In re Fite

• Decision Date: 12 October 1912
• Docket Number: 4,463.
• Parties: In re FITE.
• Court: Georgia Court of Appeals

76 S.E. 397

11 Ga.App. 665

In re FITE.

No. 4,463.

Court of Appeals of Georgia

October 12, 1912

Syllabus by the Court.

An answer to a rule for contempt in the writing and publication of an article in a daily newspaper, containing an allegation that the publication of the article in question "is within the rights and privileges guaranteed by the Constitution (article 1, § 1, par. 15), which declares that any person may speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that liberty," presents no question of a constitutional character for certification by this court to the Supreme Court. It does not involve a "construction of a provision of the Constitution of this state or of the United States," or "the constitutionality of an act of the General Assembly."

The power to punish contempts summarily is incident to courts of record, and to try a case of contempt without the intervention of a jury violates no constitutional provision. As to courts created by the Constitution, the right to define contempts cannot be abridged or taken away by legislative action. The Court of Appeals of Georgia is a constitutional court.

Only the court offended or scandalized by a criminal contempt, or whose authority is defied, has power to punish for the contempt, or to entertain proceedings to that end.

A "criminal contempt" is an act committed against the court as an agency of the government, and as to this class of contempts the public is primarily interested. A contempt of this character may consist in "speaking or writing contemptuously of the court, or judges acting in their judicial capacity." Contempts of this character need not relate to a cause that is still pending in the court.

A case decided in the Court of Appeals, remains pending therein until the adjournment of the term at which the decision was rendered, unless the remittitur has been transmitted to the trial court. Until then the judgment of the reviewing court is subject to be modified or entirely changed, on motion of either party for a rehearing timely filed, or by the court ex mero motu.

The constitutional right of freedom of speech or of the press was not intended as a refuge for the contemner or slanderer or libeler. Contempt of court, slander, and libel constitute abuses of the privilege, for the commission of which the offenders are justly and lawfully punishable.

The meaning and intent of a published article are to be determined by a fair interpretation of the language used, and when the only construction of the language used is that it is offensive and contemptuous, a mere statement by the writer or publisher that no disrespect to the court or the judges was intended furnishes no reason for discharging the rule for contempt.

On a trial for contempt in writing and publishing a newspaper article, a subsequent article written and published by the respondent, relating to the same subject-matter, and which in substance repeats the offense for which he is on trial, is admissible in evidence, as illustrative of the question of intent.

The fact that the respondent is himself a judge of a superior court of this state, and that the article written and published by him contains a criticism of a decision of the Court of Appeals in the exercise of its constitutional function in reviewing and reversing his judgment, constitutes no reason why he should be exempt from punishment for contempt. The article now under consideration was written and published by the respondent while occupying the position of judge of the superior court, scandalizing the judicial action of the reviewing court, reflecting upon the character of the judges in their judicial capacity, and tending to bring the court itself, as well as the judges thereof, into contempt and disrepute, and the position of the respondent, not only does not excuse his offense, but is a fact of great aggravation.

The article written and published by the respondent in the Atlanta Constitution, October 5, 1912, constitutes a flagrant criminal contempt of this court, and of the judges thereof acting in their judicial capacity, and the answer sets up no fact of excuse or mitigation.

A. W Fite was attached for contempt of court. Finding against accused, and punishment assessed.

On October 7, 1912, the Court of Appeals passed an order as follows: "It being made to appear to this court that Augustus W.

Fite one of the judges of the superior courts of this state, whose decisions are subject to review by this court, did write and cause to be published on October 5, 1912, in the Atlanta Daily Constitution, a newspaper of general circulation published in Atlanta, Ga., an article, a copy of which is hereto attached; and it further appearing that the said article was delivered to and read by the judges of this court during the March term, 1912, thereof, and before the adjournment of said term, and before the remittitur from this court in the case referred to in said article had been transmitted to the trial court; and it further appearing that said article was so written and published while the case therein referred to was still pending in this court; and it further appearing that the language of said article has a tendency to impede, embarrass, and obstruct this court in the due administration of justice therein, and contains a false and defamatory reflection upon the judicial integrity of this court: It is therefore ordered that a copy of this order, with the article attached, be served by the sheriff of this court upon the said Augustus W. Fite, personally, and he be and is hereby directed to appear in person before the bar of this court on Saturday morning, October 12, 1912, at 10 o'clock, then and there to show cause, if any he has, why he should not be dealt with as for contempt."

The newspaper article referred to in this order is as follows:

"Editor Constitution: I have just read the headnotes of the decision of the Court of Appeals, again reversing the McCullough assault to rape case from Gordon county, referred to in the Constitution of the 2d instant, and find that the reversal is based upon a pitiful misconception and misconstruction of the record, which shows the utter inability of the Court of Appeals, and especially or the judge delivering the opinion, to comprehend the record or to render a proper decision in the case, if they so desired.

"The first reversal was for the alleged reason that I did not give counsel for the defendant time to poll the jury before pronouncing sentence, although the jury was polled immediately after sentence was pronounced. The case was tried the second time on substantially the same facts as the first, but this time the jury was polled. The case was then carried to the Court of Appeals on substantially the same allegations of error as the first, except as to the polling of the jury, and the court has again reversed the case, but in order to do so they had to reverse themselves, having sustained me on all the other allegations of error then made; but I am not surprised at this, for they are as apt to reverse themselves as they are to reverse me or the Supreme Court, which they frequently do with great complacency, and even sometimes graciously apologizing for doing so.

"On the second trial I gave the same charge and refused the same requests that I gave and refused to give on the first trial, and the Court of Appeals held that neither my charge nor refusal to charge was error, but now they hold and reverse the case in part because it was error to refuse to give the request to charge that I had refused to give on the first trial. On this subject the Court of Appeals then said (second headnote): 'Where the general charge to the jury embodies in substance legal principles contained in written requests to charge, any error in refusing the request to charge is harmless.' Now they say, as to the same request (part of first headnote): 'It is error to refuse to charge the jury that if the assailant, at the time the assault was committed, intended to desist as soon as he ascertained that the woman assailed would not consent, he would not be guilty of an assault with intent to rape.'

"On this subject I had already charged as follows: 'Now, gentlemen, I charge you this: If you believe from the evidence that the defendant took hold of Mrs. Fowler, intending then and there to have carnal knowledge of her forcibly and against her will, he would be guilty of the main charge, although he may have immediately desisted therefrom from fear or otherwise. I charge you further that if you find he intentionally took hold of Mrs. Fowler, not intending to have carnal knowledge of her forcibly and against her will, but for any other reason, he would be guilty of the offense of assault and battery. But if you find from the evidence that he did not take hold of her at all, but accidentally touched her, he would not be guilty of any offense.' The difference between the charge and the request is about the same as the difference between 'tweedle dee' and 'tweedle dum.'

"Again, they say in substance that I erred in not allowing the defendant to show that he did not flee, but went to his home on the farm and remained there, and was there the next day when the officers went there to arrest him, and did not attempt to escape; when in truth and in fact, and the record shows it, I did allow him to prove all these things, but refused to allow him to take up the time of the court to prove that he was in the back yard playing with a pet squirrel up a tree, and such frivolous matters.

"And, again, they say in substance that I erred in not allowing the defendant to prove the sayings of the prosecutor, Mr. Fowler, who was also a witness in the case; when in truth and

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