held, except under the circumstances and in the manner prescribed by law. It is essential to the validity of proceedings in contempt, subjecting a party to fine and imprisonment, that they show a case in point of jurisdiction within the provisions of the law by which such proceedings are authorized, for mere presumptions and intendments are not to be indulged in their support: Batchelder v. Moore, 42 Cal. 412. An order committing a party for contempt, and ordering that he be imprisoned until he comply with a previous order commanding him to pay into court a certain sum of money, was held an excess of jurisdiction and void, where the party had made affidavit, which was uncontradicted, that the money had passed from his possession and control before the proceedings in contempt were commenced. Though courts are exclusive judges of their own contempts, a party cannot be imprisoned for neglecting or refusing to do what it appears is out of his power to perform: Adams v. Haskell, 6 Cal. 316; S. C., 65 Am. Dec. 517. Whether or not the petitioner could comply with the order, here for alimony, is one of the facts to be determined by the court making the order: Ex parte Cottrell, 59 Id. 417; S. C., 59 Id. 420. A husband who lives separate from his wife, and has been adjudged by a court of equity to pay her a certain sum monthly for her support and that of her infant child, is not guilty of contempt for not paying the sum if he is unable to pay it, and has not voluntarily created the disability for the purpose of avoiding the payment. He may purge himself from contempt by showing that he is unable to pay it, and that this inability has not been voluntarily created by his own act: Galland v. Galland, 44 Id. 475. Acts constituting contempt. Among the many instances of acts which constitute a contempt of court are the the following: Openly insulting a judge on the bench: Commonwealth v. Dandridge, 2 Va. Cas. 413; employment in the supreme court of language disrespectful to the lower court: Friedlander v. Sumner G. & S. M. Co., 61 Cal. 116; striking an attorney in 529 court: Middlebrook v. State, 43 Conn. Oct. 11, 1862, Where the court caused C. and J. Disobedience of a decree of $ 641. § 651. [641.] Every court of justice, and every judi- Oct. 11, 1862, cial officer, has power to punish contempt, by fine or Punishment. Oct. 11, 1862, $641. Punishment. Oct. 11, 1862, 642. In presence of court, how punished. 8 Or. 491. 20 Or. 55. Oct, 11, 1862, $643. In other cases, ceeding. imprisonment, or both. But such fine shall not exceed three hundred dollars, nor the imprisonment six months; and when the contempt is not one of those mentioned in subdivisions 1 and 2 of the last section, or in subdivision 1 of section 916 [890], 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 one hundred dollars. § 652. [642.] When a contempt is committed in the immediate view and presence of the court or officer, it may be punished summarily, for which an order must be made reciting the facts as occurring in such immediate view and presence, determining that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed. 1 Cal. 152. It should set forth that it is in the power of the party to comply with the order, if it is for disobedi ence: Ex parte Cohen, 6 Id. 318. Order reciting facts. The order of court must show upon its face the facts upon which the exercise of the power is based: People v. Turner, § 653. [643.] In cases other than those mentioned in section 652 [642], before any proceedings can be taken mode of pro- therein, the facts constituting the contempt must be shown by an affidavit presented to the court or judicial officer, and thereupon such court or officer may either make an order upon the person charged, to show cause why he should not be arrested to answer, or issue a warrant of arrest to bring such person to answer in the first instance. Oct. 11, 1862, 644. Defendantmay Affidavit. If the affidavit be de- alent to the utter absence of an affifective in stating the facts, it is equiv- davit: Batchelder v. Moore, 42 Cal. 412. § 654. [644.] If the party charged be in the custody of an officer, by virtue of a legal order or process, civil be brought up or criminal, except upon a sentence for a felony, an order may be made for the production of such person by the officer having him in custody, that he may answer, and he shall thereupon be produced and held, until an order be made for his disposal. if in custody. Oct. 11, 1862, § 645. § 655. [645.] In the proceeding for a contempt, the state is the plaintiff. In all cases of public interest, the $645. § 646. Bail. Warrant, how proceeding may be prosecuted by the district attorney, Oct. 11, 1862, on behalf of the state, and in all cases where the proceeding is commenced upon the relation of a private party, plaintiff. such party shall be deemed a co-plaintiff with the state. 20 Or. 55. § 656. [646.] Whenever a warrant of arrest is issued, Oct. 11, 1862, pursuant to this title, the court or judicial officer shall direct therein whether the person charged may be let to bail for his appearance upon the warrant, or detained executed. in custody without bail, and if he may be bailed, the 15 Or. 151. amount in which he may be let to bail. Upon executing the warrant of arrest, the sheriff must keep the person in actual custody, bring him before the court or judicial officer, and detain him until an order be made in the premises, unless the person arrested entitle himself to be discharged as provided in section 657 [647]. $647. Bail, how § 657. [647.] The defendant shall be discharged from Oct. 11, 1862, the arrest upon executing and delivering to the sheriff, at any time before the return day of the warrant, an given. undertaking, with two sufficient sureties, to the effect. that the defendant will appear on such return day, and abide the order or judgment of the court or officer thereupon, or pay, as may be directed, the sum specified in the warrant. 15 Or. 151. 648. Return of § 658. [648.] The sheriff shall return the warrant of Oct. 11, 1862, arrest, and the undertaking, if any, given him by the defendant, by the return day therein specified. When warrant. the defendant has been brought up or appeared, the court or judicial officer shall proceed to investigate the charge by examining such defendant, and witnesses for or against him, for which an adjournment may be had from time to time, if necessary. $649. Judgment and 659. [649.] Upon the evidence so taken, the court Oct. 11, 182, or judicial officer shall determine whether or not the defendant is guilty of the contempt charged, and if it be sentence. determined that he is so guilty, shall sentence him to be punished as provided in this title. $650. § 660. [650.] If any loss or injury to a party in an Oct. 11, 1862, action, suit, or proceeding, prejudicial to his rights therein, have been caused by the contempt, the court or 15 Or. 153. Oct. 11, 1862, $650. Indemnity to 15 Or. 153. judicial officer, in addition to the punishment imposed for the contempt, may give judgment that the party party injured. aggrieved recover off the defendant a sum of money sufficient to indemnify him, and to satisfy his costs and disbursements, which judgment, and the acceptance of the amount thereof, is a bar to any action, suit, or proceeding by the aggrieved party for such loss or injury. § 661. [651.] When the contempt consists in the omission or refusal to perform an act which is yet in the until sentence power of the defendant to perform, he may be imprisoned until he shall have performed it, and in such case the act must be specified in the warrant of commitment. Oct. 11, 1862, $651. Imprisonment complied with. Oct. 11, 1862, $652. Person also liable to indictment. Oct. 11, 1862, $653. If party do not appear. Oct. 11, 1862, $ 654. Appeal from judgment. § 662. [652.] Persons proceeded against according to the provisions of this title are also liable to indictment for the same misconduct, if it be an indictable offense, but the court before which a conviction is had on the indictment, in passing sentence, shall take into consideration the punishment before inflicted. § 663. [653.] When the warrant of arrest has been returned served, if the defendant do not appear on the return day, the court or judicial officer may issue another warrant of arrest, or may order the undertaking to be prosecuted, or both. If the undertaking be prosecuted, and the aggrieved party join in the action, and the sum specified therein be recovered, so much thereof as will compensate such party for the loss or injury sustained by reason of the misconduct for which the warrant was issued shall be deemed to be recovered for such party exclusively. § 664. [654.] Either party to a judgment in a proceeding for a contempt may appeal therefrom, in like manner and with like effect as from a judgment in an action, but such appeal shall not have the effect to stay the proceeding in any other action, suit, or proceeding, or upon any judgment, decree, or order therein, concerning which or wherein such contempt was committed. Contempts of justices' courts are punishable in the manner specially provided in the procedure before them. TITLE I. II. - CHAPTER VIII. OF EVIDENCE. OF THE GENERAL PRINCIPLES OF Evidence. OF THE KNOWLEDGE OF THE COURT. III. - OF WITNESSES, DEFINITION AND COMPE VI. OF PRIVATE WRITINGS AND MATERIAL VII. OF INDIRECT EVIDENCE, INFERENCES, AND $655. proof. § 665. [655.] Judicial evidence is the means, sanc- Oct. 11, 1862, tioned by law, of ascertaining in a judicial proceeding Definition of the truth respecting a question of fact. Proof is the evidence and effect of evidence, the establishment of a fact by evidence. § 666. [656.] The law of evidence, which is the sub- Oct. 11, 1862, ject of this chapter and chapters IX. and X., is a collection of general rules established by law, 1. For declaring what is to be taken as true without proof; $656. Definition of law of evidence. |