112 Cal. 94, S. F. 209, Dailey v. Superior Court

Docket Nº:S. F. 209
Citation:112 Cal. 94, 44 P. 458
Opinion Judge:GAROUTTE, Judge
Party Name:W. R. DAILEY et al., Petitioners, v. SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO, D. J. MURPHY, Judge
Attorney:Carroll Cook, for Petitioners. A. W. Thompson, William S. Barnes, District Attorney, John H. Dickinson, Eugene N. Deuprey, and Edgar D. Peixotto, Assistant District Attorney, for Respondents.
Judge Panel:JUDGES: In Bank. Garoutte, J. Harrison, J., Van Fleet, J., Henshaw, J., and Beatty, C. J., concurred. McFarland, J., dissenting. Temple, J., concurred. McFARLAND
Case Date:March 24, 1896
Court:Supreme Court of California

Page 94

112 Cal. 94

44 P. 458

W. R. DAILEY et al., Petitioners,

v.

SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO, D. J. MURPHY, Judge

S. F. No. 209

Supreme Court of California

March 24, 1896

Page 95

Certiorari to review an order of the Superior Court of the City and County of San Francisco forbidding the public performance of a theatrical play. D. J. Murphy, Judge.

COUNSEL:

Carroll Cook, for Petitioners.

The order complained of was an attempt to interfere with the right guaranteed by the constitution to a citizen, to freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right, which right cannot be restrained in advance. (Const., art. I, secs. 1, 9, 13, 14; Ex parte Barry , 85 Cal. 607; 20 Am. St. Rep. 248; Code Civ. Proc., sec. 1209; Ex parte Hollis , 59 Cal. 413; People v. Turner , 1 Cal. 151; 52 Am. Dec. 295; Ex parte Shortridge , 99 Cal. 526; 37 Am. St. Rep. 578; Cooley's Constitutional Limitations, 1st ed., 417; 3d ed., 488; Batchelder v. Moore , 42 Cal. 414; Pen. Code, sec. 6; Galland v. Galland , 44 Cal. 475; 13 Am. Rep. 167; Ex parte Kearny , 55 Cal. 224; Brandreth v. Lance, 8 Paige, 24; 34 Am. Dec. 368; Shook v. Daly, 49 How. Pr. 368; Southey v. Sherwood, 2 Meriv. 438; Seeley v. Fisher, 11 Sim. 582; Hine v. Dode, 2 Camp. 27; Clark v. Freeman, 11 Beav. 112; Martenetti v. Maguire, 1 Deady, 216.)

A. W. Thompson, William S. Barnes, District Attorney, John H. Dickinson, Eugene N. Deuprey, and Edgar D. Peixotto, Assistant District Attorney, for Respondents.

The court had power to prevent the contemplated act of petitioner, as it would have been an interference with the administration of justice, and deprived the defendant of a fair and impartial trial; and its power was not limited to punishment for the act complained of. (Regina v. Onslow, 12 Cox C. C. 358; Tenney's case , 23 N.H. 162; 4 Blackstone's Commentaries, 286; Yates v. Lansing, 9 Johns. 416; 6 Am. Dec. 290; State v. King, 17 So. Rep. 288; Watson v. Williams , 36 Miss. 331; State v. Judge, etc ., 45 La. Ann. 1258; 40 Am. St. Rep. 282; Sturoc's case , 48 N.H. 428; 97 Am. Dec. 626; State v. Frew, 24 W.Va. 416; 49 Am. Rep. 257; People v. Court of Sessions , 31 N.Y.S. 373; In re Cooper , 32 Vt. 257; Middlebrook v. State , 43 Conn. 257; 21 Am. Rep. 650; Ex parte Adams , 25 Miss. 883; 59 Am. Dec. 234; Cooper v. People, 13 Col. 337; Arnold v. Commonwealth , 80 Ky. 300; 44 Am. Rep. 480.)

JUDGES: In Bank. Garoutte, J. Harrison, J., Van Fleet, J., Henshaw, J., and Beatty, C. J., concurred. McFarland, J., dissenting. Temple, J., concurred.

OPINION

GAROUTTE, Judge

Page 96

[44 P. 459] One Durrant was upon trial in the city of San Francisco, charged with murder, and, while the jury was being impaneled, the petitioner, Dailey, advertised by posters and newspapers that he would produce in a certain theater in said city of San Francisco a play entitled "The Crime of a Century." Thereupon, Durrant presented an affidavit to the court wherein his trial was pending, setting forth that said play was based upon the facts of his case, as established at the preliminary examination and the coroner's inquest, and that the production of said play during the progress of his trial would be an interference with the administration of justice, and deprive him of a fair and impartial trial. The affidavit was full and complete as to details, but we see no purpose to be subserved by a further statement of the allegations therein set out. Upon the presentation of the affidavit, the superior court made an order directing this petitioner, Dailey, to desist and refrain from giving any public performance of said play, and further ordered him to cease from advertising the same. The present proceeding is one of certiorari to review the action of the court in making the aforesaid order, it being insisted that the trial court thereby exceeded its power and jurisdiction. The record before us incidentally develops that this order was subsequently served upon petitioner, that he defied the power of the court in making it, produced the play, and was adjudged guilty of contempt; but with those matters we are not now concerned.

The production of a tragedy or comedy upon the theatrical stage is a publication to the world by word of mouth of the text of the author, and, as to the question here presented for our consideration, it is immaterial whether the words be publicly spoken from the stage or upon the hustings, or go out to the world through the channels of the printing-press. By the constitutional

Page 97

provision we are about to invoke a citizen may speak, write, or publish his sentiments with equal freedom, and this case now stands before us exactly as though one of the daily journals was threatening to publish its sentiments pertaining to the conduct of a criminal trial then pending, and the court where such trial was pending and in progress, believing such publication would interfere with the due administration of justice, had issued an order restraining and prohibiting the threatened action of the paper.

We are entirely clear that the court had no jurisdiction to make the order which forms the basis of this proceeding, for such order was an...

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