80 Neb. 296 | Neb. | 1907
This is in some respects the most extraordinary record that the writer has ever been called upon to examine. Tt contains over 500 sheets of closely typewritten matter and some 40 odd sheets of fine print. AH of this record is supposed to be devoted to presenting, emphasizing and illustrating a continuous controversy between the court and the defendant, who is a member of the bar of Douglas county, in the trial of a misdemeanor case, entitled “State of Nebraska v. Samuel E. Howell,” in which that defend- - ant was indicted with some 40 others. This controversy extended not only through the trial of the case, but through the settlement of the bill of exceptions in that case, and throughout the trial of this case which is now presented to this court. The record clearly shows that the trial judge, which would, of course, be presumed without such shoAving, was animated throughout by a fine sense of justice, and was using every possible effort to maintain the dignity of the court and the honorable reputation of the bar of the state, and was conscious of the character of the disgraceful proceedings throughout, and yet was unable to preserve that order and decorum which is essential to the due administration of justice. The defendant is one of the able lawyers of the state, of long practice in all the
1. The first count in the information upon which the defendant was found guilty charged: “After the said court had heard the said William J. Connell in his argument of the law of said case, on behalf of the defendant therein, and after the said court had announced to the said William J. Connell that the said court did not care to hear
It appears to be conceded in the findings of the trial judge that the language used by defendant Avould not necessarily in itself be contempt. The contempt was considered to consist in the manner of the defendant and the circumstances under which the language was used. The foregoing extract from the transcript illustrates two unfortunate conditions that existed during the whole trial. The trial judge Avas led into controversy and argument when nothing Avas required but prompt decision. He allowed himself frequently to be interrupted when attempting to explain the grounds of his ruling, and habitually alloAved extensive argument after having indicated his opinion upon the point under discussion. The objection to the question propounded to the Avitness, it appears, was stated at large by counsel, and after the objection had been flatly overruled, and counsel had taken his exception to the ruling, counsel stated that the point was one that he wanted to present, but if the'mind of the court was made up not to hear any presentation that he would not care to go into it. Ordinarily such a remark as this in open court would be regarded as more or less offensive. The implication plainly is that the point determined by the court was an important one; that it merited discussion, and the insinuation is that the court had made an important ruling without proper consideration of the matter, and that this indicated a condition of the mind of the court that made it undesirable to discuss the question. What we mean to say is that under some circumstances such a remark as this of counsel would be subject to such criticism as above, but the reply of the court Ayould indicate that such discussions were anticipated and not rarely to be expected. The remark of the court that he had lost
The charge of the other count of the information upon which the defendant- was found guilty is as follows: “The defendant did then and there in the presence and hearing of said court, and in the presence and hearing of the presiding judge thereof, said court then and there being in session as aforesaid, and engaged in the trial of said case, unlawfully and wilfully behave toward said court in a disorderly, contemptuous and insolent manner, in that then and there and during said trial of said case, and in the presence, and hearing of the jury impaneled in said case as aforesaid, and after the said court had passed upon the qualifications of a certain witness, called by the said defendant in said case to testify in said case, and had excluded said witness from testifying in said case, pursuant
From this it appears that, when defendant, as counsel in the case, stated his position to the court that the wit
2. This is not a prosecution for a constructive contempt.
It is contended that these findings are sufficient to support the cemviction without regard to the evidence; that, the language and actions of the defendant and the manner in which the lauguage was used and the actions we're elone were necessarily within the personal knowledge e>f the judge, and that the specific charge of the manne'r of the defendant and speefific finding and statement of the; judge thereon requireel the rendering of the judgment that follenve'el. We do not want to be understood as deciding that in ordinary cases something more is necessary than the statement of the facts upon the record and the findings of the court thereon to support a conviction of contempt committed in the presence of the court. In this case we think that, the judgment is not supported by the record. Instead of relying upon the knowledge of
Among- the Avitnesses examined for the state were the two bailiffs of the court, and the testimony of the witness Kirkendall, one of the bailiffs, fairly sIioavs the evidence upon AAdiich the findings and conviction are based. This witness appears to be very observing and conscientious. He Avas questioned by the prosecution, and ansAvered as folloAA’s: “Q. Was the language used by Mr. Connell, just quoted, spoken in a voice loud enough so, that $he people back in the court room would be able to hear it? A. I judge that any one in the court room could hear it. He did not say it in a very boisterous manner, but he said it so that any one in the court room might have heard it. I was sitting back there in my chair, and I heard it. Q. What Avas Mr. Connell’s manner and demeanor, and what was the tone of his voice at the time he addressed the language quoted' to the court? A. Well, I thought that lie spoke in AAdiat I Avould consider a kind of natural tone
There appears to he two statements of this witness that tended perhaps in some degree to support the allegations of the information. When asked the leading question by the state’s counsel in regard to the language of the defendant, “Was it unusually loud?” he answered, “Yes, sir,” and he says that “it sounded to me, of course, disrespectful.” But the reason for this latter conclusion is derived, 'as appears from his answer, entirely from the language itself, and not from the manner in which it was used. If the witness had»,understood that the question as to excluding the testimony of the witness, Griffith, was still undetermined, and that' the court might yet conclude to allow the evidence, and was listening to the argument for the purpose of determining the propriety of so doing, this witness undoubtedly would not have considered the language used as disrespectful. We cannot add to this opinion, already too long, by quoting further from the evidence of the state’s witnesses. There was none more
The evidence fails to show beyond a reasonable doubt that the defendant was guilty of a wilful purpose to obstruct, the proceedings of the court, or to insult or humiliate the" judge either by boisterous behavior, by loud or sarcastic language', en* hv offensive and insulting demeanor.
The judgment e>f the district cemrt is reversed and the cause remanded.
Reversed.