Counsel vigorously assails the opinion as subversive of the settled law and counter to precedent in that instead of pointing out in the judgment of the trial court the very words held to be contemptuous, the opinion summarized the findings deemed sufficient to justify the judgment. It is adjudged with clearness and in unmistakable terms in Ex parte Cash, 50 Tex. Crim. 623, 99 S.W. Rep., 1118, that though the mere adjudication in the body of the judgment be insufficient, the moving papers indicating the particular matter of contempt may be looked to in aid of the findings in the judgment. To the same effect see Ex parte Smith, 40 Tex.Crim. Rep., 49 S.W. Rep., 396. These cases are in entire harmony with those holding that the facts of contempt must appear in the judgment entry when a party is brought to trial without a preliminary written motion setting forth the matter of contempt.
In the motion against petitioner all the publications made by him are set forth as exhibits and parts and they thus constitute part of the moving papers, and, therefore, need not be set out in the judgment. There is no controversy about the facts, and we think, taking the publications as a whole, the trial judge was not unreasonable in the conclusion that some of them referred to the pending criminal *Page 497 case and were contemptuous. He had the right to consider them all in forming his estimate of the spirit, intent and effect of those relating more directly to the criminal case. 3 Ency. Ev., p. 455. If it be that Judge Powell would have reached a wiser conclusion had he agreed with counsel that the publication did not relate to the pending criminal case, yet if there was evidence consistent with his finding, we do not think we should hold the judgment void on the ground that he may have erred in estimating the cogency of the proof.
It is not required that the commitment set out a statement of the facts or evidence in constructive contempt of the kind before us, the factum of contempt being recited in the judgment and the evidence thereof in the moving papers. "Ex parte Duncan turned upon jurisdiction," says Davidson, P.J. He then says: "If the jurisdiction of the court properly attached to the person of the relator and the subject of contempt and the facts showed contempt, this writ should be refused," and he holds that there was no jurisdiction because there was no record of the order Duncan was charged with disobeying. In Robertson's case,27 Tex. Crim. 628, 11 S.W. Rep., 669, it is held that a judgment of a justice of the peace against a constable for failure to execute a writ of sequestration was void for failure of a finding that he could have executed the writ, and that the writ of commitment should have been for criminal contempt, and not, as it was, for civil contempt, and that failing to recite the facts showing power in the justice to punish the writ was invalid. In Ex parte Kearby, 35 Tex.Crim. Rep., 34 S.W. Rep., 635 and 962, there was no commitment and the court says simply this, that a commitment should show the cause for commitment. The commitment here shows clearly that it was upon a judgment of contempt.
Touching the third paragraph of the motion, we need only say it presents in other guise matters already considered. We do not think the Green's case, 46 Tex.Crim. Rep., 81 S.W. Rep., 723, goes further than to hold that where the publication evidently appears to refer to no pending case, it can not constitute contempt. One newspaper article was in evidence; there was nothing in it to indicate a certain case; no evidence that Green was writing of a certain pending case. So, if the judge held that the publication related to a certain pending case there was error in law in that he found a fact of which there was no evidence, and not a mere mistake as to the probative force of evidence. This court was not there called on to review or nullify a judgment based on evidence, but held the judgment null because an essential fact had no basis in evidence.
We do not think the existence of facts that would sustain a conviction for contempt, though shown by testimony before the trial court, would meet the requirement that the very facts of contempt *Page 498 be found, if the judge do not find the facts, the existence of which is shown by the evidence, but given jurisdiction and evidence of the facts which amount to contempt embraced in the motion, if the judge finds the facts, the judgment of conviction is unimpeachable. If the publication do not refer to a pending case or the judge do not so find, though there be proof of such fact or if there be entire absence of evidence of the fact, though found, the judgment of contempt could not be sustained. If the facts found be not in law contempt, the judgment can not stand, but it is the facts of contempt that must be found, that is, the bare facts constituting contempt and not the evidence. A judgment can not be held for naught for want of recital of the evidentiary facts. Here the judge finds that the publication set forth in the motion, and not simply the extracts, were made; that they related to the pending criminal case in his court; that they were scandalous and were designed and calculated to influence the result of such case and were contempt, but he does not set out verbatim these publications in the judgment entry. Is it, therefore, to be said that he does not find the facts sustaining the judgment? He says, the publication taken all in all shows contempt. They are all in the record, and while we hold he could not convict of contempt in the civil case because he had no jurisdiction, it does not follow that he could not consider all the publications in judging of the intent and effect of those relating to the criminal case. This court is not departing from the doctrines heretofore announced in the cases cited by counsel and has no inclination to do so. Neither has this court a disposition to ignore the established rules respecting the integrity of judgments of courts having jurisdiction of matter and person. We do not feel inclined to go beyond what has heretofore been determined in excepting contempt cases from the general rule of presumption in favor of judgments of courts of original jurisdiction to the effect that in contempt the facts constituting contempt must exist and appear in the record, either in the moving papers or the judgment entry. The trial judge passes on the weight of the evidence and his judgment is not to be annulled in a collateral proceeding, because, if it be so, this court does not think the evidence strong enough to justify his findings, not that we in this case differ with the trial court on this point.
The motion is overruled.
Overruled. *Page 499