*1 1238
check, appropriate proceeds to Ins own ase. as stated, lie And merely negotiable did convert or not hinds already instruments possession, lawful employees his he went procured but to other their jmrpose issuance with the fraudulent aforesaid. thinkWe there was substantial grand larceny. evidence of
Finding record, judgment no error in the is affirmed. All concur. Publishing
State of Missouri at the relation the Pulitzer Com Judge pany, a Corporation, Relator, as v. Coleman, Frank B. Louis, No. of Division the City Circuit Court of St. 37,053. who was substituted Thomas J. Rowe, Jr. No. Ex parte Petitioner, J. R. v. James Fitzsim- Fitzpatrick, Daniel City 37,054. Sheriff of the Louis. No.
mons, of St. Ralph Ex parte Petitioner, v. J. Fitzsimmons, Coghlan, James 640. City 37,055. (2d) Sheriff No. of St. Louis. S. W. Banc, en 1941.
Court June .1239 *2 Porter Henry, J. John R. relator; Green Lashly and Jacob M. .Robert Evans, Goldstein, D. Milton I. Hennings, Green, & Henry Hennings Lashly, Lashly, Miller & of counsel. Clifford *4 Lashly, Henry
Jacob M. petitioners. Green J. Porter B. John
.1240 *7 re- L. Gilmore Miller, Gentry William B. and John Franklin respondent Sheriff. Judge; Louis B. Slier for spondent *9 .1248 Hotter Chubb, tílenn L. Fuchs, R. W. Harris, Ralph F. 11. Vidor ¡Smith Union, Inc., Liberties for American Civil Ely Luther curiae.
.amici Sappington Press As- W. Barrett and Hulen é for Missouri Jesse amici sociation, curiae.
HAYS, original J. Three proceedings, growing out of the same subject matter, present questions identical for our In No. decision. Publishing Company 37053—certiorari—the Pulitzer quash us to asks judgment of the St. Louis Circuit Court it con- finding guilty of tempt fining $2,000. In numbered 37054 cases and 37055 petitioners Fitzpatrick Coghlan by corpus seek release habeas from sentences imprisonment alleged imposed for the con- same tempt. Judge Rowe, contempt proceedings, who tried the died; has but 37,053, in No. record, in which he party alone was a to the against cause has been revived his successor in office. alleged
The facts contempt of the are John Nick these: P. Brady, Edward M. operators, officers of union picture of motion were alleged indicted for an theater extortion from exhibitors St. It charged defendants, Louis. was claiming said act for reality union but in attempting themselves, to enrich demanded pay members; increased for the they union informed the theater exhibitors that their they demand would if individually be withdrawn paid exhibitors, were $10,000; that the strike, coerced fear of a met by this demand. A- similar against indictment was returned Nick Weston, and one Both pending cases -were in Division 12 of the Court. In the granted. Circuit case a first severance was Nick’s ease came on for trial judge nisi, finding first. The that the1 State produce had failed to charge, evidence two essential elements acquittal. Brady directed an Judge Later the case was set. Rowe *11 1250 imputation a There is no of pretrial
called counsel into conference. in this conference. At the close improper action connection with court, attorney the judge, open in asked circuit whether thereof the had been re any he had evidence to offer besides that which or not he had The answered that while prosecutor ceived on trial. Nick’s against Brady, the the on some evidence of State additional evidence conspiracy the crucial issues threat and would identical two of quite Thereupon judge, with the at the former trial. the proof that if the same he would be properly, stated the evidence were acquittal the again suggested putting forced to direct an and on money. The State’s case would involve needless waste time and a attorney prosequi. At time Nick circuit then entered a nolle the yet the and Weston case had not been reached for trial on docket. Company operates the Relator Pulitzer and St. Publishing owns Fitz- Post-Dispatch. Coghlan is an of that and paper Louis editor the patrick following a cartoonist. On the the dismissal of day by Coghlan Brady case, following the editorial was written and in the published paper: Burlesque
“A on Justice NOSE, legal “THE in AMAZING CASE OF PUTTY skit one very act, presented Missouri, auspices short under the the State people Louis, Court, in association with the of St. in Circuit Criminal Division, following Putty Repre- with the cast: Nose . . . State Brady; Putty Lawyer Edward M. First . sentative Nose’s . . Sigmund Bass; Putty Lawyer M. . Nose’s Second . . Paul Dil- lon; Attorney Miller; Circuit . . . Franklin Circuit Assistant Attorney Woodward; Honor, . . . Judge Y. His Robert Rowe, Jr.; (off stage) . . . Thomas J. Noise . . . P. John Nick. utterly unconvincing
“An performance given urns in court of Judge Rowe, yesterday Circuit Thomas J. Jr. in latest in fiasco Nick-Putty Brady $10,000 John P. Nose extortion trials. Presum- ably presentation, spectators a serious hardy was but those who gathered hope proportions that drama of some would unfold justice. saw what burlesque fell little short of a on “Notwithstanding makings of a lively play and notable cast characters, nothing there was hold audience’s interest. There brought was little all action, performance and there was merely abrupt untimely an end.
“Only players prominence. two had After parts of a behind-the- prologue judge’s scenes in the chambers which principals all the participated, only opened Judge the first and act before Rowe’s jury yet bench. The selected, although not had been veniremen had been Attorney called. The Circuit counsel for the defendant ready. announced Attorney Judge any the Circuit he had that,-the
“With asked if John P. show between' conspiracy which would evidence further stage although cast, not member of appear who did on Nick, Circuit Putty by This referred evidence submitted Nose. *12 trials, Nick which was when Attorney in the the fourth of cut off January. Judge acquittal of last The Circuit ordered a verdict Rowe which Attorney present that some additional evidence he would said ease, Nick Nick were Putty he in the as Nose and present could not' (cid:127) together earlier trials. billed in the not thought Attorney indicated that he the 'evidence “But the Circuit conspiracy of threat’ sufficient on the two ‘essential elements and was any Putty Nose on rate, ready try for his At he said he was to ease. had. the evidence he end. moving swiftly now its unforeseen performance
“The was to the ‘Then,’ prove evidence Judge, the ‘there further to said is not to of The will be inclined this indictment. Court essential elements case, having ruled in sustain a the end of the the Court demurrer at essential elements of prove the Nick that the failed the case State charge.’ the suggested the
“Thereupon Judge the that the state dismiss case trial,’ Prosecuting unnecessary a expense to ‘save the of useless like recommendation,'and fell Attorney accepted the the curtain a shot: “ Amazing many Putty questions ‘The of Nose’ raises which Case ruling in the explaining want answered. 'In his spectators will ruling the movie union kept fourth Nick trial —the which the case of question jury Judge said that it was racketeer from the Rowe close — that in which had to If the decision was as difficult as he decide. Nose case, justified the Nick then'in case stopping Putty was he which could presented when he that would be was assured evidence Might case presented in Nick he not have let the be not be case! court, presented have facts in as he heard then on the as and decided in did the Nick case? put question that last was that it was foolish “His answer to weight This bear more
state to the useless trial. would expense of showing lawyers practice in had of if courts and Missouri made It prosecution. trials- and criminal makes concern for cost of lawyers regularly invoke impression (cid:127)little on all who know the costly in trials and of severance for defendants criminal rule Judges, ridding an Missouri criminal could influence in who be money. time of this waste of procedure automatic Dillon, as'Puttynose’s No. 1 Sigmund “As and Paul cast for Bass lawyers; they in No. 2 what did not do view of audience was they than For will remembered more what did. notable roles, those they productions. in the earlier .In played Nick’s counsel testimony Wehrenberg that he they of' Fred confronted with were $30,000 Puttynose other paid two theater owners at the Jefferson- day signed wage-scale for Bank on the Nick the old contract Gravois operators. tiie movie “ counsel, As Nick’s in Bass and Dillon said effect that Messrs. Puttynose Puttynose might affair their have was none business. gone money, might to the he tlieater owners and asked them have $10,000 ‘conned’ them of their Actor Dillon’s (‘conned’ out was word), picture.’ Amazing ‘Nick uas out of the ‘The but Had Case full-length Puttynose’ drama, going to the been with the ease inevitably jury, the audience Bass and would have seen Messrs. hand, put position having, Dillon on the one to reconcile their in the case, dump Puttynose with, readiness Nick on blame on hand, Puttynose yesterday. other their Perhaps defense of these heights acting. masters would have reached new in character Miller, Attorney, “Franklin the role of Circuit read his lines in his He might usual ham-actor manner. have the audience electrined a fighting protector as popular rights, not but once did he show so *13 much spark easily as fire. fact, yielded a In he so that it is doubt- ful if he realized how he abjectly was defeated.
“The statute bringing of limitations shuts Miller a re- off from full-length indictment and attempt produce an a a play to with no, successful But statute climax. of limitations or that would have by been unlikely, judge most to the long record dismal his flops 11 years on the Market street Rialto.”
A slightly different substantially but similar version of this editorial appeared in paper. day Coghlan edition another On the next wrote and the company published a second editorial which was as fol- lows :
“Judge Judge Rowe: Turn ’em Oakley: Loose. These Men are Guilty! rulings “Did ever in the Circuit Court of Louis on two suc- St. days starker,
cessive in sharper, stand out more astounding contrast V “Monday gave burlesque justice. Amazing us on ‘The Case of Putty Nose,’ Judge in the Rowe, Yesterday, court of Thomas J. Jr. justice we had which was the real Judge article in the court of Oakley. Hrnest F. day, “One law and laughing order are made a stock. The next
day, in room, another court lightning- the force of the law strikes with like retribution. case, Judge against
“No said Putty just No case Nose, Rowe. as there against urns P. no case John Nick.
“Oh, might Nick a thug known racketeer. He might be who ruled operators’ through the movie strong-arm union coercion and Putty might methods. He together and Nose have teamed a shake- down. They might have stung operators movie theater before wage operators Payment old scale for was $30,000 extended. might Nose Putty have been testified under oath. Yet no case. to to against against Putty No case Nick. No case Nose. Judge So, having case at was what kept
“No all—that Eowe said. going Putty jury, stopped Nick’s ease from to the he now trial Nose’s finding Putty before a could be No jury selected. use out how Nose’s lawyers having $10,000 him after put could defend the blame for the payment Putty they when on Nose defended Nick. No ease. No use. Putty go charges! Nose Nick on criminal and free side,'
“But the law another side. has has It civil On this side. members, striving energetically house, suing union to clean Nick are to recover funds for A remotely the union. case? There is nothing Judge Oakley’s resembling through doubt in decree. He finds that Nose, Putty secretly $10,000 Nick paid received the theater men by Putty to Nose. He Nick pay $10,000, orders Nick union and Clyde and Weston, agent, together produce union’s business $38,000. A case? Well, rather! ease, Putty Nick Nose, Judge “No said and Go Eowe. free. “Cough up, says Judge Oakley. money yours. That isn’t Pay treasury into the you of the men Pay get out. up sold out and you your take with all henchmen and you the ‘known criminals’ smuggled Disgorge! into the union. Clear out! No, you
“A case? Yes no. if are in criminal division before Judge you Eowe. If are in Judge Oakley, yes— civil division before emphatically yes!”
In the paper same edition appeared by cartoon drawn Fitzpatrick represent purporting burlesque city theater in the slums and entitled “Burlesque Alley.” House in Eat The sign on the marquee of the theater is grand gone wind,” “10 with the some of apparently the remarks coming from the theater are: “Ladies *14 an’ gents, performance opens blessings this wit’ th’ th’ an’ of law courts;” th’ and “Ain’t severance wunnaful —” While member one of the waiting represented crowd is saying: strip as “Who th’ does tease?” and another replies strip Putty “Nick does th’ an’ Nose does th’ tease.” Shortly publications after these the attorney circuit filed informa
tion charging relator,
petitioners
the two
and another with con
tempt.
alleged
It
charged
the facts above summarized
that
and
the
publications scandalized the court and
pending
interfered with the
case of State v. Nick
respondents
and
All
Weston.
four
filed returns
Reese,
to the citation.
a co-respondent,
case,
not now involved in the
knowledge
denied all
participation
of or
in
publications.
the
The
other returns
publications
admitted the
cartoon,
editorials and
they
denied that
referred to the case of
Weston,
State v. Nick and
charged
they
judge
denied that
the
with corruption or partiality and
up
set
certain constitutional defenses to be hereafter noted. The
judgment
for
pleadings
on the
State asked
the
on to
and
came
cause
parties desired to
any
the
judge
if
inquired
The
heard.
trial
After an extended
they
not.
that
did
and was told
offer evidence
several
advisement and
case
argument
law' he
the
under.
on the
took
finding the
Reese and
discharging
judgment
days later entered
contempt.
guilty
others
respon-
the
relator,
petitioners,
the
for
by
Briefs
counsel
the
filed
help-
most
voluminous, exhaustive and
dents and the amici
are
curiae
The
cited is vast.
therein
number of authorities
ful to the court. The
their
proportion to
analysis
its extent is in
thorough
is
and
thereof
extend this
all of them would
To
importance.
discuss
number
forced, therefore,
are
to
beyond
We
opinion far
reasonable bounds.
legal questions in
we deem the essential
confine ourselves to what
determinative
case,
to
what we
sufficient
applying
them
consider
governing authorities.
the.hearing
they
petitioners
at
below
Relator and
that
contend
process in
trial
procedural
prejudged
due
that the
court
w'ere denied
they
pre
could
and before
their case
their returns were filed
before
prejudgment
arguments as to the law. That such
would violate
sent
this
process
expressly
by
held
requirements of the due
clause was
reaffirm
Nelson,
Ex
1255 however, said, guaran It is that the this Constitution of State right jury charged the persons contempt. tees to trial to with This years. contra to the practice many contention runs settled of We are practice argument now asked to declare this invalid the pressed upon is It purely us historical. be fol may summarized as 28 lows: Section of Article II present provides: of our Constitution right by jury, “The of trial enjoyed, as shall remain invio heretofore provision brought late.” This has been through forward various from revisions our earliest fundamental 1865, law. of [-Const, Art. I, 17; 1820, 13, Sec. Const. of Art. Sec. organic The laws of 8.] prior Missouri to 1820 were Congress approved contained in an Act of (1 8). 1832 June Territorial Laws That act contained what was in rights effect a 13) bill of in which is following (1. found the e. : “No deprived life, liberty, man shall be his property, by of or but the judgment peers of his the Congress law of the land.” in trans lating foregoing Magna the from Charta language varied in one its respect. phrases “judgment The peers,” of his and “the law of the joined conjunction by land” are by “and” and not the con junction “or.” It is therefore contended that under the Act 1812 of right jury each citizen to a had trial in in any case which he was in peril in deprivation life, of liberty or property. is said that It perpetuated right Constitution of 1820 this scope. its full argument disregards history.
This the facts of For hundreds of years equity prior to 1820 by cases had tried been chancellor with a jury. out Yet first our provided constitutional convention 1 Y judicial that power Section of Article of the State b.e should supreme court, “in a chancellor, vested in a courts,” in circuit etc. The intent of the perpetuate existing system convention then to equity trials is clear. that time on equity continued eases P]rom juries tried without succeeding and none of our four constitu tional conventions attempted change practice. this Prior to 1820 legal proceedings, example certain extraordinary for those relating to writs, jury. were also tried without a Bach of our constitutions has specifically right vested in the courts to issue such writs. None attempted requirement has to impose expressly the jury trial. It therefore, right is plain, by jury, to trial guaranteed by the Constitution, right is the it law, as existed at common and that is limited to those procedure cases in which required common-law permitted present or such a trial. Without discussing at how far contempt power punish extended law, under the common we will observe that in these instances where un its existence is questioned procedure judge involved was by that of trial jury. Court, Beale, Am. 429; Contempt without Jur. therefore, We, right 163.] Harv. Law Rev. by hold to trial jury did not exist in present case.
1256 not the ad- in eases is whether or acts question
The these ultimate a petitioners contempt constitute by the mittedly done the relator and publica- that punishable. It is these summarily court contended of (1) they reasons: contempt for two that tions did such constitute court; (2) they bring disrepute to into the tended scandalize and pending Nick interfered the still case State v. and Weston. with of separately These must be considered. contempt; is, dealing with
We are not so-called civil with merely it disobedience wrongful an act is constitutes which because power imprison The of court to to an order or decree of court. a litigant those circumstances is exercised to a recalcitrant under power That is of punish and not him. such coerce obedience to judicial power part and inherent of origin ancient is an essential and Court, supra.) Nor (Beale, Contempt be can denied. of scarcely con- dealing power punish are the court’s to direct criminal we with tempts presence in of the court which obstruct very done —acts functioning the tribunal. orderly of peaceful or interfere with the and con dealing We called a or indirect are with what is constructive an which refers to case tempt. publication of article Does disrepute already bring which tends to scandalize and into closed but deciding contempt which the court judge such case constitute a punish? power has to origin power length
Counsel
at
of the
to
have discussed
In
ex
punish
statutory
for
Is it
constitutional?
State
contempt.
or
205,
79, 99
Rep.
177
Am. St.
Shepherd,
inf. Crow v.
Mo.
76 S. W.
power
from the
624,
held that the
is derived
speeificially
this court
part
judicial power
the courts
It is
of the inherent
of
Constitution.
Mo.).
Shepherd
cited with
(Sec. 1,
YT,
The
case
Art.
Const. of
w.as
Q.
C.,
Bland,
in
rel.
& Railroad
approval
point
State ex
B.
v.
on this
Q.
Gildersleeve,
B.C.,
v.
197,
189 Mo.
1257 Ellison, Again, case.” in In 256 Mo. re opinion the Gildersleeve 96, W. 987, Ewing, W. Howell Mo. 200 378, In re S. 165 S. Mond, 586, 1057, Bender, W. Noell v. 65, Ex Le 295 Mo. 245 S. parte Exchange 532, Thompson v. Farmers’ 317 Mo. S. *17 W. 803, 437, (2d) expressly approved Mo. 62 W. we Bank, 333 S. what regard origin the Shepherd the case with the was said in to of contempt power. judicial by
The to the power granted the courts Constitution is the recognized judicial power generally as the func- perform to what is controversy. trying determining and of cases in It includes tion—the which the powers necessary proper those incidental are and to' performance contempts, of that power punish function. The civil to defined, is, example, necessary as above for a the existence of to power equity, punish court of and the to' as contemnors those who actively any interfere is functioning equally with the of court néces- sary for its existence.
Furthermore, at the was time when our Constitution of 1820 right adopted, contempt to for in certain uni punish the cases was recognized versally judicial part Chancery to power. courts an early by imprisoning from date had enforced their decrees litigants they ready (Beale, recalcitrant obey. Contempt until were to Court, supra.) of Sir of “Contempt John Fox in his book entitled Court” that contempts punished by has shown direct criminal were courts law through summary procedure of early from an In date. this 50, B., B., connection he 51) I, 316; cites Y. 33-5 (pp. Edw. Y. VI, 31 Henry p. 10, pi. 5, and other Early numerous American cases. cases recognized power (The existence of v. this United States Hudson, Cranch, 7 32; 259; Smith, 3 L. Ed. Fed. United v. States 16,342; Cas. No. Yates, (N. Johnson, In re 4 Y.) 317; Johns. v. State 1 C.) 155; Brev. (S. Mariner v. 2 Dyer, 165). adjudica Later Me. tions are collected upon in commented the Annotation 121 A. in L. We, therefore, R. 215. adhere in Shepherd to what we said case as by Creasy. modified Ex parte power
Since to punish contempt of is constitutional origin, questions must regard answer two publica in the class of we to tions First, here considered. did publications punish such constitute able contempt of prior court at common Second, law to 1820? is power punish necessary them safeguard and proper to the function ing judicial of the court as a In tribunal? inf. case State ex Shepherd, Crow v. we supra, said publication that such did constitute contempt. case, publication The there Oglesby involved referred to the 272, published 177 W. Mo. 76 S. 623. in the same volume with case, Shepherd 205, W. charged Mo. 76 S. this court with deciding venality that case. Thé record that disclosed when Shepherd case was Oglesby pending decided case still was on argument rehearing. motion for The Shepherd elaborate in the case as punishable was scandalizing the court prove publication that a The history. legal misunderstanding of upon a contempt is based They start ones. recent comparatively English are authorities cited Almon, v. in Rex by Mr. Justice opinion prepared an with Wilmot published had Almon One Wilmot, Opinions, 243. *18 state
opinion seems, therefore, the Blackstone’s to be foundation of contempt Commentaries, Book (Blackstone’s ment as to the power IV, 20, 3). English applied the ch. Sec. Later cases and followed Shepherd rule as we in More did the case. exhaustive historical proved wrong research in recent has and that years that Wilmot was power by the he never the claimed had been exercised common-law courts, only by but in a few the Star Chamber instances court of (Sir Fox, Contempt Court, Landis, John of 2; ch. Frankfurter and Regulate Power to 1010; 37 Rev. Contempts, Harv. Law Nelles and King, Contempt by States, Publication in the United 28 Columbia Law 401). Rev. great weight judicial The authority supports of now proposition the publication, that a concerning however scandalous a case closed, which been punishable has is not contempt. as a [Pat Colorado, terson v. 454, 205 U. 879; Craig Hecht, S. 51 L. v. 263 Ed. 255, U. Sup. S. 44 103, 293; Ct. L. 68 Ed. ex rel. v. State Metcalf Court, District 52 46; Mont. State ex rel. Attorney General v. Circuit (Wis.), Court 72 193; N. Egan (S. W. In D.), re 123 478; N. W. Storey v. People, 45, 79 22 Ill. Am. Rep. 158; Dyke Superior Van v. Court (Ariz.), 211 576; Pac. (Ind.), Nixon v. 591; State 193 N. E. State v. (S. D.), American-News Co. 266 W.N. 827.] The why reason a direct pending interference with a is punish- case able is obvious. The trial stopped cannot be jury while is another impaneled and the interferers prosecuted civilly. criminally or sued The court must power have the quickly to summary and in a fashion enforce its orders and prevent acts which delay would hinder the and proceedings before it. But in publication case having of ref- erence ato closed case, these (Beale, reasons do not Contempt exist. Court, of supra.) We, therefore, bold that power punish since the for criticism of the court regard in past to a exist case did not at law, common and since it safeguard is unnecessary a as the proper
1259 functioning judicial tribunal, publications of as a sucli do the court punishable not constitute contempt. by
But it is contended the relator petitioners also and though even publication pending to a still in relates case court and a direct personal constitutes and vindictive criticism the conduct of of case, the court in such it cannot contempt. constitute With this we agree. do not The by correct rule is stated the late Chief Justice concurring in his opinion Craig Hecht, 278, in l. c. v. U. S. Taft Sup. 107, 300, Ct. l. c. 68 L. Ed. l. c. as follows: “If the publication judge criticizes or court after the matter with which the criticism finally adjudicated has to do has been . . . publication If, is not contempt. ... however, publication is and intended calculated and to obstruct embarrass court in pending proceeding in the an matter of the rendition of impartial verdict, or carrying judgment, in the out of orders its may, court duty is protect its of administration justice punishment by of the contempt.” offender for
It is said that this rule guaranty violates the constitutional of press (See. 14, freedom of II, Art. Mo.; Const. of Amendment Const, S.). of the right U. press only The of freedom of the is specific general right by instance of the speech enjoyed freedom of of engaged all. any Persons in the newspaper cannot claim business greater right other or possessed right than that by their The fellows. speech freedom of is one safeguards demo fundamental government. cratic recognition Its distinguishes governments the English-speaking nations from those It power Europe. now duty is the of this zealously safeguard liberty court to guaranty this against undue Yet, right encroachment. is not absolute un *19 -' limited. [Cooléy, Limitations, (7 Ed.), Constitutional The p. 605.] interest of in the society spread of possible by truth is made untram meled discussion, and this is important. most But there are other social preservation right interests such as of of order the and the. litigants ato fair solely trial and a decision law and based- the on the evidence, equally which are important; a these and balance between , interests in case (Chaffee,. of conflict must be struck Freedom of Speech, 34). Constitution, The freedom speech provisions of of the for example, grant immunity do not speaks one slanderous to who of neighbor, words his prevent punishment nor the solicits of one who another any to commit a way they give In the not crime. same do privilege to utter publish directly or which the words interfere with processes orderly a justice of court in in a administering pending case. Publication of a personal and unreasoned criticism of court before which a pending case is news often tends to substitute trial by paper for trial by jury, bring the court about and and would tend to a decision upon momentary publisher based the the whim of a or
1260 upon
desires oí the rather than one the law the evi- mob based and dence. hand, judges beings; at
On the it is are other true that human ignorant times bench. corrupt may places upon men the and secure government judges Under our form of are or at least hold elected places subject people their to the the at an election. approval of judge people the from The Therefore, cannot be immune criticism. pass right who in a to must his continuance office have be upon weakness, in- inefficiency. But, informed of such venality, his or clearly given through his ac- formation can be to them comment on through in attempt, tions closed cases without conduct criticism of his pending in cases, interfere unbiased to intimidate him or with his power contempt always decisions. has to punish The to extended acts done in with presence the of the which tend to interfere court pending Fox, Court, the trial (Sir Contempt pp. of case John of 51, 52). may And the such necessity prevent interference be just great as presence where act occurs out of obstructing example, 378, In Ellison, court. For we have held in re 256 Mo. 987, juror S. W. that an intimidate or of attempt to bribe a out presence may punished contempt. of court be as a is There no valid distinction to be drawn such personal between an act and a judge criticism of with respect pending in a case to his conduct tendency which bring has direct about decision in accordance with the critic rather one upon desires than based the law and the evidence. question
The which confronts now us is whether or not the publications involved case here referred to or interfered with the State v. Nick meaning Weston. The and and determination of the alleged intent newspaper of an a matter article is of law be decided by 781; courts. v. 150 N. (Ind.), S., State E. C. J. [Dale sec. p. A reading careful first shows two editorials 120.] that neither Weston, of them mentions the of State v. Nick case nor does the refer cartoon to it. published As to last editorial on March does, 6th: instance, Clyde While this article one in mention Weston, language A. tense, its is the past which leads couched us to the it only against belief that can refer to the concluded cases Nick Brady and the concluded civil case Robinson Nick v. True, Weston. was party Nick to both criminal cases and the issues But, right involved were similar. if to criticize a closed is to case simply involving denied because a case a similar is still issue pending, greatly be so as would to be valueless. Nor can curtailed simple party fact same appears both cases be determina *20 large against tive. number Sometimes a of cases are one filed de fendant. Could it be contended that a must wait the last writer until of these decided deci uttering any cases was before criticism of the sion in reading the first? A careful the editorials careful
1261
they
consideration
cartoon
us to the view that
leads
did not
directly
with or
interfere
influence the case of State v. Nick and
Weston, but
at
exclusively
were leveled
Nick-Brady
concluded
pending
charges
cases and not at the
criminal
against Nick and Wes-
ton.
In
this,
such stuation as
it
where
has been contended that the
criticism of court action in a
might
matter
adversely
concluded
affect another
pending,
rejected
action
the eases have
the contention.
parte Craig (C.
Y.),
N.
177;
C. A.
274 Fed.
Cheadle v. State
[Ex
(Ind.),
426;
11 N. E.
Nixon v.
193
(Ind.)
591;
State
N. E.
v.
State
American-News Company (S. D.),
827;
266 N.
v.
W.
State
Kaiser
(Ore.),
It is said Brady that the case was still at the time pending publications. of these This is upon contention that theory based might during the trial court the term aside prosequi se“t the nolle reinstate the case Lonon, on docket. In 591, State v. 331 Mo. 56 (2d) 378, S. W. ive held that a power such did exist in the trial court. But necessarily this holding does not mean that after case has been dismissed is still pending during to be considered entire term at which the order of dismissal was made within the meaning, of the contempt rule above set out. There are intimations parte Ex Nelson, effect in 63, 157 794, Mo. S. W. but we are convinced that that is not the Steinburg (Tenn.), law. v. [Scheibler 866; S. W. Lizotte v. (Mass.), Dloska 86 N. E. To rule 774.] otherwise would be to ^narrow the permissible limits of criticism so greatly that right practical to criticize would cease to have value.
It is our conclusion that 37053, judgment case number the circuit quashed; court be 37054, should that in case number petitioner discharged; be should and that in case number petitioner discharged. should be concur; Doug- It is so ordered. All J., las, opinion in separate Ellison, J., in which concurs.
Separate Concurring Opinion. DOUGLAS, J., concurs, but of the opinion “scandalizing is itself,” institution, court contempt against as an is which a court has the power protect public, itself in the principle interest heretofore approved by this ex inf. Shepherd; court State v. disagrees such reason with majority opinion so much which
may deny power construed this or to overrule inf. State ex v. Shepherd principle. Ellison, J., as to this concurs. Notes Lord rulings certain attacked pamphlet viciously he which proceeding. after determination Mansfield in the Wilkes case hearing Wilmot after against Almon and A citation issued was contempt. guilty him finding the coru’t prepared decision of had been the ease discovered that judgment, however, Before it was later years Some wrongly proceeding and the was dismissed. entitled argu elaborate It an published. contained opinion Wilmot was as punishable was prove publication ment of this character Blackstone contempt. known, Wilmot and Sir William As is well with collaborated were the former to some extent close friends and Wilmot’s latter in his commentaries. connection with famous