This is an appeal from a conviction in a proceedings for indirect criminal contempt of court for the violation of a temporary injunction.
Proceedings prior to the convention are as follows: Pursuant to an action filed by the Plan Commission of the City of Elkhart against the appellant, the Elkhart Superior Court had granted a temporary injunction against the appellant, the essential part thereof being as follows:
The information for contempt of court, with which we are immediately concerned, charged that appellant had violated the restraining order by making "lasting
Thereafter appellant appeared by counsel and filed his affidavit for change of judge, which was granted. After other proceedings appellant filed his verified answer. In this answer appellant, among other things, stated:
On the basis of the affidavits filed, and after examination by the court over the objection of the appellant of "a number of legal size sheets of paper, purporting to be an unsigned, unverified copy of some testimony of this defendant in a prior law suit," and after argument
The rules of law governing the procedure in cases of indirect criminal contempt have now been clearly defined by this court:
One. The court cannot hear evidence in support of the information or in contradiction of the answer. Burns' Ann. St., § 3-909 (1946 Repl.). State ex rel. Indpls. Bar Assn. v. Fletcher Tr. Co. (1937), 211 Ind. 27, 5 N.E.2d 538. Consequently, consideration of information dehors the record by the trial court over the objection of the defendant was clearly error.
Two. Further, as stated by this court:
Thus, where the defendant admits having committed the acts with which he is charged, and files his answer
Three. In determining whether the appellant's answer is sufficient as a matter of law, the court will be guided by the following rule: Whether the contempt proceedings is a criminal action, as described in the case of Baldwin et al. v. The State (1890), 126 Ind. 24, 25 N.E. 820, or merely "in the nature of a criminal action," as stated in the case of Ex Parte Fennig, Ex Parte Whipple (1939), 216 Ind. 298, 23 N.E.2d 678, the information must be construed as an indictment or affidavit. Therefore all ambiguities or uncertainties, if any, will be construed against the state. 1 Ewbanks, Indiana Criminal Law, § 172 (Symmes ed., 1956).
On the basis of the above stated rules of law, we proceed to look to the express language of the original restraining order and to the circumstances under which it was issued as they appear of record to determine whether the appellant might reasonably have committed the acts, which he admittedly committed, without wilfully intending to defy the order of the court, as he states in his verified answer.
Upon examination of the original restraining order, we observe that it did not contain a clear and forth-right order for appellant to cease and desist any further construction upon the structure in question. Rather, as heretofore stated, it merely enjoined the appellant
The question as to what constitutes an alteration or change to the structure of a building, within the meaning of a specific zoning ordinance, which ordinance is not made a part of the restraining order, is subject to considerable uncertainty, especially to persons unskilled in legal teminology.
Furthermore, in this particular instance we are confronted by the fact that appellant, in his verified answer, stated that he was assured in open court that the injunction would not deny him the right to protect his property by enclosing the structure as it already existed in order to preserve the structure and its contents. Although this statement was not incorporated in the record the fact of such statement is subject to belief and therefore must be accepted and considered as controlling of the issue as to whether the appellant, by the acts which he committed, intended to defy the order of the court.
Under the facts of this case and the law as above stated, we conclude that the judgment of the trial court was not sustained by sufficient evidence and was contrary to law and that appellant's motion for new trial must be sustained.
Landis, C.J., Arterburn, Bobbitt and Jackson, JJ., concur.
NOTE. — Reported in 175 N.E.2d 17.