme Court

122 P. 101

86 Kan. 793

THE STATE OF KANSAS, Appellee, v. HENRY MEYER, Appellant

No. 17,903

Supreme Court of Kansas

March 9, 1912

Decided January, 1912.

Appeal from Trego district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1.INJUNCTION--Violation--Arrest--Punishment--Contempt. In a proceeding brought under section 4388 of the General Statutes of 1909 to punish a defendant for the violation of an injunction previously granted, wherein he appeared in the district court and defended against the accusation filed against him, the power of the court to try the defendant and to adjudge punishment for a contempt is not affected by the fact that he was arrested under an unwarranted order issued by the probate court, nor was it material, under the circumstances, whether a preliminary order of arrest was issued or an arrest in fact made.

2. INJUNCTION--Same. In a case where defendant was enjoined from keeping intoxicating liquors in a certain place for sale and from selling them at that place, proof that large quantities of intoxicating liquors were subsequently purchased by defendant, some of which were kept at the place and that he sold a pint of whisky to a purchaser, is sufficient to uphold a judgment finding defendant guilty of contempt.

3. INJUNCTION-- Violation--Contempt--Punishment--Judgment. The court found the defendant guilty of contempt and entered judgment that he be committed to the jail of the county for three months and pay a fine of $ 100. After he had been imprisoned under this judgment for twelve hours he was recalled and the court attempted to render a second or modified judgment sentencing the defendant to six months' imprisonment and the payment of a fine of $ 100. Held, that as the first sentence was one the court had authority to impose, and that as the defendant had suffered punishment under it, there was then no authority in the court to change and increase the punishment; and further held, that the first judgment is valid and still enforceable.

James T. Burney, for the appellant.

John S. Dawson, attorney-general, S. M. Brewster, special assistant attorney-general, S. N. Hawkes, assistant attorney-general, and J. P. Coleman, assistant attorney-general, for the appellee.

OPINION

JOHNSTON, C. J.:

This is an appeal from a decision of the district court of Trego county finding the appellant guilty of contempt of court. A judgment was rendered against the appellant on November 8, 1907, perpetually enjoining and restraining him from keeping or maintaining a liquor nuisance upon certain premises and "from ever again engaging in the keeping or selling or in any way maintaining" said nuisance, or from "ever keeping at said place or on said premises any intoxicating liquors for sale." An accusation was filed in the district court of Trego county charging defendant with having violated the terms of the injunction. The charge appears to have been presented to the probate court of Trego county, and on August 15 the judge of that court ordered the arrest of the defendant and that he should be held subject to the further order of that court. The clerk of the district court issued a writ of attachment, and the appellant was accordingly arrested. Later he came into the district court with his counsel and a trial was had upon the accusation filed in that court, which resulted in a finding that he was guilty of violating the order of injunction and of contempt of the court.

At first the court announced and entered a judgment that he be committed to the jail of the county for three months and pay a fine of $ 100, together with the costs of the proceeding. In pursuance of this judgment he was imprisoned for about twelve hours, and on a late hour of the same day he was brought back into court, by its order, and another judgment was rendered sentencing him to imprisonment in the county jail for a period of six months, instead of three months as first adjudged.

On this appeal it is contended that the district court had no jurisdiction to try appellant, because he was arrested on an order of the probate court. Why the application for an order of arrest was made to the probate court is not explained, and it is certain that that court had no authority to order the arrest or to make any order in the proceeding. The act of the probate court in making the invalid order and the unwarranted arrest of appellant under it did not deprive the district court, in which the accusation was filed, of jurisdiction to determine whether appellant had violated the terms of the injunction previously granted. While an arrest of one charged with being guilty of contempt of court is provided for, it is not an essential step in the proceeding. It is important that the accusation shall, on its face, show facts sufficient to constitute a contempt, that the accused shall have reasonable notice of the proceeding, and a hearing in which he has an opportunity to make any explanation or defense that he may have. Here there was an accusation which fully stated the facts constituting the contempt, there was notice of the hearing, and an opportunity for appellant to defend, of which he availed himself. Besides, there was no challenge of the authority of the district court to try the case. No complaint was there made that appellant was not properly brought into that court, nor did he make any objections there as to the initiatory steps in the proceedings. After submitting to a trial without objection to any of the preliminary steps in the case, it is a little late to complain that he was not brought into court in the ordinary way. Neither an improper arrest nor the absence of any arrest would be ground for overthrowing a judgment rendered upon due notice and after a hearing wherein full opportunity was given the accused to explain and defend.

The contention that the evidence was insufficient to sustain the judgment is not good. Appellant was enjoined from keeping intoxicating liquors on the premises for sale and from selling such liquors there. There was testimony that two barrels of whisky were consigned to appellant, which were received by him at the railway station. Testimony was introduced that liquors were kept at the hotel, although appellant claimed that they were kept there for his own use. It was shown that a guest at the hotel purchased a pint of whisky from appellant, for which seventy-five cents was paid. There was conflicting testimony offered by appellant, but the trial court accepted as true that which was produced by the state, and it is sufficient to sustain the judgment. When appellant kept liquor for sale in the hotel, and made a single sale of it in that place, he violated the injunction and was guilty of contempt.

The remaining question raised on the appeal is the validity of the action of the court in modifying the judgment. The modification was made during the term in which the original judgment was entered, and on the same day. The reasons which led the judge to change and increase the period of imprisonment are not shown. The statute provides that:

"Any person violating the terms of any injunction granted in proceedings...