author: DOYLE, -Judge,

text:
      Ex parte J. P. Gudenoge.
    No. A-103.
    Opinion Filed March 3, 1909.
    (100 Pac. 39.)
    1. WITNESSES — Privilege of Witness — Answer Tending to Inorimi-npte Self. Under section 21 of the Bill of Rights (Bunn’s Ed. sec. 30), which declares that “no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided,” and section 27 of the Bill of Rights (Bunn’s Ed. see. 36), which provides that “any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing, concerning which he may so testify or produce evidence” — where a person is under examina-' tion before a county judge in an investigation into supposed violations of the prohibitory law, otherwise known as the “Enforcement Act” (Laws 1907-08, p. 601, c. 69), under the provisions of section '4 of said act. he is not obliged to answer questions where his answers will tend to incriminate him, unless the inquisition is held for the purpose of inquiring into a complaint made, supported by affidavit, charging an offense against the . provisions of the prohibitory law.
    2. SAME. .Section 27 of the Bill of Rights (Bunn’s Ed. sec. 36) removes the protection of ithe constitutional privilege as set forth by section 21 of the Bill of Rights (Bunn’s Ed. sec. 30), and said section 27 must be construed as declaring that no evidence obtained from a witness by means of a judicial proceeding shall ■ be given in evidence or in any manner used against him or his property or estate, in any court of the state, in any criminal proceeding, or for the enforcement of any penalty or forfeiture; provided, that on an inquisition held under section 4, art. 3, c 69, p. 604, Sess. Laws 1907-08, otherwise known as the “Enforcement Act,” the proceeding so held shall be predicated upon a complaint made, supported by affidavit, that there has been a violation of the penal provisions, or some one of them, of said act, charging some person or persons with said violation.
    3. SAME. The manifest purpose of the constitutional provisions, both of the United States and of this state, is to prohibit the compelling- of testimony of a self-criminating kind from a party or witness.
    4. INTOXICATING LIQUORS — Offenses—Proceedings—Presumption of Jurisdiction. An inquisition under the provisions of section 4 of said enforcement act (Laws 1907-08, p. 604, c. 69) is a proceeding- special in its nature, and no presumption can attach in favor of its jurisdiction.
    5. WITNESSES — 'Privilege of Witness — Answer Tending to Incriminate. No statute, which leaves a party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution. To be valid the statute must afford absolute immunity against future prosecution for the offense to1 which the question relates.
    6. CONTEMPT — Direct and Indirect Contempt — “Civil Contempt”— “Criminal Contempt.” 'Contempts of court are divided into direct and indirect contempts, and are classified as civil and criminal. The distinction between “civil” and “criminal” contempts is plainly drawn. The former consists in disobeying some judicial order made in the interest of another party to the proceeding; the latter, of acts disrespectful to the court or obstructive to the administration of justice, or calculated to 'bring the court into disrepute.
    7. SAME — Witnesses—Power to Punish. The power of courts to punish for contempt is inherent. 'Refusal to answer questions in a criminal proceeding is a criminal contempt, and the punishment therefor is governed by the provisions of the Criminal Code, and where the statute limits the duration of the punishment the punishment may conform to such limitation, but cannot exceed it.
    8. HABEAS CORPUS — Grounds of Relief — Want of Jurisdiction. Where the court or judge thereof was without jurisdiction or power to render the judgment or issue process for the imprisonment -of a party, the imprisonment is illegal, and this court will grant relief by habeas corpus.
    9. SAME — Grounds of Relief — Want of Jurisdiction — Contempt. Jurisdiction of the person and of • the subject-matter are not alone conclusive, but the jurisdiction of the court or judge thereof to render the particular judgment is a proper subject of inquiry, and if, upon the whole record, it appears that the judgment was unwarranted by law, the contemnor will-be released on the hearing of a writ of habeas corpus.
    (Syllabus by the Court.)
    Original application for habeas corpus by J. P. Gndenoge.
    Writ allowed, and petitioner discharged.
    The petitioner, J. P. Gndenoge, was on the 19th ¿toy of December, 1908, committed to the county jail by L. R. Shean, county judge of Washita count}7, for a period of 60 days,' as for contempt of court. On February 25, 1909, petitioner filed in this court a petition signed and verified by his oath, and which, omitting the formal parts, reads as follows:
    “Your petitioner, J. P. Gudenoge, represents and states: That he is a citizen of the state of Oklahoma, and that he is restrained of his liberty and is unlawfully imprisoned and restrained at the county jail of Washita county in the city of New -Cordell, in said state, by W. H. Griffin, sheriff of said Washita county. That the cause of said restraint, according to the best of the knowledge and belief of your petitioner is: A commitment issued on the 19th day of December, 1908, by L. 1?. Shean, county judge of said Washita count}7, committing your petitioner to said county jail for a period of 60 days from said 19th day of December, 1908, upon a pretended conviction of your petitioner for a contempt of court. A copy of said commitment is hereto- attached, marked ‘Exhibit A/ and made a part hereof. That the proceeding in which said alleged contempt of court took place was a pretended prosecution before said county judge, entitled as State of Oklahoma v. John Doe and Richard Roe, and was a wholly fictitious and nonexisting cause, no person being-charged with the violation of law, but was an inquisition being held by said county judge, under authority given by section 4. art. 3, p. 604, of the prohibition law of Oklahoma for the years 1907 and 1908; and your petitioner was prior to the said 19th day of December, 1908, to wit, on the 10th day of December, 1908, subpoenaed to appear before said county judge to give evidence in said last above entitled proceeding as a witness.. That on said date, to wit, December 10, 1908, your petitioner appeared before said count}' judge in obedience to said subpoena, and was sworn as a witness. That he did not refuse to produce any books or papers, nor did he refuse to answer an}' proper or legal question propounded to him as such witness, pertinent to the case, but did decline to answer certain, impertinent, improper and illegal questions; whereupon said county judge issued a commitment committing your petitioner to the county jail for a period of 10 days, as for contempt of court. That petitioner has been unable to obtain a copy of said last-named commitment, but avers that the same is in substance the same as ‘Exhibit A’ hereto, except that the time of imprisonment was fixed at 10 days, instead of 60 days, as in ‘Exhibit A/ That on, to wit, the 19th day of December, 1908, your petitioner was taken before said county judge the county attorney being present,-and was asked to be sworn in the same matter, and your petitioner informed said county judge that he had been once sworn, and could see no use in again being sworn; whereupon the' county attorney asked him to affirm, which your petitioner declined to do on the ground that he had already been sworn in the matter, and stated that he did not see any use in being sworn again; whereupon said county judge at once signed the commitment, ‘Exhibit A’ hereto, the same being all made out with the exception of the signature of said county judge, committing your petitioner for contempt to the. county jail, as shown by said commitment ‘Exhibit A/ and your petitioner avers.that he has been imprisoned on said proceedings in the county jail of said county ever since said 10th day of December, 1908, a period of about 55 days, and that he is still confined in said jail on said commitment, ‘Exhibit A^ hereto. That said commitment. ‘Exhibit A/ is wholly void and said county judge had no jurisdiction or power under the Constitution and laws of this state to issue the same-imprisoning your petitioner for a period of 60 days. That there was no order made adjudging your petitioner guilty of contempt, and if there was any such order made by the said county judge the same is not sufficient in law to justify said imprisonment, for the reason that said order was made without authority of law and is wholly void and does not- show that petitioner was adjudged guilty of any offense against the laws of the state which would warrant a confinement in jail, or of any contempt of court which would justify punishment of any kind. That no accusation in writing accusing petitioner of contempt has ever been filed against him. That petitioner has been confined in jail on account of the order of said county judge for more than 30 days. That said county judge did not have the authority or jurisdiction to commit petitioner to jail for.contempt for a longer period than 10 days, which time the petitioner has served, and the time for which he could be legally imprisoned has expired. That said commitment ‘Exhibit A’ hereto, and by which your petitioner is now being held in jail, is void, for the reason that the same exceeds the power and authority and jurisdiction to commit as for contempt, of said county judge, and the same is so vague, uncertain, and indefinite that it cannot be ascertained therefrom what is meant. That said commitment for 60 days is void, in that it is not for a definite time, or until such time as your petitioner should perform any definite act. Wherefore your petitioner prays -this honorable court to grant a writ of habeas corpus, and that he be discharged without delay from such unlawful imprisonment. Knott & Jones, Att’ys for Petitioner, Cordell, Oída., J. P. Gudenoge.”
    To which petition is attached “Exhibit A,” which reads as follows:
    “State of Oklahoma, Washita County. In County Court, State of Oklahoma v. J. P. Gudenoge, Defendant. The State of Oklahoma, to the Sheriff of Said County- — -Greeting: Whereas, on the 19th day of December, 1908, at the before county court, in and for the- county and state aforesaid, the above-named defendant, J. P. Gudenoge, was by the judgment of said court convicted of the crime of contempt of court, and on the 19th day of December, 1908, was by said court adjudged to: (A) fined in the sum of 60 days in the county jail of said county: now therefore you are hereby commanded to take said J. P. Gudenoge into your custody and confine him in the jail of said county, (B) until the expiration of said term of 60 days, unless ordered by the court to release defendant before the expiration of said time. In testimony whereof, witness my hand and seal, this 19th day of December, 1908. L. E. Shean. County Judge. [Seal.]”
    On February 25,- 1909, the writ was allowed as prayed for, by the Presiding Judge of the -Criminal Court of Appeals, and made returnable forthwith. Whereupon, on February 25, 1909, the respondent, W. EC. Griffin, sheriff of Washita county, made and filed in this court his return to said writ duly verified, which, omitting the-formal parts, reads as follows, to wit:

      “In the matter of J. P. Gudenoge, Habeas Corpus. Return of Writ. Comes now W. H. Griffin, sheriff of Washita county, Olda., and for his return to writ of habeas corpus issued herein, states: That said J. P. Gudenoge was placed in his custody on the 10th day of December, 1908, by virtue of an order of the county court and a commitment issued by the judge of said court, and by virtue of said commitment and said order of the county court, copies of which are attached hereto as part hereof, marked ‘Exhibit A and B,’ respectively, said J. P. Gudenoge was held by the undersigned, said Exhibit A containing the full proceedings in said matter and showing the cause upon which said order and commitment was issued. That on the 19th day of December, 1908, the said J. P. Gudenoge was returned to the undersigned as sheriff of Washita county, Okla., for confinement in the county jail of said county, and has since been held by virtue of an order of the count}' court and a commitment issued by the judge of said court as of the said 19th day of December, 1908, copies of which order and proceedings of said court are attached hereto, together with the commitment issued by said county judge, marked ‘Exhibit C and D,’ respectively. In obedience to the writ of habeas corpus issued herein, I now produce the body of said J. P. Gudenoge before the judge of this court, to be dealt with according to law, together with the originals of my authority for said imprisonment. W. H. Griffin.”
    “Exhibit A. J. P. Gudenoge, being first duly sworn, testified as follows: Q. Well, Shorty, you were somewhat intoxicated a few days ago, and we want to know where you got your whisky. A. Well, sir; I got it at home. Q. Got it at home? A. Yes, sir. Q. Who did you get it from to carry it home? A. Well, I don’t know that I care to answer that. Q. Well, there is no way to get around it. A. Yes, sir. Q. You know the law, that it is contempt of court if you don’t answer it? A. Well, there is one thing I consider sacred, if anything, my principle. Q. That is your principle, shielding boot-leggers? A. My principle is, ‘Do unto others as you would have them do unto you.’ Q. Did you buy this whisky from somebody here in town? A. I refuse to answer. * * * ”
    “Order. J. P. Gudenoge having been brought before the court on the 10th day of December, 1908, in obedience to a subpoena lawfully issued out of said court on the 8th day of December, 1908, and the said J. P. Gudenoge having been questioned as to where he got intoxicating liquors, or from whom he got said intoxicants, and having refused to answer such questions, and often refusing to answer the same, although the said J. P. Gudenoge was cautioned as to the law in such case, and having still refused to answer said questions, after said law was read, and being admonished by the county attorney and the court: It is therefore ordered, adjudged, and decreed by the court that said J. P. Gudenoge is in contempt of court and is fined for said contempt in the sum of 10 days in the county jail and is herewith remanded to the custody of the sheriff until such term of 10 days is served or until said J. P. Gudenoge signify his willingness to answer said questions, jn’oviding said willingness is so signified bjr the expiration of said 10 days. L. B. Shean, County Judge.”
    “ * * * Witness, J. P. Gudenoge, being brought before the court, refused ,to be sworn, as follows: Q. By the Court: Stand up and be sworn, Mr. Gudenoge. A. Why, Judge, do you ask me to be sworn? You caused me to swear myself in jail before. Q. Do you refuse to be sworn? A. Why Judge, you caused me to swear myself in jail before. Q. Do you refuse to be sworn or affirmed? (To which question the witness is silent and refuses to answer.) * * * ”
    Whereupon L. B. Shean, county judge, issues the order of commitment as shown by Exhibit A of the petition herein, which bears the following return:
    “Officer’s Beturn. Deceived the within writ on the 19th day of December, 19-, at 11 o’clock a. m., and executed on the 19th day of December, 1908, by J. P. Gudenoge in the Washita County Jail., ■ Dated this 19th day of December, 1908. W. H. Griffiin, Sheriff.”
    It was agreed by the attorneys for petitioner and the county attorney of Washita county and the Attorney General that they would waive production of the body of the said petitioner before the Criminal Court of Appeals, at the city of Guthrie, Oída., and would waive the personal appearance of said respondent; and it was further agreed that said cause might be heard in the absence of said petitioner and respondent, and that said cause should be submitted upon the filing of briefs by both parties. On February 20, 1909, the cause was submitted.

      Knott & Jones, for petitioner.—

      Hateas Corpus as proper remedy: Taylor r. Newblach, 5 Olda. 647; Tn re Patswalcl, 5 Oída. 78Í); Garner v. Territory. S Oiría. 379; Ex parte Johnson, 1 Oírla. Or. 414, 98 Pae. 461; In re Mitchell, 1 Kan. 643; 24 Kan. 218; 9 Cyc. 58.
    ' Chas. L. Moore, Asst. Atty. Gen., Fred 8. Caldwell, and Bnih-ford Brett, for respondent.
   DOYLE, -Judge,

(after stating the facts as above). It is contended by counsel for petitioner: That the proceedings in which said alleged contempt of court took place were wholly fictitious; no person being charged with the violation of law. That it was an inquisition being held by said county judge under authority given by section 4, art. 3, c. 69, p, 604, Sess. Laws, 1907-08, otherwise known as the “Enforcement Act.” That under the Constitution and this section of the law, it is necessary that some one be charged with a violation of the laAV. That there can be no issue in a wholly fictitious proceeding. That for this reason the question propounded to petitioner was not legal or proper, as it was too general and not confined to any person who had been charged with a violation of the prohibitory law. That the court or judge thereof was without jurisdiction or authority to issue said commitments, and that the proceedings in contempt under this statute and the punishment therefor are governed by the provisions of the Criminal Code.

Mr. Caldwell, counsel for the state, contends:

“That said section 4 of said enforcing act does not contemplate that there shall be any prosecution pending before witnesses can be examined as provided for in said section; that said section 4 of said enforcing act makes it mandatory upon the judge to entertain such proceeding whenever he is requested so to do by the county attorney; that in this case the matter being inquired into by the county attorney pertains to violations of said enforcing act; that a contempt of this sort is not, strictly speaking, a criminal contempt, but is rather a civil contempt; and that the proceedings in contempt under this statute, and the punishment therefor. are governed by the provisions of Procedure Civil.”

He admits in his brief, however; that:

“It appears that the commitment tinder which the petitioner is held purports to impose upon him a definite and fixed penalty, to wit, confinement in the county jail for a period of 60 days. In this I think the judgment of the court is in error. However, inasmuch as the court undoubtedly had power and jurisdiction to order the petitioner re-confined in the county jail until he should express his willingness to comply with the commands of the court, even though the result might be his confinement there for the remainder of his natural life, and since it nowhere appears from the record in this case that petitioner has, at any time since his commitment for his failure to 'answer the question which he was directed to answer, answered, and the petitioner does not even allege in his petition such willingness to answer said question, I cannot see where he has been in any way prejudiced by the aforesaid irregularity in the commitment.”

On this contention the question is: Was there a contempt committed, and did the county court, or judge thereof, have jurisdiction or authority to issue the commitment under which petitioner is now restrained of his liberty?

All courts have inherent power to punish for contempt. The statutes of this state provide (Wilson's Rev. & Ann. St. § 2125) :

“Contempts of court shall be divided into direct and indirect contempts. Direct contempts shall consist of disorderly and insolent behavior committed during the session of the court and in its immediate view and presence, and of the unlawful and wilful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper question.”

The cases generally further classify contempts of coui*t as either “civil” or “criminal.” The distinction between civil and criminal contempts is plainly drawn. A “civil contempt” is where a person fails or refuses to do something which he has been ordered to do for the benefit of the opposite party to the cause. The punishment by imprisonment is for the purpose of coercing the performance of the act, A civil contempt-is instituted by a private individual for the purpose of protecting or enforcing his rights. The order in such a case is not in the nature of a punishment, but is coercive to compel him to act in accordance with the order of the court. A “'criminal contempt” embraces all acts committed against the majesty of the law, and the primary purpose of their punishment is the vindication of public authority and the dignity of the courts. In the ease of a criminal contempt the proceeding for its punishment should conform as nearly as possible to proceedings in criminal cases. We cannot assent to the suggestion that the courts can, in criminal eases of this kind, adopt by analogy the penalty provided by the provisions of Procedure Civil for civil contempt. The contempt in this case did not consist in disobedience of some writ or order for the benefit of a private litigant. Eefusal to answer a legal and proper question and to be sworn a second time are the acts averred, and the contempt, if contempt there be, is therefore criminal. It follows that the judgment pronounced was controlled by the provisions of the Criminal Code.

Every exercise of the power to punish a violation of a judicial order is, however, subject to one important qualification, namely, it is absolutely essential that the court making the order should have acted directly within jurisdictional limits, otherwise the disobedience of such an order will be no contempt. In the absence of jurisdiction the judgment is a nullity, and if the punishment he by imprisonment the contemnor will be released cn the hearing of a writ of habeas corpxis. Ex parte Rowland, 104 U. S. 604, 26 L. Ed. 861; Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117; Ex parte Crenshaw, 80 Mo. 447. The rule, now- supported by high and abundant authority and excellent reason, is that the court must not onW have jurisdiction over the person and the subject-matter, but authority to render the particular judgment. People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111; Holman v. Austin, 34 Tex. 668.

In a late work on Jurisdiction, the author, in discussing the three essential elements necessary to render a conviction valid, says:

“These are that the court must have jurisdiction over the subject-matter, the person of the defendant, and authority to render the judgment. If either of these elements are lacking the judgment is fatally defective.” (Brown on Jurisdiction, par. 110.)
“Such want of jurisdiction to render the particular judgment may arise either from a constitutional prohibition against the infliction of such punishment in such cases, or from the infliction of a punishment in excess of that, or the commitment may be for an indefinite time, or it may arise from the punishment, as a contempt of an act or default which in law is not contempt.” • (A. & E. Encyc. [2d Ed.] vol. 7, p. 37.)

The Constitution of the state of Oklahoma, in its Bill of Rights, § 21 (Bunn’s Ed. § 30), provides that:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this 'Constitution specifically provided.”

And section 27 (Bunn’s Ed. § 36) provides:

“Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation, charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws' of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence.”

Section 4, art. 3, c.'69, p. 604, Sess. Laws 1907-08 provides as follows:

“Sec. 4. It shall be the duty of any judge of the district or county court, upon a request of the county attorney, or upon the complaint of any other person, supported by affidavit, to issue subpoenas for any witnesses that may have knowledge of the violation of any of the provisions of this act, and such judge shall have power, and it shall be his duty, to compel such witnesses to appear before him and give testimony and produce any books or papers that will assist in the prosecution of any person who may be charged with violating any of the provisions of this act.”

Said section further provides:

“Should any witness refuse to appear before such judge, in obedience to such subpoena, or refuse to produce any books or papers when lawfully required so to do, or having appeared, shall refuse to answer any proper questions, or sign his testimony when so required, it shall be the duty of said judge to punish as for contempt in accordance with the constitution and laws of the -state.”

An inquisition under the provisions of said section 4 of said enforcement act is a proceeding special in its nature, and no presumption can attach in favor of its jurisdiction; and before petitioner could be held guilty of contempt it must be shown affirmatively that a criminal case was pending in which he was sworn as a witness. It is apparent from t-he language of section 27 of the Bill of Bights that the immunity therein granted to persons called to testify contemplates a charge against some person or corporation with a violation of the law; and the language of said section 4 expressly requires as a condition precedent that the request of the county attorney, or the complaint of other persons, be supported by affidavit, and while it is not essential that the complaint and affidavit designate by name the person or persons charged, if not known, the complaint should so state. We believe it is a prerequisite, under the Constitution and said law, that -the proceedings under said section 4 of said enforcing act should be predicated upon a complaint supported by affidavit. The relations of petitioner to the subject of inquiry before the county judge, as shown by the questions put to him and his answers thereto, in connection with the penal provisions of the prohibitory law, entitled him to invoke the protection of section 21 of the Bill of Bights, unless section 27 of the Bill of Bights removes the protection of the constitutional privilege. Section 27 must be construed as declaring that no evidence obtained from a witness by means of a judicial proceeding shall be given in evidence, or in any manner used against him, in any criminal proceeding, or for the enforcement of any penalty or forfeiture. Similar constitutional provisions have received many interpretations in the federal and state courts, and the uniform holding has been that no statute which leaves the party or witness subject to prosecution, after he answers the crim-inating question put to him, can have the effect of supplanting the privilege conferred by the Constitution; however, in the view we take of this ease, we do not think it necessary to review the adjudicated cases.

It is apparent that in this case, and it is conceded by counsel for the state, that no person was charged with an offense against the laws of the state in the proceedings had before said county judge, and in the absence of this essential condition precedent, for the reasons hereinbefore stated, the witnesses could not be compelled ¡to answer the question propounded. Whatever the power may be of the court or judge sitting in chambers, or whether that power be inherent or conferred by statute, to punish summarily for a contempt, persons guilty of criminal contempt, our Constitution and laws contemplate that the power shall be exercised only where the court or judge has jurisdiction of the person and the subject-matter, and without such jurisdiction the judgment is void.

The contention that said section 4 of said enforcing act makes it mandatory upon the judge to entertain such proceedings whenever he is requested so to do by the county attorney is not'well taken. It will be noticed that said section 4 seeks to make this the duty of the district judges. The Constitution (section 183, Bunn's Ed.) takes from the district courts all jurisdiction, original and appellate, in misdemeanor cases, and gives jurisdiction to county courts, as follows:

“The county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have not jurisdiction."

The absurdity of this contention is apparent when we consider that said- section 4 seeks to make it the duty of the judge of a district court to investigate matters outside the jurisdiction of his court on the request of a county attorney, or upon the complaint of any other person supported by. affidavit. We can hardly believe that the business of district courts could be interrupted in this manner, and the said section, in so far as it relates to district judges, is apparently in conflict with the foregoing constitutional provisisn

It has been deemed necessary, in order to prevent abuses of the power thus conceded, to prescribe and limit by statute the punishment to be imposed for contempts. The federal laws and laws of nearly all the states so provide. The statute of this state (section 2'12'6, Wilson’s Eev. & Ann. St. 1903) is as follows:

“Punishment for contempt shall be by fine or imprisonment, or both, at the discretion of the court; but the fine in no case shall exceed fifty dollars or imprisonment a longer term than ten days in the county jail; provided, that when any person shall be imprisoned for the nonpayment of a fine he shall be discharged at the expiration of thirty days.”

Thus it will be seen that the county court or judge thereof was without power or authority of law to render the judgment and issue the commitment for 60 days, as was done in this ease. This statute limits the duration of the imprisonment and the amount of the fine, and the punishment must conform .to such limitation, and cannot exceed it. If there had been a criminal contempt, the judgment and sentence would still have been without authority of law.

From a consideration of the language of the constitutional provisions in the Bill of Eights referred to, and section 4 of the so-called “enforcement act,” we are clearly of opinion that the petitioner was entitled to refuse, as he did, to answer. The examination of the record shows that the questions propounded are not in proper form, and assume the fact that petitioner carried whisky to his home. The commitment, as shoAvn by Exhibit A, does not conform to the requirements of the statute. Section 2128, Wilson’s Eev. & Ann. St. 1903, provides:

“Whenever a person shall be imprisoned for contempt the substance of the offense shall be set forth in order for confinement and made a matter of record in the court.”

For the reasons hereinbefore stated, the writ of haheas corpus is hereby allowed, and the petitioner discharged.

FUEiTAN, Presiding Judge, and BAKEE, Judge, concur.


source: Caselaw Access Project

author: DOYLE, Judge.

license: Public Domain

text:
    John Hance v. State.
    No. 276.
    Opinion Filed March 17, 1909.
    (100 Pac. 260.)
    1. APPEAL — Writ of Error — Duty to Point Out Error. The Criminal Court of -Appeals, where no briefs have been filed on behalf of the plaintiff in error, will not diligently search the record to discover errors, and the judgment of the trial court will be affirmed where no prejudicial error appears upon the face of the record.
    2. SAMiE. Where an appeal is taken in a criminal case, and no briefs are filed, this court will examine the information, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if error is not apparent the judgment will be affirmed.
    3. SAME. In criminal cases appealed by the defendant, where no brief is filed by the plaintiff in error, this court will look only to the jurisdiction of the court, the sufficiency of'the information, and the regularity of the judgment.
    4. SAME. Where the plaintiff in error was convicted upon a trial by jury with violating the prohibitory law and appeals from the judgment of conviction, and no briefs are filed or argument presented, it is not the duty of this court to go into an examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony, or determine the sufficiency of the evidence to sustain the conviction.
    (Syllabus by the Court.)

      Appeal from Ohmu^gee County Court; J. L. Newhouse. Judge.

    John Hance was convicted of a violation of the prohibitory law, and brought error to the Supreme Court, whence the cause is transferred to the Criminal Court Appeals.
    Affirmed and remanded, with directions.

      Fred, S. Caldwell, for the State.
   DOYLE, Judge.

On February 19, 1908, the plaintiff in error (hereinafter designated as defendant) was informed against in the county court of Okmulgee county, Okla., charged with a violation of the prohibitory law, and, having been duly arraigned, entered a plea of not guilty. On March 6, 1908, he was tried, and a verdict of guilty returned by the jury. On March 30, 1908, a motion for a new trial having been filed, same was overruled and exceptions allowed. Defendant was then by the court sentenced to be confined in the county jail'of Okmulgee county for a term pf 90 days and to pay a fine of $100 and costs. From this judgment and sentence defendant appealed to the Supreme Court of Oklahoma, and the petition in error and case-made, duly signed and certified, together with proper notices of appeal, was filed in the office of the clerk of said court on July 3, 1908. Said cause was duly transferred from the Supreme Court to the Criminal Court of Appeals, as by law provided, and was submitted at this, the March, 1909, term of this court, on the motion of the attorney for the state that said judgment be affirmed, on the ground that no briefs have been filed for defendant, and. for examination of the record upon the assignments set forth in the petition.

No briefs have been filed, and no errors’have been pointed out, except as shown by the petition in error. The petition sets forth four assignments of error, as follows:

“First. Said court erred in overruling the motion for a new trial. Second. Said court erred in entering said judgment. Third. Said judgment overruling the motion for a new trial is contrary to law. Fourth. Said judgment is contrary to the evidence.”

It will be seen that the assignments of error relied upon for a reversal in this case refer to the evidence only in a general way, and we are left to conjecture as to what particular portions of the record defendant complains of: but we suppose his contention is that the evidence as a rvhole is insufficient to sustain the judgment. In cases of this kind, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. Upon an examination of the record we find no prejudicial error.

This court approves the rule enunciated in the case of Hiatt v. Territory of Oklahoma, 14 Okla. 363, 78 Pac. 81, wherein Justice Pancoast, expressing the opinion of the court, says:

“In criminal causes appealed by the defendant, where no brief is filed by the plaintiff in error, the court will not diligently search the record to discover errors, but will look to the jurisdiction of the court, the sufficiency of the indictment, and the regularity ot the judgment.”

Following this.rule we have examined the information and the motion for a new trial, together with the affidavits filed in support of the same, as shown by the record, and the judgment and sentence, and we are unable to perceive any error which would warrant a reversal of the case; the judgment being in all respects regular.

There being no error in the record that affects the substantial rights of the defendant, the judgment of the county court of Ok-mulgee county is in all things hereby affirmed, at the'cost of defendant, and the case is remanded to said county court, with directions to carry the judgment and sentence into effect.

FURMAN, ■ PRESIDING Judge, and BAKER, Judge, concur.


author: BAKEB, Judge,

text:
    George Buchanan v. State.
    No. 328.
    Opinion Filed March 18, 1909.
    (101 Pac. 295.)
    1. JUDGES — Disqualification—Prejudice—Affidavit. When the accused, in compliance with sub-division 4, sec. 291, art. 8, c. 68 (section 5427), Wilson’s Kev. & Ann. St. Okla. 1903, makes affidavit before the commencement of the trial, in which it is positively stated that he cannot have a fair and impartial trial, on account of the bias and prejudice of the presiding- judge of the court where the indictment or information is pending, it is sufficient. 'The affidavit need not set up facts on which it is based, or reasons for the belief of the affiiant as to the bias and prejudice -of the judge. Upon the filing of such affidavit a change of judge must be allowed, but not more than one change of judge shall be allowed in any case.
    2. SAME — Effect of Affidavit. Upon the filing by the accused of an affidavit in proper time, stating positively that he cannot have a fair and impartial, trial, on account of the bias and prejudice of the presiding judge of the court where the indictment or information is pending, such judge cannot thereafter perform any offilcial act in such case binding upon the accused, except the allowance of such change of judge.
    (Syllabus by the Court.)

      Error from District Court, McLain County; B. McMillan, Judge,.

    George Buchanan, was convicted of crime, and brings error.
    Beversed.
    At the 'March, 1908, term of the district court of McLain county, Okla., George Buchanan, who will hereinafter be referred to as the “accused,” was indicted for rape, upon the person of •Estella Boberts. On the 17th day of April, 1908, the accused was placed on trial for said offense, and on the following day the jury returned a verdict of guilty and assessed his punishment at 10 years in the penitentiary. Motion for new trial was presented in due time, and was overruled by the court, from which ruling and the judgment the accused prosecuted error to the Supreme Court of this state. Said court, as required by law, upon the creation of this court, duly transferred the case to this court.

      Crawford & Bolen, for plaintiff in error.

      Charles West, Atty. 'Gen., and Charles L. Moore, Asst. Atty. Gen., for the State.
   BAKEB, Judge,

(after stating the facts as above). The petition in error in this case sets forth 10 specifications, but only four of the errors assigned are called upon and briefed. They are: (1) The court erred in overruling the application of the defendant for a change of judge; (2) the verdict is contrary to the evidence; (3) the verdict is contrary to law; and (4) the verdict is contrary to the law and the evidence.

The Attorney General filed the following confession of error:

“Conies now on the 16th clay of March, 1909, the Attorney General and informs the court that the record in this cause shows that on April 17, 1908, before the above-entitled cause was called for trial, the defendant, George Buchanan, filed his affidavit in the trial court, stating that he could not have a fair and impartial trial on account of the prejudice of the presiding judge, Hon. R. McMillan, as provided by the fourth subdivision of section 291, art 8, c. 68, of Wilson's Revised and Annotated Statutes of Oklahoma of 1903, in force at that time. That by reason of said statute, and the construction placed thereon b3r the Supreme Court of the territory of Oklahoma * * * that said R. McMillan, as presiding judge, had no other or further jurisdiction in said cause than to have granted a change of judge.”

Inasmuch as this cause will be remanded, and may be again tried, this court believes the ends of justice will best be sub-served by passing on assignment No. 3 onty, which complains of the court's action in refusing to allow the change of judge in this case. This assignment will therefore only receive our attention and decision.

As shown by the record, on the 17th day of April, 1908, in proper time, and before this case was called for trial, the accused filed his affidavit in this case, in which he states: “That he cannot have a fair and impartial trial on account of the bias and prejudice of the presiding judge, Hon. R. McMillan.” Notwithstanding the filing of said affidavit, the presiding judge failed and refused to allow a change of judge, and proceeded to, and did hear this cause. Subdivision 4 of section 291, art. 8, e. 68 (section 5427), Wilson's Rev. & Ann. St. Okla., 1903, reads as follows:

“If it be shown to the court by the affidavit of the accusea that he cannot have a fair and impartial trial, by reason of the bias and prejudice of the presiding judge, or that the judge has been of counsel in said cause, or is of kin to either party to the action, or is interested, a change of judge shall be ordered, and .the clerk of the district court shall immediately transmit to the clerk of the Supreme Court of the territory a certified copy of the order granting the change of judge, and the clerk of the Supreme-Court shall, if said court be in session, immediately present the-same to- the court, and if said court be not in session, then he shall at once deliver the same to tie chief justice of the territory, and the Supreme Court of the territory, or the chief justice thereof, as the case may be, may designate any other district judge of the territory to try the "cause: Provided, that not more than one change from the county, and one change from the judge shall be' allowed in any case/’

The affidavit filed in this case for a change of judge being in strict compliance with the statute just quoted, the only question in this case is: Had the trial judge any discretion whatever to refuse the application of the accused for a change of judge to hear this cause, and are the provisions of said statute mandatory upon the trial judge to allow the change of judge asked for upon the filing of such an affidavit? Counsel for accused insist that the statute is mandatory, and that no discretion whatever is reserved in the judge to whom the application is presented to refuse to grant the same, and they file an extensive brief citing many authorities in support of their contention. We have carefully examined all the authorities cited, and a few additional cases that we found, and find the great weight of authorities clearly sustain the claims of counsel of accused, and fully warrant the confession of error filed by the Attorney General herein. We think the Attorney General did right in filing said confession of error, and we concur in, and approve, the same.

The following cases fully sustain our conclusions in this case:

In State v. Wolfe, 11 Ohio Cir. Ct. R. 591, the court say:
“If the affidavit asking for the designation of a judge to try the case is filed with the clerk, the judge against whom the bias is charged has nothing further to do with the case. Where parties claim bias or prejudice, they need not set out facts upon which they base their claim. Whether a man is biased or not is a fact itself, and it is not necessary to state something else to show that he has such bias. The fact of bias or prejudice is not issuable.5’

The statute of Ohio is, in effect, the same as the statute in this state.

The Supreme Court of North Dakota, in the case of State v. Kent, found in 4 N. D. 577, 62 N. W. 631, 27 L. R. A. 686, in construing a statute practically the same as ours, says:

“It cannot admit of a doubt that the act we are interpreting was passed to give the prisoner the right to insist upon a trial before a different judge when the judge in the district where the indictment is pending is biased. From this proposition flows the corollary that, upon the presentment of the affidavit stating such bias and prejudice, the right of the accused to have another judge called in to try the cause is absolute; if not, then the judge attacked for prejudice sits in judgment- on the question of his own bias.”

The Supreme Court of the territory of Oklahoma has passed squarely on this question in the wéll considered case of Lincoln v. Territory, 8 Okla. 546, 58 Pac. 730. The court say:

“Under St. Okla. 1893, § 5138, as amended by Laws 1895, p. 198, c. 41, where the accused makes affidavit in which it is positively stated that he cannot have a fair and impartial trial, on account of the bias and prejudice of. the presiding judge of the court where the indictment or information is pending, and presents it in proper time to the court, it is sufficient. The affidavit need not set up the facts on which it is based, or reasons for the belief of the af-fiant as to the bias or prejudice of the judge.”

This case reverses Cox v. U. S., 5 Okla. 701, 50 Pac. 175, in which it was held that the facts and circumstances showing the prejudice of the presiding judge, or other grounds for such change, must be shown by the affidavit of the defendant, and unless, from the facts and circumstances stated in such affidavit, it reasonably appears that such bias or prejudice on the part of such judge existed, such judge might in the exercise of his judicial discretion refuse such application.

See, also, in support of this opinion: Cory v. Silcox, 5 Ind. 372; Witter v. Taylor, 7 Ind. 110; Manly v. State, 52 Ind. 215; Krutz v. Griffith, 68 Ind. 444.

This court holds that upon the filing of an affidavit of bias and prejudice for change of .judge in proper time, as provided by subdivision 4 of section 2'91 above quoted, there is nothing, more that the judge so attacked can lawfully do in the case without the consent of the accused, except to allow such change of judge-. The court below therefore committed prejudicial error, in not granting the application of the- accused for change of judge, and in not sustaining the motion of the accused for a new trial predicated thereon.

The sentence and judgment of the court below is therefore set aside, reversed, and held for naught, and the case is remanded to the district court of McLain' county, for new trial.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


author: FURMAN, PRESIDING Judge,

text:
    John Petitti v. State.
    No. 183.
    Opinion Filed March 29, 1909.
    (100 Pac. 1122.)
    1. TRIAL — ^Reception of Verdict. In a criminal case the verdict, when returned into open court, must be read to the jury, and they must be asked if they all agree to the verdict, and they must assent thereto before they are discharged.
    2. SAME — Correction of Verdict. When the jury have returned into court a verdict finding the defendant not guilty, it is error, after the jury have been discharged and mingled with the public, for the court to recall the members of the jury and require or permit them to impeach, the verdict returned into court by testifying that they really intended to find the defendant guilty.
    (Syllabus by the Court.)

      Appeal from Pittsburg County Court; R. IF. Higgins, Judge.

    John Petitti was convicted of selling intoxicating liquors, and appeals.
    Reversed.
    On the 18th day of December, 1907, an information was filed in the county court of Pittsburg county against John Petitti (hereinafter called “defendant”), charging him with the crime of selling intoxicating liquors to various persons whose names were to the county attorney unknown. On the 2'Oth of Februarjr, 1908, upon motion, the county attorney was permitted to amend the information by charging that the intoxicating liquors were sold to I. F. Hamilton. On the samé date the defendant was placed upon trial, and, after hearing the evidence and argument of counsel, the jury returned into court and announced that they had found the defendant guilty. But the verdict of the jury was not recorded and read to the jury as the law directs. The jury was then discharged. On the 29th of February, the defendant filed the following motion in arrest of judgment:
    “State of Oklahoma- v. John Petitti. Now comes the defendant, and prays the court to arrest the judgment in this case for the fallowing reasons, to wit: (1) Because the defendant was tried without having first been arraigned as required by law. (2') Because there is no legal information or indictment in this cause. (3) Because the judgment entered by the court in this cause is contrary to the verdict rendered by the jury, a copy of the verdict being attached hereto, marked ‘Exhibit A/ and made a part hereof. Wherefore defendant prays that the 'judgment be arrested. [Signed] J. E. Whitehead, Attorney for Defendant.”
    “ ‘Exhibit A.’
    “We, .the jury duly impaneled and sworn, do find from the law and evidence the defendant not guilty. [Signed] B. F. Jobe, Foreman.”
    The record shows that the following proceedings were then had on said motion:
    “February 29th, 1908, one of the regular days of the county court. State of Oklahoma vs. John Petitti. On this day comes the parties to this action, and by permission, of the court defendant files his motion in arrest of judgment, and it appearing to the court that the written verdict filed as follows, ‘We, the jury, duly impaneled and sworn, do find from the law and evidence the defendant not guilty. [Signed] B. F. Jobe, Foreman/ was contrary to the verdict as announced, whereupon B. F. Jobe, the foreman of the jury that rendered the verdict, is brought into court, and in open court testified that the verdict as announced finding the defendant guilty is the correct verdict of the jury; that before retiring the court furnished the jury with a form of verdict of guilty and-one of not guilty, and that in signing the verdict of not guilty it was purely a clerical error and mistake; and also came the other jurors and testified to the same statement of facts. The defendant excepts to the bringing back of the jurors after they had been discharged, and excepts to all statements made by them in reference to their verdict. And the court, being well and sufficiently advised, doth overrule said motion in arrest of judgment, to which defendant in open court excepts.”
    The defendant then prosecuted an appeal, and the case is regularly before this court.

      J. E. Whitehead, and Jack Harley, for appellant.

      Fred S. Caldwell, for the State.
   FURMAN, PRESIDING Judge,

(after stating the facts as above). In this ease the record affirmatively shows that the jury returned into open court the following written verdict: “We, the jury, duly impaneled and sworn, do find from the law and the evidence the defendant not guilty. [Signed] B. F. Jobe, Foreman.” But the jury verbally announced to the court that they had found the defendant guilty. This verdict was not recorded by the clerk and read to the Jury as the law directs.

Section 5542, Wilson’s Rev. & Ann. St. 1903, is as follows:

“(5542) § 406. When .the verdict is given and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case.”

The purpose of this statute is to prevent any uncertainty as to what the verdict of the jury really is, and thereby to avoid any misunderstanding or mistake upon this subject. If the statute had been complied with in this case, the conflict between the verbal report made by the jury as to what their verdict was and the written verdict which was returned into court would have appeared, and it would have been the duty of the court, before discharging the jury to require them to correct their verdict and make it conform to their actual.finding. But this was not done, hence the dilemma which now presents itself.

The question which presents itself for decision is as to whether the court had the power, after the jury had been discharged and had mingled with the public, to place those gentlemen who had constituted the jury on the witness stand and receive their testimony to the effect that the written verdict of not guilty, which they had actually returned into court, and which was signed by their foreman, was so returned by mistake, and that it was the intention of the jury to return a verdict of conviction.

This question was before the Supreme Court of Louisiana in a civil case. That court said:

“A second bill of exceptions was taken to the refusal of the judge to permit the jury to prove that their verdict was really for the plaintiff, and that the word 'defendant’ was written in the verdict through error, instead of 'plaintiff.’ * * * The ruling ivas correct.” (Chevallier v. Dyas et al., 28 La. Ann. 360.)

In another civil case the Supreme Court of South Dakota said:

“Affidavits of jurors will no-t be received to impeach their verdicts, unless authorized by statute, and only then upon the grounds, and in the manner permitted by the statute.” (Gaines v. White, Sheriff, 1 S. D. 434, 47 N. W. 524.)

The rule is clearly stated and the authorities are cited on page 730 of Abbott’s Trial Brief in Criminal Causes (2d Ed."), as follows:

"After separation. — After the verdict has been recorded, and the jury, after- being discharged, have separated, they cannot be recalled to amend their verdict. But the mere announcement of their discharge does not, before they have dispersed and mingled Avith the bystanders, preclude recalling them. Sargent v. State, 11 Ohio, 472; Mills v. Com., 7 Leigh (Va.) 751; People v. Lee Yune Chong, 94 Cal. 379, 29 Pac. 776; State v. Dawkins, 32 S. C. 17, 10 S. E. 772; Allen v. State, 85 Wis. 22, 54 N. W. 999. And see civil authorities in Abbott’s Civil Trial Brief (2'd Ed.) div. 8 And that it is reversible error to send- out for further deliberation upon their verdict a jury in a criminal case who have rendered an incomplete sealed verdict during the night, and have been allowed to separate, see Farley v. People, 138 Ill. 97, 27 N. E. 927.”

The rule of law that juries cannot impeach or contradict their verdict after they have been discharged and have mingled with the public is based upon the highest consideration of public policy. It can only be done when permitted by statute, and then only as the statute may prescribe.

The written verdict of the Jury must control. If it had been read to them before their discharge, as the law contemplates, then it would have still been subject to their control, and could have been altered or corrected as they desired, if permitted by the court; or it could have been returned to them with directions from the court to retire and continue with the consideration of their verdict. After a jury has been discharged and has mingled with the public, the persons who' served on it are no longer a jury, and have lost all connection with and control over their verdict. They have nothing more to do with the verdict than any other private citizen. If they were allowed to contradict or impeach the verdicts which •they have returned into court, the door would be opened to all manner of abuses. All conceivable attempts would be made to cajole, browbeat, and even to corrupt jurors to testify that there was some such mistake made as would require the court to set aside verdicts in many cases. Especially would this be true in verdicts of conviction in criminal cases. We know nothing of this .sort happened in this case, for members of this court are acquainted with gentlemen who served on this jury, and their high character is recognized. But the rule adopted in this case will have to be followed in all cases. It is better to turn one guilty man loose in establishing a sound rule of practice than it would be to create a precedent which would destroy the stability of the verdicts of juries and demoralize the administration of justice.

Upon the authorities hereinbefore cited, and for the reasons hereinbefore given, we are constrained to hold that the written verdict of not guilty returned into court by the jury could not be impeached or contradicted by the testimony of the persons who constituted the jury, as was done in this case, and that after the discharge of the jury this verdict became final and conclusive upon the state, and that the court erred in not sustaining defendant’s motion in arrest of judgment.

. The case is therefore reversed, with directions to the county court to sustain the motion in arrest of judgment, and discharge the defendant upon the verdict of not guilty.

BAKER and DOYLE, Judges, concur.