88 P. 313 | Or. | 1907
delivered the opinion of the court.
In view of the conclusion thus reached, it is deemed proper to treat several questions that may arise again in this cause.
6. The fundamental law of the state contains the following clause:
“In all criminal prosecutions, the accused shall have the right * * to demand the nature and cause of the accusation against him, and to have a copy thereof”: Const. Or. Art. I, § 11.
If it be assumed that a criminal contempt is a “criminal prosecution” within the generally accepted meaning of that phrase, the motion to discharge the defendant does not disclose that he demanded a copy of the affidavit or that a transcript thereof was denied him, and hence no error was committed as alleged.
7. It is maintained by defendant’s counsel that, as the affidavit did not allege that the accused knew or had reason to believe that he was interfering with the relators’ use of the water, of that he had been requested by them to comply with the terms of the restraining order, the pleading does not state facts sufficient to constitute a contempt, but that the sworn statement having averred that the injunction was violated by the defendant’s constructing two dams, etc., manifests an attempt to charge the commission of more than one offense, and, the sufficiency of the pleading having been challenged on these grounds, an error was committed in overruling the demurrer. The acts complained of herein consist of an alleged disobedience of the court’s process, a copy of which, it is averred, was served on the defendant. The failure of a party to comply with the. order of a court, requiring him to perform some act for the benefit or to the advantage of the adverse party 'to a suit, action or proceeding, is a quasi or civil contempt, for a violation of which the punishment is executive only, and the contemnor, if found guilty, is adjudged to stand committed until he obeys the command, while disobedience or resistance of the process of a court constitutes a criminal contempt, a conviction of which incurs a penalty of fine or imprisonment or both, and is punitive: B. & C. Comp, § 663; Rapalje, Contempt, §21;
It is contended by defendant’s counsel that, though the affidavit referred to purports to have been made in direct and positive terms, the testimony shows that it was based on information and belief, and hence an error was committed in denying their motion to dismiss the proceedings interposed on that ground when the causé was submitted. The legal principle insisted npon, if applicable, is without merit, for Patterson, as a witness for the relators, was asked on cross-examination:
*10 “And then this affidavit was made from information you got through others and your general opinion?”
To which he replied:
“No, it.was not; because there was no affidavit made until 1 saw the dam and saw what was holding the water back. The affidavit was made after I personally saw the dam.”
The bill of exceptions shows that, Sieber- having, been called as a witness by the relators, his counsel objected' to his giving any testimony against himself, but the objection was overruled and an exception allowed, whereupon he was interrogated in relation to the construction of one of the dams mentioned in the affidavit and as to the digging of a ditch from this dam towards land claimed by him, and it is contended that an error was thereby committed. It is argued by defendant’s counsel that an affidavit charging the commission of a contempt initiates a criminal prosecution against -the party so accused, and, although the statute provides that the court “shall proceed to investigate the charge by examining such defendant” (B. & G. Comp. § 670), the enactment violates the organic law of the state which contains the following declaration:
“No person shall be * * compelled in a criminal prosecution to testify against himself”: Const. Or. Art. I, § 12.
The disobedience of any lawful judgment, decree, order or process of a court is deemed to be a contempt of the authority of such tribunal (B. & C. Comp. § 662, subd: 5), and, upon'a conviction thereof, the accused may be punished by a fine or imprisonment or both, depending upon the magnitude of the offense- or the effect thereof upon an adverse party’s • right or remedy which may have been defeated or prejudiced thereby: B. & C. Comp. § 663; State ex rel. v. Downing, 40 Or. 309 (58 Pac, 863, 66 Pac. 917). The defendant’s counsel, in support of the legal principle for which they contend on this branch-of the case, rely upon a decision of the Supreme Court of California (Ex parte Gould, 99 Cal. 360: 33 Pac. 1112: 21 L. R. A. 751: 37 Am. St. Rep. 57), where it was held that a person charged with violating an injunction could not be compelled to
The right to punish persons found guilt}' of contempt is a power incident to every court of record, which it may exercise in the manner prescribed, when regulated by statute, for the purpose of maintaining order and enforcing its judgments and decrees. A court, therefore, which has no criminal jurisdiction is authorized to punish eontemnors for a violation of its orders and for acts and conduct which tend to degrade such tribunal and to bring the administration of justice into reproach. The-fundamental law of this state contains the following avowal:
“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury”: Const. Or. Art. I, § 11.
Mr. Eishop, in his work on Criminal Law (volume 2, 5 ed., §2G9), in discussing the mode of trial in a contempt matter, says: “The proceeding is, in all cases, summary, before the judge, without the intervention of a jury.” It is firmly settled by the great weight of authority that a party accused of the commission of a contempt is not entitled of right to a jury trial: 9 Cyc. 47; 4 Enc. Pl. & Pr. 789. The rule thus announced, though not involved herein, is adverted to by way of argument only, to show that, as a court of record is empowered to try a case of this kind without the intervention of a jury, the right to exercise such authority demonstrates that even a criminal contempt is not a “criminal prosecution” within the meaning of that term as used in the clause of the constitution last quoted. The case depended on by defendant’s counsel is unsupported by other direct authority, and, believing that it is not founded in reason, we cannot adopt the rule thus promulgated. If the questions propounded to a party at his examination for the alleged commission of a contempt tended in any manner to incriminate him, he would be entitled to rely upon the constitutional guaranty invoked herein: 7 Am. & Eng. Enc. Law (2 ed.), 48; Ex parte Sauls, 46 Tex. Cr. E. 209 (78 S. W. 1073). In the case at bar the questions asked were not of that kind, and hence no error was committed in requiring the defendant to answer the inquiries.
For the error committed in admitting testimony relating to the cutting of the cemetery ditch, the judgment is reversed, and a new trial ordered. Reversed.