#### Ex parte HEPTINSTALL.

No. 14404.

Court of Criminal Appeals of Texas.

April 29, 1931.

Rehearing Denied June 10, 1931

Martin, Shipman *&*Winters, of Abilene, for appellant.

Lloyd W. Davidson, State’s Atty., of Aus‘tin, *for the State.*

HAWKINS, J.

This is an appeal from an order of the district judge of the Forty-Second judicial district of Texas refusing to release relator under habeas corpus proceeding.

[I] There was pending in the district court of Taylor county an indictment charging one Ed -Bloss with rape upon Ethel Heptinstall. The case was called for trial on the 3d day of February, 1931, a jury selected, the in*76dictment read and the defendant’s plea of *“not*guilty” entered and the witnesses sworn. The state called to the witness stand the alleged injured female, the relator here. After giving her name and place of residence, she refused to testify to any material facts about which she was interrogated. She was ashed by the trial judge if she understood the" consequences of her refusal to testify and assured him that she did. She refused to answer material and pertinent questions propounded both by the court and the district attorney. She positively told the court that she would continue to refuse to answer, whereupon the court held her in contempt, and punished her by a fine of $100 and three days in jail.

On the 9th day of February application was made for a writ of habeas corpus, which was issued and a hearing thereon was had the same day and relator remanded to the custody of the sheriff. The judgment of contempt and the commitment issued thereunder by virtue of which the sheriff held relator were regular. There was no claim that the fine assessed, as part of the punishment, had been satisfied. No brief for relator has been furnished and we have been unable to ascertain from the record any basis for her demand for release. She appears to have been in flagrant contempt of the court.

The judgment remanding relator is affirmed.

On Motion For Rehearing.

MORROW, P. J.

The penalty assessed is that which, under the statute, is within the discretion of the court rendering the judgment of contempt, that is to say, by confinement in jail ■for three days and a fine of $100. This not being a civil but a criminal contempt (Ex parte Robertson, 27 Tex. App. 628, 11 S. W. 669, 11 Am. St. Rep. 207), the fine, if not reduced by a judgment of the court in which it was entered, must be paid or satisfied in the same manner as prescribed by law for the satisfaction of a conviction for a misdemeanor, that is to say, by confinement in the county jail and the fine reduced at the rate of one dollar per day, as provided by chapter 68, Acts of 40th Leg. (1927), 1st Called Session, page 194 (Vernon’s Ann. C. C. P. art. 793), as construed in Ex parte Rowley, 112 Tex. Cr. R. 163, 15 S.W.(2d) 1118; Ex parte Polly, 111 Tex. Cr. R. 431, 15 S.W.(2d) 16; Ex parte Xoung et al., 103 Tex. 470, 129 S.W. 599.

Judicial decisions on the subject of contempt are numerous and variant in many •particulars. See Corpus Juris, vol. 13, p. 4. In this state, an appeal does not lie from a judgment of contempt, but if the judgment is ■one of which the court is without jurisdiction to enter, relief by way of habeas corpus is available. ,See Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111; Ex parte Tinsley, 37 Tex. Cr. R. 517, 40 S. W. 306, 66 Am. St. Rep. 818. Doubtless, through habeas corpus, courts could relieve against confinement on a contempt judgment imposing cruel and unusual punishment forbidden by article 1, § 13 of the state Constitution. See Ruling Case Law, vol. 6, p. 524, § 37. Ordinarily, relief against a contempt judgment is not within the pardoning power of the executive. See Sharp v. State, 102 Tenn. 9, 49 S. W. 752, 43 L. R. A. 788, 73 Am. St. Rep. 851, in which many cases are cited upon the subject. See, also, Taylor v. Goodrich, 25 Tex. Civ. App. 109, 40 S. W. 515; Ruling Case Law, vol. 6, p. 538, § 51. The decisions of this court, by implication, seem to indicate that the power to modify a judgment of contempt rests with the court entering the order. See Tex. Jur., vol. 9, p. 614, § 29.

The motion for rehearing is overruled.