# Petition for a Writ of Certiorari — Crudup v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1142%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 375 U.S. 829 ## Text 4 } as IN THE ad Supreme Court of the United States OCTOBER TERM, 19633 . New JOHN N. CRUDUP ~ Vs. « \ THE STATE. OF GEORGIA PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA _€ JOUN N. CRUDUP. ~ . Pro. Se 999-11. Jackson Building Gainesville, Georgia te Dissenting Opinion Court of Appeals of Georgia 4 % : s P -. INDEX: ; ‘ ; PAGE Opinions Below a | ‘ Jurisdiction .. * Oo! ae Pisce rey ip 2 Questions Presented for Review ro 2 Su “ot rs it peer dine ; “- wx Statute and Rules Involve — fs 3 Statement of the Case .. tL ¢ Reasons for Granting the W rit 6 | * The Supreme Court: -of Georgia has Scigedl an - . important Question of Law in Confliet with the Decisions of this Court. and has so far De- parted from the Accepted Course of Judicial Procedure as to Call for the Exercise of this Court's’ Power of Review oh 6 Il. There is a Manifest Public Interest in the Ques-- tn tions here .Presented and, the Supreme Court * “of Georgia's Decision Refuses to Follow Ap- Te Decisions- of this Co 7); oe Ili. There is a Manifest Public Interest in the Questions. Presented and Important and Un- .- decided Questions are here Presented iss Cenclusion «+ ae A Certificate ‘of Sérvice | * 15 a . > ° 5 ; , Se ae : [ee eae are : : Opinion Supreme Court of Georgia an | aa ji Dissenting Opinion Supreme Court of Georgia 3° 2 Opinion Court of Appeals of Georgia of on ii” CITATIONS: : - Cases. ; aa Fisher v. Pace, 336 U. S. 155; 93 L ed’ 569... Sn. © Re Green, 8 L ed 2d oc, OEE OCT Pe are Ee oe (1) ” Re McConnell, 82 Sep. Ct. 1288 (i962) :s 3, 6,7 Wood v. . Georgia, 8 L ed 569 Te eo One ae Ge .10 Statutes ond Rules. ; . ities Code § 24-3323. .. %.. ....., * 8, 12 Title 28 U. S. C..A. § 1257 Face pine iecwks ia eee eee, , Title 28 U.S. ee ook Noe. i's Ss os ante 2 0 - o ‘ ‘BO ns . .* 6 ° C ° = * E pp : nt . a ¢ . wa > ° . ° . ® i) ; \ ra . . > . ce IN THE ‘Supreme Court of the United States. OCT OBER TERM, 1963 A ‘ No JOHN .N.-CRUDUP ie ee ; . ‘ : ve y, s THE STATE OF GEORGIA fi il. : . . / ; ba 4 PET ITION FOR WRIT OF CERTIORARI TO THE SUPREME: COURT oF — ° XY be bate : ar i TO THE ! HONORABLE CHIEF JUSTICE AND ASSOCIATE | JUSTICES OF THE’ mace’ § CouRT OF THE UNITED STATES: ; y * \ : . By “Your petitioner, John NY Grudup, respectfully prays that a writ of certiorari may issue to:the Supreme’ Court of the State of Georgia to* review a judgment of that Court affirm- inga judgment of theCourt of Appeals of the State of Geor- gia affirming a contempt judgment of the City Court of Hall “County, Georgia gainst this’ petitioner on the 23rd day of February, 1962 by Judge Joseph H. Blackshear of the City - Court of Haly County, Georgia. y es . rf Ve _ OPINIONS BELOW. The famjority and dissenting opinions of the Supreme Court of Géorgia, rendered on the 4th day of April, 1963 and the Court of Appeals, rendered on the 27th day of September, 1962 are printed in the appendix heretd, infra, pp. 1-21. a oe" JURESDIC TION. he iis of the Supreme Court of Georgia was en- Pat on the 4th day of April,.1963 and-is printed in the ‘appendix ‘hereto: Petitioner then files a petition. for rehear- ing which was denied on the 4th day of April, 1963. The. Supreme Court of, the United States has jurisdiction to act in such matter by. virthe of Title*28, § 1257,'U. S.C. A: and Title 28, § 2101, U.S.C. A., because ‘Constitutional questions are involved in the ‘case. . Si . a” * * QUESTIONS PRESENTED FOR REVIEW. . The facts ‘as herein shown, petitioner contends, were. Pat of his constitutional rights as provided in the 14th . Amendment of, the Constitution of the United States. ay de- * “‘nying due process of law: and equal protection of the law. .The summary nature of contempt proceedings, the risk of _ imprisonment without _Jury, trial pr ful! hearing, make this . the most drastic weapon entrusted..to the trial judge. To- sanction the procedure When it is patent that there has - been no interference e of any kind with the trial is-a dental of ici process. Fas : ae: : « @ a, . Petitioner contends that the: sanctioning of the contempt i ae by the trial judge and.Aht power to successively a- ‘mend, enlarge, change and glaborate the judgment itself, without a rule nisi or shows causé. order, without notice of - “afy kind and no epportunity to be @éard, respond or object . and it being ‘patent that in a interference with the ‘trial, is a denjal_of due process of law and of pe titioner's rights. TN ie 3. These facts, pe itioner contents, we re denial of - his a anbedthorat Vis ¥hts as provided by the 4th Amen ngent to the G 7Ons titution of the Unite \ of the City Court of Hall County, Georgia. witeved a {judg .’ ‘ment, nunc pro tune February. 23rd, 1962, adjudicating pe" . titioner in contempt .of the City ‘Court of. Hall County, Geor- gia, and said judgmient was_filed in the office of the Clerk ‘of the City Court, Hall County, Géorgia on the 27th day of Februgy: 1962.°No order to show cause or rule‘nisi of any description Was served upon’ petitioner . prior to said “judg- ment. ; ats - Thereafter, withirt the: time prescribed by law, “ pétitloner filed -his supersedeas and tendered to said Judge his bill of _ exceptions, reciting therein the facts as they: transpired and specifying as material to a clear understanding of the errors : a ee of the judgement of contempt. Thereafter, the a Judge ic Court refused. to ufqualifiedly certify said, * . . ‘bill of pole eh and petitioner, on the 17th day of March. 1962, tendered another bill of exceptions to the trial judge. -The second bill of exceptions was returned to: petitioner w ith . a qualified certificate of said trial judge. On the 24th day of March,’ 1962, the ‘trial judge atended his judgment of contempt, amplifying the judgment of con- ‘tempt and thie factual basis of said judgment, and filed said - amendment to said judgement on’ March (24th. 1962. No rulé nisi or notice prior to said amendment Was given petitioner, and said _umendment to said judgment of con a, Was entered w ithout. the knowledge’ of petitiover. > / . ‘ wer i G Py . ° REASONS FOR GRANTING THE WRIT. : Ae ; 5 ’ = : . : Keg ot a ra eres th % : oo" « . FHE SUPREME COURT OF GEORGI HAS DECIDED AN IMPORTANT QUESTION OF LAW CONFLICT WITH - THE DECISIONS OF THIS COURT AND HAS SO FAR. DEPARTED FROM THE ACCEPTED GOURSE OF JUDI- - CIAL PROCEDURE AS TO CALL FOR THE EXERCISE - OF THIS COURT'S POWER O REVIEW. I ‘he Supreme, Court of Georgia sta : in its decision: “Upona careful perusal of: the record i€ is clearly shown that, after being directed by the trial -judge to proceed With his défense and call some. other witness, counsel in- . stead continued to insist, upd his request contrary to re- peated adverse ruiings by the court. Under suéh Gircum- stances*and mindful of«the discretion granted to a trial judge in ‘matters of contempt, we are constrained to the view that the trial judge’s adjudication of contempt was not an enormous, ‘flagrant. or gross abusé of his dis¢rétion.” It must be. noted, cand this Was strongly urged in petitioner's motion for rehearing) in the Supreme Court of the.State of , ‘Georgia, that there was absohutely no-admoni8hing- of peti- tioner at any time. The only thing that #&§ shown was that ‘the trial Court ‘obdefta petitioner to-proceed with his defense and call-some other witness. This was done by the trial Court with fw! knowledge of, and after a complete and respectful explanation by petitioner that there were no wit- " nesses yo be called fer the defendant and that all the de- fend: wit had to offer was the glefendant’ s statement. ft i» therefore: mahifest that petitioner had fully explained to the Court his ‘postion with: respect to the. presentation of the defense and the. trial Court had full” knowledge of this. This Court. held in the case In Re McConnell, 82 Sup. Cf. 1288 (1962) : i “The arguments of a lawyer in presenting his chent’s case strenuously and persistently cannot amount to a con- og —_ tempt of coif so ‘long “as the lawyer does net in some: way create an obstruction whic! blocks. the, judge. in the perforniance .of -his judicial duty. The petitioner created no such obstacle here. ; ; eS Petiioner ‘respectfully submits that thes McConnell case ‘plainiy peraiels the case at bar and petitioner ung Gestion ably did nothing -to create an obstacle in the performance of judicial duty 'y the Court, but rather, wastan honest, good faith effort to present his chent’s case. Further citing the McConnell case : ft ” *While we appreciate the necessity fOr a judge te cthave .. the power to protect himself from actual obstruction in ‘the courtroom, or even from conduct so. hear to the court ‘as actually obstruc ice, it is also essential to a Bair “tdministration of juStice that. lawyerss be able to make’ hondst good- fain efforts to present their client’s cases An independent’ Judici lary and i: vigorous,” ph pice bar are both indispensable ‘parts of our System of justice. ‘Lo preserve the kind of trials that our systen! oo ae io vress has limited “the summary contempt power vested in cowts to the least possible power adequate to, preagnt actualobstruction of justice, and we think that thi it pote. ‘did not extend to this case." - wr 3 . Phe Case at jbar possesses characteristics Which denote far { ’ fess Vigolous ti: inguage than that employed in the MeConne! case, The case. at bar reflects purely and@simply an - honest, good-faith effort by*petitioner to carry out the’ purpose oF Judicial inquiry. Such conduct could never be construed in, any other i in order to preserve and maintain the kind gf trials that our system envisayres, 9 It, must be strongly noted Mere that contempt power is. di rectly premised in the Court's rig! to conduct its busines’ In “an untgummeled way” when jeopardized by “conduct that tends directiy tu. prevent the discharge of their funct- ion”. It is therefire manifest, ‘that the trial Court's order m cessarily reveal some factual recitation t would permit this Court to decide whether, the trial cout commitied. a LTOSS abuse of discretion. * . The Supreme Court of Géorgta concludes in its opinion by td . stating, ““Uponma careful perusal of the vioeind it.is clearly shown that, after being directed by _the trial] judge ‘to pro- ceed with his defense and call some other witnesses, coun- sel instead continued to insist upon his request contrary” to _yepeated adverse rulings by the court’. -It is submitted by petitioner that this is a cgmplete misconstruction of the facts of the case. The Supreme Court, of Georgia here finds that | *..- counsel instead continued to insist - - -”. The accept- ed definition of the word “instead”, is as an alternative or substitute, or in place of the thing mentioned. This would mean in reading’ the Supreme Court of Georgia’s opinion that trial counsel is place of proceeding with the defense and — calling another witness again requested’ permission for cross. . eXamination, or restating it, as a substitute to proceeding or as an alternative to proceeding with he case, trial counsel elected to request cross-examination of the witness. This, of course, is not the correct fractual account of the case. The record clearly shows that trial counsel stated that he did not have any Witgggsses to proceed with and that the only thing that would “We offered for the defense was the un- sworn statement: of the defendant. This explanation. was made to the Court as-the record shows and the trial- Court Was absolutely cognizant of the fact that there were no ¥it-- nesses to call for thie defense. The record clearly shows this. Therefore, to state that “ . --- counsel instead -continued to insist -- " is a complete misconstruction of the facts. Pe titioner did notadlo this “instead” but was doing the only ‘ thing that was left for him to do. This was not an .alter- | native thing nor was it a substitue. Petitioner. had no other course to follow. There was no refusal to abide by the order of the court because there was no other witness to call and Was SO stated by petitioner. There is clearly no refusal by petitioner to abide by any ruling. order or direction of the trial court and to conclude such is a compléte misconstructior of the taets of the case at bar. -) : The factual account in the trial court’s order was absolute- ly nothing more thar three repeated requests andl emphasize the. word request. It is manifest and ‘is clearly recognized that the mht to perfect the record is absolute and that this ‘right dees not extend so far as to permit arguing, remon- strating or insisting upon a rig cht tu do. something or to pur . » ‘sueca ‘line of questioning. However here, there was neve: any “arguing” by the petitioner or “remonstrating”’, nor Was ‘there ever an “insisting that thére was a right to do some thing” or “to pursue a line of questioning’. The record onl¥ reveals three repeated requests. A request tan néver be con- sidered to be arguing or renronstratiny or insisting upon a right to do something, for a request. Is nothing org than vasking epermission from the Court. The trial judge never directed or ordered petitioner not to make such a request, therefore, no A ‘fusal to abide by an order or. direttion is shown. The fact, that the. request was made three times does rot change the ‘character of the inektent without a factual showing thyt petitioner was committing some act incident thereto or was pursuing: a mode of conduct that would Justify i ruling of contempt, These tnings do not appear in the Courts order and in fact did not occur. Lo hold that three repeated requests‘in the absence of any other showing, as the: record shows in the case, could be contempt’ 6f Court will cast a Shadow of stagnation upon what we have his torically viewed! as trial advocacy. | ton ee THERE. adie ‘ ie ° Bis ne . ; . blended together and en massed in. the whole system of jurisprudence and until the conduct of the trial attorney ap- pears to be incompatible and in conflict with the concept of the administration of justice it cap never be said that such conduct is contemptuous, but, to the. contrary, is in further- ance of the pursuit of truth. . {@ lh a CONCLUSION. ,. The ruting of the Supreme Court of Georgia and the Court of Appeals of Georgia in the case at bar is manifestly erron- eous and against public policy, and Yaises a serious question in the admihistration of justice in our Court system. The © questions -presénted are ‘of paramount public importance be. cAuge, as shown by the instant record, unless a lawyer is permitted to vigorously assert the duty imposed upon -him as a trial advocate, a defendant can hever fully assert his rights in the courts. Not’ only is the trial advpcate’s role. rendered meaningless and void, if@s certainly consequential that the defendant will not receive a fair trial. Under the ruling: in this case, it is impossiblé for a lawyer, as a trial _ advocate, to perform the duty. imposed ‘upon him without ‘running the risk of a jail sentence. To condone such will stagnate trial advocacy. “ a3, o4 _ It is therefore respectfully urged that, got only” Gecause . of thé rights of this petitioner, but forthe reason of the manifest. public interest in the questions presented, this pe- tition for-a write of certiorari should be granted. Respectfully submitted, _ ‘ P " & oe ; PIQHN.N CRUDUP. 7 x : ; Pre Se” : . : a ” - . ~ lo . ° ee CERTIFICATE OF SERVICE . +1. JOHN N. CRUDUP, counsel of record and named as petitionet in the foregoing petition for wnt of certiorari,,.do hereljy certify thit 1 have this day ‘served a copy of the | . withiA and foregoing Write of Certiorari upon C. Ernest -~Smith. Solicitor of the City Court of Haii.Ceunty, Georjia and Wpon Eugene. Cook, Attorney General, State of Georgia . and upoi Hughel Harrison, Assistant Attorney General. State of-Georgia by mailing a copy of same to them in a “properly addressed “and adequately stamped envelope to cause, the same to be delivered to them in .due course of United States mail. This_o2 « day of July, 1963. ° ; os : . . | a, : 2 John N. Crudup = | * ne! 2 ° 4 if =, & chubur v. THE STATE APPENDIX. ay - Case No. 21923 : - 3 Decided: “APR 4 1963 : "SU, PREME COURT OF GEORGIA No. 606 g - oy ape ILLIAN, Justice. This case arose out of the citation for contempt of an attorney, John N. Crudup, by the Judge of the City Court of Hall County. On grant of certiorari, '. we review the judgment of the Court of Appeals affirming the trial judge, Crudup v. State,-106 Ga. App. 8383 (129 -SE2d 483). ¢ ; aa The relevant facts as set out-in the citation fur contempt “as stated by the trial judge are as follows: ses. After counsel had. on numerous occasions, sasael repeti tious questions on cross-examination of. the State’s witnesses " despite the admonition of the trial judge, the State rested. Whéreupon counsel requested tnat a witness be recalled for ’ the-- -purpose of cross-examination as to a particalar point. The judge ruled that the witness could’ not be recalled for cross-examination, but that he could, be called’ as a witness for the. defendant. Counse] stated he ‘did not wish to'call the witness for the defendant, “but w anted to recall him .about his testimony while on the stand.” The judge again ruled that the witness. could not be recalled for the purpose stated and “direct: | Attorney Crudup to provéeed with his defense : and call so.... other witness.” Counsel stated he had no other, ' “witness “except the defendant w ould make a statement,” but that he wanted te-put the w itness in question back on the stand. The judge again stated to counsel that he ‘could .call the witness for the defendant, but could nat recall] him for further-cross-examination to ask him what_he. testified to: earlier in the trv]. Counsel then again stated he did not want to call the witness as a witness for the defendant but persisted in his request to recall’ him for cross-examination ‘ as to his testimony given éarlier in the trial. At this point, the judge asked ‘counsel if he hadfany reason to give why he — should not be punished | for contempt of the’ court in failing and. refusing to abide. by the rulings of the court that. the poe * Pee ae ae APPENDIX oe witness could not be recalled for the purpose he was in- sisting’ on. Counsel replied that “he was not in contempt : of. court.” __—- Held: | . “The power to punish contempts is inherent in every court of record.” a: ——.. Bradley v State, 111 Ga. 168 (36 SE 630). See also Plunk- ett: v. Hamilton, 136 Ga. 72 (70 SE 781); Atlanta News- papers v. State 216 Ga. 399, 402. (116 SE2d 580). There is no question that every court has the power to preserve and . enforce order in its immediate presence, and as near thereto ‘as is necessary to prevent interrupton, disturbance, or hind- erance to its proceedings: that this includes the power. to - compel obedience to fts judgments, orders and process, and to-control, in the furtherance of justice, the conduct of its ‘officers and all other persons connected: with a judicial: pro- ceeding before it, in every matter appertaining. thereto. Code — § 24-104. See also Code Sec. 24-105. Further, no attorney ~ shall ever actempt to argue or explain a case, after having . been fully heard, and the opinion of thé court has been pro- — nounced, on pain 8f being considered in contempt. Code ‘Ann. § 24-3323 (formerly-Code Sec. 24-3306). Upon a careful perusal of the record it is clearly shown ~ that. after being directed by the trial-judge to proveed with ‘his defense and call some other witne$s, counsel -instead con. tinued to insist upon. his request contrary to repeated adverse rulings by the court. Under such circumstances and mindful - of the discretion granted to a trial judgé in matters of: con- ., tempt, we are constrained to the view that the trial judge’s adjudication of contempt was not. ar enormous, flagrant or «ross abuse of his discretion. Cabot -v. Yarborough, 27 Ga.. - 476; Remley v. DeWall, 41 Ga. 466 (5); Hayden v. Phinizy. 67 Ga. 758 (2); Salem v“Staté, 101 Ga. App. 905 (1) (115 SE2d 447). See also Carson v Ennis, 146-Ga.726, 728 (1) (92 . SE 221); Garland vy. State, 101 Ga. App. 395, 401 (6), .and the disseni at page 427 (114 SE2d 176). . a * Judgment affirmed. _AH] the Justices concur, except Duck- worth, C. J., Head, P. J., and Candler, J., who dissent. om FP | ‘ | : | . y f, p a APPENDIX - .: ":.*° |; -8 _ 21923, Crudup v The State . | DUCKWORTH, Chief “Justice, dissenting. 6 - : J ‘ P * s While the purported amendment of the contempt “judg- ment contains extensive recitals of the conduct of the con- tempor in repetitious cross-examination of the State’s .wit- nesses,.and arguments of the judge that such conduct was ~ very obnoxious to him| yet.the specific matter upon which — the contempt judgment is based is a request, repeated four: times. couched in perfectly respectful and proper: language, to be allowed to recall a State’s witness and have him say ‘whether or not he had testified that eggs was a woman in the car, and to each-of, such requests recall the witness but he would have to’ adopt him asa de- - fense witness. 1 wonder, with all other matters,recounted by the judge, just what le asked the attorney to speak about when he asked if he wished to show why he should not be punished, for contempt? Was he intending that the attorney account/for his conduct: throughout the trial? While sum-— mary punishment for contempt in the presence of the court is permissible, this doce™no tempt with6ut specifying the grounds’ thereof. The judge's order recites that the mattér sought to be asked ‘the wit- _ ness was irrele. ant, yet his same order recites that he. au- -horized counsél to-recall the witness. for the sole purpose : of asking him ahout. it, ‘provided ‘ony he pay the stated »rice thereof of adoptipg a deputy sheriff, 2-State’s witness, | as the witness of the accused., These recitals. preclude any__ efaims that the reason for deriyipg the tequest was that the testimony would ‘have been. jrrdlevant. Then in the face of the indisputable, fact this was a criminal Case where the de- . fendant pleads nothing but “not guilty,” and the recited fact +‘hat the defendant had offered no evidence, the judge 4s- serts that neither the State nor the accused contends that - there ‘was. a woman in the car. Where did the judge -dis- -cover the contentions of the aceused when to this point he | -had made none except “not guilty”? These recitals ‘of. the ©. > ‘judge show unmistakably h unfairness to the attorney..The ~~~ admitted’ facp that the solicitor stated in the hearing of the judge and -jury that- the: witness had not so testified, and ° counsel for the accused replied, that he had so testified, . . \ ° o° he judge said he could ° t.authorize a judgment for con-. “4 es APPENDIX ae vividly demonstrated to the ‘les that sian Was disagree- ment as to the witness’ testimony. If the court was conducted . ‘as all courts should be, its sole object was to dis¢over the truth from the purest sourcessCode § 38-101. The only pure source here was the witness himself. Since the ‘judge had allowed the solicitor-to violate the law by stating what the - witness had not said, apparently without thinking of-hold- .- , ‘ing him in contempt, counsel-for the aecused would not have - been counsel for the accused 2s required by the ‘Constitu- tions, State and Federal, had he ng insisted, until ordered to desist, upon protecting his ¢lient — the. injury ° in- flict ed by the ee 2 It is appareat that the contempt judgment’ was based upon alleged prevention of. the orderly dispatch a cvurt ‘*. business. A second thought, as. sho sn by the attempted: a- mendment; was to charge jim -with violating Rule 23, fobnd in Code Ann. § 24-5323. The first charge is obviously ground- less since reaqjuests for permission to call au witness are ptoper eo: nd necessary parts of a trial. And the be dnd is invalid be- cause, first, by his repeated* replies.to the request. the judge: had authorized the repeated requests, hence, they were ‘made with the court's permissi and in the second place, what the attorney did Was not “attempt to argue or explain a “case,” which are only acts specified by the rule #® consti- ‘tuting grougds for contempt. What he did was neither argu- ment nor “Xplanation. It was an humble request. The judge recites that he failed to purge himself of contempt, vet the record shows conciusively that he had not been adjudged in’ contempt, and no act of his had “been. speciffed as contempt- ous. ¢ ‘ounsel did nothing, Ahat the cowt had ordered him not” to do. The solitary portion of the request that was - - denied: Was that the witness be on cross-examination. The judge's refusol was never violated. in tHis part of the request the attorney was clearly within the rights granted by law. In -- Long v. Staté, 12 Ga. 293, at Pages 330, 331,-this court speak. . pe through one of its abiest Justices, Justice Nesbit. Said: : ey 2 it is certainly the business” of court, when pratticable, — to’ correct the misre presentations of the testimony by coun- : sel, Particularly: when that counsel] is in conclusion. And it “Is practicable, when the witness whose evidence Ppt - = . * : Po o e APPENDIX “ ; r " to be eiteainenenited, is in Court. He gught to be called. to, say what he did testify.” Here counsel for the accused charg- ed that the solicitor had misrepresented the evidence of a witness who was in court. The vest of counsel for. the accused was that he be called'to say what_he did testify. In- stead of being granted as Judge Nesbit saidShould be. done, it was, because of its repetition, made the sole ground for punishing counsel for contempt. How far can justice change? I Jappen to know Judge Blackshear, and know him to be a capable and honorable judge, but ev en.so, he is human, and subject, as we ali are, to err. My very severe criticisnt of this contempt judgment is not intended to in any way, even by impli¢ation, reflect unfavorably upon the personal, pro- ‘fessional or official character of the judge, but only to say “that in this cd&e he was ‘in my opinion ‘trigger happy’ to throw his judicial weight agujnst a highly respectful lawyer and thereby unjustly humiliate him and place a black mark upon his honorable. prefessional record. For this court te affirm that judgment is an open invitation to tyranical judges to shackle the legal profession and thereby deny litigants- the benefit of counsel. Wy , : é During the more than 24 fears | have served here, the Supreme Court has never punished a single lawyer for con- tempt, and thé same lawyers that’ practice before ° the Supreme Court: practice before the trial courte» Power to punish for contempt is essential and should be extsc ‘ised in all cases where necessary, but it is not a power that should be, carelessly exercised, or to intimidate lawyers in the dis- charge of their important duties. i hope the bare majority. of 4.to 3 that rendered this pharicente® will eventually whapge, -and a decision can be rendéred by this court making it clear. that every judge does not have ‘the authority to arbitrarily - punish a lawyer every time he chooses without substantial facts showing a necessity therefor -in order that the court's business might be cond cted. orderly and. without uNWaT ranted interference. . Rule... (25 of the Rules’ of the Superior.Courts (Code § 24-3323) specifically provides: “No attorney shall ever attempt to argue or explain a case, after having beep fully heard, and the opinion of the court has been pronounced, on pain of _ being considefed in contempt.” 4 Accord, 17 C.3.S. 35, § 25 (b)..“The majesty of the law must be maintained: its man- dates must be implicitly obeyed.” Mays v. Willingham, 37 Ga. App. 478, 480°(. SE_ ). Contempt of court-has been Variousiv defitied: incits broad sense it means disregard for or disabedience of the order or 3. “We siart with the premise ihat the right of courts to. conduct their business in an untrammeled way lies at the foundation of our system of yovertment and that courts | necessarily must possess the means of punishing for, con- _ tempt when ‘conduct tends directly te prevent the dis- charge of their functions.” Wood’ \. Georgia, __ U.S: — aes) )=—h i reef a 1. Rule 25 (Code (24-3323) Was present in the Code of 1910 L. 4916, p. 225, 228) to the Act establishing the Cie - Court of HalLCounty and is applicable in the present case” Chance vAState. 97 Ga. 346 ( SE») ot a oa lo : APPENDIX | be commatd of the court, but “it also jasiadaa interruption” of. the proceedings . : °° 12.Am. Jur, 389, Contempt, § 2. Con*® tempt or court, as a ah rare offense, is as old as are courts themselves. 4 Blackstone's Commentaries 281. This is especially true in the case of crimimal contempt, where the court exercises # discipliniry and summary jurisdiction “over attorneys and other offieers ee justice. Fox, History of Conte apt of Court h, Lote bas. 5 - Carre must be ee “Tow ever to “distinguish. betWeen cases of cantenmpt in facie ; ba a -curiae and those tnvolving an Sut-of-court statement. The. latter involyes the constitutionaily guarenteed liberty of free : - expression and the power, of courts .te punisli for such con- tempts is iimited to cases ih which there is a “clear and present danger to the administration of justace.” MeGil! ‘7 State./Z09 Ga. 506, 505 ¢€. SE: ): Wood v, Georgia tos. . ( Sup. Ct. ): Bridges v. Cahturnia, 314 U. 252 (62 Sup. Ct. 190); Pennekamp v. Floridig2328 U.8. 33 (66 Sup. Ct. L029)5 Cray vs. Harner, S30 U.S. 567 (eT Sup, CP. 1249). The former involves the inherent power of sourt- “to mauttain érder in their court roongs and to assure litl- gants a fare tral. .”” wire v: Georg}: i tae 3 ( | Re i eee . It “is absolutely essential to the protection of the courts in the dise harge of their functions.” White s George, 195 Gia. 4S, ATO | SE ) “As/ an incident to their being, Courts must have the authority ‘neces- sary in a strict seise’ 6 to enable them to go on with thei work. In doing their work. courts. like others. mat eneountor obstructions They mest. therefore, be vested wit! incidental “powers of self-protection — Sone action necessary Cy timblethe “age gt to proceed with tts affairs . - This manifestation of a court's activity is ‘not a mystica emanation ey | rat referable solely te’ the fact that court fas business at h at id and must get om with if.” Frans furter and Landis. “The Power tp’ Regulate Contempt.” ‘Harvard Law Revises rove, 102 In’ summary. the inte a . ‘ ° oe a ference with the imi iediate process of litigation may bs treated by the presiding judge ys & facie’ curiae contemp', Ex paste ‘Terry, i236 1.5. 389 °( 2. San. Ct) , 5 “The twentieth Article of John’s Magna Carta dves not’ extend to officers’of justice. whose amercements are as sessed by the Court and not by the jury y . .( SE. ):-Cabot v. Yarborough, 27 Ga. 476 ( SE -»a be’ Questions of contempt are for the court treated with con- tempt, and the trial court’s adjucation of contempt will not be interfered with unless there is-a gross, enormous, or fla- gran abuse of discretion. “Salem v. Georgia, 101 Ga. App. 905 (1) ( SE); Garland -v State, 101 Ga. App. 395, 401 ); Remiley v. DeWail, 41 Ga. f66 (-. SE ); Hayden . Phinizy, 67 Ga. 75681 «SE. ); Warner \. Martin, 124 OS 7a. 387 (SES Mays.v. Willingham, supra.- Pen, o- The jadgment here shows that the contemnor attempted - _to'recall'a witness for the purpose of further cross-examina- tion and that upon ascertaining the purpdése of such recail the trial judge ruled adversely to the contemnor’ on this point, but stated that the witness could be called asa witness for the contemnor’s client. The contemnor insisted upon re- calling the witness for the purpose of further cross-exam- ination. The trial judge again ruled adversely to the con- temnor on’ the same. question and directed him to proceed with hjs defense. The contemnor, again insisted upon re- - calling the witness. The trial judge again ruled for the third time adversely to the contemnor on the same question. ' The contemnor again insisted for the third time (after three previous rulings on the same question) upon recalling the witness. By virtue of the eee rules of law, and with specific reference to Code §24-3: 323, andounder the record in this case, We cannot say that the trial judge's adjucation of contempt Was 4 gross, enormous or flagrant abfise- of ‘dis cretion. Garland v. State, 101 Ga, App. 395 ( , SE hes pa 7 ey ee : The fact that the trial judge did not adjucate ihe coA- temnor.in ‘contempt until afer he had given him an oppor-. unity to make a statement-as to avhy he should rot be held aun contempt is of no consequence. it ndoubtedly this del. Was a “Wise exercise of discretion . ° ‘to allow the con o > ° a - @ “e 6. Hoimes, J., in Craig v. Hecht, 263 UU. S. 255, 280, 2&1 ne i & SeNNaeeme . . . Even the-dissenting opinion (p. 421) in the Garland case bipeaahed that “A lawyer is required by the rules of court to vield, without further argumerit, to any order or ruling iad the judge in whose presence he is. Failure to do so . % contempt.” ‘ APPENDIX cere eee | acd ° ae ae 12 ? APPENDIX 2 temnor an opportunity to niitigate his offense by showing that-no contempt was intended, or any other mitigating? cir- cumstances, except in cases where there would be no-excuse for the action of the contemnor.” White v. George, 195 Ga. 165, 470-4174 ( SE ); Ex parte Kearney, 7 Wheat 38 (5 L. ed. 391). In “all ordinary matters an advocate must. eyen more than ordinary persons, since he has a special ‘privilege to practice law. conform himself to the usages of ‘the C ourt. and the rulings of the Judge.’ Oswald's s Contempt of Court, p. 54-55. Being an officer of the court, a member of a learned profession and fully cognizant of Code Section 24-3523, the contemnor needed no specific warning to cease persisting in: his argument in view of the three previous rul- ings of the court. that the witness could not be recalled. for furter cross-éxamination. He needed no further protection for his client than an adequate record. Even if the tral judge was in error on his first ruling, it Was the duty of counsel to abide by the first. and subsequent rulings; and if any right of his client was violated, the remedy was by writ of-error. “Any other procedure wuld result in mockery of our trial courts and would destroy every concept of or derty process in the administration of justice.” Fisher x. Pace 326 U.S. 155, 162 ( Sup. Ct. -_- ). ‘We have not overlooked the case of In Be MeConnell. _ U.S: aces S : ). It is not con- troling here for the reason that it merely involved the “ex. ercise of! the Supreme Court of the U nited States’ “super visory power” over inferior federal courts. Furthermo S. a. The federa? courts have no statue similar to Code §24-3325. = , bo. There being ne similar statute, the contempt Was based on the alleged improper language of the attorney” as being an actual obstruction of justice. ; itis clear from In Re McConnell that the inferior fed- . eral courts. as distinguished frem Georgia’ courts of record, are “hmited in -contempt cases, to ‘the least . possible power adequate to the énd proposed? ° d. There was a real issue in In Re McConnell as to wheth er it Was necessary under the Federai Rules of Civi! Procedure for the attorney to pursue the questioning which the judge had forbidden in order to perfect his record for appeal s&s - _ APPENDIX “13 it is i yeaa from the present avestion on several grounds. 8/ It matter not what we individually might have done under the circumstances if we were siting as the trial judge, The trial judge has a wide discretion in regulating and controlling the business of the = and the conduct of the trial. At- lanta Newsrapers, Inc. v. Grimes, 216 Ga. 74 ( ee 3: nigra Hubbard, 82 Ga. App. 813 ( SE __ ):,Yacksan . Moultrie Production Credit Association, 76 Ga. App. 768 ( SE ). We have-no discretion and must follow what Chief Justice.Sir Edward Coke called the “seraight mete- wahd of the law." We must also remember that ours is an adversary system and that the two opposing attorneys are partisan advocates. Confidence: and power is réposed in the trial judge to ad- minister thé business of the court in a. non-partisan manner Such occurrences as we have in this case must ke: viewed: as a unit-in order to appraise properly the’ alleged miscon dust. The relationship of the contemnor as an officer of the court must not be lost sight of’ and reliancé must be placed upon the fairness and objectivity of the presiding \ judge. Pisher v. Pace, supra, p. 161; accord, Garland v. State, 101 Ga. App. 395, 416-4117 ( SE ._ It is axi- _, omatic that, if we do not uphold the trial judges in this, _ State ar the proper exercise cf their discretionary power to contrul recalcitrant attorneys, they will control.our tria! Jue yes. , ; Judgment affirnged. Carlisle, P. J..;Bell, Frankum, Jordan, Eberhardt and Rus- sell, J. J.. concur. ee ey i 4 Felton C. J., and Nichols, P. J., dissent. 39545 CRUDUP v. STATE OF GEORGIA... H-31 FELTON. Chief Judge, dissenting. | have no quarrel with the very fine and ‘studicus- opinion — prepared by Judge Hall except that | wish that we couid _ store it away and use it ina case where it is applicable / “sit ° to the f facts. as | Alo not think is the case here, The original cofitempt ‘ordet: id that’ iS. the only one | mentioned in the opinion, does no. allege one ‘single thing. Which Mr. Crudup did which was in the slightest degree contumacious. or which tended® in the remotest degree to. obstruct the administration of justice: A mere réading of the order will prove this to be true. Mr. Crudup stated to the court three times what he wanted to do. — The court, in- stead of telling -Mr. Crudup not to make, he statement again, kept on repeating what he had been saying and. when_Mr-- - Crudup repeated hirpself the fourth time, one time less than 3 the Judge, the Judge asked Mr. Crudup if he had any reason - to give why he should not be pushed for contempt aid Mr. €rudup- “said he. was’ not in contempt. The -court-can-/,.. B strued his last statement a's adjudging Mr. Crudup in cone, tempt and ruled that Mr.. Crudup refused to purge the con terfirpt after.opportunity to «do so. ! FRere Was’ TT jud@ment of contempt .until the written order dud_tie record .doe- not ourt embodied in-Code § 24-3323 hhs no application to th: “facts of this case and so far as appears trom the récord,: show any refusal by Mr. ‘Crudup to purge ‘himself after op: portunity. The attorney did not violate _: any discretion of the court. He did.not disobev anyv.order because he did not-- call fhe witnesses again to the stand for the purpose’ of cree ex aeamatee after the Judge ruled that he could not. ! think that before, the Judge could hold Mr. Crudap in con- tempt he would have had to rule that he could not again make the requestto call the witness for cross-examination. The ourt left the door: oper for two additional rejuests and | do not see‘how Mr. Crudup could have known the lishit~ without -the Judye’s first :telling him. The rule of the gudge did not base his ordei?on it in whole or part: The - McGill case means,-:in my opinion, that the Fédéral rule is about the same as Georgia’s and a recent opinion of the U.S. Supreme Court fits this ease like a glove. The case is: _In the Matter of Criminal Contempt of ‘Thomas C. McCon- nell, Petitioner, No. 498, decided June 18, 1962. The opinion is as follows: “MR. JUSTICE BLACK delivered the opinion of the Court. The petitioner Thomas C. McConnell, a lawyer. Was sum- PY oe + APPENDIX ( tae Bs a J ee 7 APPENDIX © — : 15 marift | toitisd guilty of contempt of court for statements made while representing the Parmelee Transportation Company. in an antitrust suit for treble damages and an injunction. The complaint charged that a number of defendants had. unlaw- ‘ ‘ fully conspired to destroy Parmelee’s business by restraining ° _ and monopolizing: trade in violation of the Sherman Act. ,Pe-- cane _titioner and his co-counsel, Lee A. Freeman, had done ex-. . tensive pretrial preparation on the issue.of conspiracy which t “was the heart of their case:, At the very. outset of the trial, -. “i ‘ibwever, the district judge on his own motion refused to per- eel ~ fit cognsel to try to prove their conspiracy charge, hoiding % that they must first prove ina wholly separate trial that. -.‘ defendants’ actions had resulted in an economic. injury to e- public — an erroneous ‘Holding since we heye held that . the right of recovery of a plaintiff,in a treble damage anti- trust case does-not depend at al! on proving an economic injury to the public. oe ee “Cut off by the judge’ s*erroneous ruling from trial of the basic issue of. conspiracy, and: wishing to provide: a record which would allow this ruling to be reviewed by the Court of Appeals, coungel for Parmelee asked counsel for defer darts to stipulate. t plaintiff would have introduced cer- 23 ‘tain ‘evidence of- conspiracy had it been allewed to do. So. 1 sl Defense counsel refused to stipulate, however, insisting that it Parmelee’ s counsel prepare their recoral.by following the pro~<> — cedure set out in Rule 43 (c) of the Federal R a of ‘Civil ‘Procedure, which requires that. hegore’ an offer -o f proof. is made questions upon which'the offer is based must first. be asked in the presence of the juny. Unwiliing : risk dismis- sal of their appeal ‘for failure to tollew Rule 43 (c). “Par j “melee’s counsel- preceedéd to produce and question witnesses in the presence of the jury in order to lay the proper founda- ‘tian for their offers of proof of conspiracy. But duringAhe process of this questioning the judge ordered it Stoppedcand ‘ directed that any further offers of proof be m: ade ®:ithont firstAving asked questions of witnesses in the presence of ‘” the jury: This ruling placed Parmelee’s counsel in quite a dilemma because defense counsel was still insisting that al! offers of proof be made in strict compliance with Rule 43 (c) and there was no way of knowing with certainty whether the Court of Appeals would treat the trial court's order to f ¢ a ee Sage _ APPENDIX 5 dispense with questions before thg jury. as an excuse for | fdilure’ to comply with the Rule. Petitioner therefore ‘not only sought to make clear to thé court that’ he thought de-— ‘fense counsel's ‘objection was ‘right’ but also repeatedly in- sisted that he be allowed to make his offers of proof in com- ¢ pliance witli the Rule. Edllowing the trial the judge ° APPENDIX. ss ® o'7 jury.’ And was held long: ago, in Ex’ parte Hudgings, that while this statute ‘undoubtedly shows a purpose to give ‘courts summary powers to protect the:administration of jus- tice against immediate interrupton’ of court business, it also — means that before the drastic procedures of the summary contempt power may be invoked to replace the protections of ordinary constitutional procedures there must be an actual Se obstructign of justice: ‘An obstruction to the performance ' of judicial duty resulting from an act done’ in the presence of the court is, then, the chafacteristic upon -which the pow er, to punish for contempt must rest.” This being true, it follows! that the presence of that element must clearly be shown ‘in every case: Where the power to punish for ‘contempt is ex- erted .. .' Thus the question in this case comes down’ to whether it can ‘clearly be shown’ on this record that the petitioner’s statemehts while attempting to make his offers ‘ of proof actually obstructed the district judge in ‘the -per- formance of judicial duty.’ “The Court of Appeals answered this question. by sustai:- fng Specification 6 only on the basis of petitioner’s last sen-’ . tence in the colloquy set out in the specification. That spear?” fication reads: *On ‘April 27, 1960, in the presence and hear- ing of the jury, after the Court had instructed the attorneys Ter plaintiff to refrain from repeatedly asking questions ci. subjects which*the Court had ruled was not 4tdmissible, in - the presence of the jury as distinguished from. an offer of | proof outside the presence of the jury, the following oc-* curred: “By Mr. McConnell: Now you are trying to tell us’ we can't ask these questions. We have a right to ask these ug tions, and until we are stopped from asking these queés- ios We are going to ask them, because it is in our prerog-' alos in doing it. By the Court: I am now stopping you from “asking the questions about conversations “with Mr. .Cross, because’ I have ruled specifically, definitely and com- pletely that it is not an issue in this case. By Mr. McCon- nell: We have a right to ask them. By the Court: You can offer proof 6n it. By’ Mr. McConnell: We have a right to ask afestions which we offer on this issue, and Your Honor can sustain their objection to them. We don't have a right to read the answers, but we have a right to ask. \ °o , fe - x \ ry ; . : tf ? ° f£ Fa ate og “ Py +4 » 2 Fad o* Ix i “APPENDIX. the Auestions, and we propose to ie so unless some = Staps us. (Emphasis added.) ; . . counsel asked for a shit gpcess, that followi x this recess peTHioner did not ¢ continue wo ask questions which the Judge had forbidden and that in fact he did not ask any ‘more sucly questions again throughout the remainder of the trial. We agree with Judge Duffy w ho.dissented below tKat there was nothing in petitioner's conduct sufficiently disruptive of the triat court's business to De an obstruction of justice. “The record shows that after, this colloquy petitioner's co- It is true that petitioner stated that counsel had a right to ask | 4juestions that the judge dith not want asked ‘and that ‘Wwe propose to do so unless some bailiff stops us.’- The fact re tains, however, that the bailiff never had to interrupt the. ‘trial by arresting petitioner, for the simpte. reason hat after this statenfent petitioner never did ash any more questions along the line which -the Judge had forbidden. And we cannot agree that a mere statement bya lawyer of. his in- tention te press his legal contention until the court has a baii- iff stop him can amount to an obstruction of justice that can be punished under the. limited powers of sunynagy contempt of gBurt so long as the lawyer dogs not in meen “bas create ah obstruction which blocks the judge in the perfornYance of “his Judicial -duty. The ‘petitioner created no, such obstacle here cs “While We appreciate the necessity fora judge to have the “power to protect himself from actual obstruction in the court- room, or evel from conduct so ae to the court us ac tual!: al to obstruct justice, :it is alsg essential to a fair administrat on of justice that lawyers be able to make honést vood-f fajth ef- gtorts ty present. th eir clients Cases An independent jJudici-- ° . a ars ‘and a Sigorous, in depend: Dt bur are both seri ete sabie patts of cur system: of Justice. To peeserve the kind of trials that vur system envisages, Congress has limited the-summary vontempt power vested in courts to the least possible power adesfuate to prevent actual obstruction of Justice, and we think” that that power did net. extend to this Case. Reversed’ ‘ ? WwW her Mr. cro presented his bill of exceptions Bey. certification’ the Judge insisted on his including ¢ herein A acts ° a , m vi F ‘ 7? : ‘APPENDIX, — S IT not stated in the: first. order of . contenipt and thereafter amended his first order, nunc pro ttinc, without hearing or notice. as follows: “For the record. in this case to be com- plete and sufficient for review and to specify with particu. larity the etonduct of John N. Crudup, Attorney at Law, con- stitut'«: the contempt of court, the Judgment of contempt pronounced during’ the. trial on February 23, 1962, at-the February. 1962. Termt of court and éntered nunc tune on February 26. 1962, for February 25, 1962, is n@®, dur- ing the same February 1962 Term of this court. amended .to complete and specify the record as follows: 1. Tht matters and things set forth in the: Judgment of Contempt of Court in the case of The State of Georgia versus John N. Crudyp entered nunc pro tunc, pow February 26, 1962 fer then Péb ‘gary 23, 1962 transpired during the public trialof The State of Georgia versas Marion Smith the defendant being re presented by Jotai-N. Crudup. Attatimey “at Law. and that same occurred_ On fe eee 23, 1962, dur: _ ing the present February. 62 Tehinset this Court, and in said “public: trial and before a jury of, twélre Mes, spectia- tors ‘in the court room, officers ane: attornes€,* antl before the Trial Judge. 2 . Witness Putter did: nottestify during the trial that ‘w woman was iy the verte With. ‘defendant at the time of the oc SUEPENCE “as - contended ‘-by-Atorney John N. Crudup- Neither, hire 4 dtate ver the defend:tnt Marion Smith contended a Womap w asin the car with. the defendant, and teftumony on the subject was néither ndaterisal nor yelevant Lo any: issue iit the ease ind would. neither have aided nor harmed: anvone. The repeated insistence of Attorney Jobin N. Crudup- to .recal) Witness Fuller and ask him what, he testified while on the stand and if be didn’t testify