Ex Parte Kearby

The relator in this case applied for a writ of habeas corpus to this court, which was granted. Evidence was adduced on the trial of the case, from which it appears, that on the morning of the 29th of February, 1896, (which was Saturday) in the Criminal District Court of Dallas County, J.C. Kearby, the relator, and W.E. Hawkins, were imprisoned in the county jail of said county, on the verbal order of the District Judge. In the afternoon of the same day, the said parties applied to Judge Henderson, of the Court of Criminal Appeals, for a writ of habeas corpus, which was granted, said writ being made returnable before the full court on Monday, the 2nd day of March. Said parties, by the order of the judge granting the writ, were released in the interim on bonds, which they gave. On their release (which was between 2 and 3 o'clock in the afternoon) they came into the said Criminal District Court, to re-engage in the trial of a criminal cause then pending and being tried before said court, said Hawkins representing the State, and J.C. Kearby representing the defendant. On their return into court, it appears that the District Judge stated to them that they could not proceed with the trial of the case (which was then before the court) until they had purged themselves of contempt. Hawkins arose, and asked the court what he should do to purge himself of contempt. The court replied: "You are a lawyer, and ought to know." Kearby, the relator, then arose from his place at the table, and said: "Your Honor, I have not committed any contempt, and I decline to purge for what I am not guilty of." The court then ordered the sheriff to take him to jail. This is, in substance, the relation of the matter by the witnesses introduced for the relator, to-wit: Kearby, Muse, W.E. Hawkins, S.B. Hawkins, Green Williams and Henry Williams. Lewis and Cabell, who were introduced by the State, did not materially differ from the testimony of the relator's witnesses as to what occurred preceding the order by the court to put the relator in jail. Webb, Haynes and Hoskins, three witnesses introduced by the State, indicate by their testimony that something more occurred before the relator was ordered to jail. They state, as well as Cabell, that when Kearby came into the court room he picked up a pitcher in front of him, and set it down to one side, in such a manner as to be heard in the court room. They also testify that during the colloquy that ensued between the judge and the relator, before he was taken from the court room he became quite boisterous and excited; and they testify that he used a profane epithet, applying it to the judge in such manner as that it could be heard by those immediately around him, and one witness testifies that it was heard by the jury. We gather, however, from the testimony in the case, that the order of the judge to imprison the relator was made, as testified to by nearly all of the witnesses, almost immediately on the parties making their appearance in the court room, so that what afterwards occurred is not so material to a decision of this case; and we are supported in this view by the order of the judge himself, which is as follows:

"SATURDAY, February 29, 1896.

"It is ordered by the court that J.C. Kearby be, and he is hereby adjudged to be again in contempt of this court, in that the said Kearby being already in contempt of this court, as appears from the records thereof, and not having purged himself of said contempt, was informed by the court, after having been released by another tribunal, by writ of habeas corpus, from jail, and on again appearing thereafter in this court, that he nor Mr. Hawkins, who had also been released by said habeas corpus proceedings, could not again appear in the case then on trial until they had purged themselves of said contempt, whereupon said Kearby arose, and said that he had been guilty of no contempt of this court, and that he did not intend to purge himself of what he had not done, and thereupon the court ordered the sheriff to take charge of said Kearby, who insisted upon addressing the court. And the court, in reply to a question addressed by Mr. Hawkins, stated that he was speaking in all kindness of Mr. Kearby, who again, in a boisterous manner, made the following statement: 'I don't want you to treat me kindly. You can talk to me out of court. I want you to treat me as mean as you know how. I want to say that nothing you can do will ever make me look upon you with regard again;' and was continuing to talk in like manner, when he was ordered more than once to take his seat, which he refused to do, when he was ordered to jail. For all of which, it is ordered by the court that said J.C. Kearby be punished for said contempt by imprisonment in the county jail until 9 o'clock tonight, or until he shall have purged himself of said contempt. It is therefore ordered, adjudged and decreed by the court, that the said J.C. Kearby be, and he is hereby, remanded to the custody of the sheriff of Dallas County, Texas, until 9 o'clock tonight, or until he shall have purged himself of said contempt." Said order indicates that the judge required of the relator to purge himself of the contempt committed in the morning, before he would be permitted again to appear in the case then on trial. We would observe, in this connection, that the order in question was not made at said time. In fact, no order, except the direction to the sheriff to take him to jail, was made. The nature of the contempt was not announced, nor was the clerk instructed to enter any order, although J.C. Muse insisted before the court that he should make some order defining the time of imprisonment, whether it was to be for life or a term of years. But the judge refused to entertain the request. Mr. H.H. Williams, the clerk, says, that some fifteen minutes thereafter the judge instructed him to inform the sheriff that the order of imprisonment was until 9 o'clock that night. He further states that, at the suggestion of the judge, on Monday or Tuesday thereafter, he wrote up an order of commitment to be entered and handed it to the judge, who stated he would reform it, and give it back to him for entry on the minutes. The order in question, according to the testimony of this witness, was entered on the record on Wednesday, March 4th. The writ of habeas corpus in this case was sued out, and the writ granted between 6 and 7 o'clock of said Saturday evening. To said writ the sheriff made the following return:

"I hold the applicant by virtue of a verbal command of Hon. C.F. Clint, Criminial District Judge of Dallas County, commanding me to take relator to jail, without any further statement to me by the judge, or other authority; and, in pursuance of such verbal order, I placed the relator in jail, and subsequently, some time thereafter, I received a telephone message at the jail, directing me to hold relator until 9 o'clock that night — Saturday night, February 29th, 1896 — and then release him; and, upon the issuance of the writ of habeas corpus herein by this court, I released relator upon said writ, after taking his bond in the sum of five hundred dollars, which is hereto attached.

[Signed] "BEN.E. CABELL, "Sheriff Dallas County, Texas."

It will be seen from this that no writ of commitment was ever issued in this cause. This is a substantial relation of the salient facts in the case.

Before proceeding to a discussion of the case, we will quote the articles of our statute bearing upon the subject:

Art. 154. "Every provision relating to the writ of habeas corpus shall be most favorably construed in order to give effect to the remedy and protect the rights of the person seeking relief under it."

Art. 155. "The Court of Appeals, or either of the judges, the District Courts, or any judge, thereof, the County Courts, or any judge thereof, have power to issue the writ of habeas corpus; and, it is their duty, upon proper application, to grant the writ under the rules herein prescribed."

Art. 165. "The writ of habeas corpus shall be granted without delay by the judge or court receiving the petition, unless it be manifest, by the statements of the petition itself, or some documents annexed to it, that the party is entitled to no relief whatever."

Art. 173. "The writ of habeas corpus is intended to be applicable to all such cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law."

These statutes clothe this court with ample authority to issue the writ of habeas corpus in almost all conceivable cases; and its power to inquire into the grounds of the detention is no longer an open question. See, Ex parte Degener, 30 Tex.Crim. App., 566. In the former case of Ex parte Kearby and Hawkins, tried at this term of the court (ante p. 531), we held, that it was the duty of the court at the time to make its adjudication of the matter of contempt, and to assess the punishment. We quote from that case as follows: "As we understand it, the right of authority requires, on the part of the court, that it should find the factum of contempt." See, 4 Ency. Pl. Prac., p. 798; Ex parte O'Brien (Mo.) 30 S.W. Rep., 158; Ex parte Robertson, 27 Tex.Crim. App., 634. And following this in regularity there should be an order of commitment. See, Ex parte Robertson, 27 Tex.Crim. App., 630; citing, Ex parte Buford, 1 Cranch, C. C., 456; Fed. Cas. No. 2149. Both by reason and authority, we hold that no court, under our system of government, should be authorized to imprison a citizen for a contempt, unless at the very time he is so committed the proper order is made and entered, and the writ of commitment issued for the purpose of his detention. This, we understand, in this respect, to be due course of law. Nor, in our opinion, is it competent for any court, unless such steps are taken, for it, after a party detained under its verbal orders has sued out a writ of habeas corpus, to then make its judgment, and have the same entered, and in this manner supersede the jurisdiction of the court granting the writ." To the same effect, see State v. Matthews, 34 N.H., 453; Ex parte Wright, 65 Ind. 504; Easton v. State, 29 Ala. 552. Mr. Rapalje, in his work on Contempt (page 121), says: "A party may be ordered into custody without a warrant, yet one should be at once made, and the cause of commitment therein stated." As stated before, the learned judge in this case did not at the time state any finding of the matter of contempt, nor did he make any adjudication as to the fine or imprisonment imposed, nor has ever any writ of commitment been issued in this case. Both of these steps should have been taken, and without both no court ought to be armed with the power to imprison a citizen, no matter what the contempt may have been. At the time it appears all that was done was to order the relator to jail, and that for an indefinite time; and subsequently (from fifteen minutes to a half hour) the court, it appears, informed the clerk that the confinement would be until 9 o'clock; but this was in the absence of the prisoner, and while he was undergoing an indefinite punishment. The entry of the order after this court acquired jurisdiction was equally without authority. Article 182, Rev. Crim. Code Proc., provides: "When the return of the writ has been made, and the applicant brought before the court, he is no longer detained on the original warrant or process, but under the authority of the habeas corpus, and the safe keeping of the prisoner, pending the examination or hearing, is entirely under the direction and authority of the judge or court issuing the writ, or to which the return is made." It would have been a very easy matter in this case, if the relator was in contempt of court, for the judge to have so formally adjudicated; and in the meantime to have authorized the sheriff to detain the relator until the proper entry was made, and the writ of commitment issued, which was the authority for the sheriff to imprison him. So far as the record discloses, in this case, the sheriff never had more than a verbal order of the court to imprison the relator. If the court can do this without any statement of cause, without any limit as to time, the District Judge is vested with more power than could be rightly conferred upon any one man under our system of free government.

Concede, however, that the order of the court could be afterwards entered, and relator could be imprisoned under it without any writ of commitment, let us examine the nature of the order in question. It will be borne in mind, that the relator in this case had been sent to jail on account of an altercation occurring between himself and Hawkins, during the trial of the Dawson case, on the morning of the 29th of February. No order was ever made and entered in that case, and no writ ever issued. Relator sought relief by application to this court by writ of habeas corpus, which was granted. He was enlarged on his bond, and the habeas corpus trial set for Monday, March 2nd. In this state of case, the relator re-enters the court room to participate in the trial of the case in which he was of counsel for the defendant. This he had a perfect right to do; and the attempt of the judge to exclude him from the case unless he purged himself of an alleged contempt (the trial of which contempt was then pending before this court), was without authority of law, and was well calculated to arouse in the relator the strongest feelings of resentment on account of the unwarranted action of the court. In the first place, the right of a judge to purge a party for contempt is not one of the modes of punishment given by law; and, in the second place, the court had lost jurisdiction of this matter. The relator, as it occurs to us, very properly protested against this unseemly action of the court, insisting that he was not guilty of any contempt, and that he would not purge himself of what he had not done. At this juncture, it appears from the written order afterwards entered, "that the court thereupon ordered the sheriff to take charge of the said Kearby." And the court then, as it appears from said order, proceeded to discuss the matter, referring to the relator, and stated that he was referring to him in all kindness. The relator, as it appears, responded in a boisterous manner that he did not want the court to treat him kindly, that he could talk to him out of court, that he could treat him as mean as he knew how, and nothing he could say would cause him to again look upon him with regard; and thereupon the relator was ordered to jail. Looking to the order itself, it occurs to us that the improper action of the court in this matter was the moving cause for what subsequently occurred, and that the relator could hardly be considered in contempt in insisting on his right to appear in the case, as he did, without being compelled to humiliate himself before the court and jury, by complying with the unwarranted demand of the court that he should in some manner purge himself. The court had no power to suspend relator from the privilege of practicing his profession. This can only be done for certain causes enumerated in the statute, and in accordance with the form therein provided; and in such cases he is guaranteed the right of trial by jury. See, Rev. Civil Stats., Arts. 262-268, inclusive.

We would not be understood as holding that some of the subsequent conduct of the relator, as testified to by the witnesses in this case was not of a character to have authorized the court to have visited upon him punishment for contempt, but there is no pretense in the case that such was the basis of the order made by the judge. Nor is it our purpose to in any wise depreciate or disparage the power of the courts to preserve at all times the authority and dignity of their courts. The statutes on this subject give them, in our opinion, too little power in this regard; but this power must in every case be exercised according to the forms of law; and whenever those forms, which are the safeguards of the citizen under our free institutions, are overstepped or disregarded, it becomes a dangerous precedent, paving the way to usurpation and oppression. It is the duty of the citizens, especially members of the profession, to uphold the authority of the courts by a respectful decorum in their presence. This respect, however, will best be conserved by the judge on the bench himself setting an example in the due observance of the laws of the land; and if at any time he should be constrained to punish for contempt on account of a violation of those rules regulating the proper conduct of courts, he should do so with a kindly, yet a firm and unflinching hand; but, above all, he should enforce his authority according to the rules of law.

The Attorney-General contends that upon a mere verbal order, and without any writ of commitment, the District Judge has the power to send the citizen to jail for an indefinite period of time, and that no other court is authorized to grant him any relief. This may have been the rule aforetime, but has not been in any English-speaking country since the passage by the Parliament of Great Britain of the act of habeas corpus, which Blackstone characterizes as the great bulwark of our constitution, a second Magna Charta, as beneficial and effectual as that of Runney-Mead. Mr Blackstone further says: "Magna Charta only in general terms declared that no man should be imprisoned contrary to law. The habeas corpus act points him out effectual means as well to release himself though committed even by the king in council, as to punish all those who shall thus unconstitutionally misuse him." 2 Bl. Comm., p. 437. He further says: "Of great importance to the public is the preservation of this personal liberty, for, if once it were left in the power of any — the highest — magistrate to imprison arbitrarily whomever he or his officers thought proper, there would soon be an end of all other rights and immunities. Some have thought that unjust attacks, even upon life or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole kingdom, but confinement of the person by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous, engine of arbitrary government. To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison, which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into, if necessary, upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner; for the law judges, in this respect, saith Sir Edward Coke, like Festus, the Roman governor, that it is unreasonable to send a prisoner, and not to signify withal the crime alleged against him." See, 1 Bl. Comm., pp. 135, 136. In conclusion we hold that, the known rules of law having been violated in the contempt proceeding against the relator, he is ordered to be released, and discharged from custody.

Relator Released and Discharged.