Me. Chief Justice Del Tobo
delivered the opinion of the court.
This is a case of contempt oí' court in which the appellant was sentenced to thirty days in jail. The first paper included in the transcript of the evidence is an order which reads as follows:
“In the District Court for the Judicial District of San Juan, Puerto Rico. — Criminal Section.—The People of Puerto Rico v. Manuel Torres, Defendant.—Criminal case No. 14372.—Contempt.— Order. — WHEREAS, on this day Santiago Ramos was being tried in this court for murder, the jury had been duly impaneled in the room used for such purpose on the upper part of this building-' [580]*580Whereas, this judge was assaulted by the accused shortly after the court had adjourned, just as he was leaving his office and precisely in the corridor close by the court; Whereas, such conduct on the part of the accused not only tended to interrupt the proceedings in this court and unquestionably to terrorize the jurors who had been impaneled and any other officer of the court, such conduct on the part of the accused constituting, in the judgment of the court, contempt of court inasmuch as it undermines the prestige of courts of justice; Now, THEREFORE, the court orders the accused herein to appear on February 3, 1939, that is, the day after tomorrow, at 9 a. m., to show cause why he should not be punished for contempt; and that copy of this order be delivered to counsel for accused. — San Juan, Puerto Rico, February 1, 1939. (signed:) M. Romany, Judge. Notice has been served on attorneys Dubón and Ochoteco. Feb. 1, 1939. (signed.) Eduardo López Tizol, Secretary.”
Then follow the minutes of the trial and the judgment, to wit:
“The People of Puerto Rico v. Manuel Torres.—Cause No. 14372. —Contempt of court. — In court, presided by Judge Marcelino Romany, the prosecution being conducted by district attorney Hernán R. Franco, and proceedings recorded by stenographer Carmelo Pérez, this case was called for trial and the accused requested to answer or show cause why he should not be punished for' contempt. The accused appeared in person and through his attorneys, Luis Dubón and Félix Ochoteco. Upon being requested by the court as to the kind of plea he was going to enter, the accused, through his counsel, answered and denied the facts and reproduced the allegations made by him in court on February 1, whereupon the court entered the following judgment: Whereas, on February 1, 1939, while Santiago Ramos was being tried in this court for murder, the jury had been duly impaneled in the room used for such purpose on the upper part of the building occupied by the District Court of San Juan, Puerto Rico; Whereas, this judge was assaulted on February 1, 1939, by the accused shortly after the court had adjourned, just as he was leaving, his office and precisely in the corridor close, by the court room; WHEREAS, such conduct on 'the part of th,e accused tended to interrupt the proceedings in this court and unquestionably to terrorize the jurors who had been impaneled and any other officer of the court, such conduct on the part of the accused constituting, in the judgment of the court, contempt of court, inasmuch as it undermines [581]*581the prestige of the courts of law; Whereas, the court ordered accused Manuel Torres to appear before it on February 3, 1939, at 9 a. m. to show cause why he should not be punished for contempt, and ordered, moreover, that copy of the above order, entered on February 1, 1939, be served on attorneys for the accused, Bubón and Ochoteco; WheREas, on this day February 3, the accused appeared through his aforesaid counsel and denied the facts alleged in the order to show cause, although on February 1, 1939, on being arraigned, he stated that he admitted’all the facts set out in such order; Whekeas, besides such admission on the part of one of the attorneys for the accused of the facts alleged in the order to show cause, the court thinks that it is unnecesary to hear evidence in contempt proceedings wherein the judge is the victim of the assault, inasmuch as the judge need not pass upon any evidence because he has already personal knowledge of the facts and could never decide that an assault was never committed, as such fact was personally known to the judge and, consequently, the submission of evidence was quite unnecessary; Now, Ti-ieREPORE, as no legal ground, in the judgment of the court, has been advanced why the accused should not be punished for contempt, this court convicts him of contempt against this court and sentences Manuel Torres to thirty days’ imprisonment in the District Jail of San Juan, Puerto Rico, and to the payment of a $200 fine. San Juan, Puerto Rico, February 3, 1939. (signed:) M. Romany, Judge. I attest: (signed:) Eduardo López Tizol, per M. Aldea Bigles, Deputy Clerk.”
Manuel Torres appealed from the above judgment to this court on February 3, 1939, and four days later filed in the trial court the following motion:
“In the District Court for the Judicial District of San Juan, P. R. —The People of Puerto Rico v. Santiago Ramos, Defendant.— Criminal case No. In re: Murder.— (Incident in contempt proceeding against Manuel Torres.) — Motion to incorporate certain particulars in the judgment roll. — To the Honorable Court: Now comes defendant Manuel Torres, through the undersigned attorneys and to the Honorable Court respectfully states: 1. — That in the above entitled case the accused appeared on the 3rd inst., in open court, pursuant to a warrant of arrest issued against him to answer for an offense of contempt of court and pleaded, through his undersigned attorneys, everything deemed by him pertinent to his defense, whereupon this Hon. Court, on motion of the mover, continued to the [582]*5825th inst. the trial of the ease against him for contempt, at which time the defendant appeared again through his attorneys and reproduced the objection which he considered pertinent under the law; 2. — That in the present contempt incident it is unnecessary to send up any transcript of evidence to- the Supreme Court in connection with the appeal prosecuted by the appelant from the judgment rendered, inasmuch as no evidence was heard for neither the People lior the defendant; 3. — That as the defendant made all his pleas in open court and orally, the proper thing to do would be to incorporate the record of all proceedings had regarding the two hearings held before this Hon. Court in collection with said contempt proceedings into the judgment roll. — By virtue of the foregoing, this defendant respectfully moves this Hon. Court to direct the secretary, when preparing the judgment roll for the purpose of said appeal, to incorporate therein the stenographic notes of all the proceedings had in the said two hearings, duly certified by the stenographer who took down the proceedings in open court in connection therewith, and to that effect the defendant likewise prays this Hon. Court to direct the said stenographer to prepare and certify the said stenographic notes, which must be approved by this Hon. Court.- — San Juan, P. R., February 7, 1939. J. Ramírez Santibáñez, Dubón & Ochoteco. Per (signed:) Félix Ochoteeo Jr., attorneys for defendant.”
The order sought was issued, hut as time passed and no transcript was filed, the secretary of the court advised the attorneys to that effect on May 11, 1939. Apparently they did nothing and on June 16, 1939, the above officer certified and sent up to this court the record of the appeal without such transcript.
The appellant filed in this court four motions for extensions to file a brief, which he finally filed on September 25, 1939. The prosecuting attorney filed his brief on December 6, 1939, and the appeal was heard on December 7, 1939, with the appearance of counsel on both sides.
The defendant and appellant in his brief assigns as error his conviction by the trial court of contempt of court “not committed in the immediate presence of the court without hearing any evidence,” and his conviction “notwithstanding the absolute absence of proof.”
[583]*583He discusses at length, the error assigned and sums up his discussion as follows:
“1. ¥e do not deny and, on the contrary, admit that every assault or incorrect or provoking conduct against a magistrate, while in the court building, constitutes indirect or constructive contempt but not in the immediate presence of the court.
“2. That for an assault or reprehensible conduct towards a magistrate to constitute direct contempt the same must be committed in the immediate presence of the court, or what amounts to the same, while the court is in session.
“3. That every contempt committed as the result of an assault upon a magistrate or offensive conduct toward him, committed in the immediate presence of the court, that is, while in session, may be summarily punished without the hearing of any evidence in connection with the facts which gave rise to the prosecution and are stated in the commitment.
“4. That every assault or disrespectful conduct towards a magistrate, not committed in the presence of the court and while the latter is not in session, although constituting contempt, can not result in the conviction of the accused, without proper evidence thereon being heard,- as provided by the statutes in force in our jurisdiction, in connection with the admission or nonadmission of evidence. 12 Am. Jur., p. 441, see. 74.
“5. And lastly, as the alleged assault upon the person of the magistrate of the lower court was not committed in the immediate presence of the court and while the latter was in session, the District Court of San Juan was without jurisdiction and committed a serious error in convicting the defendant of contempt of court without the hearing of evidence, which error justifies a reversal of the judgment. ’ ’
It is, therefore, admitted that the assault upon the judge, if committed, constitutes contempt of court, although the procedure followed to punish the same is challenged.
The law on the matter in Puerto Rico is contained in section 145 of the Penal Code, 1937 ed., p. 84, supplemented by the act of March 8, 1906, page 41, amending the act of March 1, 1902, “Defining the offense of contempt of court and providing for the punishment thereof,” whose section 3 in its pertinent part reads as follows:
[584]*584“When contempt is committed in the immediate presence and view of the court, the punishment therefor may be imposed immediately by the judge of the court, or the presiding judge thereof. When such a person is charged with contempt committed out of the presence of tbe court, no conviction can be had thereon, unless the person so charged shall have been given an opportunity to appear and defend against the charge, . . .
Tlie law, therefore, recognizes two kinds of contempt. One of them is that committed in the immediate presence of a court of justice. The other is that committed by a person outside the presence of the court. In each case the procedure is established for imposing the proper punishment.
Where the contempt involved is that committed in the presence and view of the court, the latter may impose the punishment immediately. When perpetrated outside the presence of the court, the defendant must be given an opportunity to appear and defend. The first kind is direct contempt; the second is indirect or constructive contempt.
In this respect the Puerto Rican statute is similar to that of the States and Territories of the Union. Section 70 of 12 Am. Jur. 437 reads as follows:
“As a general rule, when a contempt is committed in facie curiae, .the court may, in committing the offender, act of its own knowledge without further proof or examination, and the accused is not entitled to be heard in his own defense, nor can he complain that his constitutional rights are infringed by the refusal of a hearing. The court, however, may, in its discretion, allow a contemner to be heard before he is sentenced. With respect to constructive contempts or those which are committed without the actual presence of the court, it is essential that a hearing be allowed and the contemner permitted, if he so desires, to interpose a defense to the charges before punishment is imposed.”
If tbe contempt on account of which appellant was punished were direct, there would not be room for the slightest contention. If it were constructive, or of doubtful nature, then a careful consideration is required.
[585]*585Was it direct, that is, was it committed in the immediate presence of the court?
For a correct answer to the question, we must first establish what is meant by presence of the court.
In American Jurisprudence, supra, when summing' up the jurisprudence on the matter, the following appears:
‘ ‘ In defining what is meant by ‘ the presence of the court, ’ as the term is used .with reference to contempts, it is said that ‘the court’ consists not of the judge, the courtroom, the jury, or the jury room individually, but of all of these combined. The court is present wherever any of its constituent parts is engaged in the prosecution of the business of the court according to law. In some states it is held that any act which is calculated to impede, embarrass, or obstruct the court in the administration of justice is to be considered as committed in the presence of the court. In others it is held that only such contempts as are committed within ocular view, or range of vision, are to be considered as committed in the ‘presence of the court.’ In a few instances the courts have passed upon the facts of the particular case under review and decided whether the contempt complained of was committed in the presence of the court without laying down any fixed rule in that respect.” 12 Am. Jur., sec. 5, p. 392.
In the instant case the contempt was not committed while the court was in session. The court was presiding a trial for murder. The court adjourned. The jury was impaneled in the room used for the purpose on the upper floor of the court building. Shortly after the adjournment, while the judge was leaving his office and was walking along the corridor close by the courtroom, he was assaulted by the defendant.
In the commitment no mention is made of the reason for the assault nor whether or not the same was connected with any business of the court in general or with the particular case under consideration. The commitment does state, however, that the conduct of the defendant not only tended to interrupt the proceedings of the court hut also to terrorize [586]*586the jury and any other officer of the court, the court being of the opinion that it constituted contempt of court because it undermined the prestige of the courts of justice.
Therefore, we are not dealing with a typical case of direct contempt committed while the court is in session, where the act constituting it is committed not only in the presence of its judge but also in that of the other officers thereof including counsel, of the parties and of the public. There is no doubt, however, that the act having been committed in the presence of its judge under the circumstances and with the result stated in the commitment, it could be defined as direct within the jurisprudence cited.
However, as it does not appear that the act committed was in connection with the business of the court, which is a necessary requisite for the case fully to fall within the scope of the facts in Ex parte McCown, (139 N.C. 95, 2 L.R.A. (N.S.) 603, 51 N.E. 957), 18 A.L.R. 214, we doubt whether the above definition could be applied so as to be recognized in all its effects. In view of the facts of the case, it seems to us that the better practice is to follow for the purpose of the punishment to be imposed the procedure established by the legislator for constructive contempts as far as possible and necessary. Ex parte Redmon, 159 Miss. 449, 132 So. 330.
The district court itself seems to have found it so, inasmuch as it did not punish the appellant instantly, not even upon his admission of the facts charged against him, but on the same day of the incident — February 1, 1939 — it issued a commitment complying with all the legal requisites, describing the facts in the way already known and setting the 3rd of February 1939, at 9 a.m., for the defendant to appear and “show cause why he should not be punished for contempt.”
The defendant indeed appeared, and what happened? The only source of information at our disposal is the second of the papers above transcribed, to wit: “the minutes of the [587]*587trial and the judgment,” as the appellant failed to complete the record with the stenographic notes which he himself requested for that purpose.
The defendant, who two days previously had admitted the facts stated in the -commitment, denied them and reproduced “the allegations made by him in court on February 1,” of which allegations we know nothing.
Thereupon the court proceeded to render a judgment of conviction based on its personal knowledge of the facts, because it was the judge thereof who had been assaulted, and, upon the conclusion that the same constituted contempt, imposed on the accused the punishment which it deemed proper.
The defendant does not appear to have objected to the procedure followed nor even to have expressed his purpose to cross-examine the judge, or submit evidence, or explain his conduct.
He claims on appeal that he was committed without evidence. We have perused his brief and find indeed therein the repeated assertion that as it was a case of constructive contempt the hearing of evidence was necessary; but nowhere in his brief is there a discussion of the probatory value of the personal knowledge of the facts necessarily possessed by the judge of the trial court.
Of course, this personal knowledge, which is not the judicial notice mentioned in the law of evidence, would not be proof in ordinary civil or criminal cases; but in a contempt case where such personal knowledge is considered by the legislator himself not only sufficient but the only one permissible where the fact occurs in the presence of the court, may it not be considered legal and sufficient, though the fact should not occur in the presence of the court while in session but in that of the judge only?
In support of his contention that the defendant could not be committed “without proper evidence thereon being heard, as provided by the statutes in force in our jurisdiction, in [588]*588connection with the admission or non admission of evidence”, appellant cites 12 Am. Jur., sec. 74, p. 441. Indeed, the text writer says that the rules which relate to evidence in general will, so far as practicable, shall govern in contempt proceedings; but when singling out and citing cases in support of the text it is observed that the evidence is always introduced upon facts of which the judge of the court a quo can only take cognizance from outside testimony. None of such cases meets the facts of the case at bar'.
Such being the case, we do not think that it can be held that there was no proof. The court acted in this respect as it would have acted if a direct contempt had been involved and could do so because the facts took place in its immediate presence. No other evidence for the prosecution was required, and it was upon the accused that it then devolved to overcome the same, if possible, by cross-examination — by formally requesting the judge to testify as a witness — or by the introduction of any other pertinent evidence, and if unable to overcome it, to mitigate at least its effect against him by means of any proof or explanation tending to explain his conduct.
Nothing was done in this respect and therefore he can not complain now. Even in a contempt which at least has many of the characteristics of the direct contempt, the court accorded him ample opportunities to defend and he failed to avail himself thereof, preferring to be convicted in order to appeal to this court upon an incomplete record that will not even allow us to fully acquaint ourselves with what took place in the sittings of the 1st and of the 3rd of February, 1939.
During the discussion of the case by the justices in conference attention was strongly called to the decision of the Supreme Court of United States in Cooke v. United States, 267 U.S. 517. Let us examine it.
Clay Cooke and J. L. Walker were sentenced each to thirty days in jail for contempt committed against the District Court [589]*589of tlie United States for the North District of Texas. An appeal was taken on writ of error to the Circuit Court of Appeals for the Fifth Circuit which affirmed the judgment as to Cooke and reversed it as to Walker. An appeal was taken on certiorari to the Supreme Court of the United States which reversed the Circuit Court and remanded the ease to the district court for further proceedings consistent with the opinion.
Walker was the defendant in a series of suits which arose as the result of the bankruptcy of Walker Grain Company. In one of them, after a protracted trial, the jury brought in a verdict for $56,000 against Walker. On the following day, while the court was in session trying another case and during a ten-minute recess, Walker, upon the suggestion of Cooke, handed to the district judge in his office, next to the courtroom, a letter marked “Personal” in which Cooke, as attorney for the Walker Grain Company, asked him to let him suggest, as an attorney interested in the cause of justice and equality for all and as his friend, that the only order that he would consent to be entered in the pending proceedings would be one disqualifying him to proceed in the case by reason of prejudice.
Eleven days afterwards the court made, an order setting forth the facts and- concluding that the matter was within the personal knowledge of the court and that the letter constituted an attack against the honor and integrity of the court and therefore contempt of court, and ordered the marshal to bring forthwith Walker and Cooke, litigant and counsel .respectively, to the presence of the court, to show cause, if any, why they should not be punished for contempt.
The marshal arrested and took them into court. The latter called the case, for trial and stated that he had required Judge McCormick, of Dallas, to be present and act as amicus curiae during the proceedings, and further required the dis-Iriet attorney to act in the premises, as the matter involved was one of a criminal nature.
[590]*590Cooke said that he had not known of the proceeding nntil that morning, that he would like time to prepare for trial and get witnesses for' their defense, that there might be extenuating circumstances which would appeal to the court’s sense of fairness and justice in fixing whatever penalty might be imposed and that he had attempted to secure counsel but through illness or absence of those he sought he had failed up to that time.
Judge Wilson intimated that he would not postpone the matter and said:
“There is just this question involved, and as stated by counsel representing the Court, these facts are within the personal knowledge of this Court. Did you deliver this letter to the Judge of this Court ?
“Mr. Clay Cooke: Is your Honor asking me?
(( 71
A long colloquy followed which covers from page 522 to p. 527 of Vol. 267 of the United States Reports, and which subsequently, together with the foregoing extracts, led the court to say and to hold, through Mr. Chief Justice Taft, partly, as follows:
“. . . . Considering the circumstances and the fact that the case was still before the judge, but without intending to foreclose the right of the petitioner to be heard with witnesses and argument on the issue when given an opportunity, we agree with the Circuit Court of Appeals that the letter was contemptuous.
“But while we reach this conclusion, we are far from approving the course of the judge in the procedure, or absence of it, adopted by him in sentencing the petitioner. He treated the case as if the objectionable words had been uttered against him in open court.
“To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law [591]*591and the punishment imposed is due process of law. Such a case had great consideration in the decision of this Court in Ex parte Terry, 128 U. S. 289. It was there held that a court of the United States upon commission of a contempt in open court might upon its own knowledge of the facts without further proof, without issue or trial, and without hearing an explanation of the motives of the offender, immediately proceed to determine whether the facts justified punishment and to inflict such punishment as was fitting under the law.
“The important distinction between the Terry case and the one at bar is that this contempt was not in open court. This is fully brought out in Savin, Petitioner, 131 U. S. 267. The contempt there was an effort to deter a witness, in attendance upon a court of the United States in obedience to a subpoena, while he was in a waiting room for witnesses near the court room, from testifying, and the offering him money in the hallway of the courthouse as an inducement. This was held to be ‘misbehavior in the presence of the court’ under section 725 R. S. (now section 268 of the Judicial Code) The Court, speaking by Mr. Justice Harlan, said (page 277) :
“ ‘We are of opinion that, within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the present of the court. It is true that the mode of proceeding for contempt is not the same in every ease of such misbehavior. Where the contempt is committed directly under the eye or within the view of the court, it may proceed “upon its own knowledge of the facts and punish the offender, without further proof, and without issue or trial in any form,” Ex parte Terry, 128 U. S. 289, 309; whereas, in cases of misbehavior in which the judge can not -have such personal knowledge, and is informed thereof only by confession of the party, or by testimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished. 4 Bl. Com. 286.’
“This difference between the scope of the words of the statute ‘in the presence of the court,’ on the one hand, and the meaning of the narrower phrase ‘under the eye or within the view of the court, ’ or ‘in open court’ or ‘in the face of the court,’ or ‘in facie curiae,’ on the other, is thus clearly indicated and is further elaborated in the opinion.
“We think the distinction finds its reason not any more in the ability of the judge to see and hear what happens in the open court [592]*592than in the danger that, unless such an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public in the ‘very hallowed place of justice,’ as Blackstone has it, is not instantly suppressed and punished, demoralization of the court’s authority will follow. Punishment without issue or trial was so contrary to the usual and ordinarily indispensable hearing before judgment, constituting due process, that the assumption that the court saw everything that went on in open court was required to justify the exception; but the need for immediate penal vindication of the dignity of the court created it.
“When the contempt is not in open court, however, there is no such right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument. The exact form of procedure in the prosecution of such contempts is not important. The Court in Randall v. Brigham, 7 Wall. 523, 540, in speaking of what, was necessary in proceedings against an attorney at law for malpractice said:
“ ‘All that is requisite to their validity is that, when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence. The manner in which the proceeding shall be conducted, so that it be without oppression or unfairness, is,a matter of judicial.regulation.’
“The Court in Savin, petitioner, 131 U. S. 267, applied this rule to proceedings for contempt..
“Due process-of law* therefore; in the prosecution.of contempt, except of that., committed in open court, requires -that the accused should be advised of the charges, and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to. the issue of complete exculpation or in. extenuation of the offense -and in mitigation of the penalty to be imposed. See Hollingsworth v. Duane, 12 Fed. Cases, 359, 360; In re Stewart 118 La. 827; Ex parte Clark, 208 Mo. 121.
"The proceeding in this case ..was not conducted in accordance with the foregoing principles. We have set out at great length in the statement which precedes this opinion the substance of what took place before, at and after the sentence. The first step by the court ■was an order of attachment and the arrest of the petitioner. It is not shown that the writ of attachment contained a copy of the order [593]*593of the court, and we are not advised that the petitioner had an exact idea of the purport of the charges nntii the order was read. In such a case, and after so long a delay, it would seem to have been proper practice, as laid down by Blackstone, 4 Commentaries, 286, to issue a rule to show cause. The rule should have contained enough to inform the defendant of the nature of the contempt charged. See Hollingsworth v. Duane, 12 Fed. Cases 367, 369. Without any ground shown for supposing that a rule would not have brought in the alleged contemnors, it was harsh under the circumstances to order the arrest.
“After the court elicited from the petitioner the admission that he had written the letter, the court refused him time to secure and consult counsel, prepare his defense and call witnesses, and this although the court itself had taken time to call in counsel as a friend of the court. The presence of the United States District Attorney also was secured by the court on the ground that it was a criminal case.
“The court proceeded on the theory that the admission that the petitioner had written the letter forclosed evidence or argument. In cases like this, where the intention with which acts of contempt have been committed must necessarily and properly have an important bearing on the degree of guilt and the penalty which should be imposed, the court can not exclude evidence in mitigation. It is a proper part of the defense. There was a suggestion in one of the remarks of the petitioner to the court that, while he had dictated, the letter he had not read it carefully, and that he had trusted to-the advice of his partner in .sending it; but he was not given a. chance to call witnessses or to make a full statement on this point. He was interrupted by the court or the counsel of the court in every attempted explanation. On -the other hand, when the court came to= 'pronounce sentence, it commented on the conduct of both -the petitioner and his client in making scandalous charges -in the pleadings against officials of the court and charges of a corrupt conspiracy against the trustee and referee in bankcr.uptcy, and in employing a detective to shadow jurymen while in charge of the marshal, and afterwards to detect bribery of them, in proof of which the court referred to a sworn statement of the detective in its hands, which had not been submitted to the petitioner or his client. When Walker questioned this, the court directed the marshal to prevent further' interruption. It was quite clear that the court considered the facts thus announced as in aggravation of the contempt. Yet no oppor[594]*594tunity had been given to the eontemnors even to hear these new charges of the court, much less to meet or explain them, before the sentence. We think the procedure pursued was unfair and oppressive to the petitioner.”
We have quoted at length from the opinion of the Supreme Court because, speaking for itself, it reveals how different indeed is the Cooke case from the one at bar, notwithstanding the similarity that at first seems to exist from a mere reading of some passages of the. opinion.
In the first place, the facts constituting contempt took place in a way essentially distinct. In the Cooke case the contempt was committed by means of a letter delivered to the judge in his office, that may or may not have been read forthwith without interfering with the proceedings in court. In the instant case the contempt was committed by Torres assaulting the person of the judge who was engaged in presiding a criminal trial for murder, shortly after the court had adjourned, while he was leaving' his office and was in the corridor next to the court room, which assault tended to interrupt the proceedings in court and to terrorize the jurors who were impaneled, as expressly communicated to the defendant in the order of February 1, 1939, summoning him to appear at three o’clock.
In the Cooke case the defendants were ordered to appear forthwith. In the instant case, as we have just seen, Torres was given three days which were afterwards extended to five.
In the Cooke case the defendants were refused the assis-tance of counsel, notwithstanding their request to that effect. In the present case Torres appeared assisted by his attorneys.
In the Cooke case the latter sought to explain, to defend, ""to show that there were mitigating circumstances, and everything was refused him. In the case before us, Torres did nothing, raised nothing, and brought an incomplete record to court.
It was the atmosphere of arbitrariness in which the Cooke ease unfolded itself that undoubtedly led the Supreme Court [595]*595to reverse the decision of the Circuit Court and to remand the case to the district court for further proceedings. Moved by the urge to do justice, some of its expressions perhaps went too far. The same court, four years afterwards, in Sinclair v. United States, 279 U.S. 749, 767, said:
“Always the language used in an opinion must be read in the light of the issues presented. Cooke was not accorded due opportunity at any stage of the proceedings to state the facts which might excuse or mitigate Ills conduct and the words quoted were addressed to that situation. Here there was abundant opportunity for presentation of anything really important.”
The last question raised in the appellant’s brief is as follows:
“That it was error to have the defendant tried by the lower court which was presided precisely by the same magistrate upon whose person the assault had been committed.”
Contempt, as has been repeatedly held, not only for years but for centuries, is a proceeding sui generis which requires immediate action on the part of the court and in which the power to take action has been recognized in the very judge against whom the contempt has been committed. The reason .is • that the contemned party is not the person, of the judge but the dignity of the court and what is interrupted is the orderly administration of justice.
Now, if that were possible, and in order that neither individually nor socially there could be entertained the slightest suspicion of an arbitrary procedure, the proper thing would be for the contemned judge in contempt cases like the one before us, where a personal assault is concerned, to abstain from intervening and to transfer the cognizance of the matter to some other judge similarly qualified and whose duty it is to intervene. Failure to do so, however, is not such an error as to carry with it a reversal of the judgment.
[596]*596It is well to transcribe in this respect what the Supreme Court said in the same Cooke case. It is as follows:
“. . . . The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indipsensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. . . . All we can say upon the whole matter is that where conditions do not -make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. (Citations.)
“The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the. proceedings abundantly shows. We think, therefore, that when this case again reaches the District Court to which it must be remanded, the judge who imposed the sentence herein should invite the senior circuit judge of the circuit to assign another judge to sit in the second hearing of the charge against the petitioner.”
By virtue of the foregoing, the appeal must be dismissed and the judgment appealed from affirmed.
Mr. Justice Wolf concurs in the decision and most of the opinion and its spirit, but he wishes to state that in his judgment the contempt committed was direct.