Martindale v. State , 16 Okla. Crim. 23 ( 1919 )

The legal propositions raised by this appeal will be considered in the order presented in the brief of counsel for plaintiff in error.

The first assignment of error attacks the sufficiency of the information upon which defendant was tried, and goes to the very foundation of the contempt proceeding, in that it is claimed by the defendant that the court is without authority to cite or punish a person for contempt in violating a temporary order of injunction issued under section 13, chapter 70, Session Laws 1911, in that there must have been a judgment finding the place to be a nuisance, in that it was a place where persons congregated and resorted for the purpose of drinking intoxicating liquors, etc., preliminary to the issuance of the temporary injunction, and that the information, failing to allege that such a judgment had been rendered upon notice to the parties affected, was insufficient to charge the crime under the provisions of said section 13 aforesaid. That portion of said section 13, supra, applicable to the questions involved in this case, reads as follows:

"All places where any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or any malt liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States; is manufactured, sold, bartered, given away or otherwise furnished in violation of any provision of this act; and all places where such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances, and upon the judgment of any court of record finding such place to be a nuisance under this section, the sheriff, his deputy, or undersheriff, or any constable of the proper county, or marshal or police of any city where the same is located, shall be directed to shut up and abate such place by taking possession thereof. * * * The Attorney General, county attorney, or any officer charged with the enforcement of any of the provisions of this act, of the county where such nuisance exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be required."

The order of injunction which the defendant was charged with violating was a temporary injunction issued at the commencement of the action, and issued pending an action for a permanent injunction on the grounds that the codefendants, Chartier and Miller, were maintaining a public nuisance on said premises in operating a whisky joint thereon in violation of law.

In the opinion of this court, the information states facts sufficient to constitute grounds for contempt of court against this defendant. Matters of inducement leading up to the issuance of the order of temporary injunction are clearly and distinctly stated in the information, as well as acts relied upon as being in violation of said order of injunction and contemptuous to the court.

It is provided by section 13, chapter 70, Session Laws 1911, among other things, "The injunction shall be issued at the commencement of the action," and without bond, either on relation of the county attorney or Attorney General. In Smith et al. v. State ex rel. Gallagher, County Attorney,12 Okla. Cr. 513, 159 P. 941, this court held in effect that —

A temporary injunction "embodies a restraint which continues, unless modified by the court, until the hearing of the cause, and then it is either made permanent or discharged altogether."

Section 10, article 7, of the Constitution gives the district court authority to issue writs of injunction. Section 4872, Revised Laws 1910, provides as follows:

"Where the injunction is allowed during the litigation, and without notice of the application therefor, the order of injunction shall be issued and the sheriff shall forthwith serve the same upon each party enjoined, in the manner prescribed for serving a summons, and make return thereof without delay."

Section 4881, Id., in part provides as follows:

"* * * An injunction may be granted in the name of the state to enjoin and suppress the keeping and maintaining of a common nuisance. The petition therefor shall be verified by the county attorney of the proper county, or by the Attorney General, upon information and belief, and no bond shall be required, but the county shall, in all other respects, be liable as other plaintiffs."

The foregoing sections, being applicable to the procedure generally for obtaining a temporary order of injunction, are applicable in this proceeding. The record shows that the order of injunction was served upon each party enjoined in the proper manner and return thereof made, as provided in section 4872, supra. The trial court, having authority to issue a temporary order of injunction "at the commencement of the action and without bond," in a suit on the relation of the county attorney, and having obtained jurisdiction of the persons of the defendants enjoined in said action by service of said order of injunction on them as required in section 4872, supra, obtained jurisdiction both of the parties to the action and the subject-matter thereof, and, subsequent to such jurisdiction having been obtained, the court had the inherent power to try and punish contemnors for violation of such order. Farmers' State Bank of Texhoma v. State,13 Okla. Cr. 283, 164 P. 132, L.R.A. 1917E, 551.

The questions, therefore, of the sufficiency of the information and of the lack of jurisdiction of the court to punish defendant for contempt of such order are decided adversely to the contentions of counsel for defendant.

It is next contended that the court erred in excusing the juror H.E. Earne for cause at the instance of the county attorney. The court excused the juror after he had stated that he had at one time employed defendant, Martindale, as an attorney, but that such matter would not affect his verdict. The juror was excused over the objection and exception of the defendant. We think the matter of excusing this juror was within the discretion of the trial judge. Beatty v. State, 5 Okla. Cr. 105,113 P. 237; Collins v. State, 15 Okla. Cr. 96, 175 P. 124. We see no abuse of discretion in this instance, and the action of the court in exercising his discretion by excusing such juror is not such prejudicial error as would justify a reversal of this conviction.

It is next contended that the court erred in overruling a challenge for cause made by the defendant against the juror Miller. It is contended in this connection that the juror Miller stated on his voir dire examination that he did not believe the court could make a void order, and that one is bound to carry out every order of the court as long as the same stands unreversed. The questions propounded to the juror on his voir dire examination presented for the juror's consideration a legal test as to his knowledge of the distinction between orders of a court which are void and those which are voidable only, and the questions were to a large extent involved, and were not questions that pertained to any of the statutory grounds for the disqualification of a petit juror. In view of the fact that there is no showing that the defendant exhausted all his peremptory challenges to the trial jurors and was compelled for that reason to accept the juror Miller, we see no merit in this assignment of error.

An assignment of error based upon the court's action in overruling a challenge for cause to an individual juror will be of no avail unless there is an affirmative showing that the challenge for cause was well founded, and that the defendant was compelled to accept such disqualified juror by reason of having theretofore exhausted all of his peremptory challenges. Tudor v.State, 14 Okla. Cr. 67, 167 P. 341.

It is next contended that the court erred in refusing to permit the defendant to prove that James Wooley was the duly qualified and acting sheriff of Tulsa county at the time of the service of the temporary injunction, and that the deputy executing the writ was without authority because not appointed or acting under said Wooley.

The record shows that summonses and the temporary writ of injunction were each directed to James Patton, acting sheriff of Tulsa county, and returns on said summonses and writ show service on the defendants by James Patton, sheriff, by Walter Overby, deputy. It is not necessary to enter into a lengthy discussion on the merits of this assignment. It is sufficient to say that this was not a proceeding to try the title to the office of sheriff of Tulsa county. It will be presumed in this case that the trial court knew, at the time of the issuance of the summonses and temporary writ of injunction, who was exercising the functions of the office of sheriff of that county, an officer of the court charged specifically with serving its writs and processes. 15 R.C.L. 1106, sec. 37.

It is next contended that the court erred in amending the verdict of the jury after it was returned into open court, and that the verdict as amended was never signed by the jury. The record relative to this assignment of error shows that the jury returned a verdict in the following form:

"We, the jury, drawn, impaneled and sworn in the above-entitled cause, do on our oaths find the defendant D.M. Martindale guilty as charged on the information herein.

"H.B. HAMILTON, W.K. SHEPARD, "E.R. GIDDINGS, S.P. McBIRNEY, "CHARLES E. GRAHAM, E. UHRIG, "FRANK SOWERS, B.E. HORRIGAN, "J.E. MILLER.

"Unable to agree on penalty."

The alleged informality in the foregoing verdict goes simply to the position in which the words, "unable to agree on penalty," appeared in said verdict. Such statement in the verdict did not constitute a prerequisite to a valid verdict in a contempt case, because the jury had nothing to do but determine the question of the guilt or innocence of the defendant. The punishment in such cases is left by the Legislature to be inflicted by the trial court. Farmers' State Bank of Texhoma v. State, 13 Okla. Cr. 283,164 P. 132.

It is contended that the court erred in giving instruction No. 2, wherein the jury were told that in the event of finding the defendant guilty, they might fix his punishment, etc. Any error in the giving of this instruction became harmless, because the punishment was not fixed in the jury's verdict.

It is also contended that the court erred in refusing to give the following requested instruction, which action was excepted to at the time by the defendant, to-wit:

"The jury are instructed as a matter of law that the order of injunction heretofore entered in this cause, being granted by the court without the necessary judgment of the court provided by the statute, is a void order, and the respondent herein cannot be in contempt of such order."

The argument advanced is that the court had no jurisdiction to issue at the commencement of the action an order of injunction, and at the same time take possession of the property; that before such action could be taken there must have been a judgment of a court of record finding such place to be a public nuisance in that it was a whisky joint.

When section 13, ch. 70, Session Laws 1911, is construed in its entirety, there can be no doubt in the opinion of this court, as heretofore indicated in this opinion, that said section authorizes the trial court at the commencement of the action to issue a temporary order of injunction. Perhaps the action of the court in padlocking the building and placing same in the hands of the sheriff before any judgment declaring such place to be a public nuisance had been rendered was improvidently granted and irregularly obtained, but the order of injunction was not void for that reason, and therefore the cases cited by counsel for the defendant are not applicable to this case; but the trial court, having jurisdiction of the original subject-matter, and having obtained by the issuance and service of summons jurisdiction of the parties to the injunction proceeding, and having a right under the statute to issue a temporary injunction at the commencement of the action without notice and without bond, both against the parties and the premises, its action in padlocking the premises and putting same in the hands of the sheriff before judgment did not have the effect of depriving the court of its jurisdiction theretofore obtained to issue the temporary order of injunction.

The rule applicable in this case is stated in Ruling Case Law, vol. 6, p. 505, sec. 17, as follows:

"While courts may enforce observance of their orders and injunctions generally, by recourse to contempt proceedings where these are violated, it is a general rule that no court can punish as for a contempt the disobedience of an order made without jurisdiction. The respondent may question the order which he is charged with refusing to obey, only insofar as he can show it to be absolutely void; he cannot be heard to say that it is merely erroneous, however flagrant it may appear to be, since judgments of courts cannot be attacked collaterally for mere irregularities. Hence the mere fact that an injunction was not justified by the facts of the particular case or was erroneous or improvident in any way is no defense, as the party has his remedy by appeal, and until vacated it binds him; and it is enough that the case belongs to a particular class of cases to which jurisdiction attaches."

We find no error, therefore, in refusing to give the requested instruction heretofore set out, and likewise the alleged error in giving instruction No. 4, involving the jurisdiction of the trial court to issue the temporary order of injunction, is not meritorious.

In assessing the punishment, the trial judge sentenced defendant to pay a fine of $1,000 and to serve six months in the county jail. The punishment for this offense is provided by section 13, chapter 70, Session Laws 1911, as follows:

"Any person violating the terms of an injunction granted in such proceeding, shall be punished, as for contempt, by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than six months, or by both such fine and imprisonment."

The punishment assessed, therefore, by the trial judge was excessive in that the maximum fine which may be imposed is not more than $500, and the court imposed a fine of $1,000. That portion of the sentence providing for confinement in the county jail for a period of six months, however, is the maximum of imprisonment fixed by said statute.

Under the provisions of section 6003, Revised Laws 1910, this court has power to modify the judgment appealed from. A careful examination of all the facts and circumstances surrounding this contempt, and the punishment imposed therefor by the trial judge, convinces this court that the ends of justice would be best subserved by modifying the judgment to provide a fine of $500 and imprisonment in the county jail for a period of 30 days.

For the reasons stated, the judgment of the district court of Tulsa county finding the defendant, D.M. Martindale, guilty of indirect contempt of said court is modified by providing a fine of $500 and imprisonment in the county jail for a period of 3 days, and, as thus modified, the judgment is affirmed.

DOYLE, P.J., and ARMSTRONG, J., concur.