8 S.D. 435 | S.D. | 1896
This is a contempt proceeding, brought here for review upon a writ of error. On May 10,1895, in the above entitled action, then pending in the circuit court of Beadle coupty, after due notice and hearing the following order w§s
A motion to dismiss the proceeding because entitled in the civil case, and not in the name of the state, and because it was not conducted by the state’s attorney, was denied. This is assigned as error. Regarding procedure in contempt cases, the authorities are in inextricable confusion. There is no settled doctrine with reference to the proper method of framing the title to such proceedings. 4 Enc. Pl. & Prac. 772. We have no statute regulating the matter. The proceeding is special and peculiar—in the nature of, but not strictly, a criminal action. State v. Knight, 3 S. D. 509, 54 N. W. 412. Important constitutional provisions, applicable to criminal actions, are not applicable to this proceeding. State v. Mitchell, 3 S. D. 223, 52 N. W. 1052. It would be better practice to institute an independent action in the name of the state, and assimilate the proceeding to the criminal procedure as nearly as practicable ; but, believing the course adopted in the court below was warranted by abundant authority, and that it did not tend to prejudice the accused in respect to any substantial right, we hold there was no reversible error in the manner of entitling the affidavit and other papers, and that there was no error in allowing counsel, other than the state’s attorney, to conduct the prosecution.
An affidavit was filed by each of the accused which was treated as an answer, and upon the issue so raised evidence was adduced on each side. Possibly a more simple and commendable method would have been to treat the Lynch affidavit as a complaint or information, to which accused might have pleaded not guilty, and thus thrown upon the prosecution the burden of proving all of the allegations necessary to sustain the contempt charged. We would certainly approve the adoption of such procedure. However, we find nothing in the record which indicates that these persons were not fairly tried
The court had jurisdiction of the parties and subject-matter in the civil action. -It issued the order of injunction. Such order was in force when the alleged violation occurred. It had not been dissolved. It was properly issued. State v. Campbell (S. D.) 64 N. W. 1125. Each of the accused knew of its pendency and purport. Having actual notice, service upon them was unnecessary. 2 High, Inj. 1102; State v. Knight, 3 S. D. 509, 54 N. W. 412. Its terms are clear and unmistakable. It forbids any agent or servant of the city from paying warrants drawn upon its general fund, except in the order of their registration. Willful disobedience of this lawfully issued order was a crime, and a contempt of court. Comp. Laws, § 6402. The term “willful,” as here used, implies simply a purpose or willingness to commit the forbidden act. Comp. Laws, § 6961. Each of the accused testified that he knew of the order and its contents, but that he did not intend to violate it, and did not understand he was doing so. It is contended that the intention of each was absolutely locked within his own breast, and that his sworn declaration concerning such intention is conclusive. We deem this position untenable. The vital questions are these: (1) What act was forbidden? (2) Did accused intentionally commit such act, knowing it was forbidden? If the prohibition was definite and certain, it matters not what motive prompted its violation. If accused were mistaken as to the effect of the order, if they honestly believed they did not come within its terms, such fact or facts should be considered in mitigation of punishment, but not as a defense. In this as in other criminal cases, the intent of accused is a question of fact,
No doubt exists as to what was forbidden. It was the payment of warrants out of their order, an act in itself contrary to law. The city of Huron, its agents and servants; Patterson, as treasurer, his agents and servants, — are the persons who are expressly forbidden to make such payments. Accused were officers of the city, and consequently its agents, and clearly within the class mentioned in the order. The material facts involved are simple, and can be briefly stated. Were warrants paid out of their order? Did accused make such payments, or aid and abet the making thereof? If they did, they are guilty of contempt. However, the court did not have jurisdiction to inquire into their conduct, unless every material fact constituting the alleged violation is stated in the affidavit upon which the contempt proceeding is based. State v. Sweetland, 3 S. D. 503, 54 N. W. 415. Accused contend it is fatally defective. They moved to dismiss, in the court below, upon this ground. Certain allegations are made upon information and belief. Independently of these, the affidavit contains no fact tending to connect any one with the payment of warrants except Myers, the acting treasurer, who did not appear in the contempt proceeding. We think the portions of the affidavit stated upon information and belief cannot be considered, and without them the affidavit is insufficient to confer jurisdiction as to the plaintiffs in error. Thomas v. People (Colo. Sup.) 23 Pac. 326; Ludden v. State, (Neb.) 48 N. W. 61; Gandy v. State, 13 Neb. 445, 14 N. W. 143. In cases of this character the facts should be stated with certainty. Persons should not be required to answer an essentially criminal charge based merely upon the belief of a private prosecutor. Because the affidavit did not confer jurisdiction