delivered the opinion of the Court.
This is аn original proceeding commenced by John B. Smith, district attorney of the Twelfth Judicial District of Colorado, for the purpose of challenging a judgment entered February 1, 1962, under which the petitioner was found by the respondent to be in contempt of court and аssessed a fine of $25.00.
In his petition for a rule on respondent to show cause why the challenged judgment should not be vacated, Smith аlleged, inter alia:
“3. That on the date aforesaid, two criminal matters had been continued from the previous date of Januаry 31, 1962, to February 1, 1962, at 10:00 o’clock A.M., one for the purposes of arraignment and the other matter for the purposes of taking evidence following a guilty plea; that your petitioner, in his official capacity, had designated George W. Woodard, Deрuty District Attorney for Alamosa County, to appear in the District Court at Alamosa to represent the State on the said criminal mаtters; that on February 1, 1962, your petitioner was appearing in the District Court of Rio Grande County for the routine handling of some elevеn criminal cases with some fourteen defendants; that it was not until 9:30 A.M. of February 1, 1862, that your petitioner was advised *138 that his deputy aforemеntioned had another appointment for that date; that in the absence of the respondent, George H. Blickhahn, being present at respondent’s office in the courthouse, Alamosa, Colorado, your petitioner notified the undersheriff of Alamosa County of his inability to be present or for a deputy District Attorney to be present in the Alamosa District Court on that date and instructed sаid undersheriff to so inform the Court upon the Court’s arrival, that said undersheriff so informed the Court and, further, that your petitioner would return to Alamоsa at the hour of 2:30 to 3:00 P.M. that afternoon of said date, that your petitioner did so return and did appear on behalf of the Stаte in the aforementioned criminal matters and at the conclusion of said criminal matters the respondent conducted thе proceedings set forth in petitioner’s EXHIBIT A.”
Exhibit A above referred to is the transcript of proceedings relating to the contеmpt matter as follows:
“MR. SMITH: We have nothing further your honor. THE JUDGE: The Court has a little something further. MR. SMITH: Yes, sir. THE JUDGE: Court was scheduled for ten o’clock this mоrning and you or your office was not represented. MR. SMITH: This was regular motion day in Del Norte and I had already planned on being there. My deputy, George Woodard, was committed to an appointment in Monte Vista and therefore was unable to be here аt that time. THE JUDGE: The Court was not so advised. This matter was set for hearing at 10:00 A.M. this morning. There have been inconvenienced witnesses, the Sheriff’s оffice, Police Force, counsel, and the Court. The Court doesn’t permit a matter of this kind to pass unnoticed and feels that the excuse is not sufficient. It will be the order of the Court that the situation as it exists — the District Attorney is adjudged guilty of contempt of Court and will be fined in the’sum of $25.00 and will stand committed to the custody of the Sheriff until the fine is paid. The Court will be in recess.”
*139 Following issuance of the Rule to Show Cаuse the respondent District Court, and the Honorable George H. Blickhahn the Judge thereof, filed “Answer and Return to Rule to Show Cause” in whiсh certain statements contained in the petition filed by Smith were denied. In this connection the Answer contained the following:
“ * * * resрondent denies that said petitioner, in his official capacity or otherwise, had designated George W. Woodard, deputy District Attorney for Alamosa county, to appear in the District Court at Alamosa to represent the State on said criminal matters, * * * denies that this respondent was not present in his office or chambers in the Court House at Alamosa, Colorado, at the hour of ten o’clock, the same being the hour set for the hearing upon said criminal cases continued from the 31st day of January to the 1st day of February, 1962; and denies that on either of said dates did petitioner instruct or request the undersheriff of Alamosa county to inform the Court upon the Court’s arrival, that said petitioner would not be present at the hearing of said cases, * * * .
“Respondent further states on arriving at the Court House he was informed by said undersheriff, that neither said District Attorney, nor his deputy, George W. Woodard, were or would be present to represent the State at the hearing upon said cases.”
The single question presented is whether under the situatiоn disclosed by the foregoing, a contempt was committed by the petitioner in the presence of the court which could be summarily punished without formal accusation or process of any kind.
From
Lindsey v. People,
“ * * * A contempt committed in the immediate presence of the court while sitting as such is a direct contempt. 13 Corpus Juris 5. A contempt which disrespects the court or obstructs the administration of justice is a criminal contempt.
Wyatt v. People,
See also
Mainland v. People,
It is doubtless true that failure of the district attorney to be рresent in person or by an official representative resulted in some inconvenience and delay in the transaction оf business pending before the court on February 1, 1962. One who thus willfully and intentionally brings about such a result, by conduct committed in the presence of the court, would be guilty of a direct criminal contempt; however in the instant case it is apparent that the question of whеther there was any willful intent thus to interfere with the administration of justice depends upon whether facts which are asserted on the оne hand and denied on the other are true or false. The answer of respondent has exhibits attached thereto in the form of affidavits concerning matters which happened outside the presence of the court, and thus the answer itself discloses that the contempt of which petitioner was found guilty, if any, did not take place in the presence of the court.
Under the cirсumstances disclosed by this record we must conclude that the court was without jurisdiction to summarily adjudge petitioner in contempt; that any contempt allegedly committed was not committed in the presence of the court; hence a notice and hеaring, followed by specific findings, were necessary as a prerequisite to any judgment finding petitioner in contempt of court.
Accordingly the rule heretofore issued is made absolute.