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(- 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.

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 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 Ill. 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."

31 A.L.R.-75.

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, saythat 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 .. was 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 v. 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 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 forth, nor are any circumstances set do so;" 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

V.

stern and determined, but it is never said: “Manifestly, therefore, it was necessary to be ill-tempered or dis- the appellant's duty to accept the courteous. Even if we should adopt ruling of the court as final, and, if he appellant's theory that the judge was desired to challenge its legal correctin the wrong, still we cannot assent ness, to do so by an appeal or by such to the conclusion that he was not him- other method as the law provided, in self guilty of a contempt, for the ill order to obtain the redress he solictemper or harshness of the judge will ited. His duty to his client was not excuse a positive disobedience of equally obvious. It did not consist the orders of the court, or a con- in 'throwing up his brief,' to use an temptuous disregard of its authority.” expression of the common-law law

In Mahoney v. State (1904) 33 Ind. yers, when the court failed to accept App. 655, 104 Am. St. Rep. 276, 72 his view of the case. Nor did it conN. E. 151, the attorney for the de- sist in challenging the court to accept fendant in a criminal action, after the the view he maintained, and protestcourt had overruled an objection ing as an alternative that he never made by him, commenced to argue the would cross the portals of the court question, and when the court stated again.

Other avenues of rethat the ruling had been made, and dress were open to him, and higher that it desired no further argument, courts existed to correct its legal said to the court in a loud and offen- errors. Knowledge of these facts we sive manner: "I want to know wheth- must assume the appellant possessed, er I am going to be heard in this case and that situation renders his conin the interest of my client or not.” duct, upon his own showing, inexAfterwards, during the examination cusable." of a witness, the court remarked In State Leftwich (1889) 41 that the witness had already answered Minn. 42, 42 N. W. 598, it was held the question put by the attorney, that while counsel trying a case may whereupon the latter referred to the except to the rulings and orders of reporter, saying: "I want to see the court, he is bound to respect and whether the court is right or not;' obey them; and that, if, after the and again, when the court had ruled court has ruled against a particular upon the admission of certain evi- course of examination of a witness, he dence over the objection of the at- still persists in the same course of torney, he stated that there was no examination, he may be guilty of a principle of law that would support contempt. The court said: “The such a proposition, and there was no relator, having presented the question reason in it. For these and other of his right to follow that course and insults of like kind, the attorney was got a ruling upon it, ought, if he ined $50 for direct contempt of court. deemed the ruling erroneous, to have The judgment was appealed, but only taken his exception, and afterwards upon the ground that the fine was not conformed to the course indicated by imposed through proper legal pro- the ruling. He had no right to atcedure.

tempt to evade it. As to that it is In Re Mindes (1915) 88 N. J. L. immaterial whether the ruling was or 117, 95 Atl. 743, it was held that was not erroneous." neither his duty as an officer of the In Dodge v. State (1895) 140 Ind. court nor his duty to his client re- 284, 39 N. E. 745, the defendant, an quires an attorney to condemn the attorney, in the voir dire examination court's ruling and to persist in refus- of a juror, after asking the juror a ing to obey it; and that the conduct question which the court directed not of an attorney in indulging in invec- to be asked again, characterizing the tive and scandalous innuendo that same as absurd, defiantly put the same tended to degrade and humiliate the question again to the juror, and, upon court, when the court expressed a de- being rebuked by the judge, said to sire to hear no further argument at him: “If that language was used that time, was contempt. The court towards me on the street I would

know how to answer it, but here in stood. It was out of place, uncalledcourt I cannot.” Such conduct and for, and neither justified nor excused language were held a contempt. The by the ruling of the court, and when court said: “The contention of ap- notified that it was regarded as of pellant that the language of the judge fensive, no disclaimer of such an was provoking, and also detrimental intention was made by the attorney." to the interest of his client, and hence In Russell v. French (1885) 67 he ought to be excused for his con- Iowa, 102, 24 N. W. 741, one of the duct, can have no weight or consid- attorneys asked a witness a question eration from a legal standpoint. The to which objection was made by opwrong of the judge, if any, cannot posing counsel on the ground that justify the misconduct of counsel. the question had been

already Holman v. State (Ind.) supra. It is answered, and thereupon the court, the imperative duty of an attorney after hearing the prior questions to respectfully yield to the ruling and and answers read by the shorthand decisions of the court, whether right reporter, announced his decision or wrong, reserving the rights of his sustaining the objection, and stating client by proper and necessary ex- that the question had been already ceptions thereto."

answered. Immediately upon such While it is the right and duty of ruling the attorney sprang to his counsel to make necessary objec- feet, and, turning to the court, said tions and take necessary exceptions, in loud tones and with insulting it was held in State ex rel. Cary v. manner, "She has not answered the District Ct. (1910) 110 Minn. 446, question." Such conduct was held 125 N. W. 1020, that for an attorney contempt of court, though the quespersistently to resort to a frivolous tion may not have been answered. method of objections and motions, the The court said: "When the court evident purpose of which is to in- made the ruling it did, whether right terrupt and delay the trial, and to or wrong, the plaintiff should either use insulting language towards op- have submitted thereto, taken an exposing counsel, and to adopt a de- ception, and had the error, if it was fiant attitude when called upon to one, corrected on appeal, or in reshow cause, was contempt for which spectful language and manner have a penalty might be inflicted.

addressed the court and asked to have In Redman v. State (1867) 28 Ind. the ruling reconsidered; but, if the 205, where, during the trial of a crim- court declined to hear him, the plaininal case,—one of the defendant's tiff should have acquiesced therein. attorneys having his questions upon The time for argument is before the cross-examination ruled out as im- decision. Counsel then have the right proper,-it was held that for the at-, to insist on being heard. When a torney to reply, “This is a cross- decision has been made, the time for examination, and if we cannot ex- argument has passed, unless peramine our witness he can stand aside," mission of the court is asked and obwas sufficiently offensive and disre- tained. Of course, it will be underspectful to warrant the court in re- stood, if the right to a rehearing fusing the attorney the right to ask exists and is asked, the right to make further questions, where his associ- an argument would seem to be apates were ordered to conduct the parent; but even in such case the cross-examination instead. The court court in its discretion might decline was not called upon to decide whether to hear the argument. Instead of or not such conduct was criminal taking this course, or one approximatcontempt for which the attorney ing thereto, the plaintiff, as the might be punished, but it said: "The court thought, in 'loud tones and in. remark made by the attorney in this sulting manner, directly contradicted case might readily be construed as a statement of fact made by the a direct reflection upon the impar- court, and upon which the decision tiality of the court, and was so under- was based. We therefore feel constrained to say that such conduct contempt for the relator to reply, "I was contemptuous, and had a tendency don't think that is necessary, for I to impair the respect due to the au- think this magistrate wiser than the thority of the court. If the plain- supreme court,” the words being tiff believed the statement made by used in an ironical sense, and inthe court to be incorrect, and he tended as sarcasm; and it mattered deemed it material for the interest of not that relator acted under a mishis client to have it corrected and apprehension as to the powers of the decision changed, he should, in the justice to punish for contempt. respectful language, have called the Speaking of the use of irony and sarattention to what he deemed to be casm, the court said: “This is enthe mistake. It is quite apparent tirely allowable towards those standhe did not do this, but that, at least, ing in relations of equality, where no he sprang to his feet and in une- obedience or submission is due. But quivocal language directly contra- in those relations where the law, for dicted what the court said. Whether any cause, requires submission and the plaintiff's manner was insulting obedience, the case is different. In we are unable to say; but that we the relation of parent and child, or must assume it to have been so we teacher and pupil, or the court and have no doubt. The plaintiff, as we its bar, the decisions of the superior, understand, claims that he in point for the time being, are final and are of fact was right and the court to be respected, whether wise or wrong, the contention of the plain- foolish in fact. And they cannot be tiff being that the question asked the encountered with sneers and sarcasm, witness had been evasively and not however just and appropriate the directly answered, and he seeks to

weapon may seem to those who use so show by the affidavits filed by him. it, or to others.” We think it is immaterial how this 1 In Ex parte Bullington (1912) 66 may be. Conceding that he is correct Tex. Crim. Rep. 256, 145 S. W. 1190, in this respect, still we do not think it was held that a lawyer has a right he was justified in addressing the in his argument to state to .the jury court as he did."

his theory of the law and to argue In State V. Garland (1873) 25 whether or not the evidence would La. Ann. 532, the defendant, an at- render his client liable, and that, this torney at law, persisted in interrupt- being so, the conduct of the attorney ing the court while opinions were in insisting upon his right to argue being read, and for such conduct was the law as applicable to the facts, fined for contempt of court. It was despite the order of the court, was held that for the attorney to not contempt of court. abusive language toward the judge In Ex parte Winn (1912) 105 Ark. and to commit an assault upon his 190, 150 S. W. 399, the judge had on person during a recess, but before a prior occasion, and in the absence adjournment, under pretext of re- of the petitioner, an attorney, ansenting the words and acts of the nounced from the bench the latter's judge while on the bench, was suspension from the practice of law. contempt of court. It was further

On the morning of the occasion comsaid that an attempt by answer to plained of the attorney appeared in justify such conduct is an aggrava- court, took his seat inside the rail, tion of the contempt.

and was ordered from the court room In Re Cooper (1859) 32 Vt. 258, when the judge observed his presence. where, after deciding

after deciding a question It was held that the attorney was raised by counsel, the justice of the not guilty of contempt in immediately peace trying the case turned to the arising and explaining to the court relator and remarked, "It might be that he desired a hearing, where the convenient enough for you, Mr. evidence showed that neither the Cooper, to have the supreme court manner nor the conduct of the attorsit here all the time,” it was held ney was disrespectful to the court.

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