The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-09-06
Subject to Statute or In
herent in Court?
STATUS OF M'COWN
In Supreme Court McCown's Counsel
Contend That Assault on Judge Can
not be Punished as Contempt, Not
Being Included in Statute; State
That Power is Inherent.

in the supreme Court yesterday morn
ing in the hearing of argument in the
case In re NJ. f. McCown, petitioner
in habeas corpus proceedings follow
ing his imprisonment Oh an attach
ment for contempt issued by Judge
George w. Ward after he had been
personally assaulted by the respondent
at his boarding place in Durham,
where he was holding q term o. the
Superior Court.
AS has already been told in detail,
the attack on the Judge followed the
sentencing by him of a negro who had
killed the nephew of the petitioner.
the latter becoming incensed because
he did not consider that the punish
ment imposed had been sufficiently Sc
we're.
Argument was heard on the part of
the petitioner from Major w. A.
Guthrie, of Durham, and on the part
of the state from Solicitor A. H.
Brooks, of Greensboro, and Attorney
General r. l.. Gilmer.
The Court reserved it's decision.
Judgment will in all probability be
made known at once, and the written
opinion will follow.
The Line of Argument.
AS stated in yesterdays News and
Observer would be the case. the argu-
ment on the legality of the action of
Judge Ward was based on the broad
contention on the one hand that the
statutes applying to cases of contempt
failed to include an assault upon the
person of a Judge when not actually
sitting as a court or engaged in trans
acting the business thereof and that
the constitutionality of the several
statutes had been upheld by the deci-
sions of the Supreme Court; on the
other hand the State argued that while
the statutes could not be construed to
prevent a Judge from protecting his
person from assault growing out of his
actions in the conduct of his court by
exercising the inherent power to at
tach for contempt, even If the statutes
had been so drawn they would be un-
constitutional as an attempt on the
part of one department of government
to abridge the powers and limit the
rights of coordinate branch.
The authorities cited were in line
with the contentious those adduced by
the petitioner being the decisions of
the North Carolina Court in the cases
arising under the statutes of 1869 and
1871; while the State. taking the
broader ground that the common law
right to attach for contempt was an
inherent function of the judiciary
which could not be interfered with by
the Legislature, cited a number of
from other jurisdictions
confirmatory of the principle relied on.
Major Guthrie For Petitioner.
Major Guthrie spoke first, for the
petitioner. After stating to the court
that both he and his associates and
client were grateful for the opportu-
nifty extended to them to have the case
heard at once on appeal, without
technicalitieS and on its merits, he
read the transcript. such portion Of
the record as stated the facts, on which
the petition was based, and stated be-
fore beginning his argument thar
whatever he might say must not be
cism of Judge Ward. In this connec-
ton he took occasion to state that
he had never heard a case more fairly
tried than that over which the assault
arose and that the demeanor of the
Judge after the assault and under the
trying circumstances attendant upon 1t
displayed in a marked and wonderful
degree the judicial temperament. He
then called attention to the fact that
while he realized the truth that the
findings of fact by a Superior Court
were absolute in cases of attachments
for contempt, these findings were pre-
pared by a man who was human and
from the sting of resentment
following an assault With nothing
else appearing, it would seem to the
world in future years that McCown
found by the Court to be rational had
done an insane thing. There was Moth
ing TO show the circumstances of the
assault or the interest of the respond
ent in the case out of which it grew.
However. from the point of view OF
petitioner, there was but one point
involved in the case: and that whether
the respondent was lawfully impris-
oned or not His contention should
be broadly that no man could be pun
shed for contempt unless his action
falls under some one of the provisions
laid down in the Act of 1869 as
amended by the act of 1871. Tt was
useless to attempt to go back to the
law or to argue the consti-
Lutional rights of the judicial depart
nent. His enquiry should be directed
to the act alone. He would not cite
case of a court outside Of North
Carolina 1t was merely question of
now far the Legislature can go i'm re-
oealing the common law. The act OF
81 repeals the common law. The
Court has held that act to be constitu-
ional. and said that it preserved every
Inherent right possessed by the Courts.
He recited the history connected WITH
he passage Of the acts. the ground
aiken by B. r. Moore and the other
awyers attached for contempt by thu
FTsI.