Petition for a Writ of Certiorari — Wood v. Georgia

Or e Court US

t | a

- RAR AUG 28 145)

No 369 JAMES R BROWNING. Clerk

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1961.

JAMES |. WOOD,

Petitioner,

vs.

STATE OF GEORGIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Court of Appeals of Georgia.

MILTON KRAMER,

1625 K St., Northwest,

Washington 6, D. C.,

EDWARD F. TAYLOR,

H. T. O'NEAL, JR.,

CHARLES F. ADAMS,

JAMES |. WOOD,

Macon, Georgia,

Attorneys for Petitioner.

St. Louis Law Printing Co., Inc., 415 N. Eighth Street. CEntral 1-4477.

INDEX.

Piru

Cheng TI noe ane x ease tere eens ne l

dupeniti oko Xie ches aces eaeeiecineetnens gi -

| ot EEE TY eee eee Oe EEL ee aa? 2

Constitutional Provisions Involved .o......0..0... au ewes

Berowneel ai Cie Ce oc ca seasons creak ee ace

Réanenn for Allawnare ef Wht |. ....5. Src cdicsescc iF

tT ., Ree Perr eI ry ree award oan Eh ee ee re .

ERO rs ie es es 6 eae ed eee Re Ree lh

Appendix A (Judgment in Question) oo.00.0........ «01

Appendix B oCText of Opinion Below). 0. . - 3

TABLE OF AUTHORITIES.

Cases:

Atlanta Newspapers, Ine. ve State, 216 Gal say ”

ramos ¥. Diate, Til ia. Se ose ee ses kes acs ; .

Kridges v. California, 314 U.S. 252 .......... O70

Cammer v. United States, 250 U.S. 90 0... 6%

(lair v. Nebraska, 40 Neb. 534 .............. s

Craig v. Harney, 331 U.S. 367 ........ ee TL

Gosjean ve. American Press Co. 297 U.S. 255 7

Hague +2 C. £41. oe 1. Se 2... 7

fice Fite, 1} Ge. App Ghee Scena 4

In re Harriett Sawver, 360 U.S. G22... ee. 4

Kingsley International Pictures Corp. v. University

at Tow Tone. Bee 8) We Gen an ccd es een one ks 6.0

Pennekamp v. Florida, 328 U.S. 351 ...........0.. 6,0

Molnoider ¥, Minte, SG:-U., B. 147. oe. cc esac es 6

Constitution and Statutes:

United States Constitution:

Se ee eee ki ae eee eM nee Piet ere ee oe

Fourteenth Amendment, Section 1 .............2,:

C6 5): Oe Sa sehen a ee IGT Tyee eee e .

ae

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1961.

JAMES |. WOOD,

Petitioner,

VS.

STATE OF GEORGIA,

Respondent.

PETITION FOR-A WRIT OF CERTIORARI

To the Court of Appeals of Georgia.

To the Honorable Chiet Justice and Associate Justices of

the Supreme Court of the United States:

Your petitioner, James 1. Wood, respectfully shows,

-

|. OPINION BELOW.

Petitioner prays that a writ of certiorari issue to review

the jue

lement of the Court of Appeals ot Georgia eniered

“1 the ease of James I. Wood v. State of Georgia, 1!) Gia.

App.

305, 119 S. BE. 2nd 261 (1961), same being case mum

her 28974 in the Court of Appeals of Georgia

Il. JURISDICTION.

This judgment of the Court of Appeals of Georgia was

dated and entered on February 25, 1961.

A rehearing in said judgment was denied by the Court

of Appeals of Georgia on March 10, 1961.

A petition to the Supreme Court of Georgia for writ of

certiorari to review the judgment of the Court of Appeals

of Georgia was denied on May 22, 1961.) A motion for

reconsideration of the petition for certiorari was denied

by the Supreme Court of Georgia on June 8, 1961. Within

“) days thereafter, this petition is filed.

The jurisdiction of the Supreme Court of the United

States to review this case on petition for certiorari rests

upon 28 U.S. 0. 1257 (3), because in this case petitioner

specially set up and claimed rights, privileges, and im

mutiities under the Constitution of the United States.

III. QUESTIONS FOR REVIEW.

In view of the freedom of speech and press granted

citizens of this country under the First and Fourteenth

Amendments to the Constitution of the United States:

1. If a county judge uses the form of a special

charge to a grand jury to make au inflammatory, pre-

udicial, and derogatory attack on Negro voters in all

news media, may a county sheriff be imprisoned fer

contempt beeause of his public eriticism of the judge's

aet?

?. May state courts apply the doctrine of “scandal

izing the court” to held in contempt one who pub-

lishes criticism of a state court's act?

IV. CONSTITUTIONAL PROVISIONS INVOLVED.

The First Amendment to the Constitution of the United

States provides: ,

“Congress shall make no law respecting an estab

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to as

semble, and to petition the Government fer a redress

of grievances.”

The Fourteenth Amendment to the Constitution of the

United States provides:

“Section 1. All persons born or naturalized in: the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or prep-

erty, without due process of law; nor deny te any per

son within its jurisdiction the equal protection of the

laws.”

aay eee

\V. STATEMENT OF CASE.

In the midst of o loeal political campaign, on June 6,

1960, a state court judge made a “special charge” to a

county grand jury. This “charge” was delivered before

reporters for all local news media and all news media had

heen notified to have reporters present in the court room

at that time. The judge stated that 80 to 850 of Negroes

were “bloe voting”, that colored voters did not do their

own “thinking and evaluating’, that money spent for

newspaper advertisements, radio announcements, efe., in

solicitation of “the Negro vote” actually amounted to a

purchase of such votes, and that the election laws of the

State were being violated. The “charge” as a whole

clearly implied that any public official who reeeivéd “a

Nees Bloc vote” did so throngh “unfair, corrupt or mm

lawful practices” (R. 12-21).

The next day the Sheriff of the County, petitioner

herein, gave to local news media a news release which

severely eriticized the judge's action and warned that

such action threatened political intimidation and persecu-

tion of Negro voters in the county under the guise of law

enforcement (R. 22, 28, 24).

One month later petitioner was cited for contempt of

court because he had issued the news release (R. 10-26).

The following day,Inly 7, 1960, petitioner released a

public statement saying that his defense would be that

he had spoken the truth, that he had a right to speak the

truth, and reiterated the truth of what he had previously

stated (R. OS, 39, 40).

The citation for contempt was amended to charge that

this last public statement of the petitioner was an addi

tional count of contempt of court CR. 27-41).

On hearing before the trial jndge who issued the con

tempt citation, no evidence whatsoever was introduced

1o show that the publications of petitioner resulted in any

actual interference or obstruction of the court or grand

jury. A short statement of a few cirenmstances existing

at the time the statements were published is contained

in a stipulation of facts entered in the case Ce. 992}.

The gravamen of the contempt citation as twice

amended, and the gravamen of the state's case against

petitioner, was that the simple publishing of petitioner's

news release and defense statement, in and of itself. wa-~

a contempt of court and in and of itself was clear and

present danger to the administration of justices CR. 92. 96).

in the court of first instance, petitigner, by veneral

demurrers to the contempt citation, did specially set-up

and claimed his rights, privileges, and immunities under

the Constitution of the United States and set forth ver

batim the provisions of the First Amendment thereof

enarantecing his freedom of speech and the provisions

of the Fourteenth Amendment thereof guaranteeing his

constitutional rights against state action CR. 45.50, 68-75).

Also in the written response of petitioner to citation,

petitioner again plead and specially set up and claimed

“the liberty of speech guaranteed to him by the Four

teenth Amendment... and as provided in’ the First

Amendment to the Constitation of | the Hnited States

.* {BO BI, Ro}.

The trial judge overruled all of petitioner’s demurrers

CR. 110) and on the facts and pleadings adjudicated: that

petitioner was in contempt of court on each of the counts

of the citation as amended, and ordered petitioner te

prison.

The case went to the Court of Appeals of Georgia on

writ of error, in which appellate conrt petitioner by Bill

°

‘—

of Exceptions assigned error on the judgment overruling

his demurrers and on the judgment adjudicating him in

contempt of court CR. 2.5).

The Court of Appeals of Georgia affirmed the judgment

of the lower court as to Count 1 (petitioner's news release)

and as to Count 3 (petitioner's defense statement), but

reversed the judgment of the lower court’ as to Count 2

of the contempt citation (involving an ‘open letter” pub-

lished by petitioner). Petitioner does not herein seck

review of the judgment of the Court of Appeals as te

Count 2.

The Supreme Court of Georgia denied certiorari in the

ease, thus making the Court of Appeals of Georgia the

highest state court in which a judgment conld be had in

petitioner's case.

Vl. REASONS FOR GRANTING WRIT OF

CERTIORARI.

(1) The decision in this case is contrary to the settled

prior decisions of the Supreme Court of the United States

in the eases of Bridges v. California, 314 U. S. 252, 62 8.

Ct. 190, 86 L. Ed, 192 (1941); Pennekamp v. Florida, “2s

U.S. 281. 66S. Ct. 1029, 90 L. Ed. 1295 (1946); Craig v.

Harney, 331 U.S. 367, 67S. Ct. 1249, 91 L. Ed. 1946 (1947):

und Cammer v. United States, 350 1. S. 599, 100 1. bad.

474, 76S. Ct. 456 (1956).

(2) The decision in this case holds that state conrts

which are ereated by state constitutions are not limited,

in their power to define contempt, by the provisions of the

Constitution of the United States; however, such state

action is contrary to the principles of law contained in

Schneider v. State, 308 U.S. 147, GOS. Ct. 146, 84 L. Ea.

155 (1929); Kingsley International Pictures Corp v. Re-

——_

-j-—

gents of University of N. Y., Wi) U.S. 654, TS. Ct. 1262,

“|. Ed. 2nd 1512 (1959); Hague v. C. 1. 0., 007 US. 4%,

50S. Ct. 04, 83 L. Ed. 1432 (1939); Gosjean v. American

Press Co., 207 US. 205, 56 S001. 444. S01 Be 660 C1956)

(3) The objective test of ‘elear and present danger”

established by this court ALD Bridges v. California, sig

U.S. 252, is perverted to a Y snhjective test of ‘ttendency”*

hy the decision of the Court of Appeals of Georgia in this

case, |Headnote 1 (b)}. This decision produces ai lack

of uniformity in the application of the ¢ ‘onstitution of the

United States among the several states and the citizens

thereof, and denies to a citizen of the United States whe

is a citizen of the State of Georgia the rights guaranteed

to all citizens under the First and Fourteenth Amend-

ments to the Constitution of the United States.

\Il. ARGUMENT.

The fiaal decision in this case will determine whether

or not state courts and grand juries may be used to intim-

idate Negro voters of the southern states on the basis

that ‘‘hloe voting’? is illegal and corrupt. If such state

eourt action is immune from public criticism through use

of the eontempt power to imprison, then the freedom of

~peech and press. provisions of the federal Constitution

provide no protection to one who would publicly disagree.

A state judge has no right to deliver an inflammatory

and prejudical charge to a erand jury, Clair v. Nebraska,

4 Neb, 534, 59 N. W. 118, 28 L. R.A. She (1894), and

certainly publicity of such a charge in all news media

is not a judicial act, but does make the effect of such a

charge community wide.

Where a community is inflamed by racial rumors and

accusations, the twin hounds of prejudice and passion are

loosened, and constitutional guarantees of free election

and free speech are often brushed aside and denied,

In this case there is no proof ot resulting danger to the

community, the grand jury or to the court by reason of

petitioner’s statements. No such danger was plead or

proved because the citation for contempt alleged that such

ctatements were each ‘in and of itself’ a contempt of

court and the trial judge so determined, and ruled) that

the truth of such statements were no defense, by over-

ruling petitioner’s demurrers.

Georgia courts, created by the state constitution, have

long claimed all the power to define contempt possessed

by all courts of record prior to the adoption of the State

Constitution in 1777. Bradley v. State, 111 Georgia 168,

ah, Sens

“6 S 1. 620 (1900); Atlanta Newspapers, Inc., v. State,

P16 Ga. B90, TEG S. Be 2nd dso C1960),

The ease of In re Fite, 11 Gia. App. 665, Th Ss. b 8%e

(1912), whieh is quoted at great length ino the Opinion

now before this court for review, contains the most de

tniled reasoning of the doctrine of ‘conndatizing the

court’? to be found in American jurisprudence.

The decision in petitioner's case should be reviewed liv

this Court because the freedom of speech and press pre

visions of the First Amendment to the Constitution of the

United States prohibits to courts of this country the power

of Kine’s courts to lay by the heels one who seandalizes

the court in publications outside the presence of the court,

Bridges v. California, 314 U.S. 202 (1941); Pennekamp

v. Florida, 328 U.S. 331 (1946): Craig v. Harney, *

U.S. 367 (1947).

Likewise, the Fourteenth Amendment to. the Constitn

tion of the United States prohibits state action which

denies constitutional rights of citizens of the United

States. Kingsley International Pictures Corp. v. Regents

of University of N. ¥., 360 U.S. Gs4 (1999),

The decisions of this court would indicate that a citizen

of the United States does not lose his constitutional

rights

of freedom of speech and press simply beeanse at seme

times and for some purposes be serves as an officer of a

count, particularly where the statements made were nota

part of any transaction or service as a court officer, Cram-

mer v. United States, 350 U.S. 399, 76S. Ct. $56, 100 |.

Il. 474 (1956); In re Harriett Sawyer. 2a 1, BS ae

S(t. 1376, 3-L. Ed. 2nd 1405 (1959).

In conelusion, the following words of George Washing

fon seem: most appropriate:

|

“If men are to be precluded from offering their

sentiments on a matter, which may involve the most

serious and alarming consequences that can invite

the consideration of mankind, reason is of no use to

us: the freedom of speech may be taken away, and,

dumb and silent, we may be led away like sheep te

the slaughter.” os

Address to Officers of the Army (March 15,

17833. )

VIIl. CONCLUSION.

For the reasons stated, this petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

£0.

WILTOS? KRAMER,

1625 AK St., Northwest,

Washington 6, DL C.,

EBWARD FL TAYLOR,

H. T. ONEAL, JR..

CHARLES BF. ADAMS,

JAMES T. WOOD,

Macon, Georgia,

Attorneys for Petitioner.

hee, ees

APPENDIX A.

(Judgment in Question.)

Court. of Appeals,

OY the State of Georgia.

Atlanta, February 25, 1961.

The Honorable Court of Appeals met pursuant te ael-

journment. The following judgment was rendered:

J. 1. Wood vy. State of Georgia

This ease came before this court upon a writ of error

from the Superior Court of Bibb County; and, after argu-

ment had, it is considered and- adjudged that the jude

ment of the court below be affirmed as te Counts 1 and 3 of

the citation for contempt and reversed as to Count ri

Carlisle, Nichols and Jordan, J.J., conenr. Townsend, P. d..

concurs specially to Division 1 of the opinion. Bell and

Frankum, JJ., dissent to Division 2 of the opinion. Felton,

(. J., and Townsend, P. J. dissent to Division 3 of the

opinion.

|.

APPENDIX B.

(Text of Opinion Below.)

wsG4. J. 1. Wood v. State of Georgia B-sv

1. The trial court did not err in finding the defendant

in contempt under count 1 of the indictment.

(a) The constitutional courts of this state are not lim-

ited by the definition of contempts in Code, § 24-105, and

may go beyond the provisions of the statute in order to

preserve and enforce their constitutional powers by treat-

ing as contempts acts which clearly invade them.

(b) The grand jury is a constituent part of the court,

and anyone whose conduct interferes with, or has a tend-

eney to obstruct the grand jury, or endeavors to interfere

with the performance of its duties may be found in con-

tempt.

(e) The principles stated in headnote 3 also are appro-

priate to division 1 of the opinion.

» The trial court erred in convicting the defendant on

count 2 of the indietment for contempt.

3. (a) The trial court did not err in its conviction of

the defendant on the third count of the citation for con

tempt.

(4) The sneeess or failure of an attempt ta, interfere

with the administration of justice is nota test of whether

or not there is a contempt, since it can not be known

what effect, if any, the attempt may have had.

(e) The truth or falsity of statements made in an at

tempt to obstruct or impair the administration of justice

is irrelevant and, if contemptuous, such statements may

be punished as a contempt,

——

(d) Punishment for contempt of court ix not prevented

by the constitntional guaranty of freedom of speech, Code,

OTD. since contempt of court is an abuse of the liberty

of speech.

(eo) The due process, freedom of speech, and equal pre

fection clauses of the Constitution of the United States

do not bar punishment for contempt of court.

({) The act of the judge in charging the grand jury with

its duties is a judicial act, and an improper interference

therewith mav be found to be contempt of court.

(¢) The lack of criminal intent or the presence of good

faith will not bar a conviction for contempt of court,

(h) Punishment for contempt of court is net a denial of

due process of law.

(i)-(k) The remaining of seventy-five demurrers are con

sidered and disposed of in the opinion.

(1) Intemperate and repeated attacks upon the motives,

judgment, and alleged biases of the judge which allegedly

led him to charge the grand jury to make certain invest!

vations, and which attacks could have had the effect of

interfering with, or diverting therattention of the grand

jury from its assigned duties, may properly be fonnd te

he contempt of court,

(m) The principles stated in headnote 1 also are appre

priate to division 2 of the opinion,

The defendant, at the time sheriff of Bibb Connty,

Georgia, was cited for and convicted of contempt of coun

by the Superior Court of Bibb County, Georgia, The fact~

out of which the contempt citation arow: were as follow ~:

On June 6, 1960, the opening day of the June Term, 16a,

of the Bibb Supertor Conrt, Jndve Long charged the

erand jury. which had been regularly imupanelled ane

eworn for the term of conrt, giving them special instrne

es Cea

‘

tions whieh were joined ino by the other two judges ot

that court, advising the grand jury that ao sitnation brivel

arisen in the county which the court felt should be thor

onghiy and completely investigated by the grand jury.

In this charge the jury was advised that there appeared

to be oan inane ane inexplicable pattern oof Negro Vihive

voting. The charge went on to point ont that acensation =

had been made that candidates for public office had paid

large sums of money to certain leaders in oan effort. te

eain their faver and to obtain the Negro vote, and that

there were also acenusations that certain Negro leaders.

after having met with a eandidate and endorsed his can-

didaey, have changed and supported an opposing cand

date who put up a large sum of money, and that this

creates an unhealthy, dangerous, and vnlawtnl situation

which tends to corrupt public office holders and seme can

didates for public office, The charge went on te point out

the violations of law which wonld be involved should the

grand jury find these charges to he fonnded in truth. The

charge cited Code © 24-0907, which provides, in part. Wheat

if any person shall buy or sell. or offer to buy ar sellen

vote. or shall be in any way concerned in buying or selling,

or contribute monev or any other thing of value fer the

purpose of buying a vete atany election in this State. or

in oany connty thereot sneh person shall be eniltv of oa

misdemeanor, Code * 94.2007.) also was cited. This see

tion reads, “No person, firm. or corporation shall print,

have, Or Possess a ballot or ballets or any likeness of the

<ame, except the officials having charge of the genera

Sections, primary elections, er speci Seetions ander the

laws of this State, and the electors when engaged in the

vets of voting.” The charge went on to instrnet the ane

that if money is fornished to anv person ar groan ot

persons tor the purpose of hiring people qualified to vote

to canvass other voters in an effort te influence their vate.

in behalf of anv candidate that this wonld he a violation

of law and against the public poliew of the Stiute. Certain

lo—

questions were posed to the jury Whieh it was te invest

wiite in inquiring inte the charges of violations of oles

tion laws.

The nert dav, While the wrote WV Wis It aesston gine

vetually engaged ino investigating the matters set Torn

in the charge by the court, the defendant prepared and

esned ao written statement whieh was by him neh vaneber

his direction on that day released to loeal news media.

cansing the contents of this statement to he poualelistiend corel

disseminated to the general public. At) the trie *\hh-

“news release” was made, the grand jury had before then

voting tabulations and other documents. imeluding «©

dorsements ov certain political groups. relating ta yn

Maries and elections in which the defendant netively pat

Ticipated as 2 candidate for public office ane as an aetive

supporter ata candidate. Th wa ~tipulated between the

eolicitor general and the defendant that the midees of thy

Superior Court read the statement, and alse that members

of the Bibl County grand jury, during the course of its

investigation about the matters thev were charged te it

vestigate, rend the mews. relense af the defendant. his “An

(dyven Leiter to the Bibb Connty Grand Jur” syed ao fu

ther statement which the defendant made on July sti

after he was eited fer contempt of court. The “Open Let

ter to the Bibb Connty Grand Jury” was eignedd lw thie

defendant with the title, esherif of Bibb Conntv” The

news relense of June Tth and the statement of .ntv si

were siened hy him withont the vdelition of the caption,

NRA Bibl (founty an

The rewe relense ot Vyare Teh -tated:

“The people ot Bibb County shone toke notiees when

ther highest judicial officers threaten pelitienl prersecn

tien enrried ont under the guise af law enforcement

“Whatever the Indges infention, the aetion of the Sn

perior Conrt Indges ordering a Bibb Connty Grand Jury

-—hi—

te investigate ‘Negro block voting’ will be considered one

of the most deplorable exaniples of race agitation te cane

ont of Middle Georgia in recent years. :

“Aton time when all thinking people want te preserve

the good will and coaperation between the graces tn Bill

Connty, this action appears either asa ernde attempt at

judicial intimidation of negro sgter- and leaders, or, at

heat. ns agitation for a ‘negro vote’ issne in loeal polities.

“Noe one wonld qnestion the duty of a Grand Jurv te

investigate anv and all election law violations. However,

simple jastice wonld demand that the JIndge nat sing'e

ont the negre people for particnlar investigation. If we

cerionsiy wish to enforce the old) law against hiring work

ere for canvassing or inflnencing voters, then let ms start

by indicting our VS. Senaters, Congressmen. and Gov

erners and almost ail elected State official-.

e

“Tf we overtook the mountain of white candidates and

campguign workers whe have violated this old law. to in

vestigate the mole hill of few negro campaign workers,

then tenly we are manipulating the law tn os manner te

perseehts the few,

“This is the twpe of nolitienl!-legal aetion which brings

Jewn ridienle and demands fer civil right lewislation

ygninst the Soenth.

“Negro peaple will find littl differenes in pertmeiple ts

tween attempted intimidation of their pearte tw judieral

cummons and inaniry and attempted intimidation — tn

phowstest! dermonstration eneh its need hin the k. kK. iN

“It i. heaped that the present Grand Jory will net tet

ite high offiee he a party te any political attempt to i?

Himidate the negro people in this community,

“1 Hem. inoredi ble that ol three at ows Superios (onrt

Jrdges. whe thermisels vs hold high porlitierl office, 1 ee

peliticnliv nieve Naive) ne to aetnally Delieve that Te

r

a

negro voters in Bibb County sell their votes in any

fashion, either to candidates for office or to some negre

leaders.

“Hf anyone in the community be free of racial prejudice,

it should he our Judge. It is shocking to tine } didue

charging a Grand Jury in the stvle and language of a

-~

race baiting candidate ger political office. , —

“It further seems the height of hypocrisy to dna ff an

old blue law that has been ignered for fitty venrs ane

suddenly order its rigid enforcement a@ainst ao ednority

grou of voters.

**However politically popular the judges’ action may he

at this time, they are employing a pragtsce far more dan

gerons to free elections than anything they want jnVeS-«

tigated.” : * (A

The “Open Letter to the Grand Jury’ read as follows:

“Pursuant to the reqnest that the general public fur

nish to vou information concerning ‘bloc voting” in this

county, | wish to furnish ven with the following imforreie

tion.

“For many vears, even for decades) onr newspapers.

law enforcement agencies, and courts have permitted a

situation to develop in Bibb County which is so dangeron-

that T feel it inyperative te eall it te your attention at

this time,

“] refer, of conrse, to that gigantic ‘blac vote’ whieh is

controled by a handful of men Known a- The Bibb Connts

Democratic Exeentive Committee The sitnation in this,

county has so deteriorated that almost no one can obtain

any local office without fir~t seenring the sanetion and ap

nroval af this handfnl of people.

* Yeensations are made that large sums of money ore

prseted be ter thepe cemeetpen of Poeedop efor the eeh eres gnbeneed penne ore decent ®

ee

it is even alleged that a public official secking re-election

and who has no opposition, must nevertheless pay over

hundreds upon hundreds of dollars to this group of lead-

ers who control the democratic bloc vote in Bibb County.

Acensations are further made that this group of leaders,

known as the Bibb County Democratic Executive Commit.

tee, openly and notoriously violates the law of this State

by soliciting the voters of this community on behalf of

those nominees securing their approval. Reports further

cirenlate that this small group of leaders receive money

supposedly for the purpose of advertising, printing, ete.,

hut no satisfactory explanation is ever made to the public

of the means by which this organization is able, year after

vear, decade after deeade, to control a mass vote in Bibh

(‘ounty.

“Obviously, it is not in the best interest of the people

of Bibb County to always deliver a bloc vote to the se

lectees of this group of political leaders in the community.

“The Grand Jury should delve deeply into the means

by which a select group in this community is able to brain

wash the voting public so that the voters, like sheep,

biimdly bloc vote for certain sponsored candidates of the

Democratic Exeentive Committee. Certainly this most

notorious and long existing bloe vote overshadows and

overpowers any other sub bloe of votes which may be un-

der inquiry in the process of the current investigation.

‘*T assure the members of the Grand Jury that my of-

fice at all times stands ready to Milly cooperate with the

Grand Jury in the gathering of evidence and T can tur-

ther assure the Grand Jury¥ that if it takes under advise-

ment an inquiry into the gigantie democratic bloc vote in

this county, T will, personally, enter with great zeal inte

such an investigation on behalf of the Grand Juryv.**

The statement of .JInlv 8, 1960, after the citation for con

tempt brought against the defendant. stated:

aie

“My defense will be simply that [have spoken the truth.

Anyone who will read, point by pommt, iny statements con

cerning the Judges’ charge will find those statement: true.

“The Judges were wrong to use ‘Negro Bloe voting.” the

campaign slogan of Talmadge, and similar plirases as lan

enage with which to instruct a Grand Jury. When T stated

‘It is shocking to find a Judge charging a Grand Jury in

the style and language of a race baiting candidate for

political office’ was it contempt ef court or was [pointing

out the truth?

“When T said ‘If anvone in this commoanity be free of

racial prejudice, it should be our Judges” was this con

tempt of Court or was T stating a truth?

“The Judges were morally wrong to suddenly order a

Grand Jury to single out the Negro political leaders for

indictments under a forgotten law which even judges have

violated. When T said ‘it further seems that the height ot

hypocrisy to dust off an old blue law that has been ignored

for fifty vears and anddenly order its rigid: enforcement

against a minority group of voters’ was this contempt of

Court or was T speaking the truth?

“The Judges were profegsionally wrong ino invelving

the Court in political affairs. T stated that the Inde’

charges ‘threaten politieal persecution carried ont under

the anise of law enforcement’ and further that ‘this action

Appears either as a ernde attempt at judicial intimidation

of Negro voters and leaders, or, at best, as agitation for

a ' Negro Vote’ issues in loeal polities.” Can anyone read

the Judges* instructions for indietments under the old tin

fneneing voters’ Jaw and honestly sav no political persecn

tion is threatened when almost all office holders have vio

lated this law? Can anvone read the long charge recitine

political rnmors and charges against Negro leaders and

voters and honestly say there is no appearance of any af

tempt at intimidation of Negro voters and leaders? Like

|

wise can anyone deny such a charge and such an investiga-

tion in the midst of local political races agitates a ‘Negro

Vote’ issue?

“If the Court will permit I believe that many thousands

of witnesses would testify in my behalf that they drew the

same conclusions as I from the language used by the

Judges in their charge.

‘‘Is it just, or even fair play, for the Judges to say they

intended no threat, no intimidation, no agitation and

therefore it is contempt of court to publicly state honest,

sincere conelusions and practical effects caused by the

language of the charge.

‘“‘Two wrongs do not make a right, and the Judges are

wrong to cite me for contempt. I cannot view the Judges’

action in any light except to believe T am to be prose-

ented for daring to criticize the Judges and for speaking

the truth.

‘‘T had hoped that the entire ill-will and race agitation

stirred up by the Judges’ charge would be permitted to

die after a face-saving presentment by the Courts’ Grand

Jury. To this end T remained silent despite grossly false

and discrediting conclusions presented. Now it appears

that the Judges want the satisfaction of find [sie] me in

contempt of court, but if they so do, they are in effect

saving that the court has done no wrong becanse the court

itself finds it has done no wrong.”’

The contempt citation, as amended, charged the publi-

cation of these three statements of the defendant, each as

#2 separate contempt of the court, and charged that the

language used was designed and caleulated to be con-

temptuous of the court, to ridicule the investigation or-

dered by the charge, to hamper, hinder, interfere with,

and obstruct the said grand jury and the court in the

investigation order, and that the news release referred to

—

was issued from the Bibb Connty sheriff's office located

in the Bibb County Courthouse, the same building in

which the judge charged the grand jury. and that the

language imputed lack of judicial integrity to the three

judges of the Superior Court of the Macon Judicial Cir

cenit. Count 2 of the citation charged that the letter en.

titled, **An Open Letter to the Bibb County Grand Jury”

was delivered by the defendant to the bailiff of the grand

jury at the time the grand jury was investigating the

matters set forth in the charge of the court and while the

grand jury was actually holding a hearing thereon in the

Grand Jury Room of the Bibb County Courthouse, and

that the defendant instructed the bailiff to deliver the let-

ter to the foreman of the grand jury, which was done, and

that it was at or about the same time he delivered the

letter to the grand jury that- he released copies to the

news media, and that this open letter to the grand jury

was designed and ealenlated to be contemptnons ef the’

court and to ridieule the investigation and to impute lack

of judicial integrity’ to all three judges of the Snperier

Courts of the Macon Jndicial Cirenit. and that at the time

the letter was issued the grand jury had not completed

its investigation into the matters abont which it had heer

instrueted by the court. The contempt citation was fur-

ther amended to add to each connt that the respondent

was sheriff of Bibb Connty, a full-time employee of the

county, and as sneh an officer of the Bibb Superior Conrt.

Connt | was further amended to charge that at the time

the defendant issned his ‘‘news release’* the grand jury

had hefore it records and decuments relating to primaries

and elections in which the respondent had taken an active

part beth as a eandidate and as an active snpporter of a

candidate, and that the grand jurv had been charged to

investigate said elections, and further that the news re-

lease was bronght to the attention of the judges of the

Bibb Superior Court and to the members of the grand

jury as a resnit of publication of the statement by the

varions news media, and that the statement as so pub-

lished was actually read, by members of the grand jury

while they were engaged in the investigation of the mat-

ters about which the court had charged them, and that

the issuing, publishing, and causing to be published of

the statement by the defendant in and of itself created

and presented a clear, present, and imminent danger to

the investigation being conducted by the Bibb County

vrand jury into the matters about which it had been in-

strneted by the court, and further presented a clear,

present, and imminent danger to the proper administra-

tion of justice in the Bibb Superior Court. The amend.

inent fo count 2 further charged similarly that after the

news release was read by the members of the grand jury,

while engaged in investigation of the matters, that at the

time defendant cansed to be delivered to the grand jury an

“Open Letter to the Bibb County Grand Jury,’’ the grand

jury had before it investigation records and documents

relating to primaries and elections in which the defend-

ant had participated, and that the jury was then in fact

investigating such elections, and that the grand jury had

determined to call him as a witness and did so later on.

Further amendment to count 2 charged that the publishing

and eausing to be published of the letter amounted to a

course of action designed and ealeulated to ‘tridicule, em-

harrass, tamper, delay, and interfere with and obstruct

the Grand Jury in said investigation ordered by the

court, and was further designed and ealeulated to ridi-

cule the investigation and tamper, hinder, delay and in-

ferfere with the Court in its instructions to the Grand

Jury.’ and, further, that the delivery of the letter to the

grand jury and the publishing and causing to be published

in and of itself created and presented a clear, present.

and imminent danger to the investigation being conducted

by the Bibb County grand jury into the matters about

which it had been instrueted by the court, and further

created a clear, present, and imminent danger to the

.

proper adiministration of justice in the court; and that the

preparing and delivering of the letter to: the erand jury

Was an attempt by the defendant on his part te ridiente

the investigation whieh was in progress, and did in fact

interrupt, delay, and interfere with the business of the

erand jury while the grand jury was taking testimony

of witnesses regarding the investigation, and that the

reading and consideration of the contents of the letter did

actually interrupt, delay, and interfere with such investi

vation, and did thereby create and present a clear, pres

ent. and imminent danger to the investigation being con

dueted by the grand jury. The amendment te eount 3

made similar charges concerning the statement made by

the defendant on July Sth, charging that the issning, pub

lishing, and causing to be published of the statement pre

sentesl a clear, present, and imminent danger to the inves-

tigation by the grand jury into the matters which the

court had instructed it to investigate, and further pre-

sented a clear, present, and imminent danger to the

proper administration of justice in the court of the dian

dling of the contempt citation against the respondent,

which citation was then and there pending in the Bibb

Superior Court, and that the statement was actually read

hy the members of the grand jury while they were con

tinning their investigation of the matters abont which

they had been charged, and was actually read by the

jndges of the Bibb Superior Court. The amendment te

count 2 further charged that this published statement wa-

a course of aetion by the defendant designed and: eaten

lated to hinder, interfere with, and ridienle the grand

jury in continuing its investigation of the matters about

which the court had charged the jury, and this in and of

itself presented and created a clear, present, and imminent

danger to the proper investigation and proper condnet

of the business of said erand jury. The ‘'Statement’? of

Jnly Sth was alse charged to have heen eirenlated by the

rine 4 ae

defendant to the news media in Macon, which the answer

of the defendant impliedly admits.

The defendant filed 19 general or special demurrers to

each of the three counts of the contempt citation, and to

the citation as finally amended filed 6 additional demurrers

to each count and renewed the original 19 demurrers to

each count, for a total of 75 demurrers. The court over-

ruled both the renewed and additional demurrers. After

a hearing, the defendant was convicted on cach count

and sentenced to 20 days in jail on each count, to be

served concurrently, and to pay a fine of $200 on each

count.

The defendant excepted to the overruling of the re-

newed and additional demurrers, and further exeepted to

the order and judgment of the court adjudging him in

contempt as being contrary to law and charging that the

court should not have found him guilty of contempt. of

court on the basis of the facts submitted.

At the request of the president of the Macon Cireuit

Bar Association, the Hon. Charles J. Bloch and the Hon

T. Reese Watkins filed a brief as amiel curiae, upon ap-

peal, under Rule 4 of this court.

Bell, Judge, At the outset may it be explained that the

writer prepared and is publishing for the court the opinion

and judgment with respect to counts 1 and 3 of the con-

tempt citation. These counts appear here in divisions 1

and 3 respectively. Since the majority of the court en

banc agreed with the views expressed by Judge Townsend

upon count 2 of the citation, he has prepared the ma-

jority view on this count, and his expressions will appear

in division 2 of the opinion.

1. Reduced to its basie elements, the present appeal

brings into confliet the constitutional right of freedom of

speech, on the one hand, and the right of the conrts te

carry on their proper funetions without any improper it

terference, Contempt of court has been varionsly defined:

in its broad sense it means disregard for or disobedience

of the order or command of the court, but it also includes

interruption of the proceedings by disorder! behavier ot

insolent language either in its presence or so near thereto

as to disturb its proceedings or impair due respect for the

authority, justice, or dignity of the court, 12 Am. Jur. Con

tempt. $2, p. 889 Thus. ‘any condnet that in law const

tutes an offense against the authority and dignity of a

court. or judicial officer in the performance of judicial

function’ is a contempt. Ex parte Farman, 85 Pla. 297, 9%

So. 755, 31 A. L. R. 1226. “A constructive, indirect, or

consequential contempt is one committed ontside the pres

ence of the court: it is an act done at a distance, which

tends to belittle, degrade, obsfruet, interrupt. prevent. or

embarrass the conrt in the administration of justice

17 C.J. S. 6. Contempt, & 4. Furthermore, whatever mani

fextly tends to constitute an interference with the proper

exercise of the duties and funetions of a grand jury while

engaged in the consideration of such matters as may pron

erly come hefore it constitutes contempt. 17 CL IS. 49.

2M e, and cases there cited.

(a) Section 24-105 of our Code provides in part tha

the powers of the several comts to ixsne attachments and

inflict: smmimary punishment for contempt of conrt shall

extend only to eases of misbehavior of any person or per

sons in the presence of the courts or so near thereto as te

obstrnet the administration of justice, the misbehavior of

anv of the officers of the conrts in their offieial transac

tions, and the disohedience or resistance by any officer of

the courts, party, juror, witness, or other person or persons

te anv lawfnl writ, process, order, rule, decree, or can

mand of the eonrts. This statute was enacted in TSO,

apparently pursnant to Article T, Seetion 1. Paragraph XN

—_—

(6376) of the Constitution of the State of Georgia of ii,

which provided, ‘*The power of the courts to punish for

contempt shall be limited by legislative acts.’’ This same

provision was written into the Constitution of 1945, and

i< codified in Code § 2-120. Notwithstanding the wording

of Code § 24-105, the Supreme Court has held and reiter

ated that the constitutional provision does not confer an-

thority upon the Legislature to define what are contempts,

and to declare that the court shall have jurisdiction over

no acts except those specified, because the power to punish

contempts is inherent in every court of record, The Su-

preme Court has held that Code § 24-105, insofar as it seeks

to limit the jurisdiction of a constitutional court to punish

contempts to certain specified acts, is not binding upon

the courts, and they may go beyond the provisions of the

statutes in order to preserve and enforce their constitn-

tional powers by treating as contempts acts which clearly

invade them. Bradley v. State, 111 Ga. 168 (1, 2) (36

S. F. 630); 50 L. R. A. 691; 78 Am. St. Rep. 157; and At-

lanta Newspapers v. State of Georgia, 216 Ga. 399 (1),

402-3 (116 S. F. 2d 580). Part of the briefs of both parties

are devoted to the question as to whether the present con-

tempt occurred so near to the court as to constitute a con-

temptnous interference with its processes. Under the deei-

sions of the Supreme Court, we do not regard it necessary

te determine whether or not the contempts charged fit

within the definition of Code § 24-105, because the consti

tutional courts are not to be limited as to what is a con

tempt by the acts of the Legislature.

(h) Tt appears clear that whether the contempt he re-

warded as one of the court or of the grand jury, the result

ix the same, since if there is a contempt of the grand jury,

this is also a contempt of the court, as the grand jury is

» constituent part of the court, and anyone whose conduct

interferes with or has a tendency to obstruct the grand jury

mav he found to he in contempt. Commonwealth v. Me-

Nary, 246 Mass. 46, 140 N. BE. 200; 24 A. L. R. 486-0; 12

Am. Jur. 403, Contempt, $21. The grand jury ix but an

arm of the court, Gates v. State, 73 Gia, App. 824, 826 (38

%. K: 2a 31%).

“If there is any one thing in democratic society which

must be presumed conclusively, itil judicial determina

tion to the contrary by a court of law of impeachment,

it is the integrity of the courts. The structure of our gov-

ernment demands that freedom of speech be subordinated

to the welfare of society in the respect for the integrity

and sanetity of our courts. A judgeship is an institution

and an ideal, and when a judge is accused of wrongdoing

it is more than an attack upon an individual. It is an at

tack and an undermining of one of the most important

supports of the government. Tf a judge is corrupt or in

competent, there may be a remedy by suit, prosecution,

impeachment, er at the polls. The publie policy of de

mocracy is that the judiciary shall not he dragged in the

mire because of a real or a supposed wrong. If such could

be done, and results confined to punishing the jndge, the

rule might be different, but when it canses disrespect for

the high office which the judge seeks to personify, and

subjects it to ridienle and contempt, the tendenev is for

men to turn their backs on the institution created for the

safety and well being of mankind and take the law into

their own hands. The constitution does not guarantee free-

dom to ‘sav what we please’ about a jndee or a court.

Contempt of court is an abuse of such a privilege. In re

Fite (11 Ga. App. 665), supra. The right to define and

punish for contempt is inherent in constitutional eourts, so

the definition of contempt in this ease, involving the sn

perior conrt, is not confined to the Code definition by which

courts which are not constitutional are governed; and the

question whether the conduet complained of interfered with

the administration of justice in a pending case is not in-

volved. In re Fite, supra: Bradley v. State, 111 Ga. 168

pees. eo

(36S. EB. 650, 50 L. R. A. 691, 78 Am. St. R. 157); Cobb v.

State, 1X7 (ia. 448 (200 8S. B. 76). In view of the radical

language complained of in this case, imputing lack of

virtue and integrity to the judge of the court for an act

done in his official capacity, and in view of the law as

laid down by the decisions cited, we hold that there wa-

yo error in overruling the pleas to the jurisdiction and in

bar, and in adjudging the respondent in contempt.'* Cobb

v. State, 59 Ga. App. 695, 701 (25. KB. 2d 116). In the

Cobb case there was considerable intemperate language

used by the defendant in a book published by him which

was cireulated in the counties comprising the Ogeecher

judicial cireuit, in which, inter alia, the defendant had

written that the trial judge was ‘tas much a judicial pros

titute as is any loose wretch who walks the streets a moral

prostitute.”

“The constitutional right of freedom of speech or of the

press was not intended as a refuge for the contemnor or

clanderer or libeler. Contempt of the court, slander, and

libel constitute abuses of the privilege, for the commission

of which the offenders are justly and lawfully punishable.”

In re Fite, 11 Ga. App. 665 (6) (76S. BL 397).

“The power of the judiciary rests upon the faith of the

people in its imiegrity and intelligence. Take away thi-

faith, and the moral influence of the eourts is gone and

__ respect for the law is destroved. Other departments of

~ the government may outlive unjust criticism, and may still

render service to the people, even when unfairly assailed,

but when confidence in the courts is gone, respect for the

law itself will speedily disappear, and society will become

the prey of frand, violence, and crime. This one element

“1 government and society which the people desire above

all things else to keep from the taint of suspicion is the

administration of justice in the courts.”’ Thid. p. 680.

The court below has adjudged the defendant in) con-

tempt upon all three counts. In view of the lav gvage

+BY ae

used and the dissemination of it by the detendant throne ts

the public news media, we cannot say that the comviction

was in errer upon counts Poand 3. The language of the

news release, the basis of connt 1 of the citation far con

tempt, charged the jndges of the Supertor Court with

threatening political persecution under the anise of fan

enforcement, and further charged them with bias against

A minority group, and compared the effect of the instrin

tions to the grand jnrv with the attempted intimidation s+

used by the Ku Klux Klan against this group. Tt is ob

viens that this was intended to interfere with or obstruct

the grand jurv in its investigation of the eharges whiel)

the court had given to them. In this respeet, it: is the

proper funetion of the judge to charge the grand yur

It is not the prerogative of the sheriff to either charee

the jnrv or to interfere with the iIndge's charge

’ However, as applied to connt 2. it ts very elear fram

an examination of Townsend v. State, 54 Ga App. 627

Rk S. EK. 560); Atlanta Newspapers, Tne. v. State aft

Georgia, 216 Ga. 309) supra: MeGill v. State, JOG Gal Fae

(1) (74S. Eo 2d 78); Adams v. State, 88 Gay App Ss2

(STS. Eo 2d 507): Clark v. State, [0 Ga App. S860 685

S KE. 2d 45); Vines v. State, 69 Gal App. 7h (24 8. &.

1 864): and Bridges v. California, 314 U. S. 252 (62

S et. 190 86 1. Ed. 192), that the necessary attribute ot

tendeney te obstrnet the administration of justies has not

been met. dn the ‘* Open Letter to the firand Jury" the

defendant in ne wise enegested that the instractions of

the court in regard to bloe voting were wreng er done

with improper motives he did not dwell on this subject

at all. He did urge at investigation of the inflnence ot

the Demoeratie Exeentive Committee ane) suwwest that

bribes were exehanged tor nominations by this greup

He accused committer members ot vielations of haw, He

urged investigation of certain alleged practices in the

cant general language the court lad used in dealing with

”

— |

the Negro bloe vote. This letter might have been consid

ered by the court along with the press release as showing

that the motives of the defendant were to: impugn the

court's integrity, and as an additional reason for holding

him in contempt on count 1, but count 2 alone contains no

matter at all which would tend to obstruct: the investiga.

tion by the grand jury of the matters set out in count 1.

It deals with irrelevant material. Perhaps it was written

in a satirie manner, and was intended to imply that the

court Was misdirecting the course of the grand jury's

inquiry, but this does not appear from an examination of

the letter, and there is nothing in the letter which would

in any way impede the investigation as related to Negro

hloe voting. Count 2 must stand alone to ancet the test

ot whether it constitutes a ‘‘clear and present danger to

the administration of justice’’ (MeGill v. State of Georgia,

“wt Gin. 500, supra) and it fails to meet this test. The

Court erred in holding the defendant in contempt as te

count 2.

» (a) The third count of the citation for contempt

arose out of the statement of July Sth which reiterated

in large part the statements niade in the original news

release which was the basis of the first count, and charge-

the judges with being morally and professionally wrong,

and again reiterates charges of judicial intimidation and

political persecution. Although the defendant labeled the

statement of July th as his ‘*defense’’, the extensive re-

iteration of his previous assault upon the court served to

compound his contumacious conduct. When the defendant

disseminated this accusatory statement to the public news

media in an apparent effort to hamper the grand jury

which was still considering the charges given if by the

court, this conduct could properly be found by the court

below to constitute a contempt.

The first two demurrers of the defendant to counts 1 and

* of the citation for contempt charging that they set forth

1 —

no grounds for holding him in contempt ner shew any

aets for which he should he convicted were properly over

rriled.

(bh) Demurrers 3, 4. 5. and 6 toe counts 1 ‘nd 3 charge

that the citations in effect fail to allege any aet~ of the

defendant which actually amounted to oer accomplished

an obstrnetion of the administration of justice, or that

the act or arts formed a clear and present danger of ob

structing the administration of justice. The trial court

properly overruled these demurrers, for the snceess or

foilure of the attempt to interfere is not the test. That

the attempt is not successful is no defense, since it cannot

be known what, if any, effeet it had. People v. Doss, O82

11. 307 (46 NB. 2d O84). See also, 12 Am. Jur. 417. Con

tempt, “RT. and. cases there cited. With respect to the

question as fo whether these acts of the defendant consti

tnted ao clear, present, er imminent danger or serious

threat to the administration of justice, if is to be noted

that the eitation as amended <o charges. the court bree barns

has by its convietion se found. ane the evidence supports

the finding.

(¢) Demurrer 7 to counts Tand 3 charges that there i-

no allegation that the statements were false or untrue,

and that lacking such allegation the citations are fatally

detective. This demurrer contuses the law of defamation

with that relating to conterapt of court. It is possible

that a statement or aet might be true but have no rele

vanee to the proceeding and tend te obstruct er impait

the administration of justice im a partienlar case. Fu

thermore, many of the statements made by the defendant

as charged in these counts are matters only ef opinion ats

te which obvionsly there can he no absolute test or proot

of truth or falsity. The trial court property overruled

demurrer number 7 te counts Toand 3.

(al) Demurrer number & to counts To and 3 raises the

question of freedom of speech enaranteed by the Const

‘

tution of the State of Georgia, codified in Code ‘ 2-115,

which provides, **No law shall ever be passed to curtail,

or restrain the liberty of speech, or of the press; any per:

con may speak, write and publish his sentiments, on all

subjects, being responsible for the abuse of that liberty.”’

One who is guilty of contempt of court cannot claim the

protection of this section. In re Fite, 11 (ia. App. 665 (6),

supra. Furthermore, the abuse of liberty of speech and

freedom of the press are not guaranteed by this section.

McGill v. State, 209 Ga. 500, supra. See also the disens-

sion in division 1 of this opinion.

(e) Demurrers numbered 9 and 10 to counts 1 and 3

in effeet raise similar issues citing the United States Con-

‘titution. We hold that a punishment for contempt does

not violate the due process, freedom of speech, or the

equal protection clauses of the United States Constitution.

’

(tf) The 11th demurrer to counts 1 and 3 contends that

the aet of the judge in charging the grand jury was a non-

judicial act as distinguished from a judicial act, and that

the criticism by the respondent with respect thereto was,

therefore, net sneh an act as could constitute a contempt

of court. There is no merit to this demurrer, for the act

of the judge in charging the grand jury is a judicial act.

Demurrer number TL was properly overrnied.

(¢) Demurrer number 12 to counts 1 and 3 contends

that the citations set forth no ground for holding the de-

fendant in contempt, for the reason that as sheriff he has

beth the right and the duty in the exercise of his execu-

tive functions to determine what the public safety and

tranquility’ demand, and that the citation is void because

it fails to negative in any way that he was performing

such funetion.

While a sheriff may have a right and a duty in the

exereise of his functions to determine what the public

safety and tranquility demand, this right is not vested

exelusively in the sheriff, not is it absolute, and where,

as here, what he did is held to be a contempt of court, the

vestureot his office will not shicld hin nes does it bestow

license npon him. No eriminal intent is necessary fer

there to be a contempt of court, although the dental of

contumacious intent, though not ordinarily a defense, may

he considered in mitigation of punishment, ye eer Ree

34, Contempt, . 42. Ht the rule were otherwise, one it

contempt might always purge himself by an assertion ot

wood intention. State v. Distriet Court of Seventh Judi

vial District, 76 Mont. 222, 246 P. 290. See also, 120 Am.

Jur. 439, Contempt, 673.

(h) Demurrer number 13 to counts 1 and 3 raises again

the question of denial of due process, contending that the

citations deprive him of due process of law, in that the

court is proceeding to prosecute a matter concerning Which

it has no jurisdiction, since the acts oceurred outside the

court room and in the exercise of freedom of speech. This

demurrer was. properly overruled,

(i) Demurrer number 14 moves to strike the allegation

‘1 counts 1 and 3 to the effect that he was at all times

during the contemptuous acts cited as sheriff of Bibb

County. The fact that the defendant was in fact) the

sheriff of Bibb County at the time, and as such an officer

and an arm of the court, was reievant to the inquiry, prop

erly considerable by the court, and this demurrer was

properly overruled,

(j) Demurrer number 15 contends as to count 1 that

the part of the citation to the effeet that the statement

made by respondent was disseminated to the general pub

lic should be stricken, on the ground that it is entirely

irrelevant and immaterial. Bunt the release to the public

of the contemptuous matter presented to the grand jury

was relevant and material, and demurrer 15 to the first

count was properly overruled,

—i4—

(k) Demurrer number 15 to count 3 attacks the allega-

tion again as to the location of the sheriff's office and

charges that the allegation that the respondent appeared

is too vagne and indefinite to show where he appeared

from or to whom he appeared. Reading this paragraph

of count 3 as a whole, we feel it ts sufficiently definite.

The other contentions were properly overruled. Special

demurrers 16, 17, 18, and 1% to counts 1 and 3 are all

without merit, and were properly overruled by the trial

court.

(1) We now come to the six additional demurrers to

counts 1 and 3 of the citation for contempt. The addi-

tional demurrers 1 and 2 are merely repetitious as te

effect of others previously considered, and are without

merit. Demurrer number 3 to the amended citation

charges that the allegation that he is on the Bibb County

payroll is irrelevant. This demurrer has. no merit, and

neither does the objection to the allegation that the de-

fendant is an ofticer of Bibb Superior Court on the ground

that it is a conclusion of the pleader. Demurrers 4, 5, and

to the citation as amended merely reiterate the attacks

which we have previously passed upon, and were properly

overruled. For the reasons indicated in this opinion, the

exception to the judgement of convietions on counts 1 and

3 was also properly overruled.

We do not intend by this decision to hold that the opin-

ions, the judgments, the proceedings of the courts, or the

judges themselves, are under any and all cireumstances

exempt from objection or remonstrative criticism. But

where, as here, the three judges involved acted jointly, and

in their place proceeded within the ideals arid the letter

of the law, and where, as here, there were vitriolic attacks

upon the motives, judgment, and biases of these judges,

and all this carried on by the sheriff, an officer of the law

and of the court, at times during which the grand jury

properly had hefore it for consideration the charge of the

oe ied

—_— J

court, we ean only conclude that the sheriff’s intemperate

actions constituted contempt and the convictions on counts

land 3 were proper.

The judgment is affirmed as to the conviction on counts

1 and 2 of the citations for contempt, but reversed as to

the convietion upon count 2.

In division 1 of this opinion, Felton, Cc. J., Carlisle,

Nichols, Frankum, and Jordan, JJ., concur, and Townsend,

P. J., concurs specially.

As to division 2, prepared and delivered by Judge Town-

send, Felton, C. J., Carlisle, Nichols, and Jordan, JJ., con-

cur. Bell and Frankum, JJ., dissent.

In division 3, Carlisle, Nichols, Frankum, and J ordan,

JJ., concur. Felton, C. J., and Townsend, P. J., dissent.

Wood v. State of Georgia, B80.

Townsend, Presiding Judge. (Specially coneurring as te

Count 1.) 1. First, it should be stated that I coneur in the

judgment of conviction of the defendant as to Count 1, on

the ground that the contents of the newspaper article was

both contumnacious and sufficient to amount to an obstrue

tion of the administration of justice. Tt must appear

from the record to be both of these things. Clark Vv. State

of Georgia, (1) Gia. App. 350 (2) (83.8. FE. 2d 45). Tt was

definitely contumnacions in that it aceused the judges of

“threatening political persecution under the guise of law

enforcement’, of ‘ta crude attempt at judicial intimida

tien’’: of “manipulating the law in a manner to persecute

the few.” as “shocking 2. . the height of hypoerisy”’,

and <o forth. This was sufficient to amount to an obstruc-

tion of the administration of justice. The court's charge

instructed the grand jury to inquire into certain rumored

infractions of criminal law by means of trafie in, and the

purchase and sale of bloc votes between some candidates

— 36 —

for office and some Negro leaders in elections where it did

not appear that any issue was involved such that their self

interest would be a factor in their decision. The grand

jury was in session and presumably investigating or about

to investigate the matter at the time the article was pub-

lished. The grand jury is an arm of the superior court

and the law and a part of the machinery of government.

Gates v. State, 73 Ga. App. 824 (38S. BK. 2d 311); Cook

vy. Sikes, 210 Ga. 722 (82S. KE. 2d 641). In Atlanta News-

papers v. State of Georgia, 216 Ga. 399 (116 S. FE. 2d 580)

the court, after quoting from McGill v. State of Ga., 21"

Ga. 500 (1) (74.8. FE. 9%] 78) to the effect that an abuse of

the right to freedom of speech which results in-obstructing

the administration of justice will subject the abuser to

punishment for contempt 0° court, held that the newspaper

article in question there was not an abuse for the reason

that at the time when if was published there was no rea-

conable dnty on the newspaper fo anticipate that the arti-

ele in question wonld come to the attention of the jurors

or otherwise interfere with the trial of the case.

There must always be a balance between the right of

freedom of speech and the right to unimpeded justice. To

paraphrase the Apostle, there is 4 time to speak and a

time to keep silent. The time to speak, even to aceuse the

jndge of hypocrisy and moral laxness, justly or unjustly,

could well exist, say, during a political campaign when a

candidate for office ts arguing against the re-election of

that judge. It could exist at other times, when no election

i< imminent, but under the general right of a citizen of

the State to criticize his elected officials. When it cannot

(vist is when the words are directed toward the impeding

of a judicial proceeding presently in progress. It is im-

plicit in the decision in the Atlanta Newspapers case,

supra, that the very same article, published at a time and

in a place where it would tend to influence the jury, would

constitute a contempt. T agree that Count 1 relating to a

newspaper article written by the sheriff, a man associated

in the minds of many lay people with the pronouncement

as well as the enforcement of the law, accusing the judge

of instrnueting the grand jury to ferret out certain erimes

relating to possible bribery, not in accordance with his

duty to so instruet the jury, but as a cover for personal

reasons aimed at stirring up race prejudice, is a contempt

of the court and the grand jury necessarily ealeulated to

impede the administration of justice, and should be pun

ished as such.

“Jndges are not exempt from public criticism of their

official acts or conduct. It is only when such criticism

obstructs the administration of justice that) they coustl

tute contempt of Court."’ Townsend v. State of Ga, 4

Ga. App. 627 (188 S. EB. 960).

2. (Dissenting as to Count 3.) In Count 3 of the rule

for contempt the court found that the defendant commit

ted an additional contempt when he issued a news release

after the citation for, contempt had been served on him,

in which he stated publicly his defense against the attach

ment for contempt, contending that he spoke no more

than the truth and that he had a right toe speak the truth.

The defense necessarily dealt with the charge, and

throughout its body reiterated most of what the defendant

had previously stated. It begins: **My defense will be

simply that T have spoken the truth’. which indicates

that the contents of the contempt citation, including the

prior statements made by the defendant, had already been

made public. We have he ld in this opinion that, as toa

contempt, truth is not necessarily a good defense, but this

fact did not deprive the defendant of relving upon it: and

urging it before the court. Whether or not he later inter

posed the same defense that he annonneed he wonld urge,

he had a right to urge it before the court, and it certainty

amounted to no obstruction of justice for him to state

outside of the court that he intended to do se.

7

on em rf

This statement contains no new defamatory or obstruc-

tive material, and it is but a repetition of the original

statements on which the contempt charge was made and

an analysis of them in line with the proposed defense to

be urged, Whether it amounted to a republication within

the rule relating to slander and libel is completely irrele-

vant, and in my opinion the court in holding that this

is an additional contempt. ts departing from the ‘clear

and present danger”’ rule recognized by our courts and

hy the majority opinion. It was the court itself which,

and we hold correctly, gave the statement status as a case

in court when he cited the defendant, and there is and

can be no rule of law which prevents a defendant ina

judicial proceeding from making public his defense,

whether in or ont of conrt, on the ground that the pub-

lication of such defense 1s obstructive to the administra-

tion of justice. It is obvious that the defendant could file

this same defense in answer to the citation and that the

newspapers could publish it; therefore the defendant

could relay its contents directly to the newspapers for the

purpose of publication. In my opinion the court erred

in holding the defendant in contempt under Count 3. All

citizens against whom charges of any nature are brought

must be accorded the right to defend, and any intimicda-

tion tending to restrict euch right is a& step toward totall-

tarianism.

Felton, Chief Judge, joins in this dissent.

Boll, Judge, dissenting as to division 2 of the opinion.

Kor the reasons indicated in divisions 1 and 3 ¢of) this

opinion, T feel the convietion upon count 2 should also

be affirmed. In my opinion the “Open Letter to the Grand

Jury,’ which formed the basis of count 2 of the citation

for contempt was properly found by the court below to

interfere with or obstruct the grand jury in its delibera-

tions, The sum total of this letter reveals an attempt lo

N“\

yy

1

5

divert the grand jury from consideration of the charges

viven to it by the judge and oan attempt to aim the

attention of the jury at alleged violations of law by

the Bibb County Democratic Exeentive Committee and

away from the matters which the judge had charged the

grand jury to investigate. In this respect it is certaimly

the proper function of the judge to charge the grand jury,

and not the prerogative of the sheriff either to charge the

jury or to interfere with the judge's charge to it.

Judge Frankum agrees with these views and has di.

rected that he be recorded as concurring with this dissent

to division 2 of the opinion.