The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-09-05
Attorneys for MCCOwn
Claim Statutes Fail.
BEFORE COURT TODAY
Ex-Mayor Who Assaulted Judge Ward
Here on Habeas Corpus. Formal
Order of Dismissal by Judge
Walker That Whole Court
Might Decide Question.

ham, who was on last Saturday ad-
judged in contempt of court and sem
fenced to thirty days in Jail and to
pay a fine of two hundred dollars by
reason of an assault upon Judge Geo.
Ward, who has been holding Grim
inal term of court at Durham, was
brought here yesterday in the custody
of Deputy Sheriff Jno. F. Harwood in
response to a W'lt OF habeas corpus
returnable before Justice Walker, OF
the Supreme Court. With him came
his attorneys, Messrs. w. A. and w.
B. Guthrie and F. L. Fuller, Esq, while
Solicitor Brooks vas present to rep
resent the State in association with the
+ 'Lorney General.
The argumcIt on the writ was to
have been heard at half-past twelve,
but after a conference of the members
of the court and counsel for the State
and the petitioner, it was agreed that
Justice Walker should formally deny
the writ without argument upon the
statement Of facts found by Judge
Ward, and that all technicalities be-
ing waived, the petitioner should be
allowed to appeal to the Supreme
Court, the hearing to begin this morn
ing at 10 o'clock.
Mr.. McCown w,s carried back =
DuIIldln III lI6 SlICSss
matter being now on appeal. his
ence is no longer necessary for the
termination of the questions ihvolv
The considerations for postpOning
the hearing until today were that it
was desired to have the matter heard
by the full court as it's gravity is re-
cogniZed and Jus tiCe Walker is said
to have felt that if he should hear ar
gument and render decision he would
be disqualified to sit on the appeal.
Even more strongly was ii felt that the
writ could not be argued before the
whole court since in that event the
appeal would merely amount to put
ting the five justices, as a court, in the
position of reviewing their own action
as individuals. Hence the making of
the writ returnable before one justice,
the formal action by him and the ap-
peal to the Supreme Court. In this
way the question as to whether the as
Sault constituted a contempt such as
could be summarily punished will be
promptly settled and the case become
regular precedent Of The court.
McCOWn's Defense; states Conten-
ton.
The attorneys for Mr. McCown, when
asked for an outline of their position
in defence of their client, stated broad
~ that they should contend that there
since the decisions of the court have
in the past confined punishment for
contempt strictly to those cases fall
ing within the several statutes passed
by the Legislature the sentence for
contempt was illegal and not in the
power of the judge to impose.
Solicitor Brooks, when asked for his
position. stated that he should con-
tend that the case was covered by sec
ton $50 of The Code and that in ad
ditiOn. SO aggravated an instance OF
disrespect TO the court as a blow
came under the common law. so as to
give the court the right to protect it
self regardless of any definite statute.
Must Cont Be Actually Sitting?
The section referred to is as follows:
Contempt committed in the imme-
diate view and presence of the court
may be punished summarily but the
court shall cause the particulars of the
offense to be specified on the record.
and a copy of the same to be attached
to every committaI attachment or pro-
cess in the nature of an execution
founded on such Judgment or order"
In the case of the assault on Judge
Ward. the court was not in session and
the judge had gone to his boarding
place, where he was sought by the ex-
mayor. The judge had not however,
signed the minutes of the proceedings
and he finds as a fact that the court
had not adjourned for the term.
Therefore the contention of the de-
fense must be that a construction of
the statute quoted limits the power to
punish summarily for contempt to
those cases which occur i'm the "im-
mediate view and presence of the
court (than sitting.)
Although there have been many
cases of attachments for contempt
both summary and in proceedings "as
for contempt is, actions away
from the immediate presence of the
court of a sort to tend to hinder it's
process or proceedings 9r impair the
rights of litigants-the facts in the Nc
Gown case present an absolutely novel
condition. In fact. the present in
stance is the only one in which a Judge
in North Carolina has been personal
ly assaulted by reason of an act done
while sitting as judge. which he vet
occupied the Office The questions
whether the statute quoted above gives
a remedy only when the contemptuous
act is committed in the presence of the
judge While actually holding a court
so as TO put him when out of the court
mousse in the position of the ordinary
cltlzen or whether it applies to the
person of the judge wherever he may
De, instead of only to such time as he
is actually conducting the proceedings
OIL the court are open and susceptible