Cunha v. Superior Court

THE COURT.

Review to annul an order of the respondent court adjudging the petitioner guilty of contempt and imposing upon him a sentence of five days in jail and a fine of $500, with the alternative of imprisonment if the fine be not paid.

The petitioner was chief counsel for the defendant in the ease of

People

v.

James R. Kelly,

commenced and tried in the respondent court. After the conclusion of the trial the petitioner was cited to appear and show cause why he should not be punished for contempt. After an extended hearing he was found guilty and committed to the custody of the sheriff of Alameda County. He thereupon filed an application for a writ of

habeas corpus

in the District Court of Appeal, First District, Division One. The writ was granted and he was released from custody upon bail approved by a judge oihthat court pending a determination of the matter.

Five days after the

habeas corpus

proceeding was instituted the petitioner filed with said District Court of Appeal his petition for a writ of review to annul said judgment

[251]

of contempt. The writ was granted. The sheriff filed his return to the writ of

'habeas corpus

and three days later the respondent court filed a return to the writ of review. Both matters came on for hearing before the District Court of Appeal. An opinion was written and filed by that court in the

habeas corpus

matter wherein it was determined that the judgment was void. The order of contempt was accordingly “annulled and the petitioner released from custody”.

(Ex parte Cunha,

123 Cal. App. 625 [11 Pac. (2d) 902, 906].) On the same day the District Court of Appeal also entered an order in the present proceeding annulling the order of contempt on the authority of the prior opinion and order in the