191 P. 772 | Mont. | 1920
Opinion
Certiorari to the district court of Lewis and Clark county to review an order adjudging Wellington D. Rankin, Esq., an attorney at law, guilty of contempt.
On May 23, 1920, during the trial of a cause entitled The
“The trial of this cause was this day resumed; present J. R. Wine, Esq., county attorney, George W. Padbury, Jr., assistant county attorney for the state, and the defendant with his counsel, Wellington D. Rankin, Esq., and A. H. McConnell, Esq., and the jury. Thereupon Dr. E. D. Hitchcock resumed his testimony on behalf of the state. Thereupon Dr. B. Y. McCabe was called, duly sworn, and testified on behalf of the state. Thereupon, by reason of remark of Wellington D. Rankin, Esq., counsel for the defendant, the further taking of testimony was deferred and the bailiff instructed to remove the jury from the courtroom. Whereupon the court, upon finding that counsel could not be restrained as to his remarks, the court finds that in the first part of the trial when the question came up as to the position of counsel, Wellington D. Rankin, of counsel for defendant in this ease, was insulting and impudent to the court in his remarks in the presence of those in the courtroom and in the presence of the jury.
“The court holds, and so finds, that in the first part of the trial when the question came up as to the position of counsel,*284 Wellington D. Rankin, of counsel in this case, was insulting and impudent to the court in his remarks in the presence of those in the courtroom and in the presence of the jury.
“The court finds, and again declares, that again on yesterday three times the court had to admonish counsel that the question covered by his question had already been ruled upon by the court and it was not further necessary for him to put the questions in order to preserve his record. Three times afterward he put the same question.
“The court further finds that when a question was put by the counsel, Rankin, to the witness upon the stand, and the court was not clear from the question as to what he meant and the court made remark with reference to it, counsel was insulting and impudent to the court.
“The court further finds, and so declares, and the record will show, that three times in the course of this trial and while the court was attempting and undertaking to make remarks—remarks pertinent to the case—he was interrupted by counsel, Wellington D. Rankin.
“The court further finds, and so declares, that his manner all through has been insulting and the effect has been to lower the court in the opinion of those present, to bring the court in contempt, and to interfere with the proper administration of justice.
“Stand up, Wellington D. Rankin. The court finds you guilty of contempt, and it is the order, judgment, and sentence of this court that you be confined for 48 hours in the jail of Lewis and Clark county, and that you pay a fine of $250, and you are remanded to the custody of the sheriff to see the sentence executed.”
Mr. Rankin, having been committed to jail, brought this proceeding to have the order annulled on the ground that it is void on the face, in that it does not recite the facts as they occurred at the time it was made, as required’ by the statute. On application for habeas corpus at the same time, the relator was admitted to bail pending final hearing.
The ease of In re Mettler was an application for habeas corpus. The complainant was held entitled to his release on the ground that the order was void. The court, speaking through Mr. Justice Holloway, quoted with approval the paragraph above from the opinion in the Breen Case as embodying the correct construction of the statute. These cases are conclusive of the insufficiency of the order in this case. The following decisions from other jurisdictions fully sustain the conclusion announced in those cases: Ex parte Rowe, 7 Cal. 181; In re Shortridge, 5 Cal. App. 379, 90 Pac. 478; Cress v. State, 14 Okl. Cr. 521, 173 Pac. 854; Crites v. State, 74 Neb. 687, 105 N. W. 469; In re Shull, 221 Mo. 623, 133 Am. St. Rep. 496, 121 S. W. 10; Ex parte Hoar, 146 Cal. 132, 79 Pac. 853;
Counsel for respondents insist, however: (1) That, though the facts are defectively stated in the order, sufficient are stated to uphold it, and if not, (2) that reference may be made to the portions of the evidence in the case of State v. Rainville, certified in the return to the writ, to ascertain what was said and done prior to and at the time the order was made, for the .purpose of upholding it. Neither of these contentions can be maintained. In answer to the first, a very brief notice of the order will be sufficient. In the first paragraph preceding the adjudging portion of the order, which does not purport to state any facts, the court “finds” that during the first part, of the trial “when the question came up as to the position of counsel” the relator was “insulting and impudent to the court in his remarks,” etc. What was the position of counsel referred to? Was it one assumed by him upon some preliminary question then the subject of argument? Or did the court refer to the place in the courtroom relator presumed to occupy? What were the remarks made by him which the court deemed insulting and impudent?.
In the second paragraph the court finds and declares that on the previous day during the trial it had admonished counsel three times that “the question covered by his question had been ruled upon by the court and it was not further necessary for him to put the questions in order to preserve his record,” and that “three times afterward he put the same question.” What was the question? To whom was it propounded? Was it propounded to a witness who was then being examined, or had it been propounded to a different one? Was it each time expressed in the same language? Did it seek to elicit testimony on the same subject to which the previous one related ?
In the third it is found that counsel was “insulting and impudent” to the court while it was making remarks with ref
In paragraph 4 it is found that while the court was undertaking to make remarks pertinent to the case on trial it was interrupted by relator. Was the interruption by word or exclamation, or by some noise or movement accidentally or intentionally made by relator? How may it be determined whether the words spoken or act done was really an interruption or not? Or whether, if it was, the relator was not entirely within the limits of his duty to the defendant on trial in calling to the attention of the court some error into which it had fallen?
In the fifth paragraph the finding is that relator’s “manner all through has been insulting and the effect has been * * * to bring the court in contempt and to interfere with the proper administration of justice.” What was the manner of relator ?
Omitting the inquiry whether the court could with propriety, at a given time during the course of the trial, assemble with what then occurred the words, acts and manner of counsel on previous days and make these combined the basis for a judgment for contempt against him, the findings, ■ either taken separately or together, do not furnish any answer to the several inquiries which we have propounded with reference to them. In other words, as .was said in the Breen Case, supra, the findings state “conclusions and inferences only, drawn by the judge from the facts as they actually transpired, thus leaving this court no alternative but to accept these conclusions or to hold the order invalid.”
In making the second contention, counsel for respondents
Members of the legal profession are, in a sense, officers of
The right to exercise this power summarily in cases of direct
In a case of direct contempt, the contemnor being already
In support of their contention, counsel have made an elaborate argument in their brief, and cite authorities which hold that the facts upon which the eontemnor has been adjudged guilty may be certified to the appellate court to supplement the order. These authorities apply, however, to cases of indirect contempts, and are not in point here.
In their brief, counsel for the relator make the point that [11] he was not accorded an opportunity to explain or excuse his contempt and thus purge himself or show that no contempt was intended. This seems to be the better practice even in flagrant eases (4 Ency. Pl. & Pr. 789). No one should be condemned without a hearing. We cannot ascertain in this case what the facts were, and therefore express no opinion as to whether the relator was guilty. So far as we can
Tbe order is annulled, and tbe bail bond furnished by the relator is discharged and bis sureties exonerated.
Order am-nulled.