11 Ga. App. 665 | Ga. Ct. App. | 1912
Lead Opinion
In the performance of the obligation exclusively imposed upon it by the constitution of the State, this court was recently called 'upon to review the judgment of A. W. Fite, one of the judges of the superior court, in the case of McCullough v. State, ante, 612. After a most careful consideration of the record, the court concluded that three errors of law were committed by the trial judge which were prejudicial to the accused. These errors of law were not technical in character, but related to the merits of the
The point raised by the amended answer, that the article “is clearly within the privilege and rights guaranteed to respondent under the Bill of Rights, article 1, section 1, paragraph 15, of the constitution,” accompanied by the request that we certify this constitutional law point to the Supreme Court, has been considered. The request is denied, as the question made does not involve “the construction of a provision of the constitution of this State or of the United States;” or “the constitutionality of .an act of the General Assembly of this State.” Personally the Judges of this court would loe glad to have the Supreme Court pass upon the rule issued by this court, as well as determine the character of the newspaper article in question, but the law imposes the responsibility upon this court. It is well settled that no tribunal except the one complaining of a contempt has jurisdiction to pass upon that issue. The decision of this court as to this question is not only exclusive, but final, and this court does not shirk the duty imposed upon it, but willingly assumes full responsibility.
The jurisdiction of this court to determine what is a criminal contempt and to punish the contemner is not an open question in this State. It is settled by the Supreme Court in the case of Bradley v. State, 111 Ga. 168 (36 S. E. 630, 50 L. R. A. 691, 78 Am. St. R. 157). In that case Mr. Chief Justice Simmons, speaking for the court, declares that the power to punish contempts is inherent in every court of record, and that if the court is created by the constitution, even “the legislature can not, without express constitutional authority, define what are contempts and declare that the court shall have jurisdiction over no acts except those specified.” The Court of Appeals is a constitutional court, created by the people, having as to this subject the same powers and authority as are conferred upon the Supreme Court. These powers and this authority exist in the court itself as a judicial tribunal. They do not belong to the individual Judges of the court. This inherent power in courts tg define contempts, especially criminal contempts, and to inflict punishment therefor, has been well settled by the courts both of this country and England. The possession of this power and its exercise in proper cases are essential to the maintenance of the respect due to the courts as representatives of the majesty of the people, entrusted by them with the high and sacred responsibility of passing upon the rights and liberties of the citizen, in the administration of law and justice. If courts fail to enforce respect, if they do not strive to preserve their independence and to maintain inviolate their judicial integrity, they will not only lose their own self-respect, but will be recreant to the duty they owe to the State. If the court is scandalized, the integrity of its Judges impeached by gross, defamatory libels of their character and their decisions, the consequences are far more hurtful than in cases of direct contempts, committed in their presence; for unfair, unjust and libelous criticisms of judicial proceedings, and unwarranted attacks reflecting upon the Judges in their judicial capacity, not only tend to endanger the rights of parties in pending cases, but
The learned counsel for the respondent, in their very fair, dignified, and able arguments, do not -deny the inherent power of this court to define and punish contempts. They insist, however, that this power is limited to contempts committed in the presence of the court, or to criticisms relating to pending ^.causes; that any criticism of a judicial decision in a case that is no longer pending, although it may be libelous and defamatory, can not be a contempt. This restricted view of the subject is supported neither by reason nor the weight of authority. Unquestionably it is a great wrong to write or publish criticisms of pending litigation, either of the judge, the jurors, the witnesses, or the parties, that tend to impede nr defeat the due administration of justice, but, as has been forcibly said by a learned jurist of the Supreme Court of Virginia (Commonwealth v. Dandridge, 2 Va. Cases, 421), “If the power of punishment stop here, a curious consequence may ensue. A man may be attached for threatening to do that for which he could not ,be attached when actually done.. One says of a Judge, ‘If he render a certain judgment against me, I will insult or beat him. For this he may be attached. But if (the judgment having been rendered) the insult be actually offered, an attachment no longer lies, because the contempt is in relation to the. past conduct of the Judge, and to a case no longer pending.. A recurrence to original
Having abundantly established the power of the court not only to define criminal contempts, but also to punish for such offenses,, within the limitations prescribed by the legislature, we now come to make a concrete application of the principles announced, to the article under consideration, for the purpose of determining if the-article falls within the definition of a criminal, contempt, and, if so, to fix an appropriate punishment. It is not our purpose to consider all the objectionable features of the article. No one can read the article without being convinced that it is, as a whole, a most flagrant contempt of the court, abounding in defamatory aspersions and criminal libels against the judicial integrity of the Judges. If the aspersions directly made or maliciously insinuated against the' judicial conduct and official honesty of the Judges were true, they would be utterly unworthy of the great trust committed to them by the people, and would be unworthy to exercise judicial functions in passing upon the rights and liberties of the citizen. If this court does not defend and protect itself from slanderous charges of the character contained in the article, the individual Judges would deserve and should promptly receive the contempt of all intelligent and honorable men; for the court which is too weak to demand and enforce decent and respectful treatment can not expect to secure or retain the respect and confidence of the people. We will leave to the discriminating and intelligent reader to determine the character of the article as a whole, contenting ourselves with referring only to those parts specifically mentioned by the respondent in his answer.
It is asserted that the decision of this court, in reversing the lower court in the McCullough case, is based upon “a pitiful misconception and misconstruction of the record, which shows the utter inability of the Court of Appeals, and especially of the Judge delivering the opinion, to comprehend the record, or to render a proper decision in the case, if they so desiredThe assertion that there was “a pitiful misconception and misconstruction of the record,” while disrespectful and contumelious, and lacking in judicial decorum, is offensive only to propriety; and the statement
Again, in the article in question, the respondent charges that the court has reversed itself, but that this is not surprising, since'the court is as apt to reverse itself as it is to reverse him, “or the Supreme Court, which they frequently do with great complacency.” The objectionable part of this statement is that the court frequently reverses the Supreme Court with great complacency. The constitution of this State expressly declares that the decisions of the Supreme Court are binding upon this court; and each one of the Judges took an oath to support the constitution. The charge, therefore, is that the Judges of this court deliberately and frequently violate their oaths, and that it gives them pleasure and satisfaction to do so. No instance is given where this court ever reversed the Supreme Court; and none can be given. Indeed, every lawyer knows that such a reversal is a legal impossibility; for, if the decisions of the two courts are in conflict, the decision of the Supreme Court is controlling. It may happen that a question which has arisen in a case before the Court of Appeals and has been there decided may subsequently arise in a case in the Supreme Court, and the latter court may take a different view of the law. In such case, of course, the decision of the Supreme Court would be the law. One instance of this sort is recalled. In Rose v. State, 4 Ga. App. 588 (62 S. E. 117), this court held, affirming
The respondent says, in his answer, that he-was jesting when he charged that this court frequently reversed, with great complacency, the Supreme Court. On the assumption that the respondent knew the relative jurisdiction of the two courts, the statement can only be construed as a direct, intentional charge that the Judges of this court found pleasant satisfaction in the violation of their official oaths by frequently reversing the Supreme Court; and it is certainly too great a tax on the credulity of this court to accept as a jest any portion of this most scurrilous article.
In the conclusion of his unwarranted attack, the respondent uses the following language, referring to the reversals in the McCullough case: “The real reason for the reversals has never been given. The truth is that the Court of Appeals don’t believe that a negro should be punished twenty years in the penitentiary for an assault to rape on the wife of a humble farmer, but I put them on notice that I do not agree with them.” It would be impossible to express in language a more vicious and flagrant contempt of the Judges of this court in their judicial capacity, and also a grosser and more defamatory libel against the Judges as individuals. He charges the court with judicial deception in suppressing the “real reason” for the decisions, and in giving false reasons. No greater reflection could be made against a Judge than the charge that he suppresses the truth and perverts the facts in his opinions; that he prostitutes his high trust to promoting tíre cause of falsehood and injustice, instead of truth and justice; and that in this case this great judicial crime was committed by the Judges of this court because they “don’t believe that a negro should be punished twenty years in the penitentiary for an. assault to rape on the wife of a humble farmer.” We ask every honest, fair-minded man in Georgia to consider the outrage and insult to southern character and manhood expressed and implied by this language. Did the respondent expect any man of character and intelligence to believe the charge? Did he believe it himself? Did he believe that three men honored by the people with seats on this high tribunal, -southern men, decendants of southern men and women, true in
It is perfectly manifest that the .respondent had two purposes in making the statement, — to inflame race passion, and to excite the prejudice of one class against the Judges of' this court. Both purposes are vicious and shameful to the last degree, and deserve the indignant condemnation of every true man, especially when such appeals are made for such wicked purposes by one holding a high judicial office. There is nothing in the facts of the McCullough case to justify or palliate the tirade of abuse and contempt written and published against the court by the respondent. The most inexcusable feature of the respondent’s conduct is his efforts to arouse race passion and prejudice 'against the court by endeavoring to mislead the public into thinking that the case was one of a brutal, violent, outrageous assault to rape by a negro on a white woman.
Now let it be understood that in what' is here said there is not the slightest purpose to discredit the evidence of the good woman in this case. It is only for the purpose of showing that, admitting the truth of everything she stated, viewed in the light of her own subsequent conduct and that of her husband, and especially that of the negro, and the reluctance of the jury to convict, there seems grave doubt of the guilt of the accused of any offense greáter than assault and battery, which may be committed by thá placing of hands, however lightly, upon a woman without her consent.
Taking advantage of the character of the charge, and the sensitive feeling of our people on-the subject (with which the members of this court are in most thorough sympathy and accord), and withholding the facts of the case, the respondent endeavors most unjustly, in the newspaper article in question, to excite race prejudice and indignation against this court. This vicious purpose of the original article is further manifested by the published article of October 8th, in which the respondent says: “The Court of Appeals . . in their zeal for the negro, or for something else, . have rendered a decision which should not stand.” We leave this statement, without comment, to the judgment of all honorable and high-minded men.
I yield to no man in my loyalty to the blood and traditions of my own race, but, in the performance of my high and solemn duties as a judge, I recognize but one master — the law, and I hear but one voice — justice; and no sentiment, however sacred, can lead me, as a judge, to deprive any man, whatever his color or condition, or however humble his position, of the equal protection of the law and of that justice to which I think he is entitled. The oath I took when I assumed the great trust of.this high office,— “I will administer justice without respect to person; and do equal rights to the poor and the rich,” — was to me no meaningless formality. I consecrated myself to a sacred observance of that solemn obligation. And in the conscientious performance of the high trust, adopting the language of a great English jqdge, “The lies of calumny carry no terror to me. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels — all that falsehood and malice can invent, or the credulity of a deluded populace can swallow.”
The second reversal, which was the provocation for the article now under consideration, was based upon three errors of law, which, in view of the doubtful character of the evidence, and the great reluctance of the jury to convict, in our opinion entitled the accused to another trial. These three questions are stated in the headnotes prepared by Judge Pottle for the court. One of these is as follows: “ On account of difference in race, and social customs founded thereon, juries are permitted to infer that a negro man who assaulted a white woman did not expect her to yield to his embraces without the use of force sufficient to overpower her will. Based upon the same social conditions and the characteristics of the negro race, an inference may also arise that a negro man, consciously guilty of an attempt to commit a rape upon a white woman, would not quietly spend a night and a portion of the next day in a house on the farm of the husband of the woman, in close
These three rulings furnish all the apparent provocation for the outrageous and deliberate attack made by the respondent upon this court, and upon which he bases his demand that the' decision
The respondent, in his answer, claims that in the publication of the article he was within the privilege of freedom of speech and of the press guaranteed by the constitution of the State. This great privilege of freedom was never intended as a refuge for the contemner, the slanderer, and the libeler. “Any person may speak, write, and publish his sentiments on all subjects, being responsible for-the abuse of that liberty.” Bill of Bights (Civil Code, § 6371).
If this opinion is long, our excuse is the vital importance of the subject to the administration of justice in the State, and the priceless possession of judicial honor and integrity." If the writer some
What ought the punishment to be? The disclaimer attempted by the answer presents no circumstance of mitigation. There is no apology for the wrong, and no retraction of the offense. Learned counsel for the respondent say that the disclaimer of intended reflection on the court is not traversed, and should therefore be accepted. Every word in this published article is a complete traverse of the truth of the respondent’s disclaimer, — that he did not intend “to in any manner reflect upon the judicial integrity of this court.” We are admonished by distinguished counsel that’ we should be conservative; that it is a very serious matter to cite a judge before a court and punish him for contempt, and that the present is the only occasion where such a proceeding has ever been instituted. This is to the credit and honor of the judiciary, and we sincerely trust that it will remain as the only instance in this State where a judge has so far forgotten the proprieties of his office, and that justice and fair treatment due to his brethren of the bench. This offensive article is not the temporary ebullition of a lawyer who has lost his cause. It is not the sensational report of a judicial proceeding made by a newspaper reporter which, without malice, is intended to attract the attention of the public. It is not the thoughtless expression of the citizen in ignorance of the law or the facts. It is the deliberate preparation, writing, and publication of a most scandalous article by a judge, thoroughly cognizant of the respect due to courts, as manifested in his own repeated acts when-the dignity of his own court, as he thought, was involved. These facts greatly aggravate his offense. Our power to punish is limited by the statute. We have great respect for the office which the respondent occupies, and for 'the people who have so highly honored him for years. Eor these reasons, while we think his offense is so flagrant and so inexcusable that a jail sentence would be richly deserved, we will content ourselves with imposing a fine.
In conclusion, the Judges of this court recognize that the friction
Concurrence Opinion
concurring. The issues presented by the rule and answer in this ease are of the utmost moment — indeed they are of graver importance than any other questions with which this court has been called upon to deal. Had we consulted our personal feelings, we would infinitely have preferred to take no official notice •of the article written by the respondent, and let his conduct receive that censure which it merits from an .enlightened public opinion. Many times have courts been forced into a trying situation such as that which now confronts this court. In a similar case in Virginia many years ago Judge Dade thus gave expression to his own feelings upon the subject: “If the Judges, in the discharge of their official duties, could .permit themselves to be in
We can not be deterred by the suggestion that we are judges in our own ease, for we are but following precedents handed down from the earliest times, that only the court whose dignity is offended has jurisdiction to punish the offender. Moreover, this is not our case. It is the ease of the people,* whose servants and representatives we are. It may be granted that the judge can not
1. There is perhaps no principle better settled than that all courts, at least those of superior jurisdiction, have the inherent power to punish for contempt, even in the absence of any authority so to do from the legislative department of the government. A mere casual inspection of the digests and text-books will show the unanimity with which this proposition has been announced from the earliest times. If the court be statutory, that is, having only legislative sanction for its existence, its power to define and punish contempts may be limited by statute. If, however, the court be created in the constitution by the direct sanction of the whole people, its power in this respect can be limited only by its creator. Upon this branch of the case, therefore, I need only inquire whether any limitation has 'been placed by the constitution upon the power of this court to define and punish contempts. That instrument declares that “the power of the courts to punish for contempts shall be limited by legislative acts.” Civil Code (1910), § 6376. The General Assembly has declared that the power of the several courts in this State to inflict summary punishment for contempt shall not extend to any cases except “the misbehavior of any person or persons in the presence of said courts or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said court in their official transactions, and the disobedience or resistance by any officer of said courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the said courts.” Civil Code
2. In determining what is the inherent power of this court in the matter of contempts, resort must be had to the common and statute law of England at the time of our adopting statute, for we are bound by that law as it then existed, unless it be unsuited to our conditions or has been changed by our constitution, or some valid statute passed in pursuance thereof. As has been seen, there is no such statute. In Mitchum v. State, 11 Ga. 615, 631, Judge Nisbet, one of the purest judges who ever sat on any bench, used this language: “All courts have power to protect themselves from, contempts, and indecency in words or sentiments is a contempt..
All the authorities are agreed that it is contempt for one to use language or be guilty of conduct which has for its purpose the improper influencing of a court in reference to a decision in a pending proceeding. A publishing company was held in contempt for promulgating an article threatening the judges with public odium and reprobation if they did not decide a pending case a certain way. State v. Bee Pub. Co., 60 Neb. 282 (83 N. W. 204, 50 L. R. A. 195, 83 Am. St. R. 531). In West Virginia it was held that a publication in a newspaper with reference to a case pending in the
It is insisted by counsel for the respondent that the power to punish for a constructive or indirect contempt is limited to cases such as th'ose just referred to, — that is, conduct or language tending "to reflect upon the court or influence its action, in reference to a pending proceeding. Undoubtedly there are cases which either seemingly or actually support counsel’s view, some of which they cite in their briefs. But all of us are of the opinion that this contention is supported neither upon principle nor by the weight of authority. Let us examine some of the decided cases. In Commonwealth v. Dandridge, 2 Va. Cas. 408, a person who was interested in a pending cause met the judge as he was proceeding up the steps of the court-house to take his seat on the bench, and used insulting language toward him. Counsel for the respondent in a rule for contempt sought to draw the same distinction which counsel now seek to make, which can not better be answered than to quote the following language of Judgé Dade in that case: “It is said, that the attaching power may be exercised for contempts touching the prospective conduct of the Judge, but not for such as
One of the most thoroughly considered cases to which our attention has been directed is that of State v. Shepherd, 177 Mo. 205 (99 Am. St. R. 624, 76 S. W. 79). After a most exhaustive examination of the authorities, both English and American, the conclusion was reached that “ scandalizing a court itself is a criminal contempt, and the contempt need not relate to a cause that is still pending.” The attachment for contempt in that case was directed against the publisher of a newspaper, and arose out of an article which seriously and offensively reflected upon the integrity of the judges of the Supreme Court of Missouri and the motives which actuated them in deciding a ease which had been finally disposed of. It is interesting to note that while the case to which the criticism was directed was decided by a divided bench, the judges were unanimous in adjudging the publisher of the newspaper article guilty of contempt. In the course of the very able opinion, delivered by Judge Marshall, the court, after referring to Lord Hardwicke’s definition of contempt in the case against the printer of the St. James Evening Post, said (p. 229) : “It will be observed that the first kind of contempt spoken of, to wit, scandalizing the court itself, is a matter wherein the State, the people, and the court are vitally interested. It is, therefore, a public matter, and hence is a criminal contempt. The other two kinds-of contempts spoken of are such as directly affect a party litigant, and at the same time affect the public generally only in so far as it is of importance to keep the streams of justice clear and pure.’ Blackstone also makes the same distinction, and defines contempts, inter alia, to consist
The authorities have been examined at some length for the purpose of showing that it is no new question with which we are called upon to deal, and that the courts from the earliest times have found it necessary to vindicate their dignity and authority by .summary punishment for contempt. We have also endeavored 'to make it clear that the purpose in so doing has been to aid in the administration of the law. A judge who would use his power to punish for a personal affront would himself be contemptible. In the nature of things there can be no valid distinction as to this matter between pending and past proceedings. If the case .be pending, a contemptuous writing in reference to the conduct of the court may have a tendency or be designed to influence a decision in the particular cause, but this merely aggravates the contempt. So far as the effect on the court and the administration of the law generally is concerned, the result is the same in both cases. If it be said of a judge that all of the decisions which he rendered in the past were based upon unworthy and corrupt motives, this does not differ substantially from the statement that all of the decisions which he will render this year, as well as those in causes then depending, will be based upon like motives. Both equalty tend to bring the court into disrepute, hold the judge up to public contempt, and cause the people to distrust the agency appointed by them- to administer the law. Indeed, the latter is more harmful than the former, because the former is history, and there are criteria by which its truth or falsity may be judged, while the latter is prophecy, and its baneful effects are harder to counteract. If it be contempt to scandalize the court and bring the administration
This much has been said in order that my position upon the contention of counsel for the respondent may be made plain; but there can be no doubt that the language of the respondent was written with reference to a pending ease. The Court of Appeals has jurisdiction to review the decisions of the trial courts in all criminal'cases except convictions in capital felonies. The effect of the judgment of this court in the McGullough case was to send it back for another trial. If the accused should be again convicted, the judgment could be again reviewed in this court. But the case was pending in a more specific sense than this. Cases are pending “as long as any, proceedings can be taken.” Oswald, Contempt of Court, 97. The term had not adjourned, the remittitur had not been sent down. The judgment was “in the breast of the court.” There are precedents in this court for entertaining a motion for a rehearing filed by the State in a criminal case. But be this as it may, the judgment was subject to be modified or even vacated ex mero motu. The ease was therefore, even in a technical sense, still pending in this court, and the language of the respondent was used in reference to a pending case.
3. But it is said that the respondent had a right to publish the article, under his constitutional guaranty of freedom of speech. Our Bill of Bights provides that “no law shall ever be passed to curtail or restrain the liberty of speech, or of the press; any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.” Civil Code (1910), § 6371. The constitution guarantees liberty, not license. There are no absolute rights. Even the right to live may be forfeited. All our so-called rights, privileges, and liberties are to be enjoyed in subordination to the public good. One may speak or write freely, but he may not slander or libel his ¡neighbor. If he libel a judge as an individual, he is amenable to both the civil and the criminal law. If he libel a judge in relation to his official conduct, he is not only subject to prosecution and to an action for damages, but also to punishment for contempt. Bradley v. State, supra. Even privileged communications may be abused. One may plead his privilege, but he can not excuse an abuse of it. The constitution no more intended to exempt the libeler from punishment for
On the subject of the liberty of the press and the right of newspapers to comment upon judicial proceedings, see Wynn v. City & Suburban Railway, 91 Ga. 344 (17 S. E. 649). In speaking upon this subject Judge Cooley says: “The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be. a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or
The suggestion was made that the respondent ought not to he punished, because he himself occupies high judicial station, and that it would be unseemly to adjudge him in contempt. One of his counsel remarked in the argument that this was the first time in the history of Georgia that a judge of the-superior court had been haled before another judicial tribunal for contempt. The counsel might well have added that, to the credit of the Georgia judiciary, it might also be said that this was the first instance where a nisi prius judge had in the public prints arraigned a reviewing court for a reversal of one of his decisions, and ascribed to it motives so base and unworthy as the language of the article written by the respondent implies. No man, no matter how high his station, is exempt from punishment for crime. A contempt of this character is criminal in its nature. Indeed, Blaekstone, in enumerating the classes of contempts, places at the head of the list “those committed by inferior judges and magistrates; by acting unjustly, oppressively, or irregularly, in administering those portions of justice which are intrusted to their discretion, by proceeding in a cause after it is put a stop to or removed by writ of prohibition, certiorari, error, supersedeas and the like.” 4 Bl. Com. 284. See, also, Oswald, Contempt of Court, 73; Rapalje on Contempt, § 54. If a judicial officer can be guilty of this kind of contempt, there is no good reason why he is not, like any other individual, amenable to punishment for other kinds of contempt. See In re Breen, 30 Nev. 164, 186 (93 Pac. 997, 1004). The respondent not only can not claim immunity on account of his official position, but rather does it aggravate his offense. There is no office in Georgia of greater importance or power than that of judge of the superior court. He comes into direct contact with the public. He can have great influence for good, or he can by his example impair the respect of. the people for the law and the constituted authorities to such an extent as almost to bring about a state of anarchy. The judges of the superior courts of Georgia from the earliest times to the present day have generally been moulders of public sentiment in their respective communities. In illustration of this, Judge Cobb in his splendid argument before this court in the present ease called attention to the remarkable influence for good which
4. This brings me to consider whether, upon legal principles, the article written by the respondent subjects him to punishment for contempt by this court. This must be determined from the language used; it is not a question of intention. Cartwright’s case, 114 Mass. 230.
The case of McCullough v. State was twice before this court, and each time the judgment overruling the motion for a new trial was reversed. The first decision was rendered before the writer of this opinion came upon the bench, and the opinion in the second case was prepared for the court by the writer. It is not my purpose to discuss the merits of that decision. The opinion speaks for itself. Suffice it to say that I then thought it was right, and I am of the same opinion still. With great deliberation I make the assertion that no fair-minded man can read the record in the McCullough case without grave doubt of the defendant’s guilt of the crime of which he was convicted; and I think the opinion of the court clearly demonstrates that the trial judge committed errors of law which entitled the accused to a new trial. But whether the decision was right of wrong is apart from the question.
There was placed before us on the morning of October 5th the article which is the basis of this proceeding, over the signature of the respondent, published in one of the great daily newspapers of the State, having a wide circulation. In this article the respondent states that the decision in the McCullough case is based upon “a pitiful misconception 'and misconstruction of the record,” and indicates the inability of the court to comprehend the record and render a proper decision in the case “if they so desired.” Here then is a distinct intimation that this court may not have desired and probably did not desire to render a correct decision in the ease. Further, it is averred that this court frequently reverses the Supreme Court “with great complacency.” Our oath of office requires us to follow the Supreme Court decisions as precedents. We are charged with not only frequently violating this oath of office, but with taking pleasure in so doing. The respondent refers to the grounds of reversal as “alleged and frivolous reasons;” and, after stating that the facts of the case are not correctly reported in the newspaper, but that he is sure the newspaper reporter “did not mean to prejudice the case in favor of the negro,” he adds that he fears the Court of Appeals has either “wittingly or unwittingly” 'done so. The article concludes with these words: “The real reason for the reversals has never been given. The truth is that the Court of Appeals don’t believe that a negro should be punished twenty years in the penitentiary for an assault to rape on the wife of a humble farmer, but I put them on notice that I do not agree with them, and that I will continue to do my duty as long as the juries continue to do their duties.” In this extract, is a direct charge that the court did not in the opinion give the “real reason” for the reversal. A more serious charge could scarcely be brought against a reviewing court than that it gave feigned reasons for its judgment, and, from cowardice or other unworthy motive, withheld the “real reason” for its decision. The respondent charges that the “real reason” is that the Judges of this court do not believe in the maximum punishment of twenty years for a black brute who attempts to rape a virtuous white woman; this,
Shall the sworn ministers of the law, because of the gravity of' the charge, rape justice in her very temple? Shall we forget our oaths of office, our duty to the law, and bid the mob enter the sanctuary of our mistress, and let anarchy reign? Is a man charged with this awful crime not entitled to a fair trial? How else shall his guilt be established? By what criteria shall he be judged, if not by the rules of law, administered in an orderly and impartial way? We are told that crime is on the increase. Can it be checked by impairing the confidence of the people in the agencies appointed by them for this purpose? Instead of making an unworthy and dangerous appeal not only to race but to class prejudice as well, the respondent should at most have said, if he said anything, that “while I do not agree to the legal principles announced by the court, it is my duty and the duty of every law-abiding citizen to respect the decision. If it is wrong, it can be reversed or modified in the manner prescribed by law.” This would have been a much more becoming attitude and one more conducive to the welfare of society, one of whose guardians the respondent has been for a period of sixteen years. For myself I wish to go on record here and now for all time as being in favor of the orderly administration of the law in all cases. As a judge I know but one law for the rich and the poor, the powerful, the defenseless, and the oppressed. I am not responsible for the consequences which may result from an application of the law. A judge who, knowing his duty, does not dare discharge it is unworthy of his high office, the judicial ermine should be stripped from him, and he should pass into oblivion.
Had the respondent answered that his conduct was hasty and ill-advised, and asked leave to withdraw the offensive language, he might have purged himself of contempt. But his answer rather aggravates the contempt. He in effect says: “I made the charges, I do not withdraw them, but I did not mean to reflect upon the integrity of the court.” Such an answer presents no defense. In re Woolley, 11 Ky. 95. Moreover, the animus of the respondent is illustrated by the repetition of the contempt, in the article of October 8th, which appears in the record.
This opinion is perhaps longer than it should have been, but I have thought it due the public that the views entertained by this court be set forth clearly that all may be advised of the disposition of the present incumbents of this bench to uphold the dignity of the high tribunal over which they have been called upon to preside. I can not better conclude than to commend what Georgia’s great Chief Justice said of a distinguished nisi prius judge — Judge Marshall J. Clarke, in Ellison v. Georgia Railroad Co., 87 Ga. 719, 720 (13 S. E. 809, 27 Am. St. R. 242) : “His willingness to abide by authority which ought to control him for the time being, is not the least conspicuous of his many judicial virtues.”