68 P. 668 | Kan. | 1902
The opinion of the court was delivered by
This is an appeal from a judgment of conviction of contempt of court. The entire record consists of a single journal entry in the following words :
“Now, on this 4th day of September, a. d. 1901, the state of Kansas appeared by W. F. Challis, county attorney, and the defendant appeared in person, and by his attorney, J. K. Codding, and this cause came on for hearing summarily, without written accusation against said defendant.
“That he had committed a certain contempt in not attending court as a witness on behalf of the defendant and also on behalf of the state, in the case of The State of Kansas v. James Fennell, after having personal service by subpoena to appear as witness in the' above case ; and the said accused offered the following statements of his defense in extenuation thereof-:
“That on or about the 12th day of November, a- d. 1900, he was served with a subpoena to appear as a.*744 witness in the above case, at the district court of Pottawatomie county, Kansas, to be holden on or about the 10th day of December, a. d. 1900.
“That a few days therefrom he went to St. Joseph, Mo., to work in the roundhouse, intending to return in time to. testify in said cause.
“That he was taken very sick and was unde^1 a doctor’s care at the time set for the trial of the said case of The State v. Fennell.
“That as soon as he was able to do so, he returned to Pottawatomie county, Kansas, but the trial had been continued.
“And after hearing all the evidence, and being fully advised in the premises, it is considered, ordered and adjudged by the court that the defendant, Maywood Anders, has been guilty of a contempt in not attending said coui’t as a witness in the case of The. State of Kansas v. James Fennell, after having personal service by subpoena to appear as a witness in above case.
“It is by the court further considered, ordered and adjudged that the defendant, Maywood Anders, pay a fine of fifty, dollars and the costs of this prosecution taxed at $58.69, and that he stand committed to the jail of said county until the fine and costs are paid, to all of which proceedings, orders and judgments the defendant, Maywood Anders, at the time duly excepted.”
The above journal entry is certified by the clerk as being “a full, true,and correct transcript of the record in the above-entitled cause.” The state moves to dismiss because the proceedings in the matter about which complaint is made were not incorporated itt a bill of exceptions. The motion is denied. When all the proceedings properly constituting the record of a cause are shown on the journal entry of judgment such journal entry constitutes a full record. A bill of exceptions is only for the purpose of bringing matter on the record which is not already there. In this case, everything was of record on the journal and no bill of
“That a direct contempt may be punished summarily, without written accusation against the person arraigned, but if the court or judge in chambers shall adjudge him guilty thereof a judgment shall be entered of record, in which shall be specified the conduct constituting such contempt, with a statement of whatever defense or extenuation the accused offered thereto, and the sentence of the court thereon.”
Under the above statute, it does not appear that written accusation, warrant of arrest, or paper plea in defense is necessary; hence, the journal entry Showing the proceedings constitutes the full record of the case.
The record shows error. The statute (Laws 1897, ch. 106; Gen. Stat. 1901, §§ 1980-1985) of which chapter 123 of the Laws of 1901 is amendatory in other particulars, divides contempts of court, as the common law did, into two classes, direct and indirect. Sections 1 and 2 of the first-mentioned enactment read as follows:
“Section 1. That contempts of court are divided*746 into two classes, direct and indirect, and shall be proceeded against only as hereinafter prescribed.
“Sec. 2. That contempts committed during the sitting of the court or of a judge at chambers, in its or his presence, are direct contempts. All others are indirect contempts.”
Sections 3 and 4 of chapter 106 of the Laws of 1897, as amended in some other particulars by chapter 123 of the Laws of 1901, provide for the summary punishment of direct contempts without written accusation, warrant, or written plea. We have already quoted the amended section in relation to this class of contempts. As to indirect contempts the statute of 1897 provided, and the statute of 1901 still provides, for a written accusation, a warrant of arrest, an answer by the accused, and an order fixing a time and place of trial. Therefore, the only question in this case is whether the appellant was guilty of a direct or indirect contempt. The answer is evident. He was guilty of the latter, if any at all. The above-quoted act of 1897 determines it. A direct contempt is one committed in the face of the court, or, as expressed in the statute, “during the sitting of the court, in its presence.” The appellant's disobedience of the subpoena to attend as .a witness was not committed in the presence of the court; therefore, his disobedience of the process served on him was of the character denominated “indirect” contempt, for committing which he was entitled to his day in court and to be heard in proceedings formally instituted and conducted against him. (In re Smith, Petitioner, 52 Kan. 13, 33 Pac. 957; 4 Encycl. of Pl. & Pr. 776.)
The judgment of the court below is reversed, and the .appellant ordered discharged until formal proceedings shall be instituted against him.
