Ex parte Overend

McFARLAND, J. On the fifteenth day of June, 1898, in the superior court of the city and county of San Francisco, sitting with a jury impaneled for the purpose, one Minnie Campbell was being tried upon a charge of having obtained money by false pretenses from the petitioner herein, Alfred Overend. On the forenoon of that day the petitioner herein, Overend, was called as a witness for the prosecution on the said trial, and declined and refused to answer certain questions asked him by the prosecution, upon the ground that the answers would tend to convict him of a felony. The first question which he refused to answer upon that ground was, “Do jrou know this defendant, Minnie-Campbell?” Other questions were asked him, such as, “Do you know the codefendant Lewis?” and, “Did you meet the deiend[202]ant Minnie Campbell and William Lewis, in this city and county, on the sixth day of December, 1897?” The petitioner refused to answer these questions and refused to give any further testimony in the ease upon the ground above stated. Thereupon the court adjudged him guilty of contempt for not answering the said questions, and, as a punishment, ordered that he be committed to the county jail until 2 o’clock of that day, and also pay a fine of five hundred dollars. The further hearing of the case was continued until 2 o’clock of that day. At 2 o’clock the petitioner was again on the stand, and asked similar questions, which he declined to answer on the same ground; whereupon he was again adjudged guilty of contempt, and punished by a fine of five hundred dollars, and imprisoned in the county jail until 10 o’clock next morning. On the next day, June 16th, the trial of the case was resumed, and the petitioner, being put on the stand, again was asked questions similar to those propounded on the day previous, and again declined to answer upon the same ground; whereupon the court again adjudged the petitioner guilty of contempt for not answering the questions, and adjudged that in punishment thereof he suffer imprisonment in the county jail for a term of five days and pay a fine of five hundred dollars; and, in addition thereto, the following judgment was also entered: “I further adjudge that, as it appears to me that it is still in your power to obey the order that you answer these questions, that you be further imprisoned in the county jail until such time as you shall submit to answer. The statute provides, when the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may he imprisoned until he has performed it, and I specify in this judgment those questions as the questions that you must answer and must remain imprisoned until you do submit to answer. That is the judgment of the court, and you will he taken into custody by the sheriff.” Thereupon the court said: “Now, in this case of Minnie Campbell it appears to the court that owing to the refusal of this witness to answer questions about matters which are indispensable to be proved by the state—by the prosecution L—in order to submit their case to the jury for decision, that owing to his persistent refusal to answer, it has become impossible, gentlemen, for you to render a verdict in this case, and