In Re Wells

SCHAUER, J.

Petitioner Cassius M. Wells stands committed to the Fresno County Jail upon one judgment for two asserted contempts of court: a constructive contempt, violation of a restraining order; and a direct contempt, refusal to answer questions at the hearing on the charge of constructive contempt. He seeks release upon a writ of habeas corpus. We have concluded that, regardless of the merits of the controversy otherwise, the judgment under which he is imprisoned is void and, hence, that he is entitled to release.

[201]

As shown by the return of the sheriff to the writ, the basis of petitioner’s confinement is the following judgment and commitment:

“Cassius M. Wells, the defendant in the above entitled action, having appeared in Department 4 of the above-entitled Court on the 22nd day of August, 1946, then and there to show cause, if any he had, why he should not be punished for contempt for violation of the restraining order heretofore issued by this Court and said defendant, Cassius M. Wells, having been found guilty of contempt for removing the money from the bank, in violation of the restraining order and for refusing to answer questions concerning the whereabouts of certain funds withdrawn from the bank in violation of the restraining order heretofore issued by this Court, and said matter being continued till August 26, 1946, for passing sentence.

“Now Therefore, It Is Ordered that said Cassius M. Wells be, and he is hereby adjudged to be in contempt of this Court, and that he be confined in the Fresno County Jail until he purges himself of said contempt. It is further ordered that said defendant be and he is hereby remanded to the Sheriff of Fresno County until he obeys said order of this Court. ’ ’

The adjudication that petitioner is in contempt “for refusing to answer questions” (the direct contempt) is fatally defective because the exact questions are not recited. Section 1211 of the Code of Civil Procedure requires that, in adjudging a person guilty of a contempt “committed in the immediate view and presence of the court, ... an order must be made, reciting the facts as occurring in such immediate view and presence. ...” It is the general rule in this state that “This requirement [that the order recite the facts constituting the contempt] is jurisdictional, and an order which assumes to punish summarily a direct contempt of court is void unless it shows on its face acts sufficient to constitute a legal contempt. The order must contain a statement of facts equivalent to those which the law says must be incorporated in an affidavit for constructive contempt and such facts must prove the contempt. Mere conclusions are not sufficient. In such cases the rule that mere presumptions and intendments are to be indulged in support of ordinary judgments does not apply.” (5 Cal.Jur. 950-951, quoted with approval in