512 PACE V. STATE. [177 PACE V. STATE. Opinion delivered June 11, 1928. 1. CONTEMPT—POWER OF COURTS.—The power to punish for contempt is inherent in all oourts; its existence is essential to the preservation of order in judicial proceedings and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice. 2. CONTEMPT—ASSAULTING ATTORNEY IN PENDING CASE.—Defendant, husband of a witness in a pending case, who, during a recess of court, assaulted and beat up an attorney in the case for supposed derogatory remarks during his argument, held properly punished as for contempt. 3. CONTEMPT—PUNISHMENT.—A fine of $50 and 10 days' imprisonment in the county jail for contempt of court in assaulting an attorney for remarks made in argument held excessive, in view of the circumstances, and the jail sentence remitted. Appeal from Pulaski- Circuit Court, Second Division ; Richard M. Mann, Judge; modified. . STATEMENT OF FACTS. E. F. Pace, Jr., brings this proceeding to review the action of the circuit court in adjudging him guilty of contempt and assessing his punishment at a fine of $50 and ten days' imprisonment in the county jail. The record shows that John D. Hoskins was one of the attorney§ for the plaintiffs -in a damage suit in the Pulaski Circuit Court, *and that the wife of E. F. Pade, Jr., was one , of the witnesses for the defendants. Hoskins finished the closing argument for the pkintiffs a little while before noon, and the jury in a short time brought in a verdict for the defendants. The attorneys for the plaintiffs secured an extension of time to file a motion for a new trial. The court took a recess at noon, and Hoskins went to a near-by hotel and got something to edt. He started back to the courthouse, and was assaulted and .severely beaten by E. F. Pace, Jr. According to the testimony of *Hoskins, Pace approadhed him, and told him that he had made his wife-out a liar in his argument, and at the same time assaulted and severely beat him. Pace .knocked Hoskins down,
ARK.] PACE V. STATE. 513 and stomped him. On cross-examination Hoskins was asked if Pace did not ask him to apologize to his wife, and if he had nat replied that he would nat apologize to Pace or any other son-of-a-bitch, and Hoskins answered Lewis Rhoton, one of the attorneys for the plaintiffs, testified that he heard the argument of Hoskins in the case, and that there was nothing objectionable in it. He further stated that nothing was . said either by Hoskins or by himself that any reasonable person could object to. E. F. Pace, Jr., was- a witness for himself. According to his testimony, several days before the trial he had been informed that Hoskins had applied a vile epithet to his wife and other nurses. This made him mad, but he was advised not to do anything until after the damage suit in which his wife was a witness for the defendants and Hoskins was an attorney for the plaintiffs had been tried. After the trial waS over and the court was taking its noon recess, Pace saw Hoskins on the Street, and told him he thought that he owed his wife an apology far the remarks he had made about her. Hoskins replied that he did not think he owed Pace or any other son-of-a-b-- an apology. Pace then assaulted and _severely beat Hoskins. The circuit court made an express finding that Pace assaulted and beat -Hoskins because he had become offended at certain remarks made by Hoskins about the testimony of the wife of E. F. Pace, Jr., in his closing argument to the jury. The court found that Pace told HasIdas, at the time he assaulted and beat him, that it was for his conduct and remarks in the argument of the damage suit reflecting upon his wife as a witness that caused Pace to assatlt him. Whereupon the court found the defendant was guilty of contempt, and assessed his punishment as above stated. Robert L. Rogers, for appellant. H. W. Applegate, Attorney General, and Walter L. Pope, Assistant, for appellee..
514 PACE V. STATE. {177 HART, C. J., (after stating the facts). In Ex parte Robinson, 19 Wall. 505, Mr. Justice Field, speaking for the Supreme :Court of the United Staths, said: ' "The poWer to punish for contempts is inherent in all courts ; its existence • is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice." This view has been adopted by this court in Turk and Wallen v. State, 123 Ark. 341, 185 S. W. 472, and Weldon v. State,150 Ark. 407, 234 S. W. 466, 18 A. L. R. 202. : In the first case cited this court said that the power to punish for contempt is inherent in courts of justice, and the right to. inflict punishment upon an offender against their dignity land authority is an incident of judicial power which_cannot be removed by statutory enactment. It was said that preventing the appearance of a litigant in court for the:prosecution of a civil suit, by intimidation and threats, was an obstruction of judicial procedure andAended to.bring the administration of justice into disrepute. lience it was held that the court did not exceed its. authority in asSes.sing 'the puniShment inflicted on the defendants in that case. In the Weldon case it was held that, by the common law, a court may punish as for contempt insultS offered to the person of the judge in consequence of his judicial acts; though offered on a day when court was not in session and at a place where court could not ibe legally held. In Brannon v. CommOnwealth, 162 Ky. 350, 172 S. W. 703, L. R . A. 1915D, 569, it was held that it is a criminal contempt f6r one under several indictments, in one of which the jury is out, but eventually returns a verdict of guilty, with another yet to be tried, to commit a battery on a witness who testified against him in the pending case and is to be called in a subsequent one, for the purpose of punishing him for the testimony given and intimidating him for the future. The court said : "For One to commit, as was done by the appellant in this case, an 'assault and battery upon the witness as a
ARK.] PACE V. STATE. 515 pnnishment for giving testimony a -gainst him in an action or criminal prosecution then pending, though in part disposed of, or as a means to intimidate 'hith and influen-ce. his testimony expected to be given in -the futUre trial of an action or criminal prosecution then-pending, is a criminal contempt, because such conduct is• as much- an interference with the authority and dignity of the court and an obstruction of -justice as would be the intimidation or - bribery of- a witness, or any contempt committed in the presence of the court. The evidence clearly - proves, appellant's guilt of such a contempt ; and, this being true,- it was within the power and jurisdiction of the court to proceed against him by rule and summarily to try him, -as was done in this case." a was alai insisted in that CaSe -that the Court -erred in telling the jury that it might 'find defendant gUilty. if hiS motive for committing the assault arid battery Was to punish Cook, the person assaulted, for testifying in the case jtist tried. This - contention rests on the ground' that-, if the assault was- cominitted on this accennt, it would not constitute a Contempt in the meaning of the law.. The court held that, as the case tried Must be regarded as- pending in 'court at the time of the assault upon the witness,- the aisault, if collimated - by way of punishment for the testimony given by -Cook in the case, was - as- inUch-a contempt as if it had 'been committed for the pUrpose of intimidating Cook as a witness in a future - trial to: be- had of the Other indictment, - which had been continued- to the succeeding term of court. .. _ The power of the court -to punish for contempt consisting -of an ' assault uPon one of the attorneys a pending case has: been recognized inlInited States v. Barrett, 187 Fed. 378. It 'was there held that 'where, after an aCtion had been tried before -a j-dry in la Federal 'Circuit Court, and the jury had retired to- consider - the case, tWo-Persons interested in the -corporation defendant mide an unProvoked assault upon plaintiff's atterney because of his argument, -on the • street, in full view of the jilt?' room, - they were. guiltY of Conterript. JUdge- Speer s-aid
516 PACE V. STATE. [177 that it was the . constitutional privilege Of parties t6 have cOunsel, and that the occupation of counsel in the interest of his client in trying the case must be uninterfered with by violence. Continuing, the learned judge said : ' . He has the right to argue his client's case. If, he violates the proprieties of the courtroom, and the often, tion of the court is called to it, he will be immediately stopped. If be is guilty of impertinent defamation, the, courts are open by dne process of law to the party defamed, in order to recover righteous damages, and there would be no difficulty in maintaining such a case. It is not within the proper power of the parties_ to the litigation to take the law into their own hands, and assault the counsel when they have been offended, or imagine that they have been offended. The counsel in a case is a minister •of justice. He iS the counselor of the court.' Without his aid the court cannot get along. Can it be. possible that,. in our country, the court must regard as trivial an unprovoked assault upon cOunsel, who has. dime his duty as he saW it, upon a controversy Which necessarily involved the question of the veracity of the contending parties, to deny him the right, in a general way, to insist that his client was truthful •and that the other side was not truthful? This Would be to deny the plaintiff his day in court, and to deny him due process of law. If the attorney was offensive, Or if tho party thought he was offensive, the means'of redress is not by resorting to violence, but by appealing tO the law of the land." We think this iS a full, clear and comprehensive statement . of the reason for the rule. In the case at bar the verdict of the jurY had been returned into court, and' counsel for the plaintiffs had 'obtained leaVe for an extension of time within which to file a motion for a new trial. The court had taken a recesa at the noon hour, and the judgment in the case had not been entered of record. Counsel for the plaintiffs had a right, and indeed it was their duty, to see that a proper judgment was.entered in the case. Hoskins testified that he was assaulted and
ARK.] PACE V. STATE. 517 severely beaten by Pace on his way back to the courtroom, within a short time after he had left it after . making the closing argument in a damage suit in which the defendant's wife was a witness. Hoskins stated positively that Pace told him that he was going to assault and beat him. because of the remarks he had made concerning his wife in his closing argument. Under these circumstances the circuit court was justified in finding that the assault and battery by Pace upon Hoskins was in contemplation of an argument made during the pending trial, and was calculated to obstruct the administration of justice and to degrade the 'authority of the court, and to contaminate the purity of its proceedings. Hence it had the power and authority to punish Pace for contempt of court. See In re Hand, 89 N. J. Eq. 469, 105 Atl. 594. This brings us to a consideration , of whether the punishment was excessive or not. According to the testimony of Pace, he had become very much angered and excited because he had been informed that Hoskins had aPplied a Vile epithet to his wife and some other nUrses who were Witnesses for the defendants in a damage suit in which -Hoskins was attorney for the plaintiffs. It is true that it turned out that Hoskins had applied no vile epithet to the wife of Pace, but Pace did not know this at the time he made the 'assault. He had been advised that he must wait until . after the trial was over before seeing Hoskins about the matter. He accidentally met Hoskins during the noOn hcair of the court recess, after the •trial was finished, and Pace was under great mental stress and excitement at the time. Under these circumstances we think a milder penalty will serve the ends of justice, and that the jail penalty should he remitted. Baker v. State, ante p. 13. Therefore it will be ordered that the judgment be modified by remitting the jail sentence *and allowing the fine of $50 to stand. Otherwise the judgment will be affirmed. It is so ordered.
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