Ex Parte Gray , 64 Tex. Crim. 311 ( 1911 )

On a former day of this term the relator was ordered discharged, a majority of the court holding that the Legislature was without jurisdiction to adjudge relator guilty of contempt. The State, through the attorneys representing the Legislature, has filed a motion for rehearing herein, as well as in the case of Ex parte Wolters, in which the same judgment was entered. Relator has filed a motion to dismiss the motion for rehearing, which is fully stated in the opinion of Presiding Judge Davidson in the Wolters case, and we do not deem it necessary to restate it here. A large part of Judge Davidson's opinion is devoted to discussing whether relator was guilty of a civil or criminal contempt, if the Legislature had jurisdiction to adjudge him guilty of contempt. It may be conceded that in drawing the distinction between civil and criminal contempts, that the great weight of authority draws this distinction: A civil contempt consists in failing to do something which the contemnor is required to do by order of the court for the benefit or advantage of a party to the proceeding; while a criminal contempt is all these acts of disrespect to the court or its process — in fact, all cases in which the State alone is interested in the enforcement of the order. In this case the questions propounded were intended to aid the Legislature in securing information to enact, annul or repeal laws, and it may be said that the State was the party at interest, and it comes within the class of adjudged criminal contempts.

But it does not necessarily follow that a criminal contempt is a criminal case within the meaning of our Constitution and laws relating to criminal cases and offenses. No article of the Penal Code makes either civil or criminal contempt an offense, and article 3 of the Penal Code provides: "In order that the system of penal law in force in this State may be complete within itself, it is declared that no person shall be punished for any act or omission unless the same is made a penal offense and a penalty is affixed thereto by the written law of this land." So, if a person guilty of criminal contempt is guilty of a criminal offense within the meaning of our Constitution and laws, it not having been made an offense by the Penal Code of this State, no person can be punished for being guilty of what is designated as criminal contempt. Again, our Code provides that no person shall be prosecuted for a criminal offense except upon indictment found in case of felony, or upon presentation of information in case of misdemeanor, and by complaint in justice court. A person who is guilty of criminalcontempt in the presence of the court may be punished without the presentation of either complaint, information or indictment. Contempt, in this State, is not a crime, because it has not so been made by the penal law. In the case of United States v. Lee Huen, 118 Fed., 442, it is said: "A criminal proceeding is the manner in which the government punishes a man guilty of crime," and in the case of Post v. United States, 161 U.S. 583, it is held criminal proceedings can not be said to be brought until a formal charge is made against the accused either by indictment, or information, or by complaint before a magistrate. In the case of Re Schulz's Lessee v. Moore (Ohio) Wright, 280, it is said: "A criminal case is a public prosecution for a crime or misdemeanor." In Mitchell v. State, 11 N.W. 848, it is held: "A criminal crime is one where the proceedings against the defendant is by indictment," etc. This question has heretofore been before our own courts, and in the case of Taylor v. Goodrich, 40 S.W. Rep., 515, it is held: "A `criminal case' is defined to be an action, suit or cause instituted to secure a conviction and punishment for crime, or to punish an infraction of the criminal law." In that case it is held that a contempt proceeding is not a criminal case within the meaning of our Constitution and laws. For a full discussion of this question we refer to this case, where will be found cited many authorities. Many other cases could be cited, but the opinions in these cases have already become so lengthy we feel that we should be brief, referring, however, to the Canfield case copied in the original opinion.

But we take it, that if it was a criminal case, this court would not be debarred from entertaining a motion for rehearing. This is not a trial court, but a court of review. It is an appellate court, and we do not adjudge a person guilty or innocent of crime. No judgment we could enter would debar the State from prosecuting a man on a charge of violating the laws of this State. A person arrested for violating the criminal laws of the State may sue out a writ of habeas corpus, alleging that the process is invalid because of some defect, or that the facts do not authorize his detention, and this court may so decree and discharge him, yet if additional facts are discovered, the decree of this court would not prevent an indictment and prosecution for the offense. The matters, as heard by us, are not a trial of thecase, but a review of some character of proceedings. While our laws provide that where a man has been tried and acquitted, the State has no right of appeal, yet no law provides that where a person is tried and convicted, that the State can not file motions to correct judgments, bring up correct transcripts, or any other motion that may be filed by the defendant applicable to the case. In the case of Carusales v. State, 47 Tex. Crim. 1, 82 S.W. Rep., 1038, this court held that the rules governing the Court of Civil Appeals, adopted by the Supreme Court, were applicable to this court under the rules adopted by the Supreme Court, and the Constitution of this State gives to the Supreme Court the right to adopt rules governing all courts. These rules authorize either party to file a motion for rehearing within fifteen days from the rendition of the judgment, and there is no law or rule of the court which prohibits the State from filing a motion for rehearing in this court within the time prescribed by law. It has been the rule in this court to permit the State to file motions for rehearing since its organization, and prior to that in the Supreme Court, when it had jurisdiction in criminal cases, and we see no sound reason for changing this rule at this late day. It is the rule of law that is said to be fundamental, that a court has jurisdiction over its judgments until the end of the term to alter, amend or set them aside, unless the judgment has in part been performed. There is not, nor can there be, any such plea entered in this case. We are, therefore, of the opinion that the motion for rehearing should be entertained, and the motion to strike it from the record overruled.

As hereinbefore stated, the opinions in these cases are of such length we would deem it inexcusable to write at length on any matter involved herein, unless our opinion in the cases had been changed by the motion herein filed by able counsel. While not again writing on the propositions involved, we have carefully considered all the grounds stated in the motion for rehearing and reviewed the authorities cited, but being of the opinion as announced in the original hearing, we are of opinion the motion for rehearing should be overruled.

The motion for rehearing is overruled.

Overruled.