1. "A discharge under a writ of habeas corpus, after a conviction, can not be granted unless the judgment is absolutely void, as where the convicting court was without jurisdiction, or where the defendant in his trial was denied due process of law, in violation of the constitution. Since the writ can not be used merely as a substitute for a writ of error or other remedial procedure to correct errors of law, of which the defendant had opportunity to avail himself, no question as to guilt or innocence or as to any irregularity can be so raised, unless it was such as to render the judgment wholly void." Aldredge v. Williams, 188 Ga. 607
(4 S.E.2d 469).
2. Where a direct contempt is committed in the presence of the court, the offender is not entitled as a matter of right to a hearing before the court, acting on its own knowledge of the facts, proceeds to impose punishment for the contempt, though the court may in its discretion allow such a hearing; and the refusal to grant such a hearing does not deprive the offender of the due process of law guaranteed by the State and Federal constitutions.
No. 14425. MARCH 10, 1943.
Houston White, an attorney, filed a petition for habeas corpus against J. M. George, marshal of the civil court of Fulton County, and J. M. Mount, sheriff of Fulton County, seeking to obtain his release from the Fulton County jail, where he was being detained under an order of contempt of court. The order adjudging the petitioner to be in contempt of court, dated October 27, 1942, was issued by Hon. Clarence Bell, judge of the civil court of Fulton County, and ordered petitioner to pay a fine of $25 or be confined in jail for five days. It recited, that during the trial of a named civil case White, as counsel for the plaintiff, persisted in interrogating
a witness with reference to matters which were not in dispute and which the court had previously ruled inadmissible; that when counsel for the defendant further objected to such questioning, White stated that the court was making his rulings on account of personal prejudice toward him; that the court made no reply to White's statement at the time, and White continued to question the witness with reference to the same matters; that finally the court quietly but peremptorily directed White to cease such questioning, stating that he was trifling with the court; that White then in a loud and contemptuous manner stated, in substance, that the judge was so prejudiced and antagonistic toward him personally he could never try a case before him without the judge "jumping" at him unnecessarily; that the court stated that White's remarks were unnecessary and did not represent the feelings of the court; and that White thereafter said: "I want to tell
you that is the way I feel, and you are not called upon to jump at me and holler at me like you do from the bench." The judge certified in the order that he did not "holler" at counsel. The order further recited that after a recess of some twenty or twenty-five minutes, during which the judge considered what to do, the court resumed the bench, heard the remainder of the evidence and argument in the civil case, announced his judgment therein, and then stated that he find Mr. White $25 for contempt of court.
The petition for habeas corpus alleged that the contempt order was void, because (1) the judge was not in a fit physical or mental condition to undertake a judicial duty at the time the alleged contempt occurred, in that the judge was under the influence of alcohol, and extremely irascible and irritable; and (2) the judge denied petitioner an opportunity to be heard on the merits of the contempt proceeding. The petitioner attached to his petition a copy of a motion which he had filed in the civil court of Fulton County, asking for a hearing on the merits of the alleged contempt, but on which he alleged he had been unable to obtain a hearing from Judge Bell. The motion alleged that when Judge Bell announced from the bench that he had passed an order holding petitioner in contempt, and that he had delivered this order to the marshal of the court, petitioner immediately asked the court to grant him a hearing to show the court that he was not in contempt of court, but that the judge immediately refused this request and
hurriedly left the bench; that the petitioner followed the judge into his private office and asked that he be given sufficient time within which to determine his rights in order that he could contest the order, but the judge stated that he would not give him any time, and that if he did not pay the fine he would have him placed in jail immediately. The motion asserted, that the petitioner was justified in making the remarks on which the contempt order was based, because of the manner in which the judge had presided in the trial of the case which he was conducting; that the judge was under the influence of alcohol during the trial of the case; that the judge needlessly interrupted the petitioner in his examination of witnesses, and shouted at him "just like a person under the influence of intoxicating beverages would shout;" and that the judge had shown personal animosity to the petitioner ever since the petitioner had supported another candidate in one of the judge's races for reelection. The petition for habeas corpus alleged that the statements made in the motion above referred to were true. In an amendment to his petition for habeas corpus, the petitioner alleged that the contempt order was void, because the refusal to allow him an opportunity to be heard violated the due-process clauses of the State and Federal constitutions (Code, §§ 2-103, 1-815), as well as the provision of the State constitution that "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both." Code, § 2-104.
On the hearing the petitioner testified, that he had no idea that the judge contemplated adjudging him to be in contempt of court until the order had been issued; that he immediately asked to be heard in the matter, but the judge refused to hear him, and stated that he had drawn a written order and given it to the marshal of the court for execution; that the judge refused to grant petitioner any time to determine his rights; that when he refused to pay the fine the marshal took him in custody under the order dated October 20; that he was later taken in custody under an order dated October 27, 1942, the order produced by the defendants on the hearing; that he did not know what became of the first order, but he understood Judge Bell had it; that the judge took the first order back and wrote the one dated October 27; and that the judge refused to act on his motion, a copy of which was attached to the
petition for habeas corpus. The only evidence introduced by the defendants was the contempt order signed by Judge Bell, dated October 27, 1942. After the hearing the court entered an order denying the relief sought by the petitioner, and remanding him to the custody of the sheriff. The petitioner excepted.
1. This court is not here concerned with whether or not the facts stated in the contempt order were sufficient to authorize the court to adjudge the prisoner to be in contempt of court. "A discharge under a writ of habeas corpus, after a conviction, can not be granted unless the judgment is absolutely void; as where the convicting court was without jurisdiction, or where the defendant in his trial was denied due process of law, in violation of the [Federal fourteenth amendment (Code, § 1-815) and the State] constitution [art. 1, sec. 1, par. 5 (Code, § 2-105)]. Since the writ can not be used merely as a substitute for a writ of error or other remedial procedure to correct errors of law, of which the defendant had opportunity to avail himself, no question as to guilt or innocence or as to any irregularity can be so raised, unless it was such as to render the judgment wholly void." Aldredge v. Williams, 188 Ga. 607
(supra).
2. It is admitted that the civil court of Fulton County has authority to punish for contempt, and that the punishment inflicted in the instant case does not exceed that authorized by law. Therefore the sole question here presented is whether one who has committed a direct contempt in the presence of the court is entitled to a hearing before the imposition of the punishment for the contempt, it being contended by the plaintiff in error that the failure to allow him a hearing deprived him of due process of law and rendered the judgment of contempt void. Where a direct contempt is committed in the presence of the court, no service of any commitment is necessary; but the rule is otherwise in cases of constructive contempts. Hall v. Martin, 177 Ga. 238
(170 S.E. 41). All the authorities agree that a hearing must be accorded to one charged with a constructive contempt.Wheeler v. Harrison, 57 Ga. 24; Wheeler v. Thomas,57 Ga. 161; Mize v. Basiden, 69 Ga. 751; Wester v.Martin, 115 Ga. 776 (42 S.E. 81); Carson v. Ennis,146 Ga. 726 (3) (92 S.E. 221, L.R.A. 1917E, 650); Lewis v.Theodoro, 33 Ga. App. 355 (2) (126 S.E. 158);
12 Am. Jur. 437. The right of a court to summarily adjudge one to be in contempt for acts committed in the presence of the court, without allowing a hearing on the merits of the alleged contempt, has not heretofore been dealt with by this court. The courts of other jurisdictions are in conflict as to the necessity of the grant of a hearing. In some States the right to a hearing in such cases is based upon special statutes or constitutional provisions. Ex parte Dawes, 31 Okla. Cr. 397 (239 P. 689); Russell v.
French, 67 Iowa, 102 (24 N.W. 741). In others it has been held that a hearing should be granted, in order that the accused may have an opportunity to explain or excuse his contempt, or show that no contempt was intended. People v. Zazove, 311 Ill. 198
(142 N.E. 543); State ex rel. Rankin v. District Court,58 Mont. 276 (191 P. 772). However, we think the better rule to be that a hearing in such cases is not demanded as a matter of right. In Ex parte Terry, 128 U.S. 289, 307 (9 Sup. Ct. 77,32 L. ed. 405), it was said: "It is undoubtedly a general rule in all actions, whether prosecuted by private parties, or by the government, that is, in civil and criminal cases, that `a sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.' Windsor v. McVeigh, 93 U.S. 274, 277
[23 L. ed. 914]. But there is another rule, of almost immemorial antiquity, and universally acknowledged, which is equally vital to personal liberty and to the preservation of organized society, because upon its recognition and enforcement depend the existence and authority of the tribunals established to protect the rights of the citizen, whether of life, liberty, or property, and whether assailed by the illegal acts of the government or by the lawlessness or violence of individuals. It has relation to the class of contempts which, being committed in the face of the court, imply a purpose to destroy or impair its authority, to obstruct the transaction of its business, or to insult or intimidate those charged with the duty of administering the law." In that opinion it was further stated: "It is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended
and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty of administering them." If the court were required to grant the contemnor a hearing before inflicting punishment for a direct contempt committed in the face of the court, it would interrupt the orderly functions of the court. If the contempt consists of a flagrant showing of disrespect for the person of the judicial officer of the court, what good purpose could a showing serve? The contemnor would not lessen his offense by stating the facts on which he based his lack of respect for the judge. If in fact the judge lacks the high qualities which every judicial officer should possess, persons coming into a court presided over by that officer must yet show the proper respect for the office which he holds. The grant of a hearing for the purpose of allowing the contemnor to show that his contemptuous acts were justified by reason of the personal qualities of the judge could only add to the confusion and disorder, without lessening the offense of the contemnor. The orderly processes of the courts require that they have the power to summarily punish for such contempts, without being required to interrupt their other proceedings to grant a hearing which would only add to the disorder. It may be true that this power may be abused. However, as was said in Ex parte Kearney, 7 Wheat. 38 (5 L. ed. 391): "Wherever power is lodged it may be abused. But this forms no solid objection against its exercise. Confidence must be reposed somewhere; and if there should be an abuse, it would be a public grievance, for which a remedy may be applied by the legislature, and is not to be devised by courts of justice." Even though a hearing may not be demanded as a matter of right, we think it would be a wise exercise of discretion for the court to allow the contemnor an opportunity to mitigate his offense by showing that no contempt was intended, or any other mitigating circumstances, except in cases where there could be no excuse for
the action of the contemnor. It follows that the trial court did not err in remanding the prisoner to the custody of the sheriff. For an annotation of the cases on the subject of this opinion, see 57 A.L.R. 545.
Judgment affirmed. All the Justices concur.
I do not understand that this judgment means, or that anything in the opinion holds, that a party is remediless who is adjudged in contempt for conduct in the immediate presence of the court, when in fact such conduct was not contemptuous.