In re Mackay

CRAIG, Acting P. J. The petitioner was adjudged in contempt of court upon failure to appear therein until more than one-half hour after the time set for resuming the trial of a criminal action in which he was counsel for the defendants. A fine was assessed and sentence of imprisonment ordered in lieu of payment thereof. Nonpayment of such fine was followed by the issuance of a commitment, whereupon the instant proceeding was instituted.

The events underlying the controversy are recited as follows in a minute order entered at the time: “The trial having been continued on May 18, 1934, to 2:00 o’clock P. M., of May 21, 1934, Olin Mackay being in court at the time of said continuance on May 18th, 1934, and said Olin Mackay having failed to appear in court on said May 21st, 1934, at 2:00 P. M., but said Olin Mackay having arrived in court 38 minutes after 2:00 o’clock P. M. on May 21st, 1934,” it was adjudged that petitioner was “guilty of contempt for failure and neglect to discharge his duty as a lawyer to appear in court at the hour to which the trial was continued”. By the commitment it appears that petitioner was sole counsel for the defendants in a criminal trial then in progress; that he was present and heard the order of continuance until 2 o’clock P. M. of said date; that at that time the judge, jury, district attorney, witnesses and defendants were present, but that petitioner did not then appear or give “any sufficient excuse” for his failure and neglect to appear until thirty-eight minutes thereafter, nor justify his absence from the court at the hour to which said trial had been continued.

We are of the opinion that for the purposes of this proceeding it is unnecessary to consider and judicially determine the issue argued at some length, as to whether or [402]not the contempt herein involved, if any there he, is direct or indirect. We find that the order and commitment are fatally defective, measured by any one of several tests. One point which we think is here decisive is that the judgment, either alone or considered in connection with the commitment, contains no finding or recital to the effect that the petitioner had the ability to do the act for the failure to do which he was found and adjudged in contempt. The authorities are uniform that such a finding must appear. (Van Hoosear v. Railroad Commission, 189 Cal. 228 [207 Pac. 903]; In re Cowden, 139 Cal. 244 [73 Pac. 156]; Ex parte Silva, 123 Cal. 293 [55 Pac. 988, 69 Am. St. Rep. 58]; Bakeman v. Superior Court, 37 Cal. App. 785 [174 Pac. 911].)