Ex parte Stephenson

1. Contempt-Statutory Definition of Direct Contempts. Direct contempts consist of disorderly or insolent behavior committed during the session of the court and in its immediate view, and presence, and of the unlawful and wilful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper questions; and any breach of the peace, noise or disturbance, so near to it as to interrupt its proceedings. Title 21, § 565, O.S.A. 1941.



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2. Same Indirect Contempts. Indirect contempts of court shall consist of wilful disobedience of any process or order lawfully issued or made by court; resistance wilfully offered by any person to the execution of a lawful order or process of a court. Title 21, § 565, O.S.A. 1941.



3. Same-Distinction Between Civil and Criminal Contempts. The distinction between civil and criminal contempts cannot be made solely on the basis of the proposition that the contempt action was incident to a civil, criminal or special proceeding, for civil or criminal contempts may arise out of either proceeding.







4. Same-Civil Contempt. A civil contempt consists in failing to do something ordered to be done by the court in a civil action for the benefit of the opposing party therein and is therefore an offense against the party in whose behalf the violated order was made. A civil contempt is ordinarily an infringement on the right of a private person or persons. However, if a contempt consists in doing a forbidden act, injurious to the opposite party of the action the contempt may be considered as criminal.



5. Same-Criminal Contempt. A criminal contempt is an offense against the public or society by conduct that is directed against the dignity and authority of the court or judge acting judiciously, obstructive of the administration of justice and disrespectful to the majesty of the state.



6. Same--Civil and Criminal Contempt Either Direct or Indirect. A civil contempt may be either direct or indirect, and a criminal contempt may be either direct or indirect.



7. Same-Direct Contempt Generally a Crime. Direct contempt is generally a crime and the punishment therein constitutes a sentence in a criminal case.



8. Same-Purpose of Punishment in Civil Contempts. In civil contempts the punishment is for the purpose of coercing the performance of an act compensatory or remedial, for the benefit of the opposite party to a civil action.



9. Same-Primary Purpose of Punishment in Criminal Contempts. In a criminal contempt the primary purpose is punishment in vindication of public authority, the dignity of the court and the majesty of the state.



10. Divorce Decree Conferring Custody of Minor Child Made for Welfare and Best Interests of Child. A decree conferring custody of a minor child is not made for the benefit of either of the parties thereto but is made for the welfare and best interests of the child, as a matter of public concern and interest irrespective of the personal desires of the parties to the divorce action.



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11. Same-Failure to Obey Order Conferring Custody of Child Is Offense Against Express Will of State. The failure to obey an order conferring custody of a child in the other party to a divorce action is not an offense against a private person but is an offense against the express will of the state, the administration of justice, the dignity and majesty of the state, criminal in its nature and may constitute either direct or indirect contempt, depending on whether the contempt is committed in or without the presence of the court.



12. Contempt - Contempt Committed in Presence of Court and Proceeding to Punish Is Criminal Action. Appearing in court in response to a writ of habeas corpus, and refusing to produce the body of the child pursuant to the requirements of said writ, without a reasonable excuse, or wilfully making evasive or insufficient answers thereto, is a contempt committed in the presence of the court and the proceeding to punish therefor is a criminal action.



13. Process- Provisions Requiring Process to Run in Name of State Mandatory. Art. 7, § 19 of the Constitution that, "The style of all writs and processes shall be 'The State of Oklahoma'" is mandatory as applied to writs and processes issued by the clerk of the court.



14. Habeas Corpus - Writ Extraordinary or Special Writ. The writ of habeas corpus is an extraordinary or special writ provided for in the Constitution to effect the speedy release of one held in unlawful restraint.



15. Same Privilege of Writ Shall Never Be Suspended by Authorities of This State. Under the provisions of Art. 2, § 10, of the Constitution, the privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.



16. Same Issuance of Warrant to Prevent Removal From Jurisdiction. To prevent the curtailment and effectiveness of the writ of habeas corpus, the Legislature enacted the provisions Of Title 12, § 1348, O.S.A. 1941, providing in substance, that the court on affidavit alleging one to be illegally held in custody or restraint, it being believed that such person would be carried out of the jurisdiction of the court or judge before whom the application is made, such court or judge may cause a warrant to be issued directed to the sheriff or constable of the county, commanding him to take the person thus held in custody or restraint and forthwith bring him before the court or judge to be dealt with according to law.



17. Same-Arrest of Party Causing Illegal Restraint. To prevent the curtailment and effectiveness of the writ of habeas corpus, the Legislature enacted § 1349, Title 12, O.S.A. 1941, providing that the court before whom the affidavit is made



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for a writ of habeas corpus may insert in the warrant a command for the apprehension of the person charged with causing the illegal restraint.



18. Same Issue, Service, and Amendment of Process-Held, Writ Sufficient to Notify Officer or Person of Purport of Process. To prevent the curtailment and effectiveness of the writ of habeas corpus the Legislature provided, in Title 12, § 1353, O.S.A. 1941, that no writ or other process shall be disregarded for any defect therein, if enough is shown to notify the officer or persons of the purport of the process and that amendments may be allowed, and temporary commitments made when necessary. Held, the writ herein was sufficient to notify the officer or person of the purport of the process.



19. Same-Amendment to Writ of Arrest in Aid of Habeas Corpus to Show Same to Run in Name of "The State of Oklahoma." Where it clearly appears from the record that the writ of arrest in aid of habeas corpus was actually issued "Okfuskee County, State of Oklahoma", by the district judge over his signature, within his jurisdiction and with authority of law and the only objection raised thereto is the omission of the adjective "The", the same may be amended at the time said objection is interposed to show the same to run in the name of "The state of Oklahoma", since not even procedural requirements of the Constitution should be permitted to impair the effectiveness of the writ of habeas corpus, where the writ of arrest otherwise meets the substantial requirements of law.



20. Contempt-Opportunity to Be Heard Before Penalty or Punishment Imposed for Contempt Indispensable Essential to Administration of Due Process of Law. Under the clause of art. II, § 25 of the Bill of Rights, providing "In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given," an opportunity to be heard before a penalty or punishment is imposed for contempt is an indispensable essential to the administration of due process of law as contemplated by the constitutional inhibition, art. II, § 7, Bill of Rights, that "No person shall be deprived of life, liberty or property, without due process of law."



Robert L. Stephenson was adjudged guilty of contempt. He brought action in habeas corpus to obtain his release from custody. Writ granted.



Clem H. Stephenson, of Wewoka, and Harry Stephenson, of Okemah, for petitioner.



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Phillips & Frerichs and Ross & Ross, all of Okemah, for respondent.



BRETT, J. This is an original action in habeas corpus brought by Robert L. Stephenson, alleging that he is unlawfully restrained and confined in the county jail, by the sheriff of Okfuskee county, Okla. To his petition a response was made by J. W. Kennedy, sheriff of Okfuskee county, Okla. From said response it appears that the petitioner's restraint arose under the following facts: On the 5th day of June, 1943, a decree of divorce was granted Helen Stephenson from the petitioner herein. In said decree the care and custody of the minor child of said parties, Patricia Stephenson, was exclusively confided in the mother and the petitioner herein was "enjoined from interfering with the plaintiff or the child in her custody, except" the right of visitation "at its mother's home at reasonable times", provided he caused no trouble to the plaintiff. From this decree the petitioner herein appealed to the Supreme Court of the State of Oklahoma, which said court, on May 15, 1946, affirmed the decree of the trial court. It appears that the petitioner obtained physical custody of the child, following the decree by the district court of Okfuskee county, Okla., on June 5, 1943; before the said court could reduce its decree to writing, that the petitioner removed said child from the state and has concealed said child from the court ever since the rendition of said decree on June 5, 1943.



It further appears that subsequent thereto the parties above submitted themselves to the jurisdiction of the district court of Harris county, Tex., in a similar action wherein the petitioner prevailed, and Helen Stephenson appealed, which appeal resulted adversely to her. In the decree therein rendered the custody of said Patricia Stephenson was confided in the petitioner herein. The Oklahoma



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court's jurisdiction is not in question and we are not concerned with the Texas proceedings.



On May 21, 1949, it is undisputed that the petitioner brought Patricia Stephenson into Okfuskee county, Okla., and that at said time she was visiting in the home of petitioner's parents in Okemah. Upon being advised by verified petition for habeas corpus of the fact that said child was within its jurisdiction, the district court of Okfuskee county issued the following order:



"County of Okfuskee,



State of Oklahoma,





)))





No. 11,966



"To The Sheriff Of Okfuskee County, Oklahoma:



"A verified petition for habeas corpus having been filed in this court on the 21 day of May, 1949, in the District Court in and for the county of Okfuskee, Oklahoma, by Ross & Ross, attorneys for Helen Rogers, nee Stephenson, charging that Robert L. Stephenson is unlawfully and illegally holding Patricia Stephenson, a minor, in violation of an order of this court in case No. 10720, you are therefore commanded forthwith to arrest the above named Robert L. Stephenson and to take immediate custody of Patricia Stephenson, a minor, and bring them before this Court forthwith to be dealt with according to law.



"Given under my hand, with the seal of said court affixed, this 21 day of May, 1949.



"(Signed) Jess I. Miracle



"District Judge."



The sheriff executed said order on said date at about 10 p.m., by arresting and taking into custody Robert L. Stephenson. He could not execute the order in relation to the child, she having been removed to the State of Kansas, near Winfield, the present home of the petitioner, before said order was served.



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On Monday morning, May 23, 1949, the matter came on for hearing before Honorable Jess I. Miracle, judge of the district court, on said verified petition and order. The petitioner filed a special appearance and plea to the jurisdiction of the court, and motion to quash, both of which the trial court overruled. Then a request for the disqualification of Judge Miracle was made and overruled. The petitioner then requested sufficient time to procure certified copies of the decree from the district court of Harris county, Tex., before proceeding to trial on the matters, which request was likewise refused.



Whereupon the respondent asserts, and which is not denied by petitioner, that the trial court thrice asked the following question "Will you immediately bring the baby into the court", to which the petitioner twice gave no answer and the third time replied "I could not do so myself", whereupon the record shows the trial court without a hearing adjudged the petitioner in direct contempt of court, and ordered him to jail in the custody of the sheriff, until the petitioner produced said child. Thereupon the trial court entered its order of confinement in conformity with the provisions of Title 21 0. S. A. 1941 § 569, detailing the substance of the offense.



Respondent attacks. the jurisdiction of this court, contending that the contempt herein involved arises out of a civil action, and that therefore, the Supreme Court would have jurisdiction of the habeas corpus proceeding brought by the petitioner to obtain his release from jail for contempt. He cites in support thereof Ex parte Herrin, 67 Okla. Cr. 104, 93 P.2d 21, 22:



"Generally, in matters arising out of the criminal jurisdiction the Criminal Court of Appeals exercises jurisdiction in habeas corpus cases. In matters arising out



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of the civil jurisdiction the Supreme Court exercises this right."



That case did not involve a contempt proceeding, is not in point, and an attempt to apply the broad general rule therein to contempt cases can only lead to confusion. It cannot be denied that in all criminal cases, and in none other, this court has exclusive jurisdiction. The question as to whether we have jurisdiction herein is, therefore, one as to whether the contempt with which the defendant is charged is criminal or civil. The statutory definition of contempts as applicable to the facts herein is as follows:





"* * * Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view, and presence, and of the unlawful and wilful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper questions; and any breach of the peace, noise or disturbance, so near to it as to interrupt its proceedings, * * * and may be summarily punished * * *. Indirect contempts of court shall consist of wilful disobedience of any process or order lawfully issued or made by court; resistance wilfully offered by any person to the execution of a lawful order or process, of a court." Title