Albano v. Commonwealth

• Decision Date: 28 February 1944
• Citation: 315 Mass. 531,53 N.E.2d 690
• Parties: MICHAEL W. ALBANO v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 531

53 N.E.2d 690

MICHAEL W. ALBANO v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Hampden.

February 28, 1944

November 7, 1941.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & RONAN, JJ.

Contempt. Attorney at Law.

Error, Writ of. On a writ of error, matters not assigned as error cannot be considered.

Facts set forth in the return upon a writ of error cannot be altered, added to or otherwise challenged.

An intentional misrepresentation of fact by an attorney at law to a judge in open court in requesting that a trial against his client be delayed, followed by the attorney's absence from the court for an unreasonable time and resulting in interference with the business of the court for a period of twenty minutes properly might be adjudged a contempt of court, irrespective of whether the court previously had acquired jurisdiction over the person of the attorney's client or was induced by the false representation to wait in the expectation of the client's voluntary appearance, or whether the pleading against the client was properly drawn.

Sufficient ground for adjudging an attorney in contempt of court appeared in the judgment in which the court characterized as "objectionable" the manner of the attorney in leaving the court room to comply with a direction of the judge, his manner and tone of voice in then saying "all right," and his manner, speech, attitude and conduct upon being admonished by the judge after he had said in cross-examination of a witness, "I want every one in the court room to bear witness to what this witness says."

Conduct in direct contempt of court cannot be excused on the ground that the contemnor did not realize he was in contempt or that he did not intend to commit contempt.

A judge did not lose his power to punish an attorney at law for a series of consecutive and related acts of contempt, committed while representing a client in a single proceeding, by not taking action at the first sign of contemptuous conduct or at each separate recurrence of such conduct.

WRIT OF ERROR issued from the Supreme Judicial Court for the county of Hampden to the judge of the District Court of Springfield on December 28, 1939.

The case was heard by Cox, J., who affirmed the judgment of the District Court and reported the case.

E. M. Dangel, (L.

E. Sherry & G.

A. Goldstein with him,) for the plaintiff in error.

R. T. Bushnell, Attorney General, & R.

Clapp, Assistant Attorney General, for the Commonwealth, submitted a brief.

QUA, J. This is a writ of error to reverse a judgment rendered against the plaintiff in error in a contempt proceeding in the District Court of Springfield.

Many assignments of error have not been argued and are deemed to have been waived. The plaintiff in error has argued many matters not covered by any assignment of error. These we cannot consider since the assignments of error lie at the foundation of the present proceeding. Dolan v. Commonwealth, 304 Mass. 325 , 346. See G. L. (Ter. Ed.) c. 250, Section 2; Rule 29 of the Supreme Judicial Court for the Regulation of Practice at Common Law (1926), 252 Mass. 598; Woodbury v. Commonwealth, 295 Mass. 316 , 319; Harris v. Harris, 153 Mass. 439 . Eliminating from consideration assignments of error not argued and matters argued but not assigned as error leaves open for discussion only the contention, expressed in various forms, that the conduct of the plaintiff in error in the District Court did not constitute contempt. We deal with that question. No question of the method of procedure in the District Court is open.

In Silverton v. Commonwealth, 314 Mass. 52 , we held that in cases of direct criminal contempt in the presence of the court -- a class to which the case now before us in most if not in all its aspects belongs -- the law of this Commonwealth does not require that the record of the proceeding show such detailed subsidiary findings as will support the judgment of contempt, but we indicated our belief that it would be better practice to set forth definitely in the order of the court the conduct which is found to constitute contempt.

In this case the judge acted, in general, in accordance with the better practice. The judgment of the court reads as follows:

"The Court finds and adjudges Michael W. Albano, Counsel for Defendant in this case [referring to a criminal case tried in the District Court], in contempt of court for objectionable conduct, attitude, language and manner in the presence of the Court tending to embarrass and obstruct the Court in the administration of justice for that he did misrepresent to the Court on two occasions in requesting a delay in the trial of two complaints against the defendant in this case that the said defendant was present in the court house and would shortly appear in the court room for trial, the Court being delayed at least twenty minutes by such conduct after having called the said cases for trial, when in fact the said Michael W. Albano knew that said defendant was not in the court house at the time said representations were made, and when the said Michael W. Albano was then ordered by the Court to produce said defendant and the Court directed officers of the Springfield Police Department present in the court to make a search of the building for said defendant, the said defendant not being found therein; that the said Michael W Albano was objectionable in manner, speech, attitude and conduct when ordered by the Court to produce said defendant by his manner in leaving the Court room and also objectionable in his manner and tone of voice in saying `all right' at such time; that the said Michael W. Albano after having been directed by the Court to produce said defendant was absent himself from the Court Room an unreasonable time and when he himself was sought by said police officers at the direction of the Court, was found to be telephoning; that the said Michael W. Albano was objectionable in manner, speech, attitude and conduct while cross-examining one of the witnesses for the Commonwealth when admonished by the Court to confine his language to the witness to the asking of questions, after said Michael W. Albano had stated, `I want every one in the Court room to bear witness to what this witness says.'

"It is therefore considered by said Court...