Ex parte McGraw

MORROW, P. J.

This is an original ha-beas corpus proceeding in which relator seeks release from custody under a judgment for contempt.

On the 30th day of October, at about 5 o’clock p. m., relator, an attorney at law, was, in open court by verbal announcement from the bench by the trial judge, adjudged guilty of contempt of court because of certain remarks made in the presence and hearing of the court while in session. After making the verbal announcement, the court at once prepared in writing the judgment reciting the facts constituting the contempt and the punishment. This judgment was signed by the judge in his official capacity, delivered to the clerk of the court, filed by him and placed in the records of the court, and on the following morning, at about 10 o’clock, was transcribed by him upon the minute book of the court. Upon receipt of the judgment prepared and signed, the clerk issued a commitment for the relator, directed to the sheriff. The relator was not taken in custody at once, but on the following morning, at -8 o’clock, he surrendered himself to the sheriff and was by him held in custody. At about 9 o’clock, on the morning of the 31st day of October, a writ of habeas corpus was issued by the presiding judge of this court. At what time the commitment came into the hands of the sheriff is not revealed, but in his return filed in this court, the statement is made that the relator was held by virtue of the commitment mentioned and the judgment described. Certified copies of both the commitment and judgment are attached to the sheriff’s return, the latter showing it to be of record in the minutes of the court.

Upon this hearing the facts are not in dispute. It is not contended that the conduct of the relator did not warrant the judgment, but the sole question presented grows out of the procedure. Relator contends that his detention is illegal because at the time he was taken in custody the orderi adjudging him guilty of contempt had not been spread upon the minutes of the court by the clerk, and that its record in the minutes after the issuance of the writ of habeas corpus did not validate the detention. The respondent contends that before the relator was taken in custody, he had been adjudged guilty of conterQ.pt in open court, the amount of punishment fixed, and a formal order of the court reduced to writing, signed by the judge in his official capacity, delivered to the clerk, and filed by him as a record of the court; that the commitment issued thereon is a valid warrant for the detention of the relator, although at the time of the issuance of the commitment and at the time the relator was taken in custody the clerk had not copied in the minutes of the court' the aforesaid order written and signed by the judge and filed by the clerk.

The district court, by statute, is given the power to punish for contempt by imprisonment not exceeding three d'ays. Article 1708, Vernon’s Tex. 'Grim. Statutes 1920; article. 1911, Revised Statutes of 1925.

Touching the procedure to be pursued, the statutes are silent, and reference must be had to the common law and such modifications thereto as are found in the precedents available. Ex parte Green, 46 Tex. Cr. R. 577, 81 S. W. 723, 66 L. R. A. 727, 108 Am. St. Rep. 1035. These precedents are general to the point that—

“To justify the imprisonment of a party adjudged to be in contempt, an order, or warrant of commitment of some sort, is necessary.” Rapalje on Contempt, § 129; Ex parte Bur-ford, 3 Cfanch, 456, 2 L. Ed. 495; Ruling Case Law, vol. 6, p. 536, § 49.

Concerning the form and substance of the order, the courts of various jurisdiction are not in complete accord. See note in. Hoffman v. Hoffman, Ann. Cas. 1913A, p. 957 also Ruling Case Law, vol. 6, p. 537. In this state, however, it has been uniformly held that the imprisonment of one for contempt will not be tolerated on a verbal order of the judge. See Ex parte Kearby, 35 Tex. Cr. R. 531 and 635, 34 S. W. 635, 962; Ex parte Andrews, 51 Tex. Cr. R. 80, 100 S. W. 376; Ex parte Alderete, 83 Tex. Cr. R. 358, 203 S. W. 763.

In the opinion of the writer, the practice may be regarded as settled in this state that upon an application to this court for an original writ of habeas corpus in a contempt proceeding, the incarceration, to be sustained, must be ’ supported by a written order in which the conduct or facts upon which the contempt is founded are set forth to the end that this court may determine whether, on the facts, there was jurisdiction to adjudge the relator in contempt. In the various cases in which this court has held a verbal order insufficient, the declaration is made that the detention must be supported by an “order entered.”

“The entry of a judgment is a ministerial act, which consists in spreading upon the record a statement of the. final conclusion reachéd by the court in the matter, thus furnishing external and incontestable evidence of the sentence given, and designed to stand as a perpetual memorial of its action.” 3 Words and Phrases, p. 2403.

In Kearby’s Oase, supra, as in the others where the declaration is found that the detention is invalid in the absence of judgment “entered;” the relator was taken in custody upon a verbal order. The holding has been that custody taken under a verbal order could not, after the writ of habeas corpus was issued, be validated by a subsequent written order, and with this we find ourselves in accord. Obviously, however, in the cases in which it was held that a verbal order would not suffice, the court was not called upon to decide that the written order would not support the commitment until after it was entered upon the minutes of the court. The commitment in the present case was issued upon a judgment of the court which had been reduced to writing, and signed by the judge, though not entered in the minutes. Was this commitment rendered void by the issuance of the writ of habeas corpus before the judgment had been spread upon the minutes? In Latham’s Oase, 47 Tex. Cr. R. 208, 82 S. W. 1046, a similar state of facts were involved. In that case the judgment of the court was reduced to writing, the commitment issued at once, and the relator taken in custody. Two days .later the judgment was spread upon the minutes of the court. Subsequent thereto, a writ of habeas corpus was issued. It was held by this court on the hearing that the commitment issued under the circumstances was sufficient warrant for refusing to discharge the relator; Erom the opinion we quote:

“Relator contends that under Ex parte Kearby, 35 Texas [Cr. R.] .634 [34 S. W. 962],-he could not be imprisoned until a proper judgment was entered and the writ issued. In that case no writ was issued, and no judgment entered, until after the writ of habeas corpus had been sued out and granted. Not so here. The judgment was actually deposited with the clerk at the very time the writ was issued, and should have been entered then, although it was not entered until two days thereafter. * * * The writ" of habeas corpus was not granted until September 28th, when all the record proceedings in said divofee suit had been entered.”

The granting of the writ of habeas corpus did not annul the right and duty of the district clerk to transcribe the judgment in the minutes of the court. Ex parte Alderete, supra. Therefore, if the relator should be held to be entitled to his release, the relief would be temporary for the reason that, the record now being perfected by the spreading of the previously written and signed order upon the minutes, a new commitment under which relator copld be taken in custody and held to satisfy the judgment could be issued thereon.

In this, as in the Latham Oase, supra, the commitment and custody were antecedent to the transcription of the judgment in the minute book. The reasoning upon which the custody of Latham was held legal seems with equal force to operate in the present instance. The sole distinguishing fact is that in this ease the writ of habeas corpus was issued an hour before the judgment was transcribed in the minutes, while in that case the writ of habeas corpus was subsequent. In each case, however, the legality of the custody relates hack to the validity of the commitment. If valid in one, it would necessarily be valid in both. It is to be noted that the relator was not arrested on the commitment1 but after it was issued, and that before the judgment was placed in the minute book relator voluntarily surrendered to the sheriff.

While the question presented is not without difficulty, we are constrained to the view that under the precedents, particularly the Latham Case, supra, the relator is not entitled to his discharge, and he is therefore remanded to the custody of the sheriff.