
    Peter P. Lowe v. The State of Ohio.
    1. The “ charge” mentioned in the concluding clause of the first section of the act of February 24, 1834, 11 declaratory of the law concerning contempts of court,” refers to contempts generally, whatever they may be, as defined in that section; and such charge must be stated in writing, and the accused “have an opportunity to be heard in his defense by himself or counsel,” before a final sentence or judgment can be legally given against him, unless he do some act which may be fairly held a waiver of the formalities thus prescribed for his benefit.
    2. The clause of the statute prescribing these formalities does not refer to summary verbal orders of arrest for misbehavior in the presence of the court, “ or so near thereto as to obstruct the administration of justice,” nor to attachments for contempt in other cases, where such arrest or attachment is employed '“'in the nature of mesne process, for the purpose of bringing the accused party into court, or of holding him in custody until the prescribed formalities, preliminary to the award of final punishment for the contempt, can be conveniently instituted.
    In error to the district court of Montgomery county.
    This is a writ of error prosecuted here to reverse the judgment of the district court of Montgomery county, affirming on error a judgment of the common pleas of that county, by which the plaintiff in error was adjudged to pay a fine of twenty-five dollars for an alleged contempt of court. The facts of the case are embodied in the journal entry of the court of common pleas, which is as follows:
    “ The court having this day announced the sentence that a fine of twenty-five dollars was assessed against Peter P. Lowe, for his contempt, as set forth in the last foregoing case No. 35, and thereupon the said Peter P. Lowe, in open court, and in the hearing of the court and people, contemptuously declared and remarked, that the court might double the fine aforesaid if it saw fit; which remarks the court held to be a further contempt of court, and do thereupon sentence the said Peter P. Lowe to pay a further fine of twenty-five dollars, and order the clerk to make an entry thereof on the minutes of the court, and the same is done accordingly. It is therefore considered that the State of Ohio recover of the said Peter P. Lowe the said fine of twenty-five dollars, assessed in manner and form as aforesaid; also the costs herein exjiended, taxed at $ — —.”
    
      It is assigned for error, in substance:
    1. That it does not appear from the record that the charge against the defendant below for the supposed contempt was ever reduced to writing; but that it is apparent from the record that such charge never was reduced to writing, and that the defendant below was not allowed to bo heard in his defense by himself or counsel.
    *2. That the manner of assessing the fine is contrary to the statute in such case made and provided.
    
      F. J. Forsyth, for plaintiff in error.
    
      David A. Sunt, prosecuting attorney, for the state.
   Brinkerhoff, C. J.

The first section of the act of February 24, 1834, “declaratory of the law concerning contempts of'court” (Swan’s Bev. Stat. 188), and which governs this case, is .in the following words:

“That the power of the several courts of the State of-Ohio to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except to the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice; the misbehavior of any of the officers of the said courts, in their official transactions, and the disobedience or resistance by any officer of the said court, party, juror, witness, or any other person or persons to any lawful writ, process, order, rule, decree, or command of said courts, which charg’e shall be stated in writing, and the accused shall be heard, in his defense, by himself or counsel.”

We think it sufficiently and fairly apparent from the record, that immediately upon the utterance, by the plaintiff in error, of the words constituting the alleged contempt, without the. charge being “ stated in writing,” and without anything being said or done by him amounting to a waiver of the formality which the statute prescribes, the sentence of the court was at once announced, and judgment thereupon entered accordingly. On this state of the case, we hold:

1. The “ charge mentioned in the concluding clause of the section of the statute above quoted, refers to contempts generally, whatever they may be, as defined in that section;” %nd such charge must be “stated in writing, and the accused” have an opportunity to be “heard in his defense, by himself or counsel,” before a final sentence and judgment can be legally given against him, unless he do some act which may be fairly held a waiver of the formalities thus prescribed for his benefit.

2. The clause of the statute prescribing these formalities does not apply to summary verbal orders of arrest for misbehavior in the presence of the court, “ or so near thereto as to obstruct the administration of justice,” nor to attachments for contempt in other cases, where such arrest or attachment is employed in the nature of mesne process, for the purpose of bringing the accused party into court, or of holding him in custody until the prescribed formalities preliminary to the award of final punishment for the contempt can be conveniently instituted.

Judgment reversed.

Scott, Sutliee, and G-holson, JJ., concurred.

Peók, J., was absent.  