Ex Parte Heptinstall

The penalty assessed is that which, under the statute, is within the discretion of the court rendering the judgment of contempt, that is to say, by confinement in jail for three days and a fine of $100. This not being a civil but a criminal contempt (Ex parte Robertson, 27 Texas App., 628), the fine, if not reduced by a judgment of the court in which it was entered, must be paid or satisfied in the same manner as prescribed by law for the satisfaction of a conviction for a misdemeanor, that is to say, by confinement in the county jail and the fine reduced at the rate of one dollar per day, as provided by chapter 68, Acts of 40th Leg., 1st Called Session, page 195, as construed in Ex parte Rowley, 112 Tex.Crim. Rep.; Ex parte Polly, 111 Tex.Crim. Rep.; Ex parte Young, et al., 103 Tex.Crim. Rep..

Judicial decisions on the subject of contempt are numerous and variant in many particulars. See Corpus Juris, vol. 13, p. 4. In this state, an appeal does not lie from a judgment of contempt, but if the judgment is one of which the court is without jurisdiction to enter, relief by way of habeas corpus is available. See Ex parte Degener, 30 Tex.Crim. Rep.; Ex parte Tinsley, 37 Tex.Crim. Rep.. Doubtless, through habeas corpus, courts could relieve against confinement on a contempt judgment imposing cruel and unusual punishment forbidden by article 1, section 13 of the state Constitution. See Ruling Case Law, vol. 6, p. 524, sec. 37. Ordinarily, relief against a contempt judgment is not within the pardoning power of the executive. See Sharp v. State, (Tenn.)49 S.W. 752, in which many cases are cited upon the subject. See also Taylor v. Goodrich, 25 Texas App., 109, 40 S.W. 515; Ruling Case Law, vol. 6, p. 538, sec. 51. The decisions of this court, by implication, seem to indicate that the power to modify a judgment of contempt rests with the court entering the order. See Texas Jur., vol. 9, p. 614, sec. 29.

The motion for rehearing is overruled.

Overruled.