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pus from restraint under an order Mr. Crenshaw: I am trying in of the honorable district court of a very respectful mannerHill county, adjudging relator in The court: Mr. Crenshaw, I will contempt. That our conclusion may fine you if you speak to the court. be understood, we state the perti- 'The court has asked you kindly to nent facts.

be seated. A criminal trial was in progress.

Mr. Crenshaw: Can I take a bill It had been once before tried, a of exception? conviction had, followed by appeal The court: You can when you and reversal. On the present trial, come back from jail. counsel for the state made an ob- Mr. Crenshaw: I want a comjection to a question asked by rela- mitment written up. tor, of counsel for the defense, who The court: All right, hold him thereupon stated that the identical until the commitment is written, matter had been passed on by the Mr. Sheriff. court of criminal appeals, in their

In the judgment also appears opinion reversing the case, and that

further colloquy between the learnit held proper the question asked.

ed trial judge and relator, in which The judgment later entered by

the latter was given an opportunity the court below sets out the proceedings then had, and from which

to apologize, but declined to do so

upon the ground that he was only we quote:

doing his duty to his client and atTo which said objection the court

tempting to take a bill of excepmade the following ruling, to wit:

tions. “I think the court of criminal ap

It appears there was noth

ing in the tone, manner, or words peals was very incorrect, but we

of relator deemed contemptuous by will have to bow to their ruling.”

the court below. We are thus called Whereupon 'the following pro- on to say whether an attorney enceedings were had:

gaged in the trial of a case, when Mr. Crenshaw: If the court on his feet making objection in please, we except to that remark of tone, manner, and word respectful, the court in the presence of the may be legally ordered by the court jury.

to take his seat, and, for refusal, be The court: I will give you a bill adjudged in contempt. and instruct the jury not to consid- We observe from the rules laid er the remark of the court or coun- down by the supreme court for the sel as to what the court of criminal conduct of cases in district and appeals did in this case.

The re

county courts, in volume 142 S. W. mark made by the court was direct- xx., that rule 42 thereof requires ed by the court to counsel, and was that in addressing the judge any not for your consideration. I don't attorney shall rise to his feet, and it care for counsel again to make would naturally follow that during any reference to what the court of the course of any remarks to the criminal appeals' holdings were. court counsel should remain standIf you do, I will hold you in con- ing. It is well settled that in order tempt of court.

to bring any proceeding in the trial Mr. Crenshaw: I want to take court before the appellate court for a bill of exception

review there must be an exception, The court: Be seated.

and when this is aimed at some act Mr. Crenshaw: I would like to or remark of the court during the take a bill.

reception of evidence, the fact of The court: Mr. Crenshaw, if objection must be then made known you don't sit down I will send you to the court and preserved by a bill to jail. .

Mr. Sheriff, take of exceptions, else it would in most this gentleman to jail. If you can't cases be held waived. We cannot respect this court, you can't prac- quite see how relator could protect tise before it.

the interests of his client in a prop(- Ter. Crim. Rep. -, 259 S. W. 587.) er manner, or attempt to do so, jury. The court said he would give though his complaint be not well him a bill, and in connection with founded, without rising and, in re- said statement made other remarks. spectful manner, tone, and lan- Relator, apparently still standing, guage, making known the fact of began to say that he wanted to take his objection and the grounds a bill of exceptions, but before he thereof. When this is done, it calls had finished his statement he was for a ruling at the hands of the interrupted by the learned trial court. If in connection with said judge and told to be seated, whereruling there be words or acts on the upon counsel again informed the part of the trial court which to the court, still apparently standing, mind of counsel for the defense ap- that he would like to take a bill of pear capable of injury to the rights exceptions, and the court replied of his client, he has the same right that if he did not sit down he would to again rise, address the court, and send him to jail. We conclude from state his objection and the grounds the asterisks in the record at this thereof.

point that, after waiting a moment In this case, as appears from the and nothing occurring, the court diabove quotation from the judgment, rected the sheriff to take the relator a question was asked by relator, to jail. Relator began again to say and in reply to an objection made that he was trying in a respectful by opposing counsel the pertinence manner, whereupon the court again of the question was affirmed by interrupted and said if counsel stating that the appellate court had spoke to him he would fine him. held it a correct inquiry. In the Thereupon the court directed the hearing of the jury, apparently, the clerk to enter a fine of $25 against learned trial judge made a state- relator, and that he be committed ment of his adverse opinion as to to jail for three days, or until he the correctness of the ruling of the purged himself of contempt, and appellate court. This statement of the commitment in the record sets the trial court evidently was

out that the relator was found deemed by relator as capable of guilty of the offense of contempt by having a harmful effect upon the the court, and fined $25 and comjury's attitude toward the matter mitted to jail for a period of three involved in the question which he days, or until he had purged himhad asked. The weight given to re- self of said contempt. marks of the trial court by juries We have examined many cases has often been the subject of dis- and text-writers, recognizing that cussion by this court, and attention the power to punish for contempt is is directed to article 787 of our C. necessary to the existence of courts C. P., which forbids any remark of and the orderly conduct of business the trial judge calculated to con- before them, and that in proper vey to the jury his opinion of the cases the summary exercise of such case, or any part thereof. Whether power is just and right; recognizrelator was right or wrong in his ing, also, that in all cases such exconclusion as to the effect of the re- ercise must be compatible with civil marks of the court below would not liberty and to be used as an auxilin any way affect his right to object iary to the pure ends of justice. to the remarks, for reasons respect- Nor are we unmindful of that care fully then stated, for the purpose

which characterizes this court in of his bill of exceptions; and such solving a question touching the probill might then be taken if counsel priety of the decision of the preso desired. If we understand the siding judge of a trial court in passevents recorded in the judgment, ing on the conduct of an officer of relator, while standing, said he that court. We find ourselves unwished to except to the remarks of able to lose sight of the probable the court in the presence of the motives involved--that of the judge to maintain exact order, that of of which no personal feeling, Pasrelator to protect the rights of his sion, prejudice, or mere proprieties client. At this point we deem it not should be allowed to operate as a inappropriate to quote what was bar.said by us in Ex parte Duncan, 42 Relator was engaged in the deTex. Crim. Rep. 674, 62 S. W. 762: fense of his client, and it seems “We wish to say that the power of without dispute that, in the executhe court is official,-judicial, and tion of what must be regarded by not personal,—and the relations of every attorney as his sworn duty, court and attorney are correlative. he wished to state his exceptions to Courts may, will, and should en- language used by the court in reforce judicial power and functions marks accompanying his ruling. when necessary; yet this must be As substantially stated above, the done in a manner sanctioned by language of the court may or may law, and in consonance with judi- not have been exceptionable, -we cial dignity, and with due regard are not concerned with this questo the rights of parties to be affect- tion, but the fact remains that the ed. Attorneys are bound and will right to except to such remarks was be held to obey legal orders of inviolable. What was relator to courts, yet the court should invoke do? If he addressed the courtits judicial authority under the law and his statement of his exception and in obedience thereto. The re- must of necessity be so addressedlationship of courts and attorneys, he was required by the rules laid bench and bar, are reciprocal, and down by the supreme court to each, in their proper sphere, is stand. If he sat down, he could not clothed with powers, rights, and address the court and state his exprivileges which are to be recog- ception. If he did not state his exnized and respected by the other. ception, same would be waived, and These relations should be recog- relator's duty to his client would nized and respected alike by bench not be discharged. He stated to the and bar, and, being carefully kept court that he was trying in a rein view and followed as rules of ac- spectful manner to take a bill, and tion and conduct, will avoid fric- was told by the court that if he tion.”

spoke to him he would fine him. And in Ex parte Miller, 92 Tex. Relator thereupon spoke to the Crim. Rep. 492, 244 S. W. 614: "It court and asked if he could take a is true that the dignity of the courts bill of exceptions, and the court inis to be upheld, and decorous con- formed him that he could when he duct and language greatly become came back from jail. Between the the advocate at the bar, but the Scylla of what might be deemed his right of free speech and of full rep- respectful duty to the court, and resentations by counsel guaranteed the Charybdis of his undoubted to one accused of crime is of seri- duty to his client, relator became inous weight, and much caution volved, and asks us to help him out. should be exercised in any case that It does not appear to us that one, these rights be not infringed or de- who in respectful tone, manner, and nied by reason of the fact that the language is engaged in an attempt person under discussion or criti- to state an exception to the court cism is the learned trial judge, and before whom he is the thing legitimately under fire is trying a case,

is Contempt-re

fusal of attorney his action. The courts are but guilty of contempt to be seated at human. We appreciate keenly the for declining to take

command of attitude of the trial judge, for the his seat at the comjudgments of appellate courts are mand of the court, before he states often vigorously and correctly as- his exception. We would not be sailed, but the great end of court understood as holding that conprocedure is justice, in the seeking tempt might not arise from the (- Tex. Crim. Rep. —, 259 S. W. 587.) statement of continuous frivolous ous; but we do not think relator's objections, amounting to an ob- conduct falls in either class. struction of the orderly progress Concluding under the facts that of a trial, or that if, after having what was deemed contemptuous by accomplished that which is deemed the learned trial judge was not so duteous, viz., the statement of his in fact or intent, we must hold the exception, counsel remain standing judgment one which he had no powafter a request to be seated, in a er to enter, and therefore direct the manner such as to affront the court, discharge of the relator, and it is that these might not be contemptu- so ordered.

court.

ANNOTATION.

V.

Conduct of attorney in connection with making objections or taking exceptions

during trial as contempt of court. For affidavit to disqualify judge as employed, should refrain from further contempt, see annotation in 29 A.L.R. active participation in the case before 1273.

it, the court, in holding that such It appears that the reported case order was illegal, and that further (EX PARTE CRENSHAW, ante, 1181) is attempts on the part of the attorney the first to pass directly upon the to participate did not constitute conspecific point therein decided.

tempt, despite the order, when made In People ex rel. Beinstein in a respectful manner, said: "A La Fetra (1916) 171 App. Div. 269, 157 lawyer, when engaged in the trial of N. Y. Supp. 386, where an attorney a case, is not only vested with the was committed "for delaying, impair right, but, under his oath as such ing, and impeding the orderly disposi- officer of the court, is charged with tion of the trial, although plaintiff's the duty, of safeguarding the interinterests had been amply protected ests, of his client in the trial of an by numerous exceptions," the court, issue involving such interests. For in reversing the order of commitment this purpose, in a trial, it is his sworn because the mandate did not sufficient- duty, when the cause requires it, to ly set forth the particular circum- offer testimony in behalf of his client, stances of the offense as required by or in support of his case, in accordstatute, and because such specific ance with his theory of the case, to charges as were set forth did not con- object to testimony offered by his stitute contempt, said: “An adher- adversary, to interrogate witnesses, ence by respondent (a justice of the and to present and argue to the court city court) to his views upon that his objections or points touching the subject would inevitably lead, as it legal propriety or impropriety of the did in the end, to a dismissal of the testimony, or of particular questions complaint; and the only hope that propounded to the witnesses. If, in relator could entertain of ultimately discharging this duty, he happens to succeeding in the action was to make be persistent or vehement, or both, in the appropriate objections and take the presentation of his points, he is the necessary exceptions to preserve still, nevertheless, within his legitihis client's rights upon an appeal. In mate rights as an attorney, so long as doing this he was clearly within his his language is not offensive or in conrights, provided he comported himself travention of the common rules of with due regard to the dignity and decorum and propriety. As well may authority of the tribunal before which be expected in forensic polemics, he he was appearing."

cannot always be right, and may In Platnauer v. Superior Ct. (1917) wholly be wrong, in his position upon 32 Cal. App. 463, 163 Pac. 237, where the legal question under argument, the trial court arbitrarily ordered that and to the mind of the court so plaina certain licensed attorney, regularly ly wrong that the latter may conceive

31 A.L.R.-75.

was

.

that it requires no enlightenment half of a fugitive client, his persistfrom the argument of counsel. But, ence, after order of the court to stop, whether right or wrong, he has the would have been punishable as conright to an opportunity to present his tempt. theory of the case on any occasion In Hill v. Crandall (1869) 52 III. where the exigency of the pending 70, where a justice of the peace was point, in his judgment, requires or hearing a motion for continuance of justifies it."

a cause pending before him, it was In the Platnauer Case (Cal.) supra, held contempt for an attorney wilthe immediate occasion for the con- fully to resist the motion after the tempt proceedings was a suggestion court had given notice that the same on the part of the attorney ordered had been granted, and to refuse to to refrain from further participation cease, as ordered by the justice, say. that no showing had been made that ing to the latter: "You can fine and the ballots to be recounted were in be damned." Said the court: "That the same condition as when received, the plaintiff in this case and his objection to their considera- guilty of contempt in open court tion until such a showing had been admits of no controversy, and the made. It was not contended that the magistrate would have himself been attorney's language or manner was censurable if he had failed to punish. disrespectful, "and, as declared, it The use of such indecorous language was alone the persistency of the peti- to a court as is set forth in this rectioner to be heard in behalf of his ord would be inexcusable in anyone, client, of whom he was the senior and is least excusable in an attorney counsel, which brought forth the at law, whose profession should be a judgment and order of commitment sufficient guaranty of respectful defor contempt."

portment to even the humblest judiIn Re Shortridge (1907) 5 Cal. App. cial tribunal." 371, 90 Pac. 478, it was held that an In Holman State (1886) 105 attorney for a party to an action pend. Ind. 513, 5 N. E. 556, the appellant, ing before the court is not guilty as attorney, propounded a question to of contempt in persisting, while a a witness, to which an objection was witness is being examined, in address- sustained by the court; after the ruling the court, presumably in behalf of ing was announced, the appellant rose a client, although admonished not to to his feet and insisted upon making do so.

Said the court. "For aught an argument on the question ruled that we can see from the order, the upon; upon the court's request that he petitioner may have been rightfully sit down, as arguments were not then and respectfully discharging his in order, the appellant "peremptorily, duty to the court and to his client, and in the most defiant manner," making proper objections to the ques- declared that he would not obey the tions put to the witness on the stand. request of the court, and said: “I What he said to the court is not set will stand here while it suits me to forth, nor are any circumstances set do se;" and again, later, as he passed forth making it improper for him to in front of the judge's bench: “I address the court in a respectful will get even with you.” Such conmanner, except the bare order of the

duct was held contempt, though the court not to do so. This we do not judge himself may have been wrong think is sufficient, any more than is and may have made an ill-tempered the order to a witness to answer a and undignified remark in ruling upon question sufficient, without an affirma- the objection. The court said: “It tive showing in the order of commit- is a matter of regret that a judge ment that the question is one that should manifest bad temper while on the witness should answer." The the bench, or rudely treat counsel, court said, however, that, had it ap- but the wrong of the judge cannot peared that the purpose of the at- excuse the misconduct of counsel. It torney was to address the court in be- is often necessary for a judge to be

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