People ex rel. Kroncke v. O'Brien

Steckler, J.

Under sec. 915 of the Code of Criminal Procedure the relator, in a proceeding instituted in the Court of General Sessions by the commissioner of charities on the complaint of relator’s mother, was fined $35 for contempt in failing to comply with the order of the court directing him to support his mother,, and committed to the common jail, there to remain until payment, of the fine or until sooner discharged. The relator was incarcerated September 8 last, and his discharge is now sought by habeas corpus on the theory that the contempt of which he was-guilty is a criminal contempt, and that as the maximum period of imprisonment for such a contempt, being thirty days in this case, has expired, he is entitled to his liberty.

The relator’s counsel seems to contend that because a court of criminal jurisdiction adjudged the prisoner’s offense a contempt,, such contempt must necessarily be a criminal one. In this I think he is in error. Respecting disobedience to the orders of a court of record, the sole difference between a criminal and a civil contempt appeal’s to be that a willful disobedience is a criminal' contempt, while a. mere disobedience by which the right of a party is defeated or hindered is a civil contempt (People ex rel. Negus v. Dwyer, 90 N. Y. 407). The order authorizing the prisoner’s commitment does not show his willful disobedience to the court’s mandate. On the contrary, the order recites a mere violation of the mandate, and that his disobedience actually did defeat, impair, impede and prejudice the rights and remedies of the commissioner of charities. If the relator is right in his contention, then a criminal court of record could never punish for any contempts except criminal contempts.

Although the proceeding in which the mandate was issued was a special proceeding of a criminal nature (Code Crim. Pro., part VI, title VIII), the proceeding to punish for contempt was not necessarily a criminal proceeding. (See Code Civ. Pro., chap. 17; title 3; People ex rel. Negus v. Dwyer, supra) ; and as the relator was fined merely the amount due for his mother’s support, and the maximum period of imprisonment for civil contempts has not expired (Code, sec. 2285), the writ must be dismissed and the prisoner remanded.

Writ dismissed and prisoner remanded.