279 F. 613 | 9th Cir. | 1922
On July 28, 1921, the assistant United States attorney for the district of China filed in the court below an information charging the plaintiff in error, who will hereinafter be designated the defendant, with the offense of criminal libel. When called upon to plead to the information the defendant, who was an attorney licensed to practice in the court below, filed a petition and motion for change of venue, and an affidavit in which certain allegations of fact were verified by his own oath. Among the allegations therein contained are, in substance, the following: That the judge of the
court below was prejudiced against the defendant and in favor of the conplaining witness in the criminal charge; that the proceeding against the defendant was instituted by said complaining witness, with the connivance, consent, and assistance of the said judge; that said judge was a party to the prosecution and directly interested therein; that the said judge was a party to a crime of embezzlement, committed by one Earl B. Rose, on or about January 27, 1919; that the defendant had recently filed with the Department of State in Washington charges of oficial misconduct against the said judge; that the said judge conspiring with others to obstruct and impede the investigation of said charges had caused a'meeting of the Ear Eastern American Bar Association to be called, intending at said meeting to slander and defame the defendant, and procure the appointment of a committee to investigate his professional conduct; that the said judge and his coconspirators well knew that there was nothing in the defendant’s conduct which should be the subject of investigation; that the purpose was to injure and defame him, and to conceal the connection of said judge and his coccnspirators with the said crime of embezzlement; and that the said jrdge at the said meeting of the Bar Association falsely, maliciously, and with intent to injure and defame the defendant made certain charges against the defendant.’
The motion and affidavit were read in open court, and thereupon the court called upon the defendant to show cause whey he should not be punished for direct contempt committed deliberately, openly, and intentionally in the presence of the court. The defendant asserted that he was justified by law in presenting his motion and affidavit. After hearing the defendant at some length in his oral defense of the charge o::’ contempt, the court, among other things, observed:
“So far as the statements in regard to myself are concerned, they are absc lutely false and the product of a diseased imagination.”
The court found that the defendant’s conduct was a direct contempt committed in the presence of the court, deliberately, intentionally, and with premeditation, and adjudged the defendant guilty of contempt of court, and sentenced him to imprisonment for six months.
“exclusive jurisdiction in all casos and judicial proceedings whereof jurisdiction may now ho exercised by United ¡States consuls and ministers, * * * except i» so far as the said jurisdiction is qualified by section 2 oí this act.”
“The jurisdiction of said United States court, both original and on appeal, i i civil and criminal matters, and also the jurisdiction of the consular courts ii China, shall in all cases be exercised in conformity with said treaties and the laws of the United States now in force in reference to the American consular courts in China.”
But that provision is limited and controlled by the following:
“But in all such cases when such laws are deficient in the provisions necessary to give jurisdiction or to furnish suitable remedies, the common law and the law as established by the decisions of the courts of the United States shall be applied by said court in its decisions and shall govern the same subject to the terms of any treaties between the United States and China.”
That court was given, among other powers, the power to entertain appeals from consular courts which under the act of 1860 had been 'tested in the United States minister for China. In entertaining such appeals no limitation had been placed by law upon the power of the minister to punish for contempts. The power given to the consuls to punish for contempt was not a suitable remedy to enforce the respect due to the United States Court for China or to compel obedience to its orders. It is a court of record having a clerk and a seal. The act further provided that it should have a district attorney and a marshal with the authority possessed by corresponding officers of District Courts in the United States, as far as might be consistent with the aws of the United States and said treaties. It provided that the judge of the said court and the district attorney should be lawyers of good standing and experience, and that all of said officers should be appointed by the President, by and with the advice and consent of the Senate. Again by “the common law and the law as established by the decisions jf the courts of the United States,” the United States Court for Shina, even if it were not a court of the United States within the meanng of section 725, Rev. Stats. (Comp. St. § 1245), had power irrespective of any statute to punish for contempt; that power being inherent in the nature and constitution of such a court. United States v. Hudson, 7 Cranch, 32, 3 L. Ed. 259; Ex parte Terry, 128 U. S. 289, 305, 9 Sup. Ct. 77, 32 L. Ed. 405.
The judgment is affirmed.