Rubin v. State

• Decision Date: 11 January 1927
• Citation: 211 N.W. 926,192 Wis. 1
• Parties: RUBIN v. STATE.
• Court: Wisconsin Supreme Court

192 Wis. 1

211 N.W. 926

RUBIN

v.STATE.

Supreme Court of Wisconsin.

Jan. 11, 1927.

Error to Circuit Court, Milwaukee County; Gustave G. Gehrz, Judge.

W. B. Rubin was adjudged guilty of criminal contempt in the circuit court of Milwaukee county, and he brings error. Affirmed.--[By Editorial Staff.]

The plaintiff in error (hereinafter called the defendant) was adjudged guilty of criminal contempt, committed in the presence of the court, and fined $25. To review said judgment, he brings this writ of error.

It appears that on the 20th day of April, 1926, during the trial of the case of Harry Chudy v. Milwaukee Northern Railway Company, defendant, acting as attorney for the plaintiff, was cross-examining a witness in behalf of the defendant. The court, evidently regarding such cross-examination as unduly severe and unfair, interrupted the defendant. A colloquy ensued between the court and the defendant, which resulted in the adjudication of contempt, which it is sought to review. The adjudication in the first instance was oral. The defendant was fined $25, which he promised to pay. At the close of the trial, and after the jury had retired, the court made and filed a formal judgment, in which the proceedings leading up to the adjudication are recited in the following language:

“On this 20th day of April, A. D. 1926, at the hour of about 3 o'clock p. m., the court being in session, and the action of Harry Chudy, Plaintiff, v. Milwaukee Northern Railway Company, Defendant, being then on trial before the court and a jury, the above-named W. B. Rubin did then and there, in open court, and in the immediate view and presence of the court and jury, become guilty of disorderly, contemptuous, and insolent behavior directly tending to interrupt the court's proceedings and to impair the respect due to its authority, in that the said Rubin, after he had previously completed the taking of exceptions to which he deemed himself entitled to certain rulings of the court, and after the court had thereupon announced, “We will proceed,” said Rubin in disregard of that direction, and without reason, and not in reply to anything then pending or said to him, did, with an arrogant, hostile, and defiant tone and manner, and casting looks in the direction of the jury box, obviously bespeaking sympathy or approval, and referring to rulings to which exceptions had been noted, made the following statement under guise of an exception no longer necessary: “I take exception to this undue interference with my cross-examination”--and that this occurred under circumstances disclosed by the record substantially as follows:

That said Rubin, while cross-examining, as attorney for the plaintiff, a young man about 20 years old, relative to various occurrences and details thereof which had occurred some three years previously, and after having repeatedly carried answers of the witness into the next question for argumentative purposes before the jury, and after having persistently rushed and crowded questions upon the witness in such a manner as to deprive the latter of a fair and reasonable opportunity to think and speak, finally arose from his chair and advancing forward, in a stern and commanding voice, put to the witness the following question, with a command in the nature of a question: ‘You cannot swear that you saw the automobile moving, can you, at that time? How about answering that question?’ Whereupon the following took place:

‘The Court: Just a minute, Mr. Rubin. Let the boy finish. It is only fair to give him a chance to think. Some of us seem to think faster than others. He cannot think like a trial lawyer. Here is a man 20 years of age. Just one minute. Read the question.

Mr. Rubin: Now, wait a minute, your honor. I take exception to the remarks.

The Court: You have an exception.

Mr. Rubin: I am certainly fair with this witness.

The Court: I will say on the record now that you did not give the witness a chance to think and answer. That is the record as it is made too.

Mr. Rubin: I take exception to the remarks.

The Court: And you have your exception to the remarks.

Mr. Rubin: Q. Is there anything about my questions that you do not understand?

The Court: You need not answer that. It is too general.

Mr. Rubin: I take exception to that too.

The Court: You have an exception to every ruling, without referring to it, as a matter of course, and you know it.

Mr. Rubin: But, your honor--

The Court: We will proceed.

Mr. Rubin: I take exception to this undue interference with my cross-examination.

The Court: Mr. Rubin, this is not undue interference. We will declare a recess. The court is ruling as it has a right and a duty to rule. We will take a recess, members of the jury.'

Thereupon the court excused the jury, and, after the jury had retired to its jury room, the following occurred in open court, but in the absence of the jury:

‘The Court: Have you anything else to say, Mr. Rubin?

Mr. Rubin: Nothing.'

Whereupon the court announced from the bench, in the presence of the said defendant, the adjudication of contempt hereby evidenced by this formal order.

It is therefore ordered and adjudged that he, the said W. B. Rubin, is guilty of a criminal contempt of court by reason of his conduct and statements found, and that as punishment for said contempt, he pay a fine of $25.

Said defendant having announced his readiness to pay said fine forthwith, the court omits from this order any provision to coerce such payment.”

The record of the proceedings had before the court at the time of the contempt adjudication has been returned here as a part of this record, and the following is referred to as supplementing what was preserved in the formal judgment above quoted. The record of just what occurred shows the following:

“The Court: Have you anything else to say, Mr. Rubin?

Mr. Rubin: Nothing.

The Court: You called the ruling of the court ‘undue interference.’ The court will find you guilty of contempt of court. It will cost you $25, Mr. Rubin. This court is ruling as it sees its duty, and counsel has no right, in the trial of a lawsuit, to call the court's ruling ‘undue influence (interference)’ in the presence of the jury. It is a play to the jury, intended for ulterior purposes, unprofessional, and wrong.

Mr. Rubin: I think the court's interruption of my cross-examination, intimating I was unfair with the witness--

The Court: You were unfair. The record is made that you were very unfair to the witness. And I will not recede from the position. Here is a man who impresses the court as very honest. The court has the right to exercise its discretion and presume some people to be honest. The boy is doing the best he can. The court will not allow browbeating.

Mr. Rubin: I take exception. He has told a story that I have a right to regard as at variance with the plaintiff's theory of the case.

The Court: The record is made. I do not care to have a running discussion with you at all.

Mr. Rubin: But you ought not to be permitted to make statements without my answering them.

The Court: I asked if you had anything else to say, and you said you did not.

Mr. Rubin: I did.

The Court: Very well, the record is made.

Mr. Rubin: I do not think I owe the court an apology. I have been very fair.

The Court: It will cost you $25.

Mr. Rubin: I will pay it, but I will have to have time to pay it.

The Court: Now, what will you do with this trial? Hearing nothing said, we will proceed. Call the jury.”

Thereupon the jury was recalled, and the trial proceeded.

W. B. Rubin and Rubin, Zabel & Rouiller, all of Milwaukee, for plaintiff in error.

Herman L. Ekern, Atty. Gen., and Eugene Wengert, Dist. Atty., and Daniel W. Sullivan, First Asst. Dist. Atty., both of Milwaukee, for defendant in error.

OWEN, J.

The defendant is a practicing attorney of long experience. He has a thorough understanding of professional ethics, the relations that should obtain between court and counsel, and that degree of respect due from the bar to the court. In his brief the defendant gives expression to rather high-minded abstract principles which he concedes should prevail in the conduct of court proceedings. For instance, he says:

“We firmly hold that in the interest of justice, there should be orderly procedure; that a proceeding in court should at all times be dignified; that neither judge nor attorney should, toward each other, or toward litigant or witness, engage in any conduct or language that shall invite disrespectful criticism. We concede that the court has the inherent right summarily to punish counsel for contempt. We concede also that the judge should have that inherent power without interference or interruption, and that he should exercise it without fear or favor and with great expedition. * * * We neither claim nor expect immunity from punishment for contempt because of age, experience, acquaintance, or influence.”

In another portion of the brief he says:

“In the interest of a courageous bar, however, ever mindful of the oath that a lawyer takes, but feeling that ‘due respect for and courtesy to the bench’ does not mean sycophancy, and at the request of other members of the profession in Milwaukee as a protest against arbitrary judicial conduct which is on the rise, as well as in vindication of a personal right, this matter is brought here for review.”

While the foregoing expressions indicate that the defendant has a rather clear conception, in the abstract, of the relations which should obtain between court and counsel, it appears that he is not quite so clear when he comes to apply such abstract principles to concrete situation. It it be true that this appeal has been encouraged “by other members of the profession in Milwaukee as a protest against arbitrary judicial conduct, which is on the rise,” then it would seem that a recurrence to fundamental principles is timely.

Courts are institutions set up by society for the purpose of administering justice, the attainment of which...