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municipal court of the city of West any intention that said letter was Palm Beach and which you knew intended by him as a reflection upwas pending upon a writ of habeas on the court, or upon the judge corpus before the judge of the cir- thereof, or that it was written for cuit court of this county, and it is the purpose of embarrassing said apparent from the language you use judge or influencing him in the disin said letter as a whole that said position of said cause entitled 'Edletter was intended by you as a re- win Antelo against Leonard Bailflection upon the court, or the judge ey,' but, on the contrary, avers that thereof, and was written for the said letter was written for the inpurpose of embarrassing him and formation of the judge of said cirinfluencing him in the disposition of cuit court. said case.

“(2) Respondent admits that he “(2) It is apparent from read- sent copies of said letter to several ing said letter as a whole that by people in the city of West Palm inference and innuendo, at least, Beach, Florida. you intended to charge that the (3) Respondent denies that he court was induced to grant the writ exhibited also copies of said letters of habeas corpus in the case therein to various people and read the same referred to by the influence and to them and stated to them that wealth of Antelo and his friends, Davis had granted a writ of habeas and by implication to charge that corpus to Edwin Antelo because of the court was by these corrupt in- corrupt influences brought to bear fluences induced to grant said writ upon him, the said Judge Davis. of habeas corpus.

And further, respondent denies that “(3) In publishing to John M. he made the statement to anyone Lindsey and C. H. Summers said that Judge Davis had granted a letter so written by you and mailed writ of habeas corpus to Edwin Anto the court, you stated to them that telo because of corrupt influences the said Edwin Antelo was a mem- brought to bear upon him, the said ber of an order known as the judge. . Knights of Columbus, and that Wil- (4) Respondent denies that he liam A. Weihe, who went upon the stated at the time of exhibiting said bond of said Antelo, was likewise a letter to the parties referred to in member of said order known as the said order—that he stated to said Knights of Columbus, and that the parties—that, if Davis, upon hearKnights of Columbus were behind ing said writ of habeas corpus then Antelo in his effort to obtain free- pending before him in this court, dom and were using their influence released Edwin Antelo, that he (the with the court to influence the court respondent) would see to it that that by the influence so brought to Davis was defeated for judge of the bear the court was forced to grant district court of the United States the writ of habeas corpus upon the for the southern district of Florida, petition presented to him in said a position for which the said Davis case, Said statements so made by was then an applicant, and reyou were known by you to be false, spondent further denies that he or could have been so known by stated to anyone that if said Judge your making the slightest inquiry Davis, upon hearing said writ of or investigation."

habeas corpus released Edwin AnThe rule was served and the re- telo, the petitioner, that respondent spondent filed a motion to quash the would see to it that said Davis was rule, which motion was denied. defeated for judge of the district

The respondent filed the follow- court of the United States for the ing answer:

southern district of Florida. “(1) Respondent admits that he “(5) Said respondent denies that wrote the letter set out in said or- the language of said letter has a der to show cause, but disclaims tendency to impede, embarrass, or (- Fla. - 95 So. 755.) obstruct the court in the due ad- such circuit court has not been in ministration of justice, or that it session from said time up to now.” contains false or defamatory reflec- At the hearing the circuit judge tions upon the judicial integrity of rendered the following: the court; and respondent further

"Order. denies that it was intended by him to impede, embarrass, or obstruct

“This cause coming on to be the court in the administration of heard before this court, upon a rule justice in the cause then pending nisi duly served upon the respondundisposed of before the court, or

ent, Joe L. Earman, and he appearthat said letter contains false or

ing in court in person and with his defamatory statements regarding counsel, Frank A. Pettibone, Esthe court.

quire, and James B. Hodges, Es“(6) Respondent denies that, by quire, and the respondent together or in said letter, he intended to im- with his counsel being in court durply that the court was induced to ing a full hearing of this matter grant the writ of habeas corpus by and during the entering and readthe wealth of Antelo or his friends, ing to the respondent of this judgor that he charged in any way that ment and finding of this court, and the court was by that corrupt in

the court having heard the testifluence induced to grant said writ mony in the matter, and having of habeas corpus.

read the answer or return filed by (7) Respondent denies that, in the respondent, and being fully adpublishing said letter to John M. vised in the premises: Lindsey and C. H. Summers he

“The court finds, orders, and adstated to them, or either of them, judges that the allegations set forth that said Edwin Antelo was a mem- in the rule nisi filed in this cause ber of the order known as Knights

and issued by this court, have been of Columbus, or that William A. proved and substantiated by the Weihe, who went upon the bond of

evidence and admitted by the resaid Antelo, was likewise a member

spondent. of said order, or that the Knights 1 “It is further found, ordered, and of Columbus were behind Antelo in adjudged that this court was not, his effort to obtain freedom, or that at the time of the writing and pub-. they were using their influence lishing or circulating of the said letwith the court to influence the ter set forth and alleged in the rule court, or that by the influence so nisi, in vacation, but was in session, brought to bear upon the court it and it was during term time, as apwas forced to grant the writ of ha- pears by the records of this court, beas corpus upon the petition pre

of which this court takes judicial sented to the court in said cause. cognizance.

(8) Further answering said "And the court further finds, orrule or order to show cause, re

ders, and adjudges that the case of spondent alleges that the said cir- Edwin Antelo v. Leonard Bailey, cuit court of the fifteenth judicial chief of police of West Palm Beach, circuit of the state of Florida was at the time of writing and publishnot in session in a term thereof ing of the said letter, and at the during any of the times mentioned time of making embarrassing and in said rule or order to show cause,

insinuating and threatening reor at the time of the issuance of marks by the respondent, was besaid order, but, on the contrary, fore the court, and had not been dethat said court was in vacation dur- cided and determined, and no final ing all of said times, and respond-order had been issued and entered ent avers that on Saturday, Novem- therein; that the final order in said ber 11, A. D. 1922, the special fall cause was not entered until about 2 term of said circuit court was ad- o'clock P. M. on the 6th day of Febjourned, without date, and that rúary, 1923; and, at the time of the offense as alleged in the rule nisi, circuit court for Palm Beach county the court had the said cause under was in session on November 11, advisement, and the letter and 1922. The statute requires a term threats and insinuations and words, of court in the fifteenth judicial cir. as set forth and alleged in the rule cuit to be held in Palm Beach coun. nisi, came to the attention of this ty on the second Tuesday in Sep. court and did embarrass this court tember, and in St. Lucie county on in determining the said cause of the second Tuesday in November, Antelo v. Bailey, and did interfere and in Okeechobee county on the with and hinder and embarrass this second Tuesday in December. The court in arriving at a decision and second Tuesday in November, 1922, final order in said cause.

came on November 14, 1922, and “The court further finds, orders, the second Tuesday in December, and adjudges that the said Joe L. 1922, was December 12, 1922. A Earman, respondent, is guilty of certified copy of the minutes shows contempt against this court.

that the circuit court for St. Lucie “R. C. Baker, sheriff of Palm county was in session in St. Lucie Beach county, Florida, is ordered to county on November 14, 1922. A take the said Joe L. Earman into certified copy of the minutes of the his control and to confine him in circuit court for Palm Beach counthe common jail of Palm Beach ty shows this entry: county, Florida, from 1 o'clock A.

“This the fall term of the circuit M. on the 7th day of February, A. D.

court of Palm Beach county, Flor1923, until 1 o'clock P. M. on the

ida, is adjourned sine die this Feb17th day of February, A. D. 1923; and when he has fully exercised and

ruary 8, A. D. 1923.

"E. C. Davis, Judge." complied with the order of this court that he shall make his return

When the circuit court convened to this court in this cause, and fail in St. Lucie county on November not.

14, 1922, pursuant to the statute, "It is ordered and adjudged that the fall term of the same court in Joe L. Earman, respondent in this

Palm Beach county, which was in cause, pay the costs of this proceed

session on November 11, 1922, was ing.

necessarily at an end, even though "Done and ordered at West Palm the judge on February 8, 1923, Beach, Florida, this 6th day of signed an order that the fall term February, A. D. 1923.

of the circuit court of Palm Beach “[Signed] E. C. Davis, Judge."

county was adjourned on that day. A writ of habeas corpus was, on

The petitioner moved for a dis

charge upon the following grounds: February 9, 1923, issued from this

"First, that the circuit court was court; and pending the determina

without jurisdiction to enter the ortion of the matter the respondent der, or judgment, charging this pewas permitted to secure his release

titioner to be guilty of a contempt from actual custody by the execu- of court under the rule set forth in tion of a bond for $500 under $ the return. 3571, Revised General Statutes of “Second, that the acts and words 1920. See 4 Enc. Pl. & Pr. 769. set forth in the rule against this

The return made by the sheriff petitioner do not constitute a conis in substantial accord with the al

tempt of court. legations of the petition.

“Third, that the rule nisi, upon The petitioner filed a "reply or which the judgment or order is answer to the return,” and the based, was not founded upon any sheriff filed a motion to strike the motion or sworn affidavit. "reply or answer.”

“Fourth, that the circuit court It appears from a certified copy was not in session in a term thereof of the minutes of the court that the at the time the alleged contempt

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(-- Fla. 95 So. 755.) was committed or at the time of the cause of detention shall appear to issuance of the rule, or at the time have been a contempt, plainly and the judgment order was made and specifically charged in the commitentered.'

ment by some court officer or body The statutes of the state contain having authority to commit for the the following:

contempt so charged and for the “Every court shall have power to time stated, it shall be the duty of punish contempts against it, but the court or judge before whom the the punishment imposed by a jus- writ is returnable forthwith to retice of the peace shall not exceed mand the prisoner, if the time for twenty dollars' fine or twenty-four detention for contempt has not exhours' imprisonment. Rev. Gen. pired.” Rev. Gen. Stat. 1920, Stat. 1920, $ 2534.

3575. A refusal to obey any legal or- Messrs. Frank A. Pettibone and J. der, mandate or decree, made or B. Hodges, for petitioner: given by any judge either in term The judge of the circuit court had time or in vacation relative to any no jurisdiction in the contempt proof the business of said court, after ceedings, as the circuit court was not due notice thereof, shall be consid

in session in a term of said court, but ered a contempt, and punished ac

was in vacation, both at the time the cordingly. But nothing said or

alleged contempt was committed and

at the time the rule to show cause was written, or published, in vacation, issued. to or of any judge, or of any deci- Ex parte Turner, 73 Fla. 360, L.R.A. sion made by a judge, shall in any 1917D, 355, 74 So. 314; 6 R. C. L. 518; case be construed to be a con- Ex parte Ellis, 37 Tex. Crim. Rep. 539, tempt.' Rev. Gen. Stat. 1920, $ 66 Am. St. Rep. 831, 40 S. W. 275; Tay2535.

lor v. Moffatt, 2 Blackf. 305; State ex “The judges of the several courts

rel. Mahoney v. McKinnon, 8 Or. 487;

Mau v. Stoner, 12 Wyo. 478, 76 Pac. are hereby authorized and empowered to exercise in vacation any ju

584.

There must be an affidavit or sworn risdiction or power they are now statement as foundation for construcauthorized and empowered to exer- tive contempt. cise in term time; but when the ex- 6 R. C. L. 531; Sona v. Aluminum ercise of such power shall require Castings Co. 131 C. C. A. 232, 214 Fed. the intervention of a jury it shall 936; York v. State, 89 Ark. 72, 115 S. not be exercised except in cases spe

W. 948; Re Northern, 18 Cal. App. 52, cially provided, unless all parties

121 Pac. 1010; Ex parte Rickert, 126

Cal. 244, 58 Pac. 549; Re McCarty, 154 agree in writing to waive a jury.

Cal. 534, 98 Pac. 540; Kirby v. Chi“This section shall not be con

cago, R. I. & P. R. Co. 51 Colo. 82, 116 strued to require any judge to go Pac. 150; Perry v. Kausz, 167 Ill. App. out of the county in which he may

250; People v. Gard, 175 Ill. App. 486, be during vacation." Rev. Gen. affirmed in 259 Ill. 238, 102 N. E. 255, Stat. 1920, § 2531.

writ of error dismissed in 235 U. S. 1. Generally.—The return made 691, 59 L. ed. 428, 35 Sup. Ct. Rep. 206; to the writ may be amended, and

Whittem v. State, 36 Ind. 196; Saunshall not be taken to be conclusive

derson v. State, 151 Ind. 550, 52 N. E.

151; Snyder v. State, 151 Ind. 553, 52 as to the facts stated therein, but it N. É. 152; Re Nickell, 47 Kan. 734, 27 shall be competent for the court, Am. St. Rep. 315, 28 Pac. 1076; Re Mcjustice or judge before whom such Kenna, 47 Kan. 738, 28 Pac. 1078; return is made to examine into the Nichols v. Quinn, 94 Kan. 742, 147 Pac. cause of the imprisonment or de- 1103; Re Wood, 82 Mich. 75, 45 N. W. tention, to receive evidence in con

1113; State ex rel. Gemmell v. Clancy,

24 Mont. 359, 61 Pac. 987; State ex rel. tradiction of the return, and to de

Flynn v. District Ct. 33 Mont. 115, 82 termine the same as the very truth

Pac. 450; Le Hane v. State, 48 Neb. of the case shall require.

105, 66 N. W. 1017; Ex parte Hedden, "2. In cases of

Cases of Contempt.- 29 Nev. 352, 90 Pac. 737, 13 Ann. Cas. When, on the return of the writ, the 1173; Rinelander v. Dunham, 2 N. Y.

31 A.L.R.—78.

Civ. Proc. Rep. (Browne) 32; Ackroyd judge and published it to others, v. Ackroyd, 3 Daly, 38; Ward v. Aren- and made statements about the son, 10 Bosw. 589; Bradbury v. Bliss, judge as set forth in the statement 23 App. Div. 606, 48 N. Y. Supp. 912;

filed with this opinion. Re Deaton, 105 N. C. 59, 11 S. E. 244;

Under the statute quoted in the Re Odum, 133 N. C. 250, 45 S. E. 569, 14 Am. Crim. Rep. 296; State v.

statement, if “the cause of deten. Thompson, 2 Ohio Dec. Reprint, 30;

tion shall appear to have been a State v. Kaiser, 20 Or. 50, 8 L.R.A. contempt, plainly and specifically 584, 23 Pac. 964; State v. Blackwell, charged in the commitment by some 10 S. C. 35; Ex parte Foster, 44 Tex. court officer or body having auCrim. Rep. 423, 60 L.R.A. 631, 100 Am. thority to commit for the contempt St. Rep. 866, 71 S. W. 593; Ex parte so charged and for the time stated. Landry, 65 Tex. Crim. Rep. 440, 144

it shall be the duty of the court S. W. 962; Re Coulter, 25 Wash. 526,

to remand the prisoner, if 65 Pac. 759; Wilson v. Territory, 1 Wyo. 155; Re Toronto Junction, 11

the time for detention for contempt Ont. Week. Rep. 182; Ex parte Dun

has not expired." can, 2 A.L.R. 225, note; Continental The question to be determined is Nat. Bldg. & L. Asso. v. Scott, 40 Fla. whether the circuit judge had "au386, 24 So. 473.

thority to commit for the contempt The alleged conduct of petitioner charged and for the time stated.” does not constitute a contempt.

If the judge had authority to adPeople ex rel. Hackley v. Kelly, 24

judge imprisonment for the conN. Y. 74; Re Dill, 32 Kan. 668, 49 Am. Rep. 505, 5 Pac. 39; Ex parte Senior,

tempt charged, and due process of 37 Fla. 1, 32 L.R.A. 133, 19 So. 652;

law was observed in the proceed6 R. C. L. p. 512, § 25; Dunham v. ings, and the imprisonment is auState, 6 Iowa, 245; Re Breen, 17 L.R.A. thorized and not excessive, the peti(N.S.) 572, note; Cheadle v. State, 110 tioner should be remanded. If the Ind. 301, 59 Am. Rep. 199, 11 N. E. conduct that is charged does not 426; Ex parte Spooner, 5 N. Y. City constitute a contempt for which the Hall Rec. 109.

The recited facts in the judgment judge is authorized to adjudge imorder are not conclusive, particularly prisonment, an appropriate order when such facts are necessary to con

should be made herein. fer jurisdiction.

The circuit judge received the Creasy V. Hall, 243 Mo. 679, 41 letter written to him by the muL.R.A.(N.S.) 478, 148 S. W. 914; Ex nicipal judge; therefore, he had parte Duncan, 42 Tex. Crim. Rep. 661, knowledge of it, and the charge as 62 S. W. 758; Ex parte O'Brien, 127 to the writing and sending of the Mo. 489, 30 S. W. 160; Ex parte Pitts, letter needed no supporting affida35 Fla. 149, 17 So. 76.

vit. But obviously the circuit judge Mr. Sydney H. Diamond also for petitioner.

had only information, and no perMessrs. Blackwell, Donnell, & Mc

sonal knowledge, of the alleged pubCracken, H. J. Quincey, C. E. Chilling

lication of the letter to others, or worth, Edgar C. Thompson, George W. of the statements alleged to have Coleman, Bert Winters, D. L. South- been made by the author of the letard, Ray Griffin, Roebuck & Roebuck, ter to those to whom the letter was John Ziegler, James O. Watson, L. R. published; therefore, the charges Baker, Sidney J. Catts, Jr., C. D. Ab

in the rule as to such matters of bott, and C. L. McCoy for respondent.

which the circuit judge had inforWhitfield, J., delivered the opin- mation, but not personal knowledge, ion of the court:

should, under the circumstances, On this writ of habeas corpus the have been supported by affidavits of real question presented is whether those who had personal knowledge the circuit judge had authority to of the alleged facts. See 4 Bl. Com. commit the petitioner here to im- p. 287; Ex parte Duncan, 2 A.L.R. prisonment for contempt upon find- 222 and note (78 Tex. Crim. Rep. ings made upon allegations that the 447, 182 S. W. 313); 13 C. J. 64. petitioner wrote a letter to the But the motion to quash went to

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