Connell v. State

• Decision Date: 18 December 1907
• Docket Number: 15,112
• Parties: WILLIAM J. CONNELL v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

114 N.W. 294

80 Neb. 296

WILLIAM J. CONNELL v. STATE OF NEBRASKA

No. 15,112

Supreme Court of Nebraska

December 18, 1907

ERROR to the district court for Douglas county: ABRAHAM L. SUTTON JUDGE. Reversed.

REVERSED.

William J. Connell and Hall & Stout, for plaintiff in error.

W. T Thompson, Attorney General, Grant G. Martin and James P English, contra.

OPINION

SEDGWICK, C. J.

This is in some respects the most extraordinary record that the writer has ever been called upon to examine. It contains over 500 sheets of closely typewritten matter and some 40 odd sheets of fine print. All of this record is supposed to be devoted to presenting, emphasizing and illustrating a continuous controversy between the court and the defendant, who is a member of the bar of Douglas county, in the trial of a misdemeanor case, entitled "State of Nebraska v. Samuel E. Howell," in which that defendant was indicted with some 40 others. This controversy extended not only through the trial of the case, but through the settlement of the bill of exceptions in that case, and throughout the trial of this case which is now presented to this court. The record clearly shows that the trial judge, which would, of course, be presumed without such showing, was animated throughout by a fine sense of justice, and was using every possible effort to maintain the dignity of the court and the honorable reputation of the bar of the state, and was conscious of the character of the disgraceful proceedings throughout, and yet was unable to preserve that order and decorum which is essential to the due administration of justice. The defendant is one of the able lawyers of the state, of long practice in all the courts, and has held positions of great influence in the public service. Judging from this record, he is evidently fearless in the defense of the interests of his clients, and is willing, if it seems at the moment to be necessary, to make great sacrifices to promote their cause. These characteristics, of course, challenge the admiration of the courts, and yet it is equally manifest, we think, from this record that due consideration on the part of the defendant of the duties of counsel in the trial of causes and the proper exercise on his part of the ability of a strong lawyer to assist the court in the discharge of its arduous duties would have avoided all difficulty, and so it may be said that the record shows that the defendant is at fault. It is not necessary to go into this voluminous record in detail. That part of it which it will be necessary to quote in determining the legal questions presented will sufficiently illustrate the character of the proceedings. At the end of the trial of the principal case, the court directed the county attorney, who is also the attorney for the prosecution in the principal case, to file an information against this defendant, who was the leading counsel for the defendant in the principal case, charging the defendant with contempt of court in the process of that trial. In making this order the court directed the precise language used by the defendant, and apparently taken from the record, preserved of the former trial, which should be charged in the information against the defendant as the ground for the proceedings for contempt. There were six counts in the information filed by the county attorney, and the defendant was found guilty as to two of the respective charges. It will therefore be unnecessary to discuss the remaining accusations.

1. The first count in the information upon which the defendant was found guilty charged: "After the said court had heard the said William J. Connell in his argument of the law of said case, on behalf of the defendant therein, and after the said court had announced to the said William J. Connell that the said court did not care to hear any further argument on the law of said case, the said William J. Connell, in answer to said announcement of said court, did then and there in a disorderly, contemptuous and insolent manner, and in a loud, boisterous, disrespectful and sarcastic tone of voice, with the intent on the part of said William J. Connell then and there and thereby to intimidate, humiliate, insult and lower the dignity of the said court in the presence of a large number of by-standers and visitors, then and there being present in said court, use the following language toward said court, to-wit: 'I don't want to say that I have lost faith in the court, but I will go to the extreme of saying that I do not think that any law that I could produce to your honor would be of much effect. I have got it (meaning the law) out of the Nebraska reports, and the supreme court is responsible for the law. I do not make the law. I merely find it and bring it into the court'--contrary to the form of the statute in such cases made and provided, and in contempt of said district court and its dignity and against the peace and dignity of the state of Nebraska." After the trial of the Howell prosecution an attempt was made to settle the bill of exceptions, and it appears from the record that a transcript of the evidence taken in that case was procured and was agreed upon between the counsel for the respective sides, but had not been allowed by the court and ordered to be made a part of the record. From this transcript extracts were presented and offered in evidence. Some objections were made to their being received. After some hesitancy they appear to have been received, and also appear to have been relied upon by both parties to this controversy as substantially showing the facts. In settling the bill of exceptions in this case, the judge has certified that the transcripts alluded to are not correct, and refers to the examination of the defendant, Connell, by the court as showing the incorrectness of these transcripts. This examination shows that the transcripts were not a part of the records of the court, and that the copy of the evidence of the former case from which the transcripts were taken had never been allowed by the court as the bill of exceptions in that case. It is, however, admitted upon all hands that the supposed offensive language of the defendant was preceded by more or less controversy between the parties, and no attempt is made by any one to show what that controversy was, except as disclosed in the transcripts referred to. Neither has any one attempted seriously to show in what respects these transcripts are defective or incorrect, and as they are in evidence, and assumed by counsel on both sides to be substantially correct, we think they must for the purposes of this case be so considered. It appears then from the record that, while the prosecuting attorney was questioning a witness in the trial of the Howell case in regard to some record that had been received in evidence, a discussion took place which led to the supposed offensive language of this defendant. This discussion was as follows: "Q. Now, referring to the entry opposite C. B. Havens & Company under June 10, 1905, the figures 5 and two ciphers following, what does that mean, $ 5 or what? Objected to for the reason that the book itself is the best evidence. We object that it is immaterial and irrelevant. We further object that it does not tend to sustain the charge or does not tend to sustain any count in this indictment. We further object that it relates to a date and a time prior to the time when the existing law under which this prosecution went into force. Objection overruled and defendant excepts. Mr. Connell: That was a point I wanted to present, your honor, but if your honor has made up your mind not to hear any discussions or presentation here why I don't care to go into that. The court: You have argued so much law that I thoroughly disagree with that I have kind of lost faith in the law you present to the court, and if I thought there would be anything gained by this discussion I would be glad to hear it. Mr. Connell: I don't want to say I have lost faith in the court, but I will go to the extreme of saying that I do not think that any law that I could produce to your honor would be of much effect. The court: Perhaps that is because you have argued bad law to the court for a long time, and the court, I suppose-- Mr. Connell: I have got it out of the Nebraska reports, and the supreme court is responsible for the law. I do not make the law. I merely find it and bring it into court. Objections overruled. Defendant excepts."

It appears to be conceded in the findings of the trial judge that the language used by defendant would not necessarily in itself be contempt. The contempt was considered to consist in the manner of the defendant and the circumstances under which the language was used. The foregoing extract from the transcript illustrates two unfortunate conditions that existed during the whole trial. The trial judge was led into controversy and argument when nothing was required but prompt decision. He allowed himself frequently to be interrupted when attempting to explain the grounds of his ruling, and habitually allowed extensive argument after having indicated his opinion upon the point under discussion. The objection to the question propounded to the witness, it appears, was stated at large by counsel, and after the objection had been flatly overruled, and counsel had taken his exception to the ruling, counsel stated that the point was one that he wanted to present, but if the mind of the court was made up not to hear any presentation that he would not care to go into it. Ordinarily such a remark as this in open court would be regarded as more or less offensive. The implication plainly is that the point determined by the court was an important one; that it merited discussion, and the insinuation is that the court...