Crudup v. State of Georgia

129 S.E.2d 183, 106 Ga. App. 833, 1962 Ga. App. LEXIS 868

• Court: Court of Appeals of Georgia
• Decided: September 27, 1962
• Docket: 39545
• Status: Published

Opinions

Hall, Judge.

1. In Garland v. State of Ga., 99 Ga. App. 826, 832 (110 SE2d 143), this court held that a judgment of contempt must contain “factual holdings setting out the misconduct on the part of the attorney such as will disclose to a reviewing court the subject matter upon which the discretion of the trial court operated.” The judgment in this case meets that test.

2. The reconciliation between an attorney’s duty to maintain respect due the courts¹ and his duty to protect and advance the interests of his client² may prove to be at times difficult. Nevertheless, it is basic that even as to laymen ignorance of the law is no excuse. Code § 102-105. Surely this applies with even greater force to an attorney who is a member of one of the three “learned professions.” Accord, Georgia State Bd. of Examiners in Optometry v. Friedman’s Jewelers, Inc., 183 Ga. 669, 673 (189 SE 238). Few cases are found adjudicating the question of contempt by an attorney in disobeying the rulings of the court. We believe this indicates that generally lawyers and judges accord great respect to the authority, duties, and rights of each other and the vital role of each in the judicial process.

The act establishing the City Court of Hall County (Ga. L. 1890-91, p. 939, as amended by Ga. L. 1916, pp. 225, 228), provided that the court shall be a court of record, have the same rules of procedure and practice as the superior courts of the State unless otherwise provided in the act, and that the judge shall have the same power to enforce his orders, to preserve order, to punish for contempt and to enforce all his judgments as is vested by law in the judges of the superior courts of the State.

Code § 24-104 provides: “Every court has power—1. To preserve and enforce order in its immediate presence, and as near thereto as is necessary to prevent interruption, disturbance, or hindrance to its proceedings. . . 3. To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding therein. . . 4. To control, in furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto.” The power to punish contempts is inherent in every court of record (Atlanta Newspapers, Inc. v. State of Ga., 216 Ga. 399 (1), 116 SE2d 580) and, under Code § 24-104, “every court, whether a court of record or not, has power to punish for contempt committed in its immediate presence.” Plunkett v. Hamilton, 136 Ga. 72 (1) (70 SE 781, 35 LRA (NS) 583, AC 1912B, 1259); Brooks v. Sturdivant, 177 Ga. 514, 516 (170 SE 369); Watson v. Dampier, 148 Ga. 588 (1) (97 SE 519); Rapalje, Contempt, p. I.³ Rule 23 of the Rules of the Superior Courts (Code § 24-3323) specifically provides: “No attorney shall ever attempt to argue or explain a case, after having been fully heard, and the opinion of the court has been pronounced, on pain of being considered in contempt.”⁴ Accord, 17 CJS 35, § 25(b). “The majesty of the law must be maintained; its mandates must be implicitly obeyed.” Mays v. Willingham, 37 Ga. App. 478, 480 (140 SE 789).

Contempt of court has been variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court, but “it also includes the interruption of the proceedings. . 12 Am. Jur. 389, Contempt, § 2. Contempt of court, as a punishable offense, is as old as the courts themselves. 4 Blackstone’s Commentaries 284. This is especially true in the case of criminal contempt where the court exercises a disciplinary and summary jurisdiction over attorneys and other officers of justice. Fox, History of Contempt of Court 3, 156-157.⁵ Care must be taken however to distinguish between cases of contempt in facie curiae and those involving an out-of-court statement. The latter involves the constitutionally guaranteed liberty of free expression and the power of courts to punish for such con-tempts is limited to cases in which there is a “clear and present danger to the administration of justice.” McGill v. State of Ga., 209 Ga. 500, 504 (74 SE2d 78); Wood v. Georgia, 370 U.S. 375 (82 SC 1364, 8 LE2d 569); Bridges v. California, 314 U.S. 252 (62 SC 190, 86 LE 192); Pennekamp v. Florida, 328 U.S. 331 (66 SC 1029, 90 LE 1295); Craig v. Harney, 331 U.S. 367 (67 SC 1249, 91 LE 1546). The former involves the inherent power of courts “to maintain order in their courtrooms and to assure litigants a fair trial . . .” Wood v. Georgia, 370 .U.S. 376, 383, supra. It “is absolutely essential to the protection of the courts in the discharge of their functions.” White v. George, 195 Ga. 465, 470 (24 SE2d 787). “As an incident to their being, courts must have the authority ‘necessary in a strict sense’⁶ to enable them to go on with their work. In doing their work, courts, like others, may encounter obstructions. They must, therefore, be vested with incidental powers of self-protection. . . . Some action is necessary to enable the court to proceed with its affairs. . . This manifestation of a court’s activity is not a mystical emanation . . .; it is referable solely to the fact that a court has business at hand and must get on with it.” Frankfurter and Landis, “The Power To Regulate Contempts”, 37 Harvard Law Review, 1010, 1022. In summary, the interference with the immediate process of litigation may be treated by the presiding judge as a facie curiae contempt. Ex parte Terry, 128 U.S. 289 (9 SC 77, 32 LE 405).

Questions of contempt are for the court treated with contempt, and the trial court’s adjudication of contempt will not be interfered with unless there is a gross, enormous, or flagrant abuse of discretion. Salem v. State of Ga., 101 Ga. App. 905 (1) (115 SE2d 447); Garland v. State of Ga., 101 Ga. App. 395, 401 (114 SE2d 176); Cabot v. Yarborough, 27 Ga. 476; Remley v. DeWall, 41 Ga. 466; Hayden v. Phinizy, 67 Ga. 758; Warner v. Martin, 124 Ga. 387 (52 SE 446, 4 AC 180); Mays v. Willingham, 37 Ga. App. 478, supra.

The judgment here shows that the contemnor attempted to recall a witness for the purpose of further cross-examination and that upon ascertaining the purpose of such recall the trial judge ruled adversely to the contemnor on this point, but stated that the witness could be called as a witness for the contemnor’s client.' The contemnor insisted upon recalling the witness for the purpose of further cross-examination. The trial judge again ruled adversely to the contemnor on the same question and directed him to proceed with his defense. The contemnor again insisted upon recalling the witness. The trial judge again ruled for the third time adversely to the contemnor on the same question. The contemnor again insisted for the third time (after three previous rulings on the same question) upon recalling the witness. By virtue of the foregoing rules of law, and with specific reference to Code § 24-3323, and under the record in this case, we cannot say that the trial judge’s adjudication of contempt was a gross, enormous or flagrant abuse of discretion. Garland v. State of Ga., 101 Ga. App. 395, supra.⁷

The fact that the trial judge did not adjudicate the contemnor in contempt until after he had given him an opportunity to make a statement as to why he should not be held in contempt is of no consequence. Undoubtedly this delay was “a wise exercise of discretion ... to allow the contemnor an opportunity to mitigate his offense by showing that no contempt was intended, or any other mitigating circumstances, except in cases where there would be no excuse for the action of the contemnor.” White v. George, 195 Ga. 465, 470-471, supra; Ex parte Kearney, 7 Wheat. (20 U.S.) 38 (5 LE 391). “In all ordinary matters an advocate must, even more than ordinary persons, since he has a special privilege to practice law, conform himself to the usages of the Court and the rulings of the Judge.” Oswald’s Contempt of Court, pp. 54-55. Being an officer of the court, a member of a learned profession and fully cognizant of Code § 24-3323, the contemnor needed no specific warning to cease persisting in his argument in view of the three previous rulings of the court that the witness could not be recalled for further cross-examination. He needed no further protection for his client than an adequate record. Even if the trial judge was in error on his first ruling, it was the duty of counsel to abide by the first and subsequent rulings; and if any right of his client was violated, the remedy was by writ of error. “Any other procedure would result in mockery of our trial courts and would destroy every concept of orderly process in the administration of justice.” Fisher v. Pace, 336 U.S. 155, 162 (69 SC 425, 93 LE 569).

We have not overlooked the case of In Re McConnell, 370 U.S. 230 (8 LE2d 434). It is not controlling here for the reason that it merely involved the “exercise of” the Supreme Court of the United States’ “supervisory power” over inferior Federal courts. Furthermore it is distinguishable from the present question on several grounds.⁸

It matters not what we individually might have done under the circumstances if we were sitting as the trial judge. The trial judge has a wide discretion in regulating and controlling the business of the court and the conduct of the trial. Atlanta Newspapers, Inc. v. Grimes, 216 Ga. 74 (114 SE2d 421); Bannister v. Hubbard, 82 Ga. App. 813 (62 SE2d 761); Jackson v. Moultrie Production Credit Assn., 76 Ga. App. 768 (47 SE2d 127). We have no discretion and must follow what Chief Justice Sir Edward Coke called the “straight mete-wand of the law.”

We must also remember that ours is an adversary system and that the two opposing attorneys are partisan advocates. Confidence and power is reposed in the trial judge to administer the business of the court in a non-partisan manner. Such occurrences as we have in this case must be viewed as a unit in order to appraise properly the alleged misconduct. The relationship of the contemnor as an officer of the court must not be lost sight of and reliance must be placed upon the fairness and objectivity of the presiding judge. Fisher v. Pace, 336 U.S. 155, 161, supra; accord, Garland v. State of Ga., 101 Ga. App. 395, 416-417, supra. It is axiomatic that, if we do not uphold the trial judges in this State in the proper exercise of their discretionary power to control recalcitrant attorneys, they will control our trial judges.

Judgment affirmed. Carlisle, P. J., Bell, Frankum, Jordan, Eberhardt and Russell, JJ., concur.

Felton, C. J., and Nichols, P. J., dissent.

1 Canon 1, The Canons of Professional Ethics of the American Bar Association, states: “It is the duty of the lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance.” Adopted by the Georgia Bar Association, May 29, 1947. Report, Georgia Bar Association, 1947, pp. 51,151, 328.

2 Canon 15, The Canons of Professional Ethics of the American Bar Association, states: “The lawyer owes ‘entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability,’ to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client.” Adopted by the Georgia Bar Association, May 25, 1947. Report, Georgia Bar Association, 1947, pp. 51, 151, 332.

3 “We start with the premise that the right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government and that courts necessarily must possess the means of punishing for contempt when conduct tends directly to prevent the discharge of their functions.” Wood v. Georgia, 370 U.S. 375, 383.

4 Rule 23 (Code § 24-3323) was present in the Code of 1910 as § 6265, was incorporated in the amendment of 1916 (Ga. L. 1916, pp. 225, 228) to the act establishing the City Court of Hall County and is applicable in the present case. Chance v. State, 97 Ga. 346 (23 SE 832).

5 “The twentieth Article of John’s Magna Carta does not extend to officers of justice, whose amercements are assessed by the Court and not by the jury.”

6 Holmes, J., in Craig v. Hecht, 263 U.S. 255, 280, 281 (44 SC 103, 68 LE 293).

7 Even the dissenting opinion (p. 421) in the Garland case concedes that “A lawyer is required by the rules of court to yield, without further argument, to any order or ruling of the judge in whose presence he is. Failure to do so is contempt.”

8 a. The Federal courts have no statute similar to Code § 24-3323.

b. There being no similar statute, the contempt was based on the alleged improper language of the attorney as being an actual obstruction of justice.

c. It is clear from In Re McConnell that the inferior Federal courts, as distinguished from Georgia courts of record, are “limited in contempt cases, to ‘the least possible power adequate to the end proposed.’ ” P. 234.

d. There was a real issue in In Re McConnell as to whether it was necessary under the Federal Rules of Civil Procedure for the attorney to pursue the questioning which the judge had forbidden in order to perfect his record for appeal.