Bryan v. State

McCueeoch, C. J.

The petitioners, Charles Bryan and Charles Bryan, Jr., were adjudged guilty of contempt of court by the circuit court of Garland County, each being fined in the sum of $150, and -they have brought the record here by writ ot certiorari for review. The contempt is alleged to have consisted of obstructing, delaying and hindering an officer in the service of a warrant commanding him to search a certain building in the city of Hot Springs for gambling devices, commonly called faro-bank, roulette and crap tables. Information was filed by the prosecuting attorney of that circuit, setting forth the facts which were alleged to constitute the offense. Petitioners were brought in by warrant of arrest, and a trial of the cause resulted as above stated.

The evidence tends to show that the petitioners were running a gambling room in the city of Hot Springs at the time the warrants were issued.- About the time the warrants were issued, or shortly thereafter, some one gave information to the proprietors that a raid was about to be made, whereupon the patrons of the house departed, and the doors were closed. When the officers reached the room, they found one of the Bryans standing on the outside, and demand was made on him for the key, which he denied having in his possession. A short time elapsed before the officers were able to effect an entrance, and the testimony warrants the conclusion that in the meantime the gambling devices' described in the warrant were removed and secreted. They were found, however, by the officers. The evidence justified the finding that an attempt .was made to evade and circumvent the service of the warrant and the seizure of the articles named, and that the officers were hindered and delayed in executing the process. But no violence was used or offered.

The first question presented in the case by learned counsel for the petitioners is that this conduct does not constitute criminal contempt of which the court may take cognizance. They rely upon a provision of our statute on the subject of contempts which, in part, defines same to be “resistance wilfully offered by any person to the lawful order or process of the count.” Kirby’s Digest, § 720, 4th subdivision. They insist -that this language must be construed to mean some sort of overt act in the wilful resistance or obstruction of .process, and not mere evasion or circuriiven'tion of the officers. The statute does not, however, control, for it is not within the power of the Legislature to regulate punishments of contempts in disobedience of process. Art. 7, § 26, Constitution; Ford v. State, 69 Ark. 550. The resistance of process, or evasion or circumvention of an officer in the service of process, where it is sufficient to amount to contempt of court, is disobedience of process, and therefore falls within the language of tire Constitution, which in effect' forbids regulation by the Legislature. So we must determine this case without the aid of statutory definition. This disposes also of the contention that the fines were in excess of the amount prescribed by the statute. We find the rule sustained by the authorities stated in the Cyclopedia of Law & Procedure, vol. 9, page 20, as follows: “The due administration of justice may be disturbed, and therefore contempt committed, by unlawful hindering, delaying or interfering, or attempting so to do, with the proper execution of legal process.”

The cases cited do not reach directly to the same kind of acts as shown by the testimony in this case, but we are of the opinion that the acts here shown constitute a contempt of court. The power to punish for contempt is inherent in the courts themselves, and is exercised for the purpose of preventing hindrance or interference with the execution of their process. If a party hinders or prevents the service of process by deceiving the officer, or by circumventing him by any means, the result is the same as though -he had obstructed by some direct means. The intentional hindrance of the service of process is the thing which constitutes the contempt, rather than the particular means by which it is accomplished. It is unnecessary to go to the extent in this case of holding that merely secreting property, which the officer is seeking to seize, constitutes contempt; but where, as in this case, the officer, by some device or deception, is hindered or delayed in the prompt execution of tire process, we hold that this constitutes contempt, even though there is no force or intimidation or direct refusal to obey the process.

It is also urged that the search warrant' was void because it failed to describe with sufficient particularity the-articles to be seized. They were described in the affidavit and in the warrant as “certain gambling devices and tables known as faro-hank, roulette and crap tables adapted and devised .and designated for the purpose of playing games of chance and at which money or property may be won or lost,” and the warrant commanded the officer to search for these articles in a certain building in the city of Hot Springs, which is accurately described. We ¡think the description was sufficient, and was as definite a description as could practicably have been given. Counsel rely upon a decision of the Massachusetts court, where a search warrant was held to be insufficient because it merely described the property “as certain goods, wares and merchandise lodged and deposited” in a certain house or store. In the present case the designation of the property is more definite thian that, and the case cited is without any controlling force.

On examination of the whole record, ¡we are convinced that the evidence sustains the finding of the court, and that there is no error in the judgment.

Affirmed.