This is an original application to this court for a writ of habeas corpus showing that the relator, Rufus Ray, is confined in the county jail of Hopkins County upon a verbal order of the district judge fining him one-hundred dollars for contempt of court and sending him to jail until he had purged himself of said contempt proceedings.
The record before us discloses that same took place during the August term of said district court which adjourned on October 3, 1925. It appears that the appellant was taken before the grand jury at said term and inquiry made of him as to where and from whom he had obtained certain whiskey and he replied that he did not know the man's name and could not give the name of the party from whom he obtained same. The grand jury caused him to be sent before the district judge and upon the same explanation he was fined and sent to jail as above stated. *Page 433
The record conclusively shows that there was no order made upon the Judge's Docket of said alleged contempt proceedings nor was same carried forward into the minutes of said district court, but same was made verbally by the district judge and no orders of any kind were ever made in writing, concerning same during the term of said court. There is no answer to said application or contest made to same and we take it that said allegations and matters therein stated as shown by the record are binding upon this Court.
This court held in the case of Ex parte Kearby et al.,34 S.W. 635, and Ex parte Kearby et al., 34 S.W. 962, that the district judge had no authority to commit a person for contempt proceedings verbally and that it was necessary that said proceedings be reduced to writing and made a matter of record in said court.
From the facts above stated and the authorities cited, we are forced to the conclusion that the learned District judge was in error in this particular and that the relator should be, and is hereby discharged.
Relator discharged.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.