State v. Brownell, 154 P. 428

State v. Brownell

154 P. 428 | Or. | 1916

Mr. Justice Benson

delivered the opinion of the court.

1. The entire record.in this contempt proceeding consists of the affidavit, the plea of guiltyK and the judgment of the court. Appellant’s sole contention is that the sentence is in excess of the power of the court to provide for a contempt of this character. Section 670, L. O. L., in part, reads as follows:

*128“The following acts or omissions, in respect to a court of justice, or proceedings therein, are deemed to be contempts of the authority of the court:

“1. Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to impair its authority or to interrupt the due course of a trial or other judicial proceeding;

“2. A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding; * *

‘ ‘ 9. Any other unlawful interference with the process or proceedings of a court.”

Section 671, L. O. L., reads thus:

“Every court of justice and every judicial officer has, power to punish contempt by fine or imprisonment, or both; but such fine shall not exceed $300, nor the imprisonment six months; and when the contempt is not one of those mentioned in subdivisions 1 and 2 of the last [mentioned] section, or in subdivision 1 of Section 959, it must appear that the right or remedy of a party to an action, suit, or proceeding was defeated or prejudiced thereby before the contempt can be punished otherwise than by a fine not exceeding $100.”

It is obvious that the acts charged in the affidavit are not the ones mentioned in Section 670, subdivisions 1 and 2, L. O. L., nor are they mentioned in Section 959, L. O. L., which relates to acts committed in the presence of a judicial officer.

2. It has been urged that, since constitutional courts have inherent power to punish for contempt, the legislature has no power to limit their action in this respect. We do not regard Section 671, L. O. L., as limiting their power to punish for contempt, but merely as prescribing the procedure for exercising such power. The only record upon which the judgment of the trial court is based is the affidavit, and it does not appear therein that the right or remedy of a party was defeated or *129prejudiced thereby. It follows that the judgment of the lower court is modified so that the punishment is limited to a fine of $100, the defendant to he committed to the county jail of Lane County until the fine is paid, the commitment not to exceed 50 days in duration.

Modified.

Mb. Chief Justice Moobe, Mb. Justice Bean and Mb. Justice Burnett concur.