MANTON, Circuit Judge
(after stating the facts as above). [1] The power of a circuit judge to issue a writ of habeas corpus is questioned by a motion to dismiss. I have held heretofore that a circuit judge has such power. In re David Lamar (C. C. A.) 274 Fed. 160. Nothing has been submitted in this proceeding which causes me to change ¡lie views there expressed. Further, at the time of the issuance of tin’s writ, the circuit judge writing was by assignment empowered to consider matters of original jurisdiction. The application to dismiss the writ for want of authority to issue the same is denied.
[2] A writ of habeas corpus cannot be made to perform the office of a writ of error. Nor can it lie invoked to review an erroneous judgment of a court of competent jurisdiction. It challenges the jurisdiction of the court. In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092; Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152, 28 L. Ed. 274; Ex parte Watkins, 28 U. S. (3 Pet.) 193, 7 L. Ed. 650.
In a contempt proceeding it may be available to relieve a prisoner from the restraint imposed if the judgment is void on the ground that the court was without the power to make it. But the usual objection to the remedy sought by the medium oí habeas corpus is that there is a regular judgment of conviction which cannot be questioned collaterally. There are exceptions to this rule which have been recognized. Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717.
If the court which renders a judgment has not jurisdiction to render it, either because the proceedings or the law under which they are taken are unconstitutional, or for any other reason, the judgment is void and may be questioned collaterally. The defendant, who is imprisoned under and by virtue of such a judgment, may be discharged from custody on habeas corpus. In re Hans Nielsen, 131 U. S. 176, 183, 9 Sup. Ct. 672, 674 (33 L. Ed. 118). There the court said:
‘‘In the present case, it is true, the ground for the habeas corpus was, not the invalidity of an act of Congress under which the defendant was indicted, but a second prosecution and trial for the same offense, contrary to an express provision of the Constitution. In other words, a constitutional immunity of the defendant was violated hy the second trial and judgment. It is difficult to [182]*182see why a conviction and punishment under an unconstitutional law is more violative of a person’s constitutional rights than an unconstitutional conviction and punishment under a valid law. In the first case, it is true, the court has no authority to take cognizance of the case; but, in the other, it has no authority to render judgment against the defendant.”
In Ex parte Lange, supra, the court had authority to hear and determine the case. But the Supreme Court held it had no authority to give the judgment it did. As was said in the Nielsen Case, supra;
“He was protected by a constitutional provision, securing to him a fundamental right. It was not a case of mere error in law, but a ease of denying to a person a constitutional right.’1’
[3] So where there is a denial or invasion of a constitutional right, the prisoner may be discharged on a habeas corpus. Therefore the determining inquiries are; (a) Had the district judge jurisdiction of the person and subject-matter? (b) Was the sentence imposed within its power ?
Judicial Code, § 268, 36 Stat. 1163 (Comp. St. § 1245), provides:
“The said courts [United States courts] shall have power * * * to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, that such power to punish for contempts shall not be construed to extend to any eases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice. *’ * * ”
In Henry v. Henkel, 235 U. S. 219, 35 Sup. Ct. 54, 59 L. Ed. 203, it is pointed out that there were five exceptions to the rule that there can be no review on a habeas corpus of a sentence which can be reviewed on appeal or by a writ of error. One of the five exceptions is where the judgment or order entered under which he is held is a nullity because in excess of the power of the court.
An example of this exception was recently before the Supreme Court in Ex parte Hudgings, 249 U. S. 378, 39 Sup. Ct. 337, 63 L. Ed. 656, 11 A. L. R. 333. There, on a rule to show cause, a petition of habeas corpus seeking the discharge of the petitioner from custody under a commitment for contempt was filed. The grounds for discharge were that the court had exceeded its jurisdiction by punishing as a contempt an act which it had no power to so punish, and that even if the act punished was susceptible of being treated as a contempt, the action of the court was arbitrary, beyond the limits of any discretion possessed, and violative of due process of law under the Fifth Amendment. The court said:
“The duty to consider the case arises from the permission to file, and therefore prima facie implies that it is of such a character as to be an exception to the rule of procedure, that other available sources of judicial power may not be passed by for the purpose of obtaining relief by resort to the original jurisdiction of this court. Ex parte Royal, 117 U. S. 254; Riggins v. United States, 199 U. S. 547; Glasgow v. Moyer, 225 U. S. 420, 428; Johnson v. Hoy, 227 U. S. 245; Jones v. Perkins, 245 U. S. 390; In re Mirzen, 119 U. S. 584; In re Huntington, 137 U. S. 63. Whether, however, definitely the case is of such exceptional character, must depend upon an analysis of the merits, which we now proceed to make upon the petition, the return, argument for the petitioner, suggestions by the United States, a statement by the judge, and [183]*183a transcript oí the stenographer’s notes showing what transpired in the court below, made a part of the argument of the petitioner, and in substance conceded by all parties to be the record.”
In the case at bar there is submitted the petition, alleging, among other things, that the judgment under which the petitioner is held is a nullity, because in excess of the power of the court, and because of the arbitrary action of the court beyond the limits of any discretion possessed. The proceedings are sought to be justified by the return which is filed and the testimony taken on the hearing before Judge Mayer is made a part thereof.
Free access — add to your briefcase to read the full text and ask questions with AI
MANTON, Circuit Judge
(after stating the facts as above). [1] The power of a circuit judge to issue a writ of habeas corpus is questioned by a motion to dismiss. I have held heretofore that a circuit judge has such power. In re David Lamar (C. C. A.) 274 Fed. 160. Nothing has been submitted in this proceeding which causes me to change ¡lie views there expressed. Further, at the time of the issuance of tin’s writ, the circuit judge writing was by assignment empowered to consider matters of original jurisdiction. The application to dismiss the writ for want of authority to issue the same is denied.
[2] A writ of habeas corpus cannot be made to perform the office of a writ of error. Nor can it lie invoked to review an erroneous judgment of a court of competent jurisdiction. It challenges the jurisdiction of the court. In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092; Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152, 28 L. Ed. 274; Ex parte Watkins, 28 U. S. (3 Pet.) 193, 7 L. Ed. 650.
In a contempt proceeding it may be available to relieve a prisoner from the restraint imposed if the judgment is void on the ground that the court was without the power to make it. But the usual objection to the remedy sought by the medium oí habeas corpus is that there is a regular judgment of conviction which cannot be questioned collaterally. There are exceptions to this rule which have been recognized. Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717.
If the court which renders a judgment has not jurisdiction to render it, either because the proceedings or the law under which they are taken are unconstitutional, or for any other reason, the judgment is void and may be questioned collaterally. The defendant, who is imprisoned under and by virtue of such a judgment, may be discharged from custody on habeas corpus. In re Hans Nielsen, 131 U. S. 176, 183, 9 Sup. Ct. 672, 674 (33 L. Ed. 118). There the court said:
‘‘In the present case, it is true, the ground for the habeas corpus was, not the invalidity of an act of Congress under which the defendant was indicted, but a second prosecution and trial for the same offense, contrary to an express provision of the Constitution. In other words, a constitutional immunity of the defendant was violated hy the second trial and judgment. It is difficult to [182]*182see why a conviction and punishment under an unconstitutional law is more violative of a person’s constitutional rights than an unconstitutional conviction and punishment under a valid law. In the first case, it is true, the court has no authority to take cognizance of the case; but, in the other, it has no authority to render judgment against the defendant.”
In Ex parte Lange, supra, the court had authority to hear and determine the case. But the Supreme Court held it had no authority to give the judgment it did. As was said in the Nielsen Case, supra;
“He was protected by a constitutional provision, securing to him a fundamental right. It was not a case of mere error in law, but a ease of denying to a person a constitutional right.’1’
[3] So where there is a denial or invasion of a constitutional right, the prisoner may be discharged on a habeas corpus. Therefore the determining inquiries are; (a) Had the district judge jurisdiction of the person and subject-matter? (b) Was the sentence imposed within its power ?
Judicial Code, § 268, 36 Stat. 1163 (Comp. St. § 1245), provides:
“The said courts [United States courts] shall have power * * * to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, that such power to punish for contempts shall not be construed to extend to any eases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice. *’ * * ”
In Henry v. Henkel, 235 U. S. 219, 35 Sup. Ct. 54, 59 L. Ed. 203, it is pointed out that there were five exceptions to the rule that there can be no review on a habeas corpus of a sentence which can be reviewed on appeal or by a writ of error. One of the five exceptions is where the judgment or order entered under which he is held is a nullity because in excess of the power of the court.
An example of this exception was recently before the Supreme Court in Ex parte Hudgings, 249 U. S. 378, 39 Sup. Ct. 337, 63 L. Ed. 656, 11 A. L. R. 333. There, on a rule to show cause, a petition of habeas corpus seeking the discharge of the petitioner from custody under a commitment for contempt was filed. The grounds for discharge were that the court had exceeded its jurisdiction by punishing as a contempt an act which it had no power to so punish, and that even if the act punished was susceptible of being treated as a contempt, the action of the court was arbitrary, beyond the limits of any discretion possessed, and violative of due process of law under the Fifth Amendment. The court said:
“The duty to consider the case arises from the permission to file, and therefore prima facie implies that it is of such a character as to be an exception to the rule of procedure, that other available sources of judicial power may not be passed by for the purpose of obtaining relief by resort to the original jurisdiction of this court. Ex parte Royal, 117 U. S. 254; Riggins v. United States, 199 U. S. 547; Glasgow v. Moyer, 225 U. S. 420, 428; Johnson v. Hoy, 227 U. S. 245; Jones v. Perkins, 245 U. S. 390; In re Mirzen, 119 U. S. 584; In re Huntington, 137 U. S. 63. Whether, however, definitely the case is of such exceptional character, must depend upon an analysis of the merits, which we now proceed to make upon the petition, the return, argument for the petitioner, suggestions by the United States, a statement by the judge, and [183]*183a transcript oí the stenographer’s notes showing what transpired in the court below, made a part of the argument of the petitioner, and in substance conceded by all parties to be the record.”
In the case at bar there is submitted the petition, alleging, among other things, that the judgment under which the petitioner is held is a nullity, because in excess of the power of the court, and because of the arbitrary action of the court beyond the limits of any discretion possessed. The proceedings are sought to be justified by the return which is filed and the testimony taken on the hearing before Judge Mayer is made a part thereof. It is argued on behalf of the petitioner (a) that there is no contempt either in substance or in the language of the letter of October 6; and (b) that at the time the letter was written the subject-matter of the criticism was not pending sub judice.
In the Hudgings Case, supra, a witness testified who was declared by the district judge to be committing perjury. The judge considered him in contempt of court because of his continuous refusal to recognize writings shown to him, the signature of which he said he could not identify because he had no recollection of having seen the signatory sign. The district judge, because of the peculiar circumstances of the case, thought the contrary, and held that the witness was testifying falsely, and that his refusal was obstructing the course of justice in the presence of the court. The Supreme Court discharged the prisoner and said:
•‘Existing within the limits of and sanctioned by the Constitution, the power to punish for contempt committed in the presence of the court is not controlled by the limitations of the Constitution as to modes of accusation and methods of trial generally safeguarding the rights of tiie citizen. Tills, however, expresses no purpose to exempt judicial authority from constitutional limitations, since its great and only purpose is to secure judicial authority from obstruction in the performance of its duties to the end that means appropriate for the preservation and enforcement of the Constitution may he secured. Toledo Newspaper Co. v. United States, 247 U. S. 402; Marshall v. Gordon, 213 U. S. 521. An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest. This being true, it follows ihat the presence of that element must clearly be,shown in every ease where ihe power to punish for contempt is exerted- — a principle which, applied to ihe subject in band, exacts that in order to punish perjury in the presence of the court as a contempt there must he added to the essential elements of perjury under the general law the further element of obstruction to the court in the performance of its duty. * * * But the mistake is, we think, evident, since it either overlooks or misconceives the essential characteristic of the obstructive tendency underlying the contempt power, or mistakenly attributes a necessarily inhei-ent obstructive effect to false swearing. * * * Testing the power to make tbe commitment which is under consideration in this case by the principles thus sl ated, we are of opinion that the commitment was void for excess of power — a conclusion irresistibly following from the fact that the punishment was imposed for the supposed ■ perjury alone, without reference to any circumstance or condition giving to it an obstructive effect.”
The argument of the petitioner is that there was an excess of power exercised by the district judge; that the conviction for contempt is therefore a nullity. He contends among other things (1) that the writing and sending of the letter does not tend to obstruct the admin[184]*184istration of justice; (2) that at the time the letter was sent the application for the appointment of a coreceiver had been disposed of, and therefore there was not pending before the court a proceeding which the letter could affect by obstructing the administration of justice.
[4] If either of these contentions be sound,' there was an excess of power exercised in the action of the district judge and the petitioner is entitled to his discharge on this writ. Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. 734, 29 L. Ed. 868; Ex parte Lange, 85 U. S. (18 Wall.) 163, 21 L. Ed. 872; New York v. Eno, 155 U. S. 89, 15 Sup. Ct. 30, 39 L. Ed. 80; In re Loney, 134 U. S. 372, 10 Sup. Ct. 384, 33 L. Ed. 949; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717. He may be discharged, if on inquiry raised by the writ it is found that the court “has transcended its powers.” Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787. In Ex parte Lange, 85 U. S. (18 Wall.) 163, 166, 178 (21 L. Ed. 872), Justice Miller said:
“Disclaiming any assertion of a general power of review over the judgments of the inferior courts in criminal cases, by the use of the writ of habeas corpus or otherwise, we proceed to examine the case as disclosed by the record of the Circuit Court and the return of the marshal, in whose custody the prisoner is found, to ascertain whether it shows that the court below had any power to render the judgment by which the prisoner is held. * * * There is no more sacred duty of a court than, in a case properly before it, to maintain unimpaired those securities for the personal rights of the individual which have received for ages the sanction of the jurist and the statesman; and in such cases no narrow or illiberal construction should be given to the words of the fundamental law in which they are embodied. TTithoot straining either the Constitution of the United States, or the well-settled principles of the common law, we have come to the conclusion that the sentence of the Circuit Court under which the petitioner is held a prisoner was pronounced without authority, and he should therefore be discharged.”
In Bacon’s Abridgement, Habeas Corpus, B 10, the rule states:
“If the commitment be against law, as being made by one who had no jurisdiction of the cause or for a matter for which by law no man ought to be punished, the courts are to discharge,”
In Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717, the Supreme Court approved the foregoing quotation and said:
“The latter part of this rule, when applied to imprisonment under conviction and sentence, is confined to cases of clear and manifest want of criminality in .the matter charged, such as in effect to render the proceedings void.”
The court must act judicially in all things and cannot transcend the power conferred by the law, and when the court does so in imposing the sentence not merely is an error committed, but the judgment is absolutely void. Bailey on Habeas Corpus, § 50. In Ex parte Parks, 93 U. S. at page 22, 23 L. Ed. 787, Justice Bradley said:
“From this review of the law it is apparent, therefore, as before suggested, that in a case like the present, where the prisoner is in execution upon a conviction, the writ ought not to be issued or, if issued, the prisoner should at once be remanded, if the court below had jurisdiction of the offense, and did no act beyond the powers conferred upon it. The court will look into the proceedings so far as to determine this question. If it finds that the court below has transcended its powers it will grant the writ and discharge the prisoner, even after judgment.”
[185]*185[5] From this record it is evident that if any contempt was committed it was a constructive contempt as distinguished from direct contempt. The district judge in his opinion fixes responsibility of guilt upon that portion of the letter written which contains a false charge that the “judge was responsible for a policy of denying to the writer and other members of the board of estimate and apportionment any access to original sources of information concerning the property and affairs of the company.” He held this to be a contempt of court, within section 268 of the Judicial Code, as misbehavior so near the court as to obstruct the administration of justice.
The findings of fact having any evidence to support them are binding upon an application such as this. The objectionable language of the letter is referred to in the court’s opinion (United States v. Craig [D. C.] 266 Fed. 230):
“Before any smell conference can be seriously considered, and as an evidence of good faith on the part of those acting by and under the authority of United States District Judge Mayer, there must, be a reversal of the policy for which Judge Mayer is responsible of denying to myself and other members of the hoard of estimate and apportionment any access to original sources of information concerning the property and affairs of these various public utility corporations holding franchises to operate in the streets of New York.”
It will be observed that the entire letter refers to the denial of the application to appoint a coreceiver. The purport of the letter, taken as a whole, is a criticism of the district judge who denied the application. If the comptroller were appointed coreceiver, he would have the access he sought as a matter of right. The finding of the district judge is that he had it as a matter of favor. Therefore it is concluded that the statement of the denial of access is false. The district judge says in his opinion (266 Fed. 231):
“The right to criticise the correctness of the decisions of courts and judges has always existed under our form of government, and must continue to exist, not merely as a right possessed by the individual, but as a safeguard to our institutions. Such criticism often invites valuable discussion and deliberation, and not infrequently results in correcting error. But such right must not be confused with ‘the misbehavior * * * so near’ the presence of the court ‘as to obstruct the administration of justice.’”
This quotation well expresses the rule for guidance in the determination of a charge of contempt under the statute. A criminal contempt is conduct that is directed against the dignity and authority of the court. It is an offense against organized society. Although 'it may arise in the course of private litigation, it is not a part of the litigation but creates an. issue between the public and accused. In determining whether the language used was or was not a contempt, regard must be had not merely to the very words used, but to the surrounding circumstances in connection with which they were used. The tone and the emphasis must be considered. The determination as to whether a contempt has been committed does not depend upon the intention of the offending party, but on the act done. Such is the rule in cases of direct contempt. But in constructive contempt, such as is charged here, where the language used is not per se libelous, but is fully capable of innocent meaning, the intention of the offending party is a factor and [186]*186may control. The rule is now well settled that it is a contempt to issue a publication which is calculated to prejudice or prevent fair and impartial action in a cause of judicial investigation then pending. It is as much a contempt as if one sought to influence judicial action by threats or other form of intimidation which reflect on the court or which stands to corrupt or embarrass the due administration of justice. Toledo Newspaper Case, 247 U. S. 402, 38 Sup. Ct. 560, 62 L. Ed. 1186.
But publications made in good faith and couched in respectful language are not contemptuous. So, where the publication complained of can have no tendency to prejudice the cause, the publisher may not be found guilty of contempt. To vindicate the dignity of the court in compelling respect and obedience, a judge may best demonstrate his title to respect by keeping within the confines of judicial obligation ¿nd not reaching out beyond his powers. To visit punishment unjustly upon another official, who acts within the limits of what he conceives to be his duty, and who attempts, whether inadvisedly or otherwise, to secure some means of keeping his employer (a municipality) advised by right of access, rather than the favor of access, to papers and information concerning the railroad properties, is clearly an excess of the power possessed.
There is no divinity about the office or duties of a judge which makes, him free from criticism. The statute requires a misbehavior which causes an obstruction of the administration of justice. The federal Constitution (Amendment 1) guarantees the right to every person to freely speak, write, and publish on all subjects. The writer is responsible for the abuse of that right. Therefore the liberty thus accorded the writer must not be confounded with mere license. The liberty of the writer stops where a further exercise would invade the rights of others. The guarantee of the Constitution does not authorize usurpation of the functions of the courts. A writer with his liberty has no right to assault a judge during the progress of a trial. When his thought and pen are used so as to constitute misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice, he invades the rights of others. There is little doubt that a sentiment expressed in writing favorable or unfavorable to one of the parties in a case may be made to so pervade the community as to reach the courtroom and interfere with the fair and impartial consideration of a judge in the performance of his duty. But the essence of the offense is conduct- reasonably calculated to produce such an atmosphere and such a result. It is well settled that where his contempt is committed without the presence of the court every reasonable doubt will be resolved in favor of the accused. The charge is quasi criminal.
The language of the letter, particularly the portion which has been deemed offensive, could not in any degree be considered misbehavior of a person “so near the presence of the court as to obstruct the administration of justice.” There was but one letter. There seems to be but one paragraph which constitutes the charged misbehavior. By no interpretation can the letter be said to have any tendency to embarrass or influence the court so as to prevent a fair trial or a just conclusion in regard to any matter which was then pending before the court. [187]*187Every case must be measured by its own facts. To have adjudged this misbehavior “so near the presence of the court as to obstruct the administration of justice” was to exercise a power beyond the jurisdiction of the district judge.
The rule throughout, relied upon by the accuser, is the Toledo Newspaper Case, supra. There the court imposed punishment for newspaper publications, but this- was done on the ground that the publications obstructed justice. It was a very extreme case. It consisted of continuous and protracted attacks upon the judge. The Circuit Court of Appeals stated (237 Fed. 986, 150 C. C. A. 636) by Judge Denison:
“Upon this record, the publications had reference to pending judicial action, and there is a finding of fact (‘as alleged in the information’)- that they tended and were intended to provoke public resistance to an in junctional order, if one should be made, and there is a finding that they constituted an attempt to intimidatej — at least unduly to influence — the district judge with reference to his decision in the matter pending before him.”
And the Supreme Court (Chief Justice White; 247 U. S. 402, 415, 38 Sup. Ct. 560, 563 [62 L. Ed. 1186]) in its opinion quoted and approved this finding:
“That each of these findings is supported by competent evidence and for that reason binding upon this court is too clear for dispute; but we may rightly go further and say that it is difficult to see how any other findings could have been made.”
In that case Justice White said further:
“The test, therefore, is the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty — a conclusion which necessarily sustains the view of the statute taken by the courts below. * * * ” 247 U. S. 419, 38 Sup. Ct. 564, 62 L. Ed. 1186.
The misbehavior must present an interruption which comes between the court and the consideration of the subject-matter then under submission in some way as to distract the mind of the court and pervert the course of justice, or even to divide the attention of the court. No such conclusion can be reached in the case at bar. When a case or application is finished, the courts are subject to the same criticism as other people. In the case of Patterson v. Colorado ex rel. the Attorney General, etc., 205 U. S. 454, 27 Sup. Ct. 556, 51 L. Ed. 879, 10 Ann. Cas. 689, Justice Holmes said:
“When a ease is finished, courts are subject to the same criticism as other people, but the propriety and necessity of preventing interference with the course of justice by premature statement, argument or intimidation hardly can be denied.”
[8] Was there a cause pending within the rule of contempt concerning libelous publications? A cause is pending when it is still open to modifications, appeal or rehearing and until the final judgment is rendered. Did the letter concern a cause pending? If it did not, it could not obstruct the administration of justice. The application before the court, which is the subject-matter of the letter, was the matter of a coreceiver. As to this the court had definitely decided adverse to the comptroller. The court’s action was complete in respect to this matter. It is true there is added to his opinion opportunity for another [188]*188application, but this may well have been left unwritten. If a new application was made, even under suggestion of the opinion or the order, it would be necessary to do so as an entirely new application on new papers and facts. The leave granted was not one of reargument. At any time, upon a new showing, irrespective of the suggestion of the court, another application could have been made for the appointment of a coreceiver. Therefore the court’s action was complete in every respect, and its order was entered when the letter was published.
This appears by the return of the writ. The district judge pointed out, as did the information, that the whole railroad situation was before the court, since it was an equity proceeding; but it is not of this that the defendant wrote. This is fully corroborated by the testimony of the defendant. He also testified that he had no intention of obstructing the delivery of justice or misbehaving himself so as to obstruct the administration of justice. He stands convicted upon his letter alone, and such inferences as may be drawn thereform. His conviction rests upon an issue between the court and the defendant, and it is one of terminology or interpretation.
There is no criminal intent discoverable from this record to support the interpretation placed upon it by the court, nor was there pending sub judice a proceeding before the court at the time the letter was written. The conclusion is irresistible that the court exceeded its jurisdiction by an excess of power in adjudging the defendant guilty.
The petition for discharge is granted.