State v. Simpson

• Decision Date: 31 October 1951
• Docket Number: Cr. N
• Parties: STATE v. SIMPSON. o. 237.
• Court: North Dakota Supreme Court

Page 777

49 N.W.2d 777

78 N.D. 360

STATE v. SIMPSON.

Cr. No. 237.

Supreme Court of North Dakota.

Oct. 31, 1951.

Syllabus by the Court.

1. A court of equity has power to issue an injunction pendente lite in an action to abate a nuisance under Chap. 42-02 NDRC 1943, on obtaining jurisdiction of the subject matter.

2. 'An injunctional order in an equity case, pendente lite, issued by a court having full equity powers and complete jurisdiction of the subject matter, must be obeyed while it remains in force, however, irregularly or erroneously it may have issued.' State v. Markuson, 7 N.D. 155, 73 N.W. 82.

3. When an injunction pendente lite has been issued without notice by a court of equity having jurisdiction of the subject matter and of the defendant, the defendant may, at any time, under Sec. 32-0609, NDRC 1943, move to vacate it but until such motion is granted the injunctional order remains in full force.

4. The application and affidavits for an order to show cause in a criminal contempt proceeding must show facts sufficient, if proven, to constitute contempt.

5. A mere change of words in the codification of a statute does not change the effect or meaning of such statute unless such intent is clearly indicated.

6. On the trial of a keeper of an alleged bawdy house on a charge of contempt of court by violating an injunction restraining her from maintaining such nuisance by permitting illicit sexual intercourse in such house pertinent conversations with the inmates of such house out of the presence and hearing of the keeper and evidence of the conviction of such inmates on moral charges are admissible as bearing on the character of the house.

7. To prove the character of a house alleged to be a disorderly house the general reputation of such house is admissible. Sec. 42-0207, NDRC 1943.

8. The same act may be an offense against both a municipal ordinance and the state law. In such a case prosecution may be carried on by either the municipality or the state or both without constituting double jeopardy.

9. In a contempt proceeding arising out of alleged violation of a temporary injunction restraining the defendant from maintaining a common nuisance by allowing illicit sexual intercourse in her place it was not error to receive in evidence the files of the defendant's conviction in municipal court of violating a city ordinance against keeping and maintaining a house where girls were allowed to stay for purposes of prostitution, even if such conviction was appealed. The presumption of innocence ceases upon conviction and the presumption of guilt prevails in the appellate court.

10. Proof of the violation of the temporary injunction restraining the proprietor of an alleged bawdy house from permitting illicit sexual intercourse in such place may be by circumstantial evidence. Proof of particular acts of lewdness is not absolutely necessary to establish guilt.

11. Upon an examination of the record in this case no prejudicial errors are found and competent evidence in the record sustains the judgment of the district court finding the defendant guilty.

Paul Campbell, Minot, for appellant.

E. T. Christianson, Atty. Gen., and Halvor L. Halvorson, Jr. State's Atty. for Ward County, Minot, for respondent.

GRIMSON, Judge.

This is a criminal contempt proceeding brought under Chapter 27-10, NDRC 1943. The proceedings arise from an action for the abatement of a common nuisance under Chap. 42-02, NDRC 1943. In that action, commenced Nov. 30, 1949, a complaint, verified by the State's Attorney of Ward County, on information and belief, alleged that the defendant, Margaret Simpson, was maintaining a house of prostitution commonly known as a bawdy house, upon certain property in the City of Minot. Supporting the complaint was the affidavit of the state's attorney, also on information and belief, to the same effect as the complaint. The prayer of the complaint was for an abatement of such nuisance and that the defendant be enjoined from using the presmises as a place for illicit sexual intercourse. A temporary injunction was issued restraining the defendant from maintaining a nuisance or engaging in a course of unlawful conduct on the premises 'by permitting said premises to be used as a place for the illicit sexual intercourse until this action be tried and determined on its merits or until the further order of this court.' An order to the defendant to show cause was issued returnable Dec. 3, 1949, why the premises should not be shut up until the time of the trial or further order of the court. The hearing on that petition was held. At that time the defendant appeared and challenged the jurisdiction of the court and the validity of the order to show cause. The court overruled the challenge and the objection of the defendant and issued its 'injunctional warrant' directing the sheriff to shut up the premises by padlocking the same until the action would be tried. Thereupon the defendant applied for an appropriate supervisory writ of this court upon which application an order to show cause was issued. After hearing in this court the writ was granted and the district court directed to vacate the 'injunctional warrant' and release the premises. In connection therewith this court said: 'The temporary injunction, however, heretofore referred to and of which the petitioner does not complain will remain operative and in effect.' Simpson v. District Court of Ward County, N.D., 42 N.W.2d 213, 216.

On Sept. 7, 1950, the state's attorney petitioned the district court of Ward County for an order to show cause why the defendant should not be held in criminal contempt because of an alleged violation of said temporary injunctional order. An order to show cause was issued, returnable Sept. 18, 1950. On the return date the defendant appeared by her attorney and made a motion to quash the order to show cause. The court denied the motion to quash, and ordered the state's attorney to file a complaint in the form of affidavits 'specifying the facts and circumstances charged against the defendant,' directed the defendant to 'make a written answer thereto by affidavits' and set a hearing thereon for Oct. 16, 1950. The state's attorney filed such affidavits and the defendant answered. A hearing was had thereon. Oral evidence in addition to the pleadings and affidavits was heard. The court found the defendant guilty of criminal contempt and ordered judgment that she be imprisoned for 60 days, fined $100 and in default of payment that she be imprisoned until fine and costs were paid but not exceeding 30 days beginning at the expiration of the 60 day period. From that judgment this appeal is taken. Statement of the case was settled including the testimony taken and all the proceedings had.

A hearing on contempt charges is a special proceeding authorized by Chap. 27-10, NDRC 1943. The appeal is taken under Secs. 42-0211 and 27-1024, NDRC 1943, the latter of which provides: 'Upon such appeal, the supreme court may review all the proceedings had and all the affidavits and other proof introduced by or against such person.'

Defendant alleges that the trial court erred in denying defendant's objection to the jurisdiction of the court and her motion to quash the order to show cause why defendant should not be punished for contempt on the grounds that the application therefor did not show violation of any valid, temporary injunction.

She claims, first, that the complaint and affidavits upon which the temporary injunction was granted did not state sufficient facts upon which to issue such an injunction. Both the complaint and the affidavit definitely describe by lot and block the premises defendant is alleged to occupy, allege that she maintains thereon a house of prostitution, and that she will continue to maintain such common nuisance unless restrained by an order or injunction of the court. The complaint further shows that H. L. Halvorson, Jr., was state's attorney of Ward County. The affidavit shows further that the defendant was found guilty of operating a disorderly house on said premises in the police court of the City of Minot on Nov. 26, 1949. Clearly there are alleged sufficient grounds to give the court jurisdiction to issue a temporary injunction. See Secs. 42-0202 and 32-0603, NDRC 1943.

Defendant complains because the temporary injunction was issued ex parte without a hearing. She cites Sec. 42-0202, NDRC 1943, which provides that an injunction shall be granted at the commencement of an action for the abatement of a common nuisance 'in the usual manner of granting injunctions, * * *.' Then she refers to Chapter 32-06, NDRC 1943 on injunctions and Sec. 32-0606, NDRC 1943 thereof which provides that the court, before granting an injunction, may, if he deems it proper, issue an order to show cause why the injunction should not be granted and in the meantime restrain the defendant as prayed for. It is clear that this section recognizes the jurisdiction of the court to grant a temporary injunction ex parte and places the question of whether a hearing shall be had prior to such granting, within the discretion of the court. She further refers to Sec. 32-0607, NDRC 1943, which provides that a restraining order should not be issued ex parte unless it shall be shown in the moving papers that an exigency exists requiring the immediate issuance of an order 'so that the rights of the parties may be preserved.' That section refers to the restraining of acts not illegal in themselves but which may destroy the status quo of the matter in issue until the rights of the parties are adjudicated. It is hard to see how that section can apply to the situation in the case at bar. However, if jurisdiction existed, the failure to grant a prior hearing could have been no more than an irregularity and an irregularity in the manner of the issuance of the temporary injunction cannot avail the defendant in a criminal contempt proceeding for violating...