The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-06-03

nation under oath stating the facts
constituting the alleged contempt The
charge must be direct that the party
has committed the act complained of
In all matters based on the oath of a
party charging another with the COM
mission of an offense by which he may
be deprived of his liberty, the charge
must be specific and direct, mere hear
say will not do. The affidavit in this
case therefore is insufficient"
See also:
In re Wood 80 Mich rs.
State VS.. Raborg, 5 n j. I: 628
In re Judson 8 Batch Gu. 50 14S.
Commonwealth VS.. cambridge, Va.
Cas-. 406.
Sargent VS.. Warren, % N. Y. Wkly
Dig. 473,
Rail- VS.. Rail, IA N. Y. Wkly. Dig.
$50
ST. Amant VS. De Beixcedon, 8 Sandf.
IN. V 703.
.. The affidavit of Parker is further
insufficient to give the court jurisdic-
ton in that it failed to allege any acts
which, under the laws of North Caro-
lima, constitute contempt. The con-
spiracy alleged in the 4th paragraph
of Parker's affidavit may subject re-
| spondents o indictment for conspira-
cy, but it does not constitute contempt.
| So likewise the discussion by reSpOn-
dents of the criticisms which had been
made upon Judge PEBBLES in reference
| to his unfairness, partially etc, and
| their action thereon and alleged, were
not matters which would make the re-
spondents guilty of contempt.
Such matters are not embraced with
| in the provisions of section 654 of The
Code and this court held In re Cho-
rum, 1919 N. c.. 4S1, that the acts
enumerated in that section were the
| only acts which would warrant pro-
| ceedings as for contempt.
| In the case of In re Moore, GO n. c.,
397, the Supreme Court held that the
publication. of libellous matter in q
newspaper concerning judge was II Ut
| embraced in section GAS of The Code,
| but that there was still inherent in
the coruts a common law right to pun
/ ish I'm the court such publication At
| forwards the Legislature passed the
act of 1S70-71, in which it was pro-
vided that the only acts of contempt
! in existence in this State should be
those set forth and defined in section
GAS of The Code.
The .constitutionality of this act has
| been upheld in the cases of ex parte
| Schenck, G5 N. c., 366, In re Oldham,
SO N. c., 23, In re Gorham, 129 N. c.,
431.
The distinction drawn is that the
| courts would declare as unconstitu-
tional any Gct of the Legislature which
| attempted to take away from the
courts the right to preserve order and
carry on the courts in proper manner
and enforce obedience to it's lawful
| orders but that it is within the prov
| ince of the Legislature to declare that
only certain acts which are committed
| outside of the court house and which
merely tend to REJECT upon the court
| shall constitute contempt. In re Rob-
nson, III N. c., 533.
Our own authorities are supported
by those of other States. In State
VS. Root, 81 Am. st. Rep, SIS, the
| court said:
1.-The language which the accused
was charged with using was very abu
sive in character, and of nature
| highly defamatory and slanderouS. 1t
| reflected in terms of severity upon the
| presiding judge of the very court in
| which the accused was practicing as
an attorney at law, and assailed/ the
! Judge, not only on account of his Of
! fensive action in the liquor cases, but
also attacked his private character as
| q citizen. We. can conceive of any cir
| cumstance which could justify an at
| torney in the use of such language.
even when out of court and out of the
| presence or hearing of the judge, to
whom it was applied. But the ques-
|
| language we have thus far considered
would constitute the crime of con-
! tempt of court We are clear that it
would not. No case is cited on the
part of the State to support the con-
| tention. and, after a diligent quest, we
| have been unable to nd any modern
authority to sustain the prosecution
| upon this feature of the case
For another able and learned opin
| ion discussing this phase of contempt
and holding that acts similar to those
| in case at bar do not constitute con-
! tempt, see State VS.. Court, 80 l.. r. A,
| 554.
6. The affidavit was further insult
ficient to give the court jurisdiction in
that it failed to allege that the act,
complained of was "such as tended to
| defeat. impair, impede or prejudice
prejudice the rights or remedies OF a
| party to an action then pending in
| court" BY section 656 of The Code.
| this is made an essential basis for pro-
| ceedings as for contempt, and sub-Sec-
| ton of section 654 clearly shows that
| the same fact must be shown in order
| to warrant any proceedings as for con-
| tempt.
1t must be borne i'm mind that these
| proceedings are quasi criminal. and
| from the authorities already cited. no
Etablv the case of Batchelder VS.. Moon.
AZ Cal, 412. nothing can be inferred
or presumed and unless the affidavit
contains all of the essential elements
it will not support the proceedings for
contempt.
Z. Judge PEBBLES was without jul
risdiction to adjudge the petitioners
guilty of contempt for the further
reason that upon the filing of the an
swers of NJ A. Mclean and others. the
answers met the rule and Judge Pee
bles had no power to do anytime ex-
cept discharge the rule against n. A.
Mclean and others and terminate that
case. Conceding that an offence was
charged against N. A. Mclean and
others and we concede it only Tor the
sake of the argument), the aravamen
was the intent to bring the court into
contempt The answers distinctly dis
avow this intent and that ended the
proceeding against N. A. Mclean and
others as a matter of law.