Green was an officer in the employ of the D. & R. G. Ry. Co; it was his business to superintend the operating of construction trains, and, to some extent, the track laying where the road was in process of construction. Taney, appellee, was what is termed a boarding boss; he boarded, at times many of the men at work under Green. The nine witnesses who support Green were, or had been, railroad employees, nearly all of them being wholly or partly under the control of Green.

Taney, at one time, brought to Denver and deposited in certain banks, to Green's credit, the sum of $5,500. While there is much testimony concerning numerous other financial transactions between the parties, the vital question tried, was the original ownership of this money. Green contends that it was his private funds, which he simply intrusted with Taney for the purpose of depositing in said banks, it being inconvenient for him to visit Denver in person. Taney asserts that it was his, and was deposited by him in payment and discharge of indebtedness, real or pretended, to Green. The jury, notwithstanding the large superiority in number of witnesses for the latter, must have found this issue of fact for the former.

After examining the testimony, we feel warranted in entertaining and stating the following conclusions in connection therewith.

First. As between Green and Taney, the jury were justified in believing the latter. While there are a few discrepancies in the testimony of Taney, in the main it is clear, straight-forward and positive. But Green's statements on the stand are conflicting and uncertain. It appears that he testified, some months previous to the trial, at a preliminary hearing connected with the injunction, that he only gave Taney from $2,800 to $3,100 to deposit for him. On this trial he is certain the amount was $5,500; he is sure of this, because he had it counted by another party, put into an envelope, and the envelope marked on the outside.

Such a discrepancy as this was well calculated to prejudice his entire testimony with a candid jury. Had he taken the precautions now sworn to, it is incredible that he did not, in January, remember them, and also the exact sum of money handled. Such matters, in connection with so large a sum, are not often forgotten, and the party beneficially interested seldom fails to avail himself of them, on the first and every succeeding opportunity. There could be no reconciling of the testimony of these two witnesses as to this transaction. If Green's statements were disbelieved, his whole case must fall.

Second. Many of the matters sworn to by the nine witnesses, who appeared for Green were highly improbable. If they were true, Taney acted and talked in a manner utterly unworthy of a sensible or careful business man. In the language of the district judge, who tried the case: "In order not to give a verdict for Taney, they, the jury, must not only be prepared to say that he committed wilful and corrupt perjury, but that he acted in a most indiscreet and foolish manner, in talking about the money he had upon his person, at San Antonio and other remote points in the State, midst crowds of persons, who, he might well suppose, would not only not protect him in his possession of the money, but who might be easily tempted to rob him of it.”

Third. There were absurdities and inconsistencies in the testimony of these witnesses, which must have attracted the attention of the jury, and some of their

statements were squarely contradicted by extrinsic evidence which was doubtless accepted as true.

Fourth. The jury saw these men, noted their language, appearance and demeanor upon the witness stand, and, perhaps, also had a personal acquaintance with some of them. They knew their relations, present and past, with Green, and probable interest in aiding him, or inclination to do so.

The weight of evidence does not wholly consist in its volume, nor in the number of individuals sworn. That is a most beneficent evidential rule, which gives juries a large discretion in judging of the credibility of witnesses; which makes it peculiarly their province to discriminate between those who testify before them, and imposes upon them the duty of sifting the evidence, accepting the true and rejecting the false.

And this court will only interfere where, upon the whole record, it appears that the jury acted so unreasonably in weighing testimony, as to suggest a strong presumption that their minds were swayed by passion or prejudice, or that they were governed by some motive other than that of awarding impartial justice to the contending parties.

We can not say that this case furnishes such a presumption. We think the jury were justified in the findings before us.

The judgment will be affirmed.

[No. 1348.]

PEOPLE ex rel. vs. GREEN.

On petition for rehearing.

Opinion Filed March 14, 1884.

D. F. Urmy, L. S. Dixon and L. C. Rockwell, for relator; B. F. Rice and B. F. Montgomery, for respondent.

HELM, J.—The importance of this case, and novelty of at least one question presented, must be my excuse for restating, upon this application, our views somewhat in detail.

The complaints embodied in respondent's petition concerning his treatment in this court, are, in our judgment, groundless.

He was given full notice of the charges preferred, and ample time to prepare his pleadings. The process of the court for procuring the attendance of witnesses was placed at his disposal. He was awarded a trial in open court, and the time was fixed to suit his convenience as well as that of relator. At the trial he was represented by able counsel, who managed his case with consummate ability. He was given the privilege of conducting the same in person, and after electing to leave the general management to his lawyers, he was permitted to address the court himself upon the argument. Evidence supporting his allegations as to relator's oppressive treatment of third parties, was excluded, but all proofs that were deemed proper, either in mitigation or in justification, were received and considered, and every doubt concerning the admission or re

jection of testimony was resolved in his favor.

Upon this petition for rehearing, though an adjournment of the court for two weeks had taken place, he was, at his request, accorded the privilege of being heard by the judges at chambers, in oral argument, both in person and by counsel.

Throughout these entire proceedings, the court has adhered to its resolution, that errors committed, if any, should be in his favor and not against him. And now, upon a candid and careful review of the case, we can not see where a single right has been abridged, a courtesy omitted, or a reasonable request denied him.

The relator, in this case, is judge of the second judicial district of the State. His petition, among other things, contains the following averments: That, "about 9 o'clock a. m., of said December 1st, your petitioner and his daughter, a young girl about sixteen years of age, were riding along Curtis street, in the city of Denver, when they met Mr. Green, to whom your petitioner spoke and bowed politely, and, at Mr. Green's request, stopped, when the following colloquy, in substance, took place. Mr. Green said:

"Did you have that article published in the paper about me?'

"To which your petitioner answered:

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"No sir, I did not.'

"Mr. Green replied:

"If you did, an explanation has got to be made; I will not stand it. Perhaps your clerk caused it to be published at your instigation,' or words to that effect.

“ "Your petitioner again said:

"I have told you that I had nothing to do with causing that publication, and that is all I can say.'

"Your petitioner then started to drive on, when Mr. Green said:

"Wait a minute; I was going up to your house.'

"Your petitioner again stopped, and Mr. Green continued, addressing your petitioner, and intending thereby to embarrass and intimidate your petitioner in the discharge of his official duties, saying in substance:

"I shall publish the whole affair; how you got angry upon the bench; how you imprisoned those poor men, and took money out of their pockets. You ught to have given us an honest judge to try the case; you are a tyrant upon the bench, but when you are attacked upon the street you are a coward, and dare not defend yourself. I will make it hot for you, you cowardly puppy.'

"Mr. Green said much more to the same effect, using and repeating the most offensive and insulting epithets to your petitioner, concerning your petitioner's official conduct. During this abusive tirade, your petitioner made no reply, except remarking once or twice in a cool and indifferent manner:

"Very well, Mr. Green, publish as much as you please, and put it all in the newspaper, if you think it will do you any good.'

"And then your petitioner drove on, leaving Mr. Green talking offensively and excitedly."

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In answer to the foregoing, respondent admits that his conduct and language, upon the street, were "in substance as reported by said Elliott in said petition."

There is, therefore, no dispute whatever concerning the language used by both parties upon the occasion referred to; neither is there controversy about any of the attendant circumstances. Admitting all that is charged, except as to his intention at the time, respondent declares that he was guilty of no official misconduct, and demands at the hands of this court, vindication from the charge of malconduct in office.

The purpose of proceedings for contempt, and those for disbarment, and the powers and duties of courts in connection therewith, must not be confused. The former may be termed a police regulation or power, for the protection of the court from present direct interference and annoyance in a trial or proceeding taking place before it. The latter is intended to protect, generally, the administration of justice, to save the legal profession from degradation by unworthy membership, and to guard the interests of litigants against injury from those entrusted with their legal business. The power to act in connection with the former is lodged in the court before or against whom the offence is committed. Authority to proceed in the latter is possessed exclusively by the tribunal authorized to grant license admitting to the profession. The former is punished by fine or imprisonment, and in many instances the proceeding is summary and largely ex parte. The sole penalty in connection with the latter, is a prohibition from practicing in courts of record, and this judgment can only be entered upon notice of the charge preferred and a full hearing in defense, ample time for preparation being given, and all legitimate testimony being allowed and considered. A contempt may constitute ground for disbarment, but it by no means follows that the cause for disbarment must, in all cases, constitute a contempt.

Upon some of the questions connected with the subject of disbarment, there is confiict of opinion among the decisions. The tendency has been, and is, to exercise the power only in extreme cases, and upon the most careful and thorough consideration. A few of the authorities go so far as to denominate the attorney's right to practice his profession, property, and to treat the same according to the full significance of that term.

Whether this position be correct or not, the disposition of the courts to afford him all reasonable protection in the proper exercise of this right, deserves and receives the hearty commendation of all just and intelligent minds. But courts ought not to forget, in their anxiety to shield the attorney, the duty they owe to themselves, to the legal profession in general, and to that portion of society with whom they directly deal.

This case can not be determined as a single controversy between two individuals. The questions are of general importance and application. Every other judge, and every other lawyer is almost as much interested as are relator and respondent. Individuals are lost sight of. The issue tried, bears directly upon the relations existing between the bench and bar of the entire State.

Before admission to the bar, in Colorado, applicants are required to present credentials of good moral character, and of intellectual fitness for the office. When admitted, they become sworn officers of the law. Each subscribes to an oath, that he will, "in all things, faithfully execute the duties of an attorney and counsellor at law, according to the best of his understanding and abilities."

Their tenure of office is for life, or during good behavior. Every license is accepted with full knowledge of the unwritten condition annexed thereto, that for official misconduct it may be revoked at any time.

The power of revocation is, by statute, lodged in this court, and if upon a proper case we should hesitate to assume the grave responsibility, and perform the unwelcome duty, we would be untrue to our official oath.

Under this oath, can we grant Mr. Green's request and vindicate him from all blame as a lawyer? We are prepared to declare to the world, that in this State every attorney who may imagine himself aggrieved by a judicial ruling, may, on account thereof, insult the judge upon the street, using the vilest epithets, and making the violent threats, concerning or affecting the past and future performance of his judicial duties? Nay, more, are we willing to admit that he may couple with such assault, physical violence, (for there is no distinction in principle between the two offences, so far as this question is concerned); that he may repeat such assaults, verbal or physical, upon each and every adverse decision, and that no power exists to interfere with, or to prevent these offences by disbarment?

Ordinary civil or criminal actions, are remedies utterly inadequate. Their official relations bring the parties into continual contact. The judge is compelled to make rulings from day to day, upon questions presented by the attorney. His rulings in that capacity are judicial findings, for erors in which ample relief is provided. An insult, or an injury inflicted upon him, on account thereof, is an insult or an injury to the cause of justice, and, if by a lawyer, also to the legal profession.

His

If a judge and attorney meet outside the court room, and engage in an altercation about some matter in no way connected with judicial action, they are, and ought to be, upon precisely the same footing, in all respects, as other private citizens. But when the attorney utters the threat, or makes the assault on account of a ruling or decision in court, the situation is widely different. His action has a direct influence upon the judicial mind. It is calculated to disturb and embarrass the proper administration of justice. The temple in which the lawyer is sworn to minister, is not bounded by the walls of a court room. official oath is not a robe to be worn only in presence of the court, and when he proves recreant to that oath by such willful misconduct towards the judge, on account of his judicial acts, as interferes with, or impedes the dignified and proper administration of the law, or tends to do so, whether in the court room or upon the street, he is guilty of official misconduct. Whether such misconduct justifies disbarment, depends, of course, upon the facts and circumstances attending and surrounding each particular case.

But in this country, and in England also, the utmost liberty of speech is guaranteed by statute and enforced by the courts. The right to discuss all matters of public interest or importance is everywhere fully recognized. Judicial decisions and conduct constitute no exception to the rule. The judge's official character, and his acts in cases fully determined, are subject to examination and criticism. In most of the States the office is elective, and it is proper and right that the people should be informed of the occupant's mental and moral fitness. True, under the guise of criticism in the public press and otherwise, judges