| Ark. | Jul 14, 1913
(after stating the facts). As we said in Ex parte Winn, 105 Ark. 190" date_filed="1912-10-14" court="Ark." case_name="Ex parte Winn">105 Ark. 190, “No question is raised here as to the form in which a review by this court is sought. Therefore, we pretermit any discussion of that question, as the case may he treated as being here either on appeal or on writ of certiorari.”
The information under the official oath of the prosecuting attorney and the citation directed by the judge to be issued by the clerk, setting forth the information showing the grounds upon which the petitioners were cited to appear and show cause why they should not be dealt with for contempt, were sufficient to give the court jurisdiction. The information made by the prosecuting attorney under his official oath was sufficient, even though not specially verified by him, to meet the requirements of the law, as an accusation setting forth the offense with which the- petitioners were charged. The citation alone, embodying tbe information which the court ordered to be entered upon its record, was sufficient to meet the requirements of the law, as announced by the court in CarlLee v. State, 102 Ark. 122" date_filed="1912-01-22" court="Ark." case_name="CarlLee v. State">102 Ark. 122, to give the accused petitioners information of the offense with which they were charged.
The citation was duly served upon the petitioners Moseley and Freer before the return day thereof, and although the appellants Poindexter and Going were not served before the return day, they were served before the cause was heard. All the petitioners appeared and made no objection to the service. They therefore can not now complain that they were not duly served with process.
It is unnecessary to determine as to whether the information and citation stated facts sufficient to constitute a contempt of court, for the whole case was developed on evidence taken before the court, and the question now is as to whether or not the evidence was sufficient to warrant the court in finding the petitioners guilty of contempt.
Treating the testimony bearing upon the case of each petitioner separately, we are of the opinion that there was no evidence to warrant the court in adjudging Poindexter guilty of contempt. There was no testimony to warrant the inference that he was instrumental in inviting the bailiff and the juror to the room he occupied for the purpose of furnishing liquor to influence the juror in rendering his verdict. His generosity and courtesy in sharing his room, in an emergency, with associate counsel made him the innocent victim of the unfortunate circumstances, which afterwards developed and over which he had no control, that doubtless caused the trial judge to conclude that he was concerned, or at least acquiesced, in the improper conduct of the other petitioners.
Poindexter didn’t know that Going had a bottle of liquor when he consented to share the room with him. He didn’t know that Going had invited any one to go to Ms room for the purpose of drinking liquor, much less the bailiff and the juror. When the bailiff and the juror knocked at the door of Poindexter’s room and were invited to come in he didn’t know before their entrance who it was that knocked nor what their purpose was. The liquor didn’t belong to him. It was brought to the room without his knowledge. He didn’t ask them to take a drink, but simply continued making his toilet, as he was doing at the time they entered the room. Instead of inviting the bailiff and the juror to take a drink of liquor, he states that he protested, saying, “You ought not to come here; you are .going to get us all into trouble. ’ ’
Poindexter had never taken a drink of liquor in his life and didn’t approve of' the use of it by others. He had notMng to do whatever with the episode and should not be censured and held for contempt merely because he failed to exclude the bailiff and the juror from his room; nor should he be held for contempt because he failed to report the matter to the circuit judge.
The court, from the questions propounded to Poindexter, seems to have considered that it was the duty of Poindexter to have called the matter to his attention as soon as it occurred, but we do not agree with the court, and are of the opinion that Poindexter gives a perfectly reasonable and plausible explanation of why he did not do so, wMch should have been accepted by the court.
Poindexter testified that had he known, when the door was closed and the knocMng was heard at the door, that it was the bailiff and one of the jurors, he would not have said “come in,’’ and “he would not have stayed in the room if he had had time to consider the matter, but it was one of those things that comes so suddenly that a person does not have time to make up his mind as to what is best to do.” Freer was not a friend of Poindexter, and, while the latter fully appreciated the fact that it was improper for Freer and the juror to be in his room under the circumstances, yet he did not feel called upon to give publicity to the matter because he was in no way responsible for the unfortunate and embarrassing situation, and doubtless felt that if he had reported the matter to the court it might have prejudiced the juror against Mm, and in some way have jeopardized the interest of Ms client.
In our opinion the testimony thoroughly exonorates Poindexter from any contemptuous conduct, and the court erred in not so holding.
The cases of Going, Freer and Moseley are different from Poindexter’s. The testimony of the bailiff, Freer, and the juror, Moseley, shows that on the evening after the arrival of Going’, they met him at the head of the stairs in the hotel, and he invited them to his room to take a drink of whiskey. Going testified that he wouldn’t invite a juror to his room and would not give him a drink with a view of influencing him, and' that he ‘ ‘ did not know by what means Freer or Moseley knew that there was whiskey in' his room, unless one of them spoke to him and he, not knowing that the bailiff or juror was connected with the court, replied that he had some whiskey.” Going does not deny that he extended to Freer and Moseley an invitation to take a drink of whiskey in his room. He only says that he did not know that the one was the bailiff, and the other a juror. He says, at that time, they were strangers to him. So the testimony shows that he met these men, whom he did not know personally,- and of whose official character he was not then advised, and invited them to his room to take a drink of whiskey, without first taMng the precaution to inquire whether either one had any connection with the trial then in progress. Yet he knew the crowded condition of the hotel, and must have known that the jury in charge of the bailiff was being entertained there. On the second occasion, when the juror and the bailiff went to his room on their own motion to get a drink of wMskey, he did know of their relation to the trial, yet he did not admonish them.that it would be improper, on account of the connection they all had with the trial, and because of the court’s instructions, for them, with or without his invitation, to drink of his liquor in his room. In expíanation of Ms conduct on tMs occasion, lie says: “I would not knowingly permit a juror to come to my room, but when you have got a man’s life on your hands, and a juror comes to your room, the question of what you would do, or wouldn’t do, is a proposition that no man can say until they go through that very experience.”
Now, when Senator Going left the Senate to go to the dry town of Walnut Ridge to serve as lawyer in the defense of a client who was on trial for murder, he equipped himself with what he termed a “vial” of liquor, and being a vial it was presumably for Ms own use. But on the evening after Ms arrival we find him prepared from that “little bottle of medicine” “to give strong drink unto Mm that is ready to perish and wine to those that be of heavy hearts.” Both the bailiff and the juror Moseley seem to have been in that condition. For the bailiff, after he and the juror were invited, though protesting that the juror “shouldn’t go,” that it was “shaky” for him to do so, nevertheless permitted him to go, and went with him, and took a drink himself from Going’s vial. The juror who “never refused a drink” when asked to take one, and who took it when he found it whether asked or not, said that he “felt bad, he was tired and worn out, was not used to being penned up like cattle” and “had to have a drink,” and was going after it whether the bailiff went with Mm or not. It should be here remarked that Going’s vial contained enough liquor, as shown by his own testimony, to furnish a drink “to several persons” on two occasions, besides the bailiff and juror.
So here we have the spectacle of one of the leading lawyers for the defense, in his private room, giving liquor to one of the jurors and also to the bailiff having the jury in charge. The bailiff was shown to be in sympathy with the prosecution, and it was believed that the juror Moseley at that time was also unfavorable to the defendant. But there was no verdict, and after the mistrial it was found that juror Moseley was one of two who voted for a verdict of manslaughter, while eight were for murder in the first degree, and two for mnrder in the second degree. The defendant, on a second trial, was convicted of murder in the second degree and sentenced to twenty years in the penitentiary.
It occurs to us that the maxim ignorantia legis neminem excusat applies with peculiar force to one who at the time of his alleged offense was not only a lawyer, but also one of our lawmakers. He should be held to know the law and also the proprieties of professional conduct, and the rules of court that must obtain in the orderly administration of the law. So far as the bailiff and the juror are concerned, they were under the positive orders of the court “to stay as nearly as yon can separated from the crowds around the hotel” and “to let your conduct be free from any sort of criticism.” Their conduct therefore can only be explained upon the theory that their appetite got control over their judgment, under the insidious influence of the bewitching announcement by Going that the whiskey they were invited to drink was “sixteen or twenty years old,” and when they took one drink they found it “mighty fine stuff,” and “had to have” another.
Courts were created for the purpose of protecting life and property, and preserving all the sacred rights vouchsafed by the Constitution and statutes. The happiness and well-being of society and the perpetuity of our institutions depend upon the integrity, independence, conservatism and courage of the courts in upholding the majesty of the law. To carry out the wise purposes of their creation they must always maintain their own dignity and enforce obedience to their authority. The jury through all the ages since Magna Charta has been retained as an essential part of the judicial system. It is impossible to keep the fountains of justice clean and pure unless the jury is free from contaminating influences. Strong drink therefore should be neither for judges nor jurors, “lest they drink and forget the law, and pervert righteous judgment. ’ ’
What shall the. penalty be? The parties have disclaimed any intentional wrong-doing, and we have readied the conclusion that such was the case. Nevertheless, the conduct under review was well calculated in the eyes of the public to bring- the law, and the tribunal charged with its enforcement in that jurisdiction into contempt. Hence the trial court was correct in calling petitioners Going, Freer and Moseley to account, and in rebuking'and punishing them for contempt. But as they sought in every way to purge themselves of intentional disrespect for the court and testified that nothing was said concerning the merits of the case, we are of the opinion that justice will be done, and the dignity and authority of the court vindicated, when the fine imposed is paid, -without the jail sentence, of which petitioners should be relieved. It is so ordered, and the judgment otherwise affirmed.