Pate v. Toler

• Decision Date: 25 February 1935
• Docket Number: Cr. 3919.
• Citation: 79 S.W.2d 444
• Parties: PATE v. TOLER, Judge.
• Court: Arkansas Supreme Court

79 S.W.2d 444

PATE v. TOLER, Judge.

Cr. 3919.

Supreme Court of Arkansas.

February 25, 1935.

Prohibition to Circuit Court, Saline County; T. E. Toler, Judge.

Petition by W. T. Pate, Jr., for writ of prohibition against Thomas E. Toler, Judge.

Writ granted.

Robert J. Brown, Jr., of Little Rock, for appellant.

Carl E. Bailey, Atty. Gen., and Guy E. Williams, Asst. Atty. Gen., for appellee.

BAKER, Justice.

W. T. Pate, Jr., files a petition here praying for writ of prohibition against Hon. Thomas E. Toler, judge of the circuit court of Saline county, in a matter wherein the petitioner was charged with contempt of that court.

An investigation of the petition and certified copies of the record attached thereto, and of the response, show the following facts:

In a proceeding of State of Arkansas v. Shank, tried in the Saline circuit court, beginning on the 27th day of November and ending on December 1, 1933, two witnesses, Shorty Lowe and John Carroll, absented themselves from court. During the proceeding in this trial, these witnesses were called for by some of the attorneys representing the defendant. It is not charged, at least not shown positively, that the petitioner here was present at the time the witnesses were called. They could not be located, but were called several times, and search was made for them. It was finally learned they had claimed their attendance and left. A motion was filed for a continuance until the testimony of these witnesses could be procured. Considerable time was lost in a hearing upon this motion. Motion being overruled, the case proceeded.

Thereafter, on the 9th day of December, 1933, the court made a docket entry as follows: "State of Arkansas v. `Shorty' Lowe, John Carroll, W. T. Pate. Offense: Contempt of court for leaving court without permission." Shorty Lowe appeared at that time but Carroll did not appear, and this contempt proceeding was continued until January 8, at which time the court made an order requiring Lowe and Carroll to give bond in the sum of $400 each. Attachments were ordered at that time for Shorty Lowe and John Carroll.

On January 13, the defendants not having been apprehended, the cause was continued until January 27.

Another notation was made on the docket on March 12, 1934, which shows the matter was continued until March 19.

The next notation made on the judge's docket was on November 26, 1934, which is as follows:

"11/26/34 — The defendants, Shorty Lowe and John Carroll having been brought before the court upon a warrant on the charge of contempt of court and after being asked if they desired that the court appoint counsel for them and they did not request such action, the court proceeded to hear their testimony and also the testimony of Sheriff V. A. Rucker, after hearing said testimony and being well advised as to the law, the court finds that the defendants were advised by W. T. Pate, one of the attorneys in the case of State v. Shank, had excused them as witnesses for the defense, but finds that they should not have left court without an order from the court.

"The court also finds that these defendants are in contempt of court for not obeying the orders of the court in failing to appear at the time ordered and in failing to make bonds as required.

"It is therefore, considered, ordered, and adjudged that each be penalized as follows:

"Shorty Lowe and John Carroll should serve a jail penalty for a term of twenty (20) days each and fined one hundred dollars ($100.00) each, commitment ordered at once.

"Warrant is ordered for W. T. Pate to appear December 10, 1934, on contempt charge."

This is all of the information that is set out on the docket or otherwise as to any charge against W. T. Pate. On December 10, 1934, the formal charge was made by D. M. Halbert, the prosecuting attorney, against W. T. Pate, asking that he be punished for contempt.

The effect of that charge was that on the second day of the trial of the case of State v. Shank, the two witnesses, Lowe and Carroll, inquired of Pate if they were going to be called as witnesses, at which time, after conferring with them about their testimony, he excused them and told them that they could go. The said Pate willfully and knowingly, for the purpose of committing a fraud upon the court, joined with his co-counsel in asking for a continuance of the above-stated case, later in the trial, on account of the absence of the two witnesses; that he did not advise his co-counsel of the fact that he had dismissed or excused said witnesses from further attendance.

Other acts, perhaps more culpable, were charged; but by reason of the view we have of this matter, there is no necessity for further detail.

The notations, however, made upon the judge's docket, as above set forth, as "contempt of court for leaving court without permission," are insufficient to form any charge against ...