20 Adv. S. 11 | Miss. | 1953
This is an appeal from an order adjudicating appellant in contempt of court and imposing a fine of fifty dollars and a jail sentence of ten days.
He urges here that the judgment adjudicating him in contempt was void, because no information, or affidavit, charging him with the acts alleged to constitute contempt was made, nor was any notice given him of such proceeding, or any hearing had thereon.
The order adjudging him in contempt was made under these circumstances:
At the June Term, 1952, of the circuit court of Marion County Stanley Barnes was indicted for the unlawful possession of whiskey.
“A direct contempt consists of words spoken or acts done in the presence of the court which tend to em
The following cases contain definitions of, or point out the distinctions between, direct and constructive contempt : Knox v. State, 160 Miss. 494, 135 So. 206; Sullens v. State, 191 Miss. 856, 4 So. 2d 356; Jones v. State, 208 Miss. 762, 45 So. 2d 576. They demonstrate conclusively that Jordan’s failure to appear as a witness was a constructive contempt if any offense at all.
In proceedings involving constructive contempt there must be an affidavit or information setting out the facts alleged to constitute the offense; due notice thereof served upon the accused with the right and opportunity in him to refute the charges on a hearing thereof. G-race v. State, 108 Miss. 767, 67 So. 212; Ex Parte Redmond, supra, and Brannon v. State, supra.
These essentials not having been complied with in the case at bar the judgment of the court was a nullity.
Later in the term Jordan made a motion to set aside this judgment, and, as one ground thereof, set up a reason for his non-appearance as a witness. There was a hearing upon this motion and testimony was taken explaining his reason for not appearing. The court overruled the motion to set aside the former judgment. The State says this was a waiver by Jordan of the necessity for an information, notice and hearing precedent to the prior order adjudicating him in contempt. We do not think so. The former order was void. The trial court proceeded upon the assumption this was a direct contempt and no information, notice or hearing was necessary. The later motion was simply to set the former judgment aside and the court refused to set it aside. There was no new adjudication of contempt. The court simply let the former void order stand. The later hearing had no retroactive effect as validating the former illegal proceedings. And no charge was ever preferred at either hearing. This was in the nature of a criminal action and affidavit
The disposition we have made of the case does not preclude another prosecution of Jordan, by requisite proceedings, if the proper officials see fit to so proceed.
Reversed and appellant discharged.