Cooke v. United States

• Decision Date: 26 December 1923
• Docket Number: 4068.
• Citation: 295 F. 292
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: COOKE et al. v. UNITED STATES

295 F. 292

COOKE et al. v. UNITED STATES

No. 4068.

United States Court of Appeals, Fifth Circuit.

December 26, 1923

J. A Templeton, of Fort Worth, Tex., and E. Howard McCaleb, of New Orleans, La. (Clay Cooke, of Fort Worth, Tex., on the brief) for plaintiffs in error.

Henry Zweifel, U.S. Atty., of Fort Worth, Tex., and Joseph Manson McCormick, of Dallas, Tex., for the United States.

Before WALKER and BRYAN, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge.

This is a writ of error to the District Court for the Northern District of Texas from a judgment and sentence in a contempt proceeding instituted by the United States against plaintiffs in error, hereinafter called defendants. The defendant Clay Cooke was an attorney in, and the defendant J. L. walker was a party to, a number of suits and bankruptcy proceedings pending in the District Court. A few days before the alleged contempt was committed, one of the suits against Walker, in which Cooke was one of his lawyers, had been tried in the District Court, with a jury, and had resulted in a verdict and judgment against Walker for $56,484.65. Notice of a new trial had been given in this case. There were other cases, in which Walker was a party or interested, still pending in the same court. The alleged contempt consisted in the delivery to Hon. James C. Wilson, who was one of the District Judges of that district, and before whom the case referred to had been tried, and before whom the others were pending, of a letter by the defendants, or one of them. The letter was sealed, addressed to the judge, and marked 'Personal.' The letter was delivered to the judge while he was in his chambers at the place of holding the United States District Court in Fort Worth, and while he was engaged in the trial of another jury case, and during a recess that occurred during the progress of that trial.

Nothing of importance was said by the defendant or defendants, at the time of the delivery of the letter to Judge Wilson. The letter was not read by him in their presence. About 10 days after the delivery of the letter, Judge Wilson entered an order on the minutes of the District Court, which recited the delivery of the letter and the attending circumstances, set out the letter, and ordered that an attachment immediately issue for the defendants, and that the marshal produce them instanter before the court to show cause why they should not be punished for contempt. The marshal executed the attachment by producing the defendants in open court in response to it. The defendants thereupon asked for time to procure counsel and prepare their defenses to the rule to show cause. Objection was made by the attorneys for plaintiff, and delay was denied by the District Judge. The District Judge however, stated that, if defendants, upon being called upon to state their defenses, indicated in their response that they had any legal defense, he would grant them time to prepare and plead their defenses. The defendant Cooke thereupon made a statement as to his connection with the letter. The defendant Walker made no statement. He attempted to do so while the District Judge was announcing his decision, but was told that the time for him to talk had passed. The defendant Cooke, however, assumed all responsibility for the contents of the letter, and stated that his codefendant, Walker, was not apprised of the contents of the letter, and only knew that it was an endeavor to induce Judge Wilson to exchange with some other judge in the matters in which the defendant Walker was involved. In his statement Cooke admitted having dictated and signed the letter, and having read it hastily before signing it, and having caused it to be delivered to Judge Wilson through the defendant Walker. There was a conflict between Judge Wilson, Cooke, and Walker as to whether or not Cooke was present with Walker when the letter was delivered. This is unimportant, in view of Cook's admission that he caused the letter to be delivered. The letter is here set out in full, except the address and caption:

'Referring to the above matters pending in the District Court of the United States for the Northern District of Texas, at Fort Worth, I beg personally, as a lawyer interested in the cause of justice and fairness in the trial of all litigated matters and as a friend of the judge of this court, to suggest that the only order that I will consent to your honor's entering in any of the above-mentioned matters now pending in your honor's court, is an order certifying your honor's disqualification on the ground of prejudice and bias to try said matters.

'You, having, however, proceeded to enter judgment in the petition for review of the action of the referee on the summary orders against the Farmers' & Mechanics' National Bank and J. L. Walker and Mrs. M. M. Walker, you, of course, would have to pass upon the motion for a new trial in those matters, and also having tried 984, W. W. Wilkinson, Trustee, v. J. L. Walker, you will, of course, have to pass upon the motion for a new trial in said cause.

'I do not like to take the steps necessary to enforce the foregoing disqualification, which to my mind, as a lawyer and an honest man, is apparent.

'Therefore, in the interest of friendship and in the interest of fairness, I suggest that the only honorable thing for your honor to do in the above-styled matters is to note your honor's disqualification, or your honor's qualification having been questioned, to exchange places and permit some judge in whom the defendant and counsel feel more confidence to try these particular matters.

'Prior to the trial of cause No. 984, which has just been concluded, I believed that your honor was big enough and broad enough to overcome the personal prejudice against the defendant Walker, which I knew to exist, but I find that in this fond hope I was mistaken; also, my client desired the privilege of laying the whole facts before your honor in an endeavor to overcome the effect of the slanders that have been filed in your honor's court against him personally, and which have been whispered in your honor's ears against him, and in proof of which not one scintilla of evidence exists in any record ever made in your honor's court.

'My hopes in this respect have been rudely shattered. I am now appealing purely to your honor's dignity as a judge and sense of fairness as a man to do as in this letter requested, and please indicate to me at the earliest possible moment your honor's pleasure with respect to the matters herein presented, so that further steps may be avoided.

'With very great respect I beg to remain,

'Yours most truly,

Clay Cooke.'

Whether the defendants were properly adjudged to be guilty of criminal contempt depends upon the answers to these questions: (1) Whether or not the letter contained contemptuous matter; (2) whether the defendants were entitled, under the law, to a hearing as to their guilt or innocence; and (3) whether, if so, they, either or both, were accorded such a hearing, or were injured by being denied one.

1. The letter was ostensibly couched in terms of respect, but its substance, and not alone its form, is to be regarded. The defendant Cooke stated that his purpose in writing the letter was to avoid the filing of an affidavit disqualifying Judge Wilson, which he felt it his duty to do in the protection of his client's interest. If the purpose of the letter was as stated, there was no impropriety in the mere writing of a letter with that purpose. While the statute provides a method for disqualifying a judge, there could be no wrong in addressing a judge in a proper way, to secure his voluntary retirement. The propriety of the letter depends upon the language used by the writer in addressing the judge. Language, appropriate in an affidavit of disqualification might not be...