Hill, C. J.
In the performance of the obligation exclusively imposed upon it by the constitution of the State, this court was recently called 'upon to review the judgment of A. W. Fite, one of the judges of the superior court, in the case of McCullough v. State, ante, 612. After a most careful consideration of the record, the court concluded that three errors of law were committed by the trial judge which were prejudicial to the accused. These errors of law were not technical in character, but related to the merits of the [678]*678case, especially the controlling issue as to the existence of a criminal intent; and, therefore, not only the law, as this court construed it, but the ends of justice, demanded another trial. Entertaining this opinion, the court reversed the judgment refusing another trial. The propositions of law upon which the reversal was based involve no novel question, and arose out of the facts of the case. Neither their soundness,, justice, nor humanity can, in. our opinion, be questioned by any fair, intelligent mind. The opinion of the court contained not the slightest reflection upon the ability or fairness of the trial judge. When the decision was handed down, and before reading the full text of the opinion, the respondent wrote and published in the Atlanta Constitution, a daily paper of large circulation, a most scandalous attack upon the decision of the court, even impeaching the judicial integrity of the individual Judges. Deeply regretting the necessity for action, the court felt impelled by a sense of official duty to issue the rule for contempt. Before taking this step we became convinced, by an exhaustive examination of the law, of the jurisdiction of the court to issue the rule. We did not entertain the slightest doubt as to the objectionable character of the article. Nothing that has been said by learned counsel, or by the respondent in the answer filed, has shaken our conviction on either point.
The point raised by the amended answer, that the article “is clearly within the privilege and rights guaranteed to respondent under the Bill of Rights, article 1, section 1, paragraph 15, of the constitution,” accompanied by the request that we certify this constitutional law point to the Supreme Court, has been considered. The request is denied, as the question made does not involve “the construction of a provision of the constitution of this State or of the United States;” or “the constitutionality of .an act of the General Assembly of this State.” Personally the Judges of this court would loe glad to have the Supreme Court pass upon the rule issued by this court, as well as determine the character of the newspaper article in question, but the law imposes the responsibility upon this court. It is well settled that no tribunal except the one complaining of a contempt has jurisdiction to pass upon that issue. The decision of this court as to this question is not only exclusive, but final, and this court does not shirk the duty imposed upon it, but willingly assumes full responsibility.
[679]*679Three questions are presented by this record: first, whether this court has jurisdiction or power to issue the rule; second, whether the article written and published by the respondent constitutes contempt of this court; and third, the matter of punishment. The first question is one of law; the second, one of mixed law and fact; and the third, one of discretion.
The jurisdiction of this court to determine what is a criminal contempt and to punish the contemner is not an open question in this State. It is settled by the Supreme Court in the case of Bradley v. State, 111 Ga. 168 (36 S. E. 630, 50 L. R. A. 691, 78 Am. St. R. 157). In that case Mr. Chief Justice Simmons, speaking for the court, declares that the power to punish contempts is inherent in every court of record, and that if the court is created by the constitution, even “the legislature can not, without express constitutional authority, define what are contempts and declare that the court shall have jurisdiction over no acts except those specified.” The Court of Appeals is a constitutional court, created by the people, having as to this subject the same powers and authority as are conferred upon the Supreme Court. These powers and this authority exist in the court itself as a judicial tribunal. They do not belong to the individual Judges of the court. This inherent power in courts tg define contempts, especially criminal contempts, and to inflict punishment therefor, has been well settled by the courts both of this country and England. The possession of this power and its exercise in proper cases are essential to the maintenance of the respect due to the courts as representatives of the majesty of the people, entrusted by them with the high and sacred responsibility of passing upon the rights and liberties of the citizen, in the administration of law and justice. If courts fail to enforce respect, if they do not strive to preserve their independence and to maintain inviolate their judicial integrity, they will not only lose their own self-respect, but will be recreant to the duty they owe to the State. If the court is scandalized, the integrity of its Judges impeached by gross, defamatory libels of their character and their decisions, the consequences are far more hurtful than in cases of direct contempts, committed in their presence; for unfair, unjust and libelous criticisms of judicial proceedings, and unwarranted attacks reflecting upon the Judges in their judicial capacity, not only tend to endanger the rights of parties in pending cases, but [680]*680they prevent that calm and dispassionate discussion and investigation of such causes so necessary to their just and proper determination. Pernicious attacks of this character not only impede and embarrass the due administration of law and justice by the courts, but are calculated to inflame public anger, and arouse public prejudice and clamor against the Judges in the performance of their judicial functions. The power of the judiciary rests upon the faith of the people in its integrity and intelligence. Take away this faith, and the moral influence of the courts is gone and respect for the law is destroyed. Other departments of the- government may outlive unjust criticism, and may still render service to the people, even when unfairly assailed, but when confidence in'the courts is gone, respect for the law itself will speedily disappear, and society will become the prey of fraud, violence, and crime. The one element in government and society which the people desire above all things else to keep from the taint of suspicion is the administration of justice in the courts.
The learned counsel for the respondent, in their very fair, dignified, and able arguments, do not -deny the inherent power of this court to define and punish contempts. They insist, however, that this power is limited to contempts committed in the presence of the court, or to criticisms relating to pending ^.causes; that any criticism of a judicial decision in a case that is no longer pending, although it may be libelous and defamatory, can not be a contempt. This restricted view of the subject is supported neither by reason nor the weight of authority. Unquestionably it is a great wrong to write or publish criticisms of pending litigation, either of the judge, the jurors, the witnesses, or the parties, that tend to impede nr defeat the due administration of justice, but, as has been forcibly said by a learned jurist of the Supreme Court of Virginia (Commonwealth v. Dandridge, 2 Va. Cases, 421), “If the power of punishment stop here, a curious consequence may ensue. A man may be attached for threatening to do that for which he could not ,be attached when actually done.. One says of a Judge, ‘If he render a certain judgment against me, I will insult or beat him. For this he may be attached. But if (the judgment having been rendered) the insult be actually offered, an attachment no longer lies, because the contempt is in relation to the. past conduct of the Judge, and to a case no longer pending.. A recurrence to original
[681]*681principles, the only true test, by demonstrating that the weight, authority, and independence of the court may be equally assailed either way, will prove that this distinction is merely ideal.” It is said by Lord Chancellor Hardwicke, in defining the different classes of contempts, that “One kind of contempt' is scandalizing the court itself.” 2 Atk. 471. And in this the public is primarily interested, and the injury is just as great, whether it refers to a particular pending case, or to the court as an instrumentality of government. Other authorities hold that scandalizing a court is a criminal contempt, and the contempt need not relate to a cause still pending; that this kind of contempt arises from matters not transpiring in court, which tend to degrade or make, impotent the authority of the court, or in some manner to impede or embarrass the administration of justice. State v. Shepherd, 177 Mo. 205 (76 S. W. 79, 99 Am. St. R. 624), and citations. One of the earliest common-law authorities, in his classification of contempts, includes “contempts in the face of the court,” and “contemptuous words or writings concerning the court.” 2 Hawkins, 220. Bouvier refers to the latter class as “extraordinary contempts,” consisting of “abusive, scandalous words respecting the court.” 4 Bouv. Inst. 385. According to Blaekstone, — that great commentator who made. of the common law a harmonious, logical, and exact science, — a contempt of the character now discussed is defined as “speaking or writing contemptuously of the court or Judges, acting in their judicial capacity.” 4 Bl. Com. 285. Another authority in support of the proposition here contended for, and in line with the views entertained by the great judges and law-writers cited, is the ruling of the respondent on the exact question. In the case of the State v. Theron S. Shope, rule for contempt, Whitfield superior court, July term, 1911, Judge Fite held that an article written and published by the respondent in that case, in his newspaper, the North Georgia Citizen, was a gross contempt, richly deserving punishment by confinement in jail, although the article in question did not refer to any pending case or judicial function of the court, but was only a witty and humorous criticism of a moral lecture delivered by the judge to the public generally. This decision, while not binding upon this court as a precedent, is cited as persuasive authority, if, indeed, it is not in the nature of a judicial estoppel.
[682]*682It is suggested that the proper remedy, where no case is pending and the court is scandalized, is prosecution for criminal libel. Where a publication which constitutes a contempt contains libelous attacks, a prosecution for libel can also be instituted; but the character of a publication as a criminal contempt is separate from its character as a criminal libel. The one is punished by the court whose judicial integrity is assailed, the other may be prosecuted before a jury for a violation of the criminal statute. It would be the grossest injustice to compel a judge to leave the bench and assume the róle of a prosecutor to protect the court from libelous and contemptuous attacks. Courts are not required to enforce respect through verdicts of juries, but possess the power to punish, as for criminal contempt, libelous publications upon their proceedings, present and past, upon the ground that such publications tend to degrade the tribunals, destroy public confidence and respect for their judgments, and effectually obstruct the free and impartial course of justice. But if the courts did not have the power to protect themselves as they claim, still this court, under the facts of the present case, would have ample power to punish the respondent, even under the limitations contended for by his counsel. The McCullough case was still pending in this court when the respondent wrote and published the article under consideration. The decision of this court had, it is true, been handed down, but the term of the court during which it was rendered had not adjourned, and the remittitur had not been transmitted to the trial court; and the rule of practice is that the remittitur shall not be sent to the trial court within ten days from the filing of the decision. During the term of its rendition, until the remittitur has been transmitted to the trial court, a judgment of this court remains under the control of the court, subject to be modified or altered, either on application for rehearing or on the court’s own motion. It is said that the case was ended because the plaintiff in error had won, and the State could not make a motion for a rehearing. There is no reason in law why the State can not make a motion for a rehearing. As a matter of practice, this court has entertained such motions. But irrespective of this, the court had the right to change its judgment at any time during the term, before transmission of the remittitur to the trial court. Indeed, the respondent, in his second article, of October 8th, in evidence, treated the decision in [683]*683the McCullough case as then subject to reconsideration and recall; for in that article he declared that “the Court of Appeals should at once reconsider and recall this decision,” or the people-would abolish the court.
Having abundantly established the power of the court not only to define criminal contempts, but also to punish for such offenses,, within the limitations prescribed by the legislature, we now come to make a concrete application of the principles announced, to the article under consideration, for the purpose of determining if the-article falls within the definition of a criminal, contempt, and, if so, to fix an appropriate punishment. It is not our purpose to consider all the objectionable features of the article. No one can read the article without being convinced that it is, as a whole, a most flagrant contempt of the court, abounding in defamatory aspersions and criminal libels against the judicial integrity of the Judges. If the aspersions directly made or maliciously insinuated against the' judicial conduct and official honesty of the Judges were true, they would be utterly unworthy of the great trust committed to them by the people, and would be unworthy to exercise judicial functions in passing upon the rights and liberties of the citizen. If this court does not defend and protect itself from slanderous charges of the character contained in the article, the individual Judges would deserve and should promptly receive the contempt of all intelligent and honorable men; for the court which is too weak to demand and enforce decent and respectful treatment can not expect to secure or retain the respect and confidence of the people. We will leave to the discriminating and intelligent reader to determine the character of the article as a whole, contenting ourselves with referring only to those parts specifically mentioned by the respondent in his answer.
It is asserted that the decision of this court, in reversing the lower court in the McCullough case, is based upon “a pitiful misconception and misconstruction of the record, which shows the utter inability of the Court of Appeals, and especially of the Judge delivering the opinion, to comprehend the record, or to render a proper decision in the case, if they so desiredThe assertion that there was “a pitiful misconception and misconstruction of the record,” while disrespectful and contumelious, and lacking in judicial decorum, is offensive only to propriety; and the statement [684]*684that the Court of Appeals is unable “to comprehend the record, or to render a proper decision in the case,” may be overlooked as the innocuous opinion of the writer as to the ability of the Judges. But the insinuation made in the last words of the sentence, that the Judges of the court did not desire to comprehend the record, or to render a proper decision, is a vicious attack upon the judicial integrity of the Judges composing the court,-and constitutes not only a gross libel, but a most flagrant contempt. A contempt or wrong is no less a contempt or wrong because covertly suggested by insinuation or innuendo. A wound' inflicted by insinuation or innuendo is usually more grievous and hurtful than one caused by a direct accusation.. What greater wrong can be charged against a judge than that he does not desire to render a just or proper decision? The charge is a stab in the heart. It implies official corruption and wickedness. If made recklessly, it is inexcusable; if made deliberately, it is shameful. If true, the Judge would be infamous; if untrue, the slanderer should be infamous.
Again, in the article in question, the respondent charges that the court has reversed itself, but that this is not surprising, since'the court is as apt to reverse itself as it is to reverse him, “or the Supreme Court, which they frequently do with great complacency.” The objectionable part of this statement is that the court frequently reverses the Supreme Court with great complacency. The constitution of this State expressly declares that the decisions of the Supreme Court are binding upon this court; and each one of the Judges took an oath to support the constitution. The charge, therefore, is that the Judges of this court deliberately and frequently violate their oaths, and that it gives them pleasure and satisfaction to do so. No instance is given where this court ever reversed the Supreme Court; and none can be given. Indeed, every lawyer knows that such a reversal is a legal impossibility; for, if the decisions of the two courts are in conflict, the decision of the Supreme Court is controlling. It may happen that a question which has arisen in a case before the Court of Appeals and has been there decided may subsequently arise in a case in the Supreme Court, and the latter court may take a different view of the law. In such case, of course, the decision of the Supreme Court would be the law. One instance of this sort is recalled. In Rose v. State, 4 Ga. App. 588 (62 S. E. 117), this court held, affirming
[685]*685a judgment' by Judge Fite, that it was a violation of the law of this State to solicit, through the mail, orders for the sale of intoxicating liquors, and that the State statute was not in contravention of the clause of the Federal constitution relating to interstate commerce; following, as we thought, decisions of the Supreme Court of the United States. Subsequently Rose was convicted of a similar offense, and, the constitutional question involved having been certified by this court to the Supreme Court, that court took a different view of the question; -holding that the statute was in contravention of the interstate-commerce clause of the Federal constitution. R. M. Rose Co. v. State, 133 Ga. 353 (65 S. E. 770, 36 L. R. A. (N. S.) 443). In that case this court had the satisfaction of receiving from Judge Fite, through the press, an approval of its decision, and, through the same medium, the Supreme Court was called upon to bear with equanimity the disapproval of its opinion by the same eminent legal authority. This court submitted gracefully and in silence both to the approval of its decision by Judge Fite, and its disapproval by the Supreme Court. Suppose that when the Supreme Court rendered its opinion contrary to the views of this court, the Judges of this court had at once rushed into the newspapers, and charged the highest court in the State with “a pitiful misconception and misconstruction of the record,” with a desire not to render a proper decision, and that it had failed to give its “real reason” for differing from this court, and from the Supreme Court of the United States and Judge Fite; that “the truth” was that the Supreme Court did not want the prohibition law enforced, but favored the sale of liquor in the State, and wanted to give the whisky dealers license to send into the State circulars soliciting orders for the sale of intoxicating liquors, and thus make of no effect the law of this State; would not every intelligent and law-abiding citizen of Georgia have denounced this action of the Judges of the Court of Appeals as a most flagrant contempt and gross libel upon the judicial integrity of the Judges of the Supreme Court? Could there have been found in all the broad limits of Georgia an apologist for such an inexcusable attack on the dignity and probity of the Supreme Court? And yet- this would not have been as aggravated an offense as Judge Fite’s attack upon the decision of this court in the McCullough case; for he charged all this, adding to this great wrong the unspeakable [686]*686calumny that the members of this court suppressed 'their “real reason” because they “don’t believe that a negro should be punished twenty years in the penitentiary for an assault to rape on the wife of a humble farmer.”
The respondent says, in his answer, that he-was jesting when he charged that this court frequently reversed, with great complacency, the Supreme Court. On the assumption that the respondent knew the relative jurisdiction of the two courts, the statement can only be construed as a direct, intentional charge that the Judges of this court found pleasant satisfaction in the violation of their official oaths by frequently reversing the Supreme Court; and it is certainly too great a tax on the credulity of this court to accept as a jest any portion of this most scurrilous article.
In the conclusion of his unwarranted attack, the respondent uses the following language, referring to the reversals in the McCullough case: “The real reason for the reversals has never been given. The truth is that the Court of Appeals don’t believe that a negro should be punished twenty years in the penitentiary for an assault to rape on the wife of a humble farmer, but I put them on notice that I do not agree with them.” It would be impossible to express in language a more vicious and flagrant contempt of the Judges of this court in their judicial capacity, and also a grosser and more defamatory libel against the Judges as individuals. He charges the court with judicial deception in suppressing the “real reason” for the decisions, and in giving false reasons. No greater reflection could be made against a Judge than the charge that he suppresses the truth and perverts the facts in his opinions; that he prostitutes his high trust to promoting tíre cause of falsehood and injustice, instead of truth and justice; and that in this case this great judicial crime was committed by the Judges of this court because they “don’t believe that a negro should be punished twenty years in the penitentiary for an. assault to rape on the wife of a humble farmer.” We ask every honest, fair-minded man in Georgia to consider the outrage and insult to southern character and manhood expressed and implied by this language. Did the respondent expect any man of character and intelligence to believe the charge? Did he believe it himself? Did he believe that three men honored by the people with seats on this high tribunal, -southern men, decendants of southern men and women, true in [687]*687every fiber of their being and every pulsation of their hearts to the land of their birth and the memory of their ancestors,- should, be so low and degraded as judges as to be willing to commit judicial perjury because as individuals they “don’t believe that a negro should be punished twenty years in,the penitentiary for an assault to rape on the wife of a humble farmer?” What wicked and vicious purpose inspired the deliberate writing and publishing of so false and foul a slander of men who, as individuals, had always •entertained friendly sentiments for the respondent, and who as Judges have never intentionally made any unkind -criticism of his judicial conduct? In his answer the respondent states that this offensive statement was meant as an expression of his opinion, •and was intended as applicable alone to the McCullough case. 'This explanation, if true, does not extract the poison. But the meaning intended must be judged by the language used. The language deliberately used does not bear the construction that it was simply an opinion and only applicable to the particular case. “The real reason for the reversals has never been given. The truth is [not “my opinion is”] that the Court of Appeals don’t believe that a negro [not merely this negro, but any negro] should be punished twenty years in the penitentiary for an assault to rape on the wife of a humble farmer.” The utter insincerity of the attempted explanation of his language is emphasized by the fact that this court had overruled the defendant’s exception to the sentence, and declined to hold that it was excessive.
It is perfectly manifest that the .respondent had two purposes in making the statement, — to inflame race passion, and to excite the prejudice of one class against the Judges of' this court. Both purposes are vicious and shameful to the last degree, and deserve the indignant condemnation of every true man, especially when such appeals are made for such wicked purposes by one holding a high judicial office. There is nothing in the facts of the McCullough case to justify or palliate the tirade of abuse and contempt written and published against the court by the respondent. The most inexcusable feature of the respondent’s conduct is his efforts to arouse race passion and prejudice 'against the court by endeavoring to mislead the public into thinking that the case was one of a brutal, violent, outrageous assault to rape by a negro on a white woman.
[688]*688The vivid imagination of counsel gives lurid pictures of the respondent holding hack an outraged populace to keep them from wreaking upon the negro speedy and lawless vengeance. The picture is slightly overdrawn, and does rank injustice to the good people of Gordon county. Instead of there being a lawless mob at the trial, the record discloses that many of the good white citizens of Gordon county, men and women, came as witnesses and bore testimony to the negro’s exceptional good character from his youth, and that, instead of being eager to punish, a jury of twelve men were most reluctant to find him guilty, hesitating for fifteen hours before doing so. Is it conceivable that the jury would have hesitated so long, but for a grave doubt of the guilt of the accused? Would the jury have been out a longer time than was necessary to write the verdict, if there had not been on their minds serious doubt of any felonious intent? Indeed, there is much in the evidence to justify doubt of the negro’s guilt. The evidence of the good woman herself, most strongly weighed against the negro, leaves in grave doubt his felonious intent. According to her testimony, he was shucking .corn near where she was milking, and there were several kittens near by, in the crib, behind a plank partition three or four feet high, and she went to the kittens To give them some milk. She testified: “I asked Jerry [the defendant] if he had seen what a fine lot of kittens we had, while I was milking. At that time he had not seen them. . . I came out from where T was milking and went into the place where the kittens were. . . While I was stooping over to pour the milk the defendant came in. . . When I stooped over the defendant came in and put both of his hands on me, one on my shoulder and one on my side; I told him then to get out of there or I would knock him out; he said, “T ain’t going to hurt you.’ When I told him to stop, he kind of stepped back and didn’t try to do anything after that.” If his brutal passions had been aroused and he intended a felonious assault, why did he not take' hold of her with violence ? Why did he not continue the assault? Why did he immediately desist on show of indignation? He had no reason to expect that she would not be indignant. If he had the intent charged, there was nothing to prevent him from at least making an effort to accomplish his purpose, except a weak and defenseless woman. This was not the conduct of a brute inflamed by lust, with his intended [689]*689and helpless victim at his mercy. She ordered him to leave the place, and told him she intended to tell her husband of his conduct. Notwithstanding the order and the threat, he went to his home on the premises, near the house in which she and her husband resided, remained there all night, and was found in the yard next morning by the arresting officer, quietly playing with a pet squirrel. Did this conduct show consciousness of guilt? Did it not tend to corroborate his statement that he meant no harm, but that, in passing her to look at the kittens, after she had asked him if he had seen them, he accidentally brushed against her arm, and at once disclaimed any improper purpose? Is it conceivable that a negro who has committed a felonious assault upon a white man’s wife, and who knows that the husband will be told of it, with the certainty that the outraged husband will speedily, and probably to the extent of killing, avenge the wrong, will nevertheless go to his home near by, on the husband’s premises, and remain there all night, and’the next morning be found quietly playing in the back-yard? Would not the criminal flee from'just, certain, and speedy punishment? Was not a consciousness of innocence strongly shown by the conduct of this negro? And while the woman was naturally and justly indignant at what she thought was an assault, yet her conduct immediately thereafter shows that she herself did not believe the negro intended a felonious assault. She did not seek safety in immediate flight to the house of a near-by neighbor. Alone on the lot with the negro and two small children, she remained there for a while. She talked to a white girl acquaintance immediately after the occurrence, exhibiting not the slightest excitement or nervousness, and, when she finally went to visit a neighbor, a friend of her own sex, she not only showed no indication of excitement or nervousness, but did not, in a conversation of two hours, even mention the incident. Nor was the conduct of the husband when told of the incident such as to indicate that he believed that his wife was the victim of a criminal assault. He did not seek out the negro that night, but gave him every opportunity to escape, and, the next morning, did not go with the arresting party, but, when the negro was in custody, went to his cabin and took possession of his “pig and heifer.” It is perfectly evident from the conduct of the husband that his wife’s statement did not convince him of an intent to commit a felonious assault. Indeed, [690]*690there was some evidence that the husband stated to a neighbor that in his opinion no such assault was intended.
Now let it be understood that in what' is here said there is not the slightest purpose to discredit the evidence of the good woman in this case. It is only for the purpose of showing that, admitting the truth of everything she stated, viewed in the light of her own subsequent conduct and that of her husband, and especially that of the negro, and the reluctance of the jury to convict, there seems grave doubt of the guilt of the accused of any offense greáter than assault and battery, which may be committed by thá placing of hands, however lightly, upon a woman without her consent.
Taking advantage of the character of the charge, and the sensitive feeling of our people on-the subject (with which the members of this court are in most thorough sympathy and accord), and withholding the facts of the case, the respondent endeavors most unjustly, in the newspaper article in question, to excite race prejudice and indignation against this court. This vicious purpose of the original article is further manifested by the published article of October 8th, in which the respondent says: “The Court of Appeals . . in their zeal for the negro, or for something else, . have rendered a decision which should not stand.” We leave this statement, without comment, to the judgment of all honorable and high-minded men.
I yield to no man in my loyalty to the blood and traditions of my own race, but, in the performance of my high and solemn duties as a judge, I recognize but one master — the law, and I hear but one voice — justice; and no sentiment, however sacred, can lead me, as a judge, to deprive any man, whatever his color or condition, or however humble his position, of the equal protection of the law and of that justice to which I think he is entitled. The oath I took when I assumed the great trust of.this high office,— “I will administer justice without respect to person; and do equal rights to the poor and the rich,” — was to me no meaningless formality. I consecrated myself to a sacred observance of that solemn obligation. And in the conscientious performance of the high trust, adopting the language of a great English jqdge, “The lies of calumny carry no terror to me. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels — all that falsehood and malice can invent, or the credulity of a deluded populace can swallow.”
[691]*691If the facts of the McCullough case did not justify the respondent in. his tirade of abuse and unjust accusation, neither is justification or excuse therefor to be found in either one of the decisions reversing thé judgments of the trial judge in that case. In neither decision was there the slightest intentionally unkind reflection upon him. The first reversal was based upon the express rulings of the Supreme Court in many cases, that the right to poll a jury was a legal right to be exercised before passing sentence, and that a deprivation of this right demanded the grant of another trial. Robinson v. State, 109 Ga. 506 (34 S. E. 1017). And it was not denied that the trial judge, in passing sentence immediately after the verdict was read, deprived the accused of this legal right. This court was compelled, therefore, 'by its oath, to enforce these decisions of the Supreme Court. If the evidence had demanded the verdict, we would have regarded this error of law as harmless; but'in view of the serious doubt as to the felonious intent shown, not only by the evidence, but by the long hesitation of the jury to convict, the ends of justice required that every legal right should be given the accused. Eor this decision, containing not one intentionally unkind or disrespectful word, this court was taken to task by the respondent in a most unjust and unfair article, published in the Atlanta Constitution, even before the opinion of the court was read by him. This article, while plainly contemptuous and grossly libelous, the court passed by without notice.
The second reversal, which was the provocation for the article now under consideration, was based upon three errors of law, which, in view of the doubtful character of the evidence, and the great reluctance of the jury to convict, in our opinion entitled the accused to another trial. These three questions are stated in the headnotes prepared by Judge Pottle for the court. One of these is as follows: “ On account of difference in race, and social customs founded thereon, juries are permitted to infer that a negro man who assaulted a white woman did not expect her to yield to his embraces without the use of force sufficient to overpower her will. Based upon the same social conditions and the characteristics of the negro race, an inference may also arise that a negro man, consciously guilty of an attempt to commit a rape upon a white woman, would not quietly spend a night and a portion of the next day in a house on the farm of the husband of the woman, in close [692]*692proximity to liis neighbors and friends, without exhibiting some symptomfe of fear or excitement. Proof that he did these things, and that he openly acted in a mariner to indicate no consciousness of guilt, is admissible upon his trial for assault with intent to rape, to be considered by the jury, in connection with other facts and circumstances in the case upon the question of felonious intent.” In the light of the evidence heretofore given, can there be any doubt of the justness or soundness of this ruling? Another ground for the reversal is indicated by the following headnote: “The motives which lie at the foundation of a criminal prosecution may always be inquired into for the purpose of illustrating the bona fides of the prosecution. Sayings of the prosecutor which, if true, indicate that the prosecution is instituted in bad faith, and which also affect the credibility of his testimony, are admissible in evidence.” Can either lawyer or layman question the soundness of this ruling? Further: This court held that the inference of felonious intent, which it is held, in view of the difference in race between the parties, and social customs founded thereon, may arise where a negro man assaults a white woman (and as to which the court below charged the jury), is not conclusive; and that the court below erred in refusing to give instructions to the jury to the effect that (even if the accused at first acted with lustful motive)', if he intended to desist as soon as he found that the woman would not consent, he would not be guilty of assault with intent to rape; and that one of the essential elements of assault with intent to rape is “a purpose to carry into effect the intent with force and against the consent of the female.” The instructions requested were especially pertinent in view of the testimony of the woman herself that the negro immediately desisted and disclaimed any criminal intent, when she showed indignation arid resentment, and of the subsequent conduct of the negro tending to show the absence of felonious intent, and corroborative of his statement that the occurrence was accidental. In ruling as we did as to the refusal of the court below to charge the jury as requested, this court followed rulings of the Supreme Court, which are cited in the opinion.
These three rulings furnish all the apparent provocation for the outrageous and deliberate attack made by the respondent upon this court, and upon which he bases his demand that the' decision [693]*693be at once recalled, under threat that otherwise the court will be abolished. We have gone into that decision only for the purpose of showing the absolutely inexcusable conduct of the respondent. Every intelligent man must know that whether the McCullough case was rightly or wrongly decided by this court is wholly irrelevant and immaterial. It is the law of the case, and the trial judge is obliged to recognize and follow it; if he does not, he disregards the obligations of his oath. Consider for a moment how intolerable would be the position of the Judges of the appellate courts if, for every reversal, they should be subjected to unjust and libelous criticisms in the public press by the judges of the lower courts whose decisions were reversed. If such criticisms were held in terrorem over the heads of appellate Judges, it would be impossible for them to exercise that calm, impartial, impersonal judgment so necessary to the just and proper decision of eases. And if this procedure were tolerated, the people would soon lose all .respect for, the judgments of the higher courts and for the judiciary. Fortunately, public criticism by a trial judge of decisions reversing his judgments has, as a rule, been regarded by judges as not only repugnant to every sentiment of judicial comity, but improper from every standpoint. The judges have the right to differ from the legal conclusions of the reviewing courts, and to express in appropriate language adverse views, but a sense of propriety, and respect for the judicial office, prevent the exercise of the right in an offensive manner. The respondent has the unique distinction of being the only trial judge in Georgia who has ever resorted to libelous and contemptuous publications against the appellate courts for the exercise by them in a respectful manner of their duty under the constitution. He will probably never have any judge to contest with him the exceptional role of apparently taking pleasure in resorting to the newspapers for the purpose of tearing down the reputation and character of his judicial brethren.
The respondent, in his answer, claims that in the publication of the article he was within the privilege of freedom of speech and of the press guaranteed by the constitution of the State. This great privilege of freedom was never intended as a refuge for the contemner, the slanderer, and the libeler. “Any person may speak, write, and publish his sentiments on all subjects, being responsible for-the abuse of that liberty.” Bill of Bights (Civil Code, § 6371). [694]*694But in all republican governments character, both private and public, has always been regarded as the most valuable asset of the mán and of the official; and everywhere in civilized communities contempt of court and slander and libel of individuals or of public servants have been regarded as an abuse of the freedom of the press or of speech. The press can be free, and men can freely speak and write, without indulgence in libel or slander. The utmost latitude should be allowed for fair, full, and free review by the press 'and individuals of decisions of the courts. Just criticism may assail the opinions, expose the fallacies, and warn of the errors. The opinions of courts are not solemn edicts to be blindly assented to, but are subject to calm and fearless strictures, and all right-minded Judges invite, indeed welcome, such criticisms. The article by the respondent is not of this character of criticism. It is scandalous in tone and spirit. It falsely impugns the integrity of the Judges of this court. It is wilfully designed to excite ^prejudice and passion against the court. It charges directly and by base insinuation criminal judicial action. It is, in short, a most flagrant contempt, without one circumstance to palliate its enormity or to save it from the condemnation of all honorable, fair-minded men. If what is said and implied in the article were true, the Judges of this court should be stripped of the judicial ermine in which they have been clothed by the confidence of the people. If what has been written and published is not true, possessing not even a semblance of truth, the writer and publisher should be stripped by an indignant people of the judicial robe which he has dragged through the mire of personal venom, injustice, and slander. It is not a question of the abolition of courts, but a question of the abolition of judges. We put the issue squarely up to the great body of the people who have established these institutions of law and justice, clothed them with dignity and power, elected men to serve them as their judicial agents, and who will never fail, in the long run, to distinguish between right and wrong, between the true and the false, between the faithful and the faithless servant, and who have no patience with injustice and slander, or with those who find delight in doing injustice and inflicting wrong.
If this opinion is long, our excuse is the vital importance of the subject to the administration of justice in the State, and the priceless possession of judicial honor and integrity." If the writer some[695]*695times uses language unbefitting the calmness and 'dignity of judicial expression, he begs the utmost indulgence and charity of the people. In becoming a judge he did not cease to be a man; and in defending the honor of the judge, so inexcusably and unjustly assailed, he could not at all times fully restrain the indignation of the man.
What ought the punishment to be? The disclaimer attempted by the answer presents no circumstance of mitigation. There is no apology for the wrong, and no retraction of the offense. Learned counsel for the respondent say that the disclaimer of intended reflection on the court is not traversed, and should therefore be accepted. Every word in this published article is a complete traverse of the truth of the respondent’s disclaimer, — that he did not intend “to in any manner reflect upon the judicial integrity of this court.” We are admonished by distinguished counsel that’ we should be conservative; that it is a very serious matter to cite a judge before a court and punish him for contempt, and that the present is the only occasion where such a proceeding has ever been instituted. This is to the credit and honor of the judiciary, and we sincerely trust that it will remain as the only instance in this State where a judge has so far forgotten the proprieties of his office, and that justice and fair treatment due to his brethren of the bench. This offensive article is not the temporary ebullition of a lawyer who has lost his cause. It is not the sensational report of a judicial proceeding made by a newspaper reporter which, without malice, is intended to attract the attention of the public. It is not the thoughtless expression of the citizen in ignorance of the law or the facts. It is the deliberate preparation, writing, and publication of a most scandalous article by a judge, thoroughly cognizant of the respect due to courts, as manifested in his own repeated acts when-the dignity of his own court, as he thought, was involved. These facts greatly aggravate his offense. Our power to punish is limited by the statute. We have great respect for the office which the respondent occupies, and for 'the people who have so highly honored him for years. Eor these reasons, while we think his offense is so flagrant and so inexcusable that a jail sentence would be richly deserved, we will content ourselves with imposing a fine.
In conclusion, the Judges of this court recognize that the friction [696]*696between them and the respondent as judge" of the superior court is to be profoundly regretted. This condition is not justly chargeable to anything done by this court. The court simply exercised in an orderly, respectful, and kindly manner its solemn duty under the constitution. For this it has been bitterly and unjustly assailed, its motives impugned, and persistent efforts made to bring its judgments into contempt. There is no possible excuse for this condition. This court has, under great provocation, submitted in silence, and acts now only because impelled to do,so from a high sense of official duty.. The writer has the highest regard and respect for the trial judges of Georgia. He has. never approached the consideration of a record.in a case brought up for review without the profoundest distrust of his own learning and ability; and, without the assistance of erudite and conscientious attorneys for the litigants, and conferences with his associates, he would be unwilling to rely upon the conclusions of his own judgment. And those who know him will not doubt the utmost sincerity of his deep personal regret at the unseemly controversy so unjustly forced upon the court of which he is a member. In my official relations with my colaborers in the cause of law and justice I have ever striven to follow the light of the Golden Eule: “Do unto others as ye would that others should do unto you.” I trust that I may be pardoned for commending to the respondent, my brother judge, the practice of this gentle and charitable precept. “In so doing, life will be sweeter, the world will be better, and the faults of our neighbors (including those of our brother judges) will not appear so unpardonable.”