II. The Court erred in applying the law of contempt to the facts in this case. Brewer v. State, 176 Miss. 803, 170 So. 540; Jones v. State, 208 Miss. 762, 45 So.2d 576; Yarber v. State, 208 Miss. 806, 45 So.2d 569; 12 Am. Jur. Contempt, Sec. 20 p. 402. III. The Court erred in denying the appellant a trial by jury.
Constructive contempt is "[A]ny act calculated to impede, embarrass, obstruct, defeat or corrupt the administration of courts of justice, when the act is done beyond the presence of the court." Jones v. State, 208 Miss. 762, 45 So.2d 576 (1950). The word "embarrass" in this context does not refer to personal embarrassment of the judge or officer of the court, but to hindering or impeding him. Knox v. State, 160 Miss. 494, 135 So. 206 (1931).
Delos H. Burks, Asst. Atty. Gen., Jackson, for appellee. I. The trial court did not err in finding the appellant guilty of constructive contempt of court. Brewer v. State, 176 Miss. 803, 170 So. 540; Estes v. State, 192 Miss. 400, 6 So.2d 132; Jones v. State, 208 Miss. 762, 45 So.2d 576; Melvin v. State, 210 Miss. 132, 48 So.2d 856; Prine v. State, 143 Miss. 231, 108 So. 716; Yarber v. State, 208 Miss. 806, 45 So.2d 596; Young v. State, 230 Miss. 525, 93 So.2d 452; 12 Am. Jur., Contempt, 391. RODGERS, J.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee. I. Cited and discussed the following authorities: Durham v. State, 97 Miss. 549, 52 So. 627; Henderson v. State, 187 Miss. 166, 192 So. 495; Higgins v. State, 218 Miss. 883, 56 So.2d 61; Jones v. State, 208 Miss. 762, 45 So.2d 576; Melvin vs. State, 210 Miss. 134, 49 So.2d 837; Stevens v. State, 225 Miss. 48, 82 So.2d 645; Stringer v. State, 228 Miss. 387, 87 So.2d 691; Watson v. Williams, 36 Miss. 331; Witt v. State, 159 Miss. 478, 132 So. 338. HOLMES, J.
Ex Parte Redmond, 159 Miss. 449, 132 So. 328. The following cases contain definitions of, or point out the distinctions between, direct and constructive contempt: Knox v. State, 160 Miss. 494, 135 So. 206; Sullens v. State, 191 Miss. 856, 4 So.2d 356; Jones v. State, 208 Miss. 762, 45 So.2d 576. They demonstrate conclusively that Jordan's failure to appear as a witness was a constructive contempt if any offense at all. (Hn 4) In proceedings involving constructive contempt there must be an affidavit or information setting out the facts alleged to constitute the offense; due notice thereof served upon the accused with the right and opportunity in him to refute the charges on a hearing thereof.
To confer jurisdiction on a Court in a constructive criminal contempt charge, the information in equity takes the place of an indictment at common law and is jurisdictional; and the information filed here fails to legally charge a constructive contempt — that is a constructive criminal contempt; and thus this information fails to confer jurisdiction and thus there being no jurisdiction in the Trial Court, there can be none in this Court; and this appellant should be discharged. Brewer v. State, 176 Miss. 803, 170 So. 540; Jones v. State, 208 Miss. 762, 767, 45 So.2d 576; Sec. 24, Constitution 1890; Secs. 1656, 2639, 2640, Code 1942; 1 Am. Jur., Actions, Sec. 18 p. 476; 13 C.J., Secs. 10, 89, pp. 4, 8, 9, 65, 66; Griffith's Miss. Chancery Practice (1st ed.), p. 46. II.