The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1906-06-14
The OTHER SIDE or TffE nLOO7ING
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resulted. However that may be, the
fact Is that Judge Noyes, appointed
Mckenzie receiver of certain disputed
diction.
Judge Noyes ives, not upon trial in
the U. 8. circuit court of appeals in
the proceedings against Alexander NC
kenzie for contempt In failing to obey
the writ. Mckenzie claims that It was
therefore highly improper to. condemn
him unheard and to sentence him for
his (Noye's) alleged irregularities in
judicial action, with which Mckenzie
had no connection, SO far as 1t ap-
peared in the evidence before the
court Judge NOyes has been called
upon to answer the charges against
him. II his conduct merits condemna-
ton or punishment, he will be brought
to book. If Mckenzie and Noyes are
guilty of conspiracy and have pervert-
ed the powers and processes of the
territorial courts, they will be prose-
cuted and punished.
The naked question before you is,
will you pardon Alexander Mckenzie
for disregarding the order of the
court, under all the circumstances
mentioned above?
In determining this. great weight
should be given to the fact that Nc
Kenzie acted under advice of counsel.
Advice Of counsel never justifies
disobedience, but is always circum-
stance to be considered in mitigation
The doctrine upon this subject is
believed to be correctly stated in
Am. & Eng. Ency. L. (2nd ed.,) n.
"A showing that the contemner acted
under the erroneous advice of his
counsel as to the proper and legal
course to pursue will not suffice to
purge the contempt committed; al
though when such advice is given, re-
ceived and acted upon in good faith,
1t will mitigate punishment by elimin-
ating the criminal element from con-
tempt"
The clear doctrine of the authorities,
especially the modern ones, is that the
advice of counsel, taken and acted on
in good faith, together with dis
claimer Of intention to violate an or
der, goes far in mitigation, If it does
not entirely eliminate the criminal
element and dispense with punishment,
as such.
But, these facts in mitigation should
be considered by the court in the first
instance, in the punishment inflicted.
Presumably they are. but they are not
always 80, or sufficiently SO. But,
whether so considered by the court,
or not, there Is no manner of doubt
that, in an application for pardon, they
may be considered, and beyond any
consideration which justice would or
dinarily give to them.
These considerations are particular
-ly addressed to the power which can
pardon, even though the sentence was
Just.
Such a case as this, one of criminal
contempt of court, is peculiarly one
for such considerations. The offense
was against the majesty of the law and
the authority and dignity Of the court.
But 1t must be remembered that it is
the sentence itself, with the power
to execute 1t, and not it's full execu-
ton, which is the sunlcient vindication
of these. It is not always necessary
to this end that the offender should
actually suffer the whole punishment
ordered.
It is believed that mitigating cir
cumstances, whenever they existed,
have always been considered in grant
ing pardons, although they were pre-
sumably considered, so far as they
could be, in adjudging the penalty.
And, surely, the advice Of counsel
learned In the Law, taken and acted
upon In good faith, would seem, as q
mitigation, to appeal strongly to the
pardon1ng power, even though, under
the law, the court could not recog-
nize 1t as such. y,
The case Is a peculiar one. Mr..
Mckenzie. as receiver of a United
States court, held certain property
subject to the order of that court Both
he and his sureties were responsible
for this. II the circuit court of appeals
had no Jurisdiction, 1t was, at least,
grave question whether his disposal
of this property as ordered by the court
would absolve him or his sureties.
1t Is proper to direct your attention
to the fact that McKenzie's petition
for pardon and all the letters and tele-
grams and the record pertaining there
to that had been received up to that
time. were forwarded April 6, 1901, to
Judges Ross. Morrow and Gilbert. who
heard and decided the case, with my
request for an expression of their
views as to the expediency and JUS
tice Of granting the application. Their
replies have been received and care
fully considered. Judges Ross and
Gilbert express the opinion that the
application should be denied for the
reasons set out in the original opinion
Of the court delivered by Judge Ross.
Judge Morrow also recommends q de-
NAL of the application, but notices and
answers the claim made by Mckenzie
and his friends that his action was con-
trOlied by his counsel's advice.
Judge Morrow questions this upon
the testimony of w. H. Nelson, ESQ.,,
whom he describes as q we'll known
and reputable attorney of San Fran
cisco. member Of the firm of Camp
bell and Metson, from whose testimony
In another case against another defend.
ant he quotes ut length in his report.
Having attached great weight to the
circumstance, as I find 1t established,
that Mckenzie was acting under advice
OF counsel, have given Judge Nor
rows statement to the contrary and
the testimony upon which It ia pre-
dicted careful examination. 4
In my Judgment the testimony Of
n. Nelson does not establish the
point claimed. 5.7s
It y not competent testimony. At
most II 10 cited BY Judge Morrow as,
and only pretends to be. . eenvorsatien
between Nelson and Gsary (McKen.
xie's hwyer) On October Is, 1Soo,, IN
respect to certain ether proceedinss
u contempt against one Dudley, N.
hote JlAge 1srsM eertainly "a NJ
intena q aayanee III preSsstfisn TIT