Connell v. State

114 N.W. 294, 80 Neb. 296, 1907 Neb. LEXIS 66

Opinion

Sedgwick, O. J.

This is in some respects the most extraordinary record that the writer has ever been called upon to examine. Tt contains over 500 sheets of closely typewritten matter and some 40 odd sheets of fine print. AH of this record is supposed to be devoted to presenting, emphasizing and illustrating a continuous controversy between the court and the defendant, who is a member of the bar of Douglas county, in the trial of a misdemeanor case, entitled “State of Nebraska v. Samuel E. Howell,” in which that defend- - ant was indicted with some 40 others. This controversy extended not only through the trial of the case, but through the settlement of the bill of exceptions in that case, and throughout the trial of this case which is now presented to this court. The record clearly shows that the trial judge, which would, of course, be presumed without such shoAving, was animated throughout by a fine sense of justice, and was using every possible effort to maintain the dignity of the court and the honorable reputation of the bar of the state, and was conscious of the character of the disgraceful proceedings throughout, and yet was unable to preserve that order and decorum which is essential to the due administration of justice. The defendant is one of the able lawyers of the state, of long practice in all the courts, and has held positions of great influence in the public service. Judging from this record, he is evidently fearless in the defense of the interests of his clients, and is willing, if it seems at the moment to be necessary, to make great sacrifices to promote their cause. These characteristics, of course, challenge the admiration of the courts, and yet it is equally manifest, we think, from this record that due consideration on the part of the defendant of the duties of counsel in the trial of causes and the proper exercise on his part of the ability of a strong lawyer to assist the court in the discharge of its arduous duties would have avoided all difficulty, and so it may be said that the record shows that the defendant is at fault. It is not necessary to go into this voluminous record in detail. That part of it which it will be necessary to quote in determining the legal questions presented will sufficiently illustrate the character of the proceedings. At the end of the trial of the principal case, the court «directed the county attorney, who is also the attorney for the prosecution in the principal case, to file an information against .this defendant, who was the leading counsel for the defendant in the principal case, charging the defendant with contempt of court in the process of that trial. In making this order the court directed the precise language used by the defendant, and apparently taken from the record, preserved of the former trial, which should be charged in the information against the defendant as the ground for the proceedings’for contempt. There were six counts in the information filed by the county attorney, and the defendant was found guilty as to two of the respective charges. It will therefore be unnecessary to discuss the remaining accusations.

1. The first count in the information upon which the defendant was found guilty charged: “After the said court had heard the said William J. Connell in his argument of the law of said case, on behalf of the defendant therein, and after the said court had announced to the said William J. Connell that the said court did not care to hear any further argument on the law of said case, the said William J. Connell, in answer to said announcement of said court, did then and there in a disorderly, contemptuous and insolent manner, and in a loud, boisterous, disrespectful and sarcastic tone of voice, with the intent on the . part of said William J. Connell then and there and thereby to intimidate, humiliate, insult and lower the dignity of the said court in the presence of a large number of bystanders and visitors, then and there being present in said court, use the following language toward said court, to-wit: ‘I don’t want to say that I have lost faith in the court, but I will go to the extreme of saying that I do not think that any law that I could produce to your honor would be of much effect. I have, got it (meaning the law) out of the Nebraska reports, and the supreme court is responsible for the law. I do not make the law. I merely find it and bring it into the court’—contrary to the form of the statute1 in such oases made and provided, and in contempt of said' district court and its dignity and against the peace and dignity of the state of Nebraska.” After the trial of the ITowell prosecution an attempt was made to settle the bill of exceptions, and it appears from the record that a transcript of the evidence taken in that case was procured and was agreed upon between the counsel for the respective sides, but had not been allowed by the court and ordered to be made a part of the record. From this transcript, extracts were presented and offered in evidence. Some objections were made to their being received. After some hesitancy they appear to have been received, and also appear to have been relied upon by both parties to this controversy as substantially showing the facts. In settling the bill of exceptions in this case, the judge has 'certified that the transcripts alluded to are not correct, and refers to the examination of the defendant, Connell, by the court as showing the incorrectness of these transcripts. This examination shows that the transcripts were not a part of the records of the court, and that the copy of the evidence of the former case from which the transcripts were taken had never been allowed by the court as the bill of exceptions in that case. It is, however, admitted upon all hands that the supposed offensive language of the defendant was preceded by more or less controversy between the parties, and no attempt is made by any one to show what that controversy was, except as disclosed in the transcripts referred to. Neither has any one attempted seriously to show in what respects 'these transcripts are defective or incorrect, and as they are in evidence, and assumed by counsel on both sides to be substantially correct, we think 1 hey must for the purposes of this case be so considered. It appears then from the record that, while the prosecuting attorney was questioning a witness in the trial of the MoAvell case in regard to some record that had been received in evidence, a discussion took place which led to the supposed offensive language of this defendant. This discussion was as follows: “Q. Now, referring to the entry opposite C. B. Havens & Company under June 10, 1905, the figúres 5 and two ciphers following, what does that mean, $5 or what? Objected to for the reason that the-book itself is the best evidence. We object that it is immaterial and irrelevant. We further object that it does not tend to sustain the charge or does not tend to sustain any count in this indictment. We further object that it relates to a date and a time prior to the time when the existing law under which this prosecution went into force. Objection overruled and defendant excepts. Mr. Connell: That was .a point I wanted to present, your honor, but if your honor has made up your mind not to hear any discussions or presentation here why I don’t care to go into that. The court: You have argued so much law that I thoroughly disagree with that I have kind of lost faith in the law you present to the court, and if I thought there would be anything gained by this discussion I would be glad to hear it. Mr. Connell: I don’t want to say I have lost faith in the. court, but I will go to the extreme of saying that I do not think that any law that I could produce to your honor would be of much effect. The court: Per haps that is because you have argued bad law to the court for a long time, and the court, I suppose— Mr. Connell: I have got it out of the Nebraska reports, and the supreme court is responsible for the law. I do not make the law. I merely find it and bring it into court. Objections overruled. Defendant excepts.”

It appears to be conceded in the findings of the trial judge that the language used by defendant Avould not necessarily in itself be contempt. The contempt was considered to consist in the manner of the defendant and the circumstances under which the language was used. The foregoing extract from the transcript illustrates two unfortunate conditions that existed during the whole trial. The trial judge Avas led into controversy and argument when nothing Avas required but prompt decision. He allowed himself frequently to be interrupted when attempting to explain the grounds of his ruling, and habitually alloAved extensive argument after having indicated his opinion upon the point under discussion. The objection to the question propounded to the Avitness, it appears, was stated at large by counsel, and after the objection had been flatly overruled, and counsel had taken his exception to the ruling, counsel stated that the point was one that he wanted to present, but if the'mind of the court was made up not to hear any presentation that he would not care to go into it. Ordinarily such a remark as this in open court would be regarded as more or less offensive. The implication plainly is that the point determined by the court was an important one; that it merited discussion, and the insinuation is that the court had made an important ruling without proper consideration of the matter, and that this indicated a condition of the mind of the court that made it undesirable to discuss the question. What we mean to say is that under some circumstances such a remark as this of counsel would be subject to such criticism as above, but the reply of the court Ayould indicate that such discussions were anticipated and not rarely to be expected. The remark of the court that he had lost faith in the law presented by counsel might be understood to call for some excuse or explanation on the part of counsel. The answer of counsel that “I do not think that any law that I could produce to your honor would be of' much effect,” taken literally, is merely a confirmation of the statement of the court. The difference in the two expressions consists in the inference to be drawn from each respectively. The one undoubtedly infers that counsel was in the habit of citing law to the court which was unreliable; while the other infers that the court was in the habit of disregarding the law when it was correctly cited by counsel. Such language on the part of either court or counsel can be accounted for only by the excitement which comes from the heat of unnecessary discussion and of a character to be carefully avoided. The court, instead of taking immediate measures to prevent such discussion in the future, continues it by a remark calculated to produce* the reply which followed. The court intimates that counsel has attempted to deceive him by citing unreliable; precedents, and counsel attempts to justify by stating the source of his authorities, a source which is regarded as legitimate, at least in the courts of this state. Thereupon the objection is again overruled, and another exception taken.

The charge of the other count of the information upon which the defendant- was found guilty is as follows: “The defendant did then and there in the presence and hearing of said court, and in the presence and hearing of the presiding judge thereof, said court then and there being in session as aforesaid, and engaged in the trial of said case, unlawfully and wilfully behave toward said court in a disorderly, contemptuous and insolent manner, in that then and there and during said trial of said case, and in the presence, and hearing of the jury impaneled in said case as aforesaid, and after the said court had passed upon the qualifications of a certain witness, called by the said defendant in said case to testify in said case, and had excluded said witness from testifying in said case, pursuant to an order of tlie said court theretofore made at the opening of the trial of said ease forbidding the Avitnesses in said case to be present in said court during the progress of the said trial of said case Avhen other AA-itnesses were testifying therein, the said William J. Connell did then and there in a disorderly, contemptuous and insolent manner, and in a loud, boisterous, disrespectful and sarcastic tone of voice, Avitli the intent on the part of said William J. Connell then and there and thereby to intimidate, humiliate, insult and lower the dignity of the said court in the presence of said jury and in the presence of a large number of bystanders and visitors then and there being present in said court, use the folloAving language toward said court, to Avit: ‘Noav, your honor, I contend and insist that to exclude any Avitness called by the defense, simply because that witness has violated some order of the court, and the defendant himself is not a party to it, Avould be not only the rankest injustice, but would be error of the grossest character.’ ” We cannot find any other substantial proof of the exact language attributed to the defendant in this count of the information and the preceding controversy that led to its use, except that contained in the transcripts from the proposed bill of exceptions above referred to, and for the reasons already given, Ave think that Ave must take those transcripts as furnishing the evidence upon that point, and they shoAV the -folloAving proceedings: “George E. Griffith, called as a witness on behalf of the defendant, being first duly SAVorn, Avas examined in chief by Mr. Stout, of counsel for the defendant, and testified as folloAvs: Q. You may state your name to the court and jury. A. George E. Griffith. Q. Where do you reside? A. 2823 DeAvey avenue, Omaha. Q. Hoav long have you lived in Omaha? A. Since the 16th of March, 1905. Q. What is your business? A. I am employed by the Union Fuel Company. Q. Where is the Union Fuel Company’s place of business? A. 1611 Farnam street. Q. What is the nature of your business with the Union Fuel Company? A. I am employed in the capacity of bookkeeper and solicitor. Q. In what way do you exercise that duty of yours as solicitor? Mr. Murdock: Has this man been in the court room? Immediate cross-examination by Mr. Murdock: Q. Have you been in the court room during the progress of this trial? A. I was in here for a short time one evening. Q. At the time of the taking of testimony? A.. Yes; I was in here Thursday evening, I believe; no, it was Wednesday evening. Mr. Murdock: Object to the witness testifying. Mr. Stout: His instructions have been to stay nut. Mr. Connell:..That can make no difference. Mr. Connell: Were you aware that you would be a witness when you were in here that evening? The court: The court allowed Mr.' Sunderland to testify because he was one of the defendants. Mr. Stout: If the witness is disqualified— Mr. Connell: My position js that he cannot be disqualified. The court: The court made the order, and-told counsel that order would be enforced. Mr. Connell: I want to show by this witness that he was not present when your honor made that order; that he .did not know anything about it; that he never expected to be a witness when he was called; and we wish to state, professionally, to the court, on my part and on behalf of my associate, Mr. Stout, we did not know that we would have to call him as a witness. I did not have the remotest idea that he would ever be a witness until well into yesterday; and, that being so, we ask and demand that his testimony be taken. Now, my understanding of the rule is this, your honor, that a party cannot be deprived of the right to use a witness simply because the witness violate^ some order of the court. If this witness has violated any order of the court, knowing that he was to be a witness! and has come into the court room, he would be liable for contempt of court; he would be punishable, himself, for contempt of court. But it cannot be, your honor. Suppose that Mr. Howell, in place of being on trial for an act in restraint of trade, was on trial for his life, and that this was the only witness by whom he could prove his innocence, and the witness has violated the order of the court; is it possible that he must be denied, his right to present that testimony, and go upon the executioner’s platform, because the Avitness, the only Avitness who could testify in his oavu behalf, has Avilfully, Ave aat.11 say, violated an order of the court? Noav, your honor, I contend and insist that to exclude any Avitness, called by the defense, simply because that Avitness has violated some order of the court, and the defendant himself is not a party to it, Avould be not only the rankest injustice, but Avould be error of the grossest character. The court: Then Ave Avill have error of the grossest character. Noav, I do not like that remark—grossest, rankest injustice1. Noav, Mr. Connell, you haA'e been making free use of such remarks, and some time you are going to find out this court is not going t.o permit that any more. Mr. Connell: I do not believe, your honor; I do not know Avliat your honor’s ruling Avould be. I am merely submitting that proposition, and I thought the mere statement of the result of that rule Avould satisfy your honor that it would not bo the proper thing. The court: The trouble is you have tried to blackguard the court all through this case by insinuations, and you are undertaking to carry things with a high hand, Avhether right or Avrong. This is not a murder case, and the court has a right to make any reasonable rule, and it must not be violated. In this case the defendant is charged with a misdemeanor. The court would have1 no Avay of enforcing its order if any Avitness could come in here, if he sees fit, and violate the order of the court. Mr. Connell: He could be punished for contempt. The court: The court is not looking for contempt cases at all. The court is looking for the enforcement of its orders. The court alloAved'Mr. Sunderland to testify, even though he had been in ' the court room Avliile testimony was being given, because he Avas one of the defendants in this case. Mr. Connell: We except to the ruling of the court.”

From this it appears that, when defendant, as counsel in the case, stated his position to the court that the wit ness Griffith could not be disqualified, the court replied: “The court made the order, and told counsel that order would be enforced.” This ought to have ended the controversy. This was a plain intimation that the court had considered and had determined that the order made at the commencement of the trial, excluding all witnesses from the court room, and directing that no witness should be examined who remained in the court room in violation of the order, applied to the witness Griffith; and, the court having come to this determination, there was no further necessity for debate; but it will be seen that Mr. Oonnell proceeded to argue the question at large. No one appears to have objected to this argument. The argument appears to be substantial, and on its face would appear to be in good faith, except for the fact that the point had already been determined. But the court listened to the argument. No attempt was made to prevent or restrict it, and at the close of the argument the court treated it as an attempt on the part of counsel to “blackguard the court.” It must be considered that the language used by counsel was not as choice and delicate as might be desired. He tells the court in closing .his argument that “to exclude any ■witness called by the defense (under the circumstances then existing) would be not only the rankest injustice, but would be error of the grossest character.” The court apparently considered that the point had already been decided; and counsel himself concedes that there was reason at the time to suppose that the court would exclude the testimony, and he characterizes the proposed action of the court as “the rankest injustice, and error of the grossest character.” We are not now considering the tone of voice, the gesticulations, or the manner of the defendant, other than as indicated by the language, itself. Mr. Oonnell, as a witness in his own behalf, testified that he was applying, at least in his own mind and intention, his characterization of the nature of such a ruling to the illustration which he himself had proposed in his argument, and that he did not at the time have in mind charac terizing the proposed ruling of the court upon the question before it. His explanation at the time to the court, as disclosed by the record, tends to support him in this testimony, and might have been taken as purging him of any intentional contempt of court in making the offensive remark—r“I do not know what your honor’s ruling would be. I am merely submitting that proposition, and I thought the mere statement of the result of that rule would satisfy your honor that it would not be the proper thing.” The reply of the court to this expression shows that under ordinary circumstances the explanation of. counsel would have been regarded hv the court as sufficient. It was only in the light of the general conduct of counsel during the course of that trial that the court regarded the language as offensive. Undoubtedly véry much must be confided to the discretion of the trial court in the characterization of the language of counsel which might or might not he regarded as contemptuous, so much depends upon the circumstances surrounding the use of the language, and upon the manner of counsel in using it, and other matters, that the record cannot be made to show that a reviewing court must in ordinary cases rely upon the judgment and discretion of the trial court, which is based in a large degree upon his personal observations and knowledge. This subject will be considered further in connection with the allegations of the information that the defendant acted in a “disorderly, contemptuous and insolent manner.” This is a criminal proceeding in its nature. The defendant is entitled to the benefit of any reasonable doubt as to his guilt. The language used by the defendant as charged in these two counts of the information, under the circumstances disclosed by the evidence, and in the light of the inducements and explanations contained in the record, would not of itself furnish sufficient proof that the defendant beyond reasonable doubt committed and intended to commit a wilful contempt against the authority and dignity of the court.

2. This is not a prosecution for a constructive contempt. The acts complained of were done in the presence of the court itself. The fact that the court delayed the proceedings for contempt until after the principal case was finished would not change the character of the proceedings. It- was the -duty of the court to hear the matter himself, and the defendant’s application for a change of venue was rightly overruled. These two propositions are elementary, and in the view that we take of the case they become unimportant, except as they bear upon the question which we come now to consider, and which we deem to. be the most difficult and important question in the case. Did the defendant act in “a disorderly, contemptuous and insolent manner”? Did he speak to the court “in a loud, boisterous, disrespectful and sarcastic tone of voice”? Did he intend and attempt '“to intimidate, humiliate, insult and lower the dignity of the court”? It appears to be conceded that the language used by the defendant might have been used with such manner and purpose as these questions indicate, or might have been used in the heat of the debate without malicious intent with the purpose as explained and insisted upon in the testimony of the defendant. The trial court saw- the conduct of the defendant. He observed his manner, his tone of voice, and the circumstances under which he spoke. He was manifestly, as shown by the record, endeavoring to do his whole duty, and to conduct the trial in a seemly and appropriate manner. He has made a general finding in the case that the defendant “unlawfully and wilfully did behave toward said court in a disorderly, contemptuous and insolent manner, in that then and there and during the trial of said case, and in the presence and hearing of the jury impaneled in said case as aforesaid, and after said court had passed upon the qualification of a certain witness, called by the said defendant in said case to testify in said case, and had excluded said witness from testifying in said case, pursuant to the order of said court theretofore made at the opening of the trial of said case forbidding witnesses in said case to be present in said court during the progress of said trial of said case when other witnesses were testifying therein, the said William J. Connell did then and there in a disorderly, contemptuous and insolent manner, and in a loud, boisterous, disrespectful and sarcastic tone of voice, with the intent on the part of said William J. Connell then and there and thereby to humiliate, intimidate, insult and lower the dignity of the said court in the presence of said jury and in the presence, of a large number of bystanders and visitors then and there being present in said' court, use the following language; toward said court, to wit: ‘Non7, your honor, I contend and insist that to exclude any witness called by the defense, simply because that witness has violated some order of the court, and the defendant himself is not a party to it, would be not only the rankest injustice, but would be error of the grossest character.’ That said language was used by the defendant wilfully, unlawfully, contumaciously, and in contempt, of this court, and was an attempt of said defendant to obstruct the proceedings and hinder the due administration of justice in said case then pending and on trial before this court. The court therefore finds the defendant guilty as set forth in the first, second, third and fourth counts of the information.”

It is contended that these findings are sufficient to support the cemviction without regard to the evidence; that, the language and actions of the defendant and the manner in which the lauguage was used and the actions we're elone were necessarily within the personal knowledge e>f the judge, and that the specific charge of the manne'r of the defendant and speefific finding and statement of the; judge thereon requireel the rendering of the judgment that follenve'el. We do not want to be understood as deciding that in ordinary cases something more is necessary than the statement of the facts upon the record and the findings of the court thereon to support a conviction of contempt committed in the presence of the court. In this case we think that, the judgment is not supported by the record. Instead of relying upon the knowledge of the court and inflicting summary punishment upon a contumacious attorney, the court directed the formality of a legal trial. It was stated from the bench that the matter was left in the hands of the county attorney, and the state called and examined numerous witnesses to prove, not only the fact of the use of the language alleged, but also definitely and specifically the manner and tone of the Amice of the defendant and all of the surrounding-circumstances and conditions, assuming the burden of proAdng in the. ordinary way all of the matters alleged in the information. The findings of the court are borroAved literally from the information, and contain the most of the allegations of the information in the language and form in which the matters are charged. Outside of these formal findings there is no statement of the court in regard to the transactions that took place in the presence of the court. The findings are manifestly based upon the information and the evidence, and must be taken as reflecting the views of the court as to the facts established by the Avitnesses examined, and not from his own knowledge.

Among- the Avitnesses examined for the state were the two bailiffs of the court, and the testimony of the witness Kirkendall, one of the bailiffs, fairly sIioavs the evidence upon AAdiich the findings and conviction are based. This witness appears to be very observing and conscientious. He Avas questioned by the prosecution, and ansAvered as folloAA’s: “Q. Was the language used by Mr. Connell, just quoted, spoken in a voice loud enough so, that $he people back in the court room would be able to hear it? A. I judge that any one in the court room could hear it. He did not say it in a very boisterous manner, but he said it so that any one in the court room might have heard it. I was sitting back there in my chair, and I heard it. Q. What Avas Mr. Connell’s manner and demeanor, and what was the tone of his voice at the time he addressed the language quoted' to the court? A. Well, I thought that lie spoke in AAdiat I Avould consider a kind of natural tone of voice for Mr. Connell. He talks very lond, but he spoke it in a kind of, that is, he finished it np, if I remember right, in a kind of half laughing manner, as though he had no confidence in bringing—” He was then interrupted, and, being told by the court to continue his answer, answered further as follows: “A. Well, he spoke it as though he thought it was useless to—he left the impression that he thought it would be useless to add any more law. He left the impression that he did not think it would carry any weight with it. That is the nearest I could give it. Q. What do you say, Mr. Kirkendall, as to whether the tone of voice used by Mr. Connell, when he employed that language, was respectful or disrespectful to the court? A. Well, now, that is hard for me to answer. If I was to use my own judgment, I would say that I did not suppose that Mr. Connell cared much for the court—respected the court a whole lot in that statement. Q. I will"ask you to state whether the tone of his voice, when he used the language referred to, was sarcastic or otherwise? A. No; I don’t know as it was. I thought it was a kind of natural tone of voice for Mr. Connell. Q. Have you stated, now, the manner in which his tone and conduct impressed you when he was using that language? A. I think I have.” This related to the first and second counts in the information. As to the third and fourth counts in the information he was questioned, and answered as follows: “Q. Were you also present in the court room, Mr. Kirkendall, during the trial of the case of the State of Nebraska against Howell, when the defendant, William J. Connell, addressed the court, his honor, Judge Sutton, then presiding, in the following language: Now, your honor, I contend and insist that to exclude any witness called by the defense, simply because he has violated some order of the court, and the defendant himself is not a party to it, would be not only the rankest injustice, but would be error of the grossest character’? A. Yes, sir. Q. I will ask you to state what tone of voice Mr. Connell used when he employed the language quoted? A. Well, in that statement, I think he used a kind of animated tone of voice. Q. Could you say as to whether it was boisterous or not? A. Well, it was very loud. Q. Was it unusually loud? A. Yes, sir. Q. What would yon say as to whether or not the language used by Mr. Connell toward the court was used in an insolent manner or otherwise? A. Well, I don’t know as to that. I was off that distance. I could hear it plainly. I could not see his face. Q. What would you say as to whether it was in a disrespectful or respectful font' of voice? A. Well, it sounded to me as challenging the judge on excluding the witness. Well, I don’t know how you want me to answer that, unless I can answer It in my own way. Q. Read the question. A. I heard the question. Q. What would you say, Mr. Kirkendall, as to whether the tone of voice was respectful or disrespectful? A. Well, it sounded to me, of course, disrespectful, for the reason that it sounded as if he was issuing a challenge to the judge for excluding the witness from the chair on account of being in the room during the trial.”

There appears to he two statements of this witness that tended perhaps in some degree to support the allegations of the information. When asked the leading question by the state’s counsel in regard to the language of the defendant, “Was it unusually loud?” he answered, “Yes, sir,” and he says that “it sounded to me, of course, disrespectful.” But the reason for this latter conclusion is derived, 'as appears from his answer, entirely from the language itself, and not from the manner in which it was used. If the witness had»,understood that the question as to excluding the testimony of the witness, Griffith, was still undetermined, and that' the court might yet conclude to allow the evidence, and was listening to the argument for the purpose of determining the propriety of so doing, this witness undoubtedly would not have considered the language used as disrespectful. We cannot add to this opinion, already too long, by quoting further from the evidence of the state’s witnesses. There was none more convincing than the evidence of the witness Kirkendall. The defendant testified as a witness in his own behalf. He plainly and unequivocally explained the language used, the circumstances under which it was used, and his purpose and intention in using it. If his evidence is to be believed, it completely purge's him of contempt.

The evidence fails to show beyond a reasonable doubt that the defendant was guilty of a wilful purpose to obstruct, the proceedings of the court, or to insult or humiliate the" judge either by boisterous behavior, by loud or sarcastic language', en* hv offensive and insulting demeanor.

The judgment e>f the district cemrt is reversed and the cause remanded.

Reversed.