In re McHugh

• Decision Date: 01 May 1908
• Citation: 152 Mich. 505,116 N.W. 459
• Parties: In re McHUGH et al.
• Court: Michigan Supreme Court

152 Mich. 505

116 N.W. 459

In re McHUGH et al.

Supreme Court of Michigan.

May 1, 1908.

Certiorari to Recorder's Court of Detroit; William F. Connolly, Judge.

Contempt proceedings against Philip A. McHugh and Charles P. O'Neil. Respondents were found guilty, and bring certiorari. Proceedings affirmed.

The respondents were found guilty of contempt of court, and O'Neil fined $250 and McHugh fined $250 and imprisonment for 30 days. The case is now before us for review on certiorari.

The facts essential to here state, as appears from the return of the court, are as follows: The respondents, attorneys at law, were retained to defend one Peter Schlaf for the crime of the murder of his wife. The deed was committed January 25th. Schlaf was arrested on that day, and was examined April 7th; was bound over to the recorder's court for trial; was arraigned May 1st, and pleaded not guilty. He had been in jail from the date of his arrest to the time fixed for his trial as hereinafter stated. The respondents were Schlaf's attorneys before and at the time of his arraignment. They entered their formal appearnance as attorneys on June 25th. About two years before these proceedings the docket of the recorder's court became in such a condition through delays made by attorneys on one pretext and another that the court made a rule not to permit the postponement of the trial of any case, particularly murder cases, except in important emergencies, and in order to promote the administration of justice. There are six terms of the recorder's court each year commencing the first Wednesday in January, March, May, July, September, and November. It had been determined to summon no jury for the July term, and at the time of the occurrence here involved it was too late to summon one for that term. On June 22d the respondents applied verbally in person to Judge Connolly for a postponement of the trial of said Schlaf. The judge called their attention to the above rule, and stated that the case must be tried at the then continuing June term which would end July 2d, and that a jury for the trial of said Schlaf would have to be impaneled before that day. The judge then informed them that the trial would commence June 26, 1907, and ordered and directed them to be ready to proceed on that day; that said respondents were then in good health, apparently in full possession of their physical strength, and able to proceed with the trial. On June 26th, the judge opened court with the jury in attendance, prepared to commence said trial. The respondents were not there; respondent O'Neil finally appeared and presented to the court and argued a motion for a continuance of the cause, which motion the court denied, and informed the respondents that he would grant a continuance until June 29th following; that the case would then proceed to trial without fail, and that if the respondents did not care to proceed they could withdraw from the case. The respondents did not withdraw from the case, but on June 29th they filed three motions, one for a continuance, one for a change of venue, and the third a motion to disqualify the trial judge. A young attorney named Hayes presented the motion for a continuance. The basis of this motion was the absence of a witness whose name was indorsed upon the information as a witness for the people. A further reason for the continuance was that the prosecuting attorney had stated to the respondents that he did not intend to proceed with the trial of Schlaf at the present term. The motions for change of venue and for the disqualification of the judge were noticed for hearing July 3d. On June 29th upon the failure of the respondents to appear Judge Connolly appointed Hon. Fred N. Aldrich, an attorney at law, to defend Schlaf. Schlaf refused to accept him, would not consult with Mr. Aldrich about his case, and when asked where he last saw the respondents refused to answer. On July 2d the court proceeded to impanel a jury, and while so engaged the respondents appeared in court and proceeded with the trial of Schlaf. Upon the failure of the respondents to appear in court June 29th, the court made an order for a capias to be issued taking the respondents into custody ‘to answer a charge of contempt of court for failure to appear in court this day, for the purpose of obstructing the course of justice.’ Instead of appearing in court on June 29th the respondents packed their suit cases and went to Canada, returning in time to appear in court on July 3d. On July 3d, the respondents with their counsel voluntarily appeared in court, and offered the testimony of themselves and others for the purpose of explaining their failure to appear in court on June 29th. The testimony was received, and the respondents given full opportunity to explain their conduct. Upon the conclusion of the testimony and the arguments of counsel the court found the respondents guilty as above stated.

Argued before GRANT, C. J., and MONTGOMERY, HOOKER, MOORE, and McALVAY, JJ. Allan H. Frazer, for judge of recorder's court.

Philip T. Van Zile, Thomas J. Navin (Harrison, Geer, of counsel), for respondents.

GRANT, C. J. (after stating the facts as above).

Attorneys are officers of the court, and it is their duty to be in court upon the trial of causes duly set for trial of which they have had due notice. The respondents had undertaken the defense of one charged with murder. They had applied verbally for a continuance which was refused. Four days later they applied by written motion supported by affidavits for a continuance. This was refused, and the case again set for trial three days later. It was their duty to be present on...