In Re Toor

KAUFMAN, J.

Petitioner Elliott H. Toor seeks discharge from custody pursuant to a writ of habeas corpus issued out of this court on the ground that he is being held in

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custody without legal cause and is entitled to be discharged from custody pursuant to the provisions of sections 1143-1154 of the Code of Civil Procedure.

On November 29, 1954, petitioner Elliott H. Toor was adjudged in contempt of court for his wilful failure to pay alimony and support money for the maintenance of his minor child in the amount of $2,700 and ordered imprisoned in the county jail until payment of said money. He seeks his discharge on habeas corpus on the ground that on December 17, 1954, he moved the superior court for a discharge from said imprisonment on the ground that he did not have any estate to the amount of $50, to which fact he testified and which testimony he claims was substantially undisputed, but that nevertheless that court refused to administer the oath of section 1148, Code of Civil Procedure, and denied the motion to discharge; and on the further ground of double jeopardy because he had before on November 8, 1954, been adjudged in contempt and imprisoned for the same failure but had on November 18,1954, been discharged by the superior court on the court’s own motion on the ground that the affidavit on which the order to show cause

in re

contempt was issued was defective in jurisdictional respects.

The ground of double jeopardy has no merit. Contempt of court for failure to comply with the court’s order to pay when one has the ability to pay is a continuing offense. Furthermore, the original contempt order was discharged because of a defective affidavit not because petitioner had complied with the court’s order or did not have the ability to comply. (See

People

v.

Hamberg,

84 Cal. 468 [24 P. 298].)

The order of contempt of November 29, 1954, was based on the facts existing on that date and the previous discharge by the court because of an insufficient affidavit based on facts occurring previously is not double jeopardy.