State v. Root

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtWALLIN
Citation5 N.D. 487,67 N.W. 590
Decision Date03 June 1896
PartiesSTATE v. ROOT.

5 N.D. 487
67 N.W. 590

STATE
v.
ROOT.

Supreme Court of North Dakota.

June 3, 1896.



Syllabus by the Court.

[67 N.W. 590]

1. Where language which is abusive and defamatory in character is used by an attorney at law, and applied to a judge of the district court in which the attorney is licensed to practice, and such language reflects in severe terms upon the official action of such judge with respect to cases then pending in said court, and also reflects upon the private character of said judge, but such language is not uttered in the courthouse, nor in the immediate view and presence of the court or any of its branches, nor uttered within the sight or hearing of the judge, but is spoken in the stores and in the streets and public places of the city where court is being held, held, that such language does not constitute the offense of contempt of court.

2. Whether such language furnishes ground for disbarment proceedings not decided.

3. An affidavit attempting to charge a contempt of court committed by using offensive language respecting the presiding judge of said court, but which failed to allege that such language was spoken in the immediate view and presence of the court, held, insufficient, in substance, to charge the crime of contempt, either at common law or under the statute.

4. Where a criminal contempt of court occurs in open court, and within the personal knowledge and observation of the presiding judge, it can be punished, not only summarily, but without the use of either pleadings or evidence, other than the evidence of the judge's senses. Rev. Codes, §§ 5932, 5933, 5935.

5. Where an affidavit in a summary proceeding is filed charging a criminal contempt, such affidavit will be tested by the rules of criminal pleading which are applicable to indictments and informations; and this rule obtains whether the prosecution is begun under the statute or not.

6. The statute governing summary criminal prosecutions for contempt of court is designed for such cases only, and is wholly independent and different from the disbarment proceedings authorized by the statute. See Rev. Codes, §§ 433, 434, 5935, and following sections.

7. Where appellant, upon a series of affidavits, was charged with using language which it was claimed constituted a criminal contempt of court, and, under Rev. Codes, § 5936, he was cited before the district court by an order to show cause, not only why he should not be punished as for a contempt of court, but also why he should not be disbarred from practicing law as an attorney in said court; and where, under article 3, c. 34, Rev. Codes, the appellant was tried as and for contempt of court, and not otherwise tried, and found guilty of such contempt, and was sentenced to suffer the maximum penalties prescribed by section 5933; and in the same judgment it was adjudged that appellant be suspended from practicing law in said court indefinitely, and “until the further order of the court,”- held such proceedings, including the order to show cause, sentence, and judgment, were irregular, without authority of law, and highly prejudicial to the accused.

8. Where appellant, on such order to show cause, came into court, and, before pleading to the facts, “attempted to except to the jurisdiction” of the trial court, but was not permitted to do so, but was required by the express mandate of the court to plead at once to the facts, by admitting or denying the facts set out in such affidavits (see section 5942), held prejudicial error.

9. Held, further, that inasmuch as appellant was compelled at once, on coming before the trial court, to answer as to the facts, he will be entitled in this court to receive the benefit of all preliminary motions which he could have properly made in the court below if the right to do so had been in fact accorded to him in that court.

10. Held, further, that the fundamental errors in this proceeding could have been reached by a preliminary motion to quash, despite the fact that the statute regulating contempt proceedings does not in terms authorize such motion or any preliminary motion. The right to attack a criminal charge at the outset for insufficiency is fundamental, and to deny it to the accused is to deny him “due process of law.”

11. Certain contempts of court, when committed by an attorney, will furnish grounds for his suspension or disbarment from practice; but an attorney cannot be lawfully suspended or disbarred as a punishment inflicted in a summary and quasi criminal proceeding instituted and conducted in accordance with the statute governing prosecutions for the offense of contempt of court.

12. Disbarment proceedings are governed by special statutory provisions; and, unless an attorney waives his rights, he cannot be lawfully disbarred or suspended from practice until he has been accorded a trial under the safeguards of this statute.

13. Professional misconduct which falls short of being a contempt of court may yet furnish grounds for the revocation of an attorney's license in a proceeding brought expressly for that purpose. Threats of assault

[67 N.W. 591]

made directly and personally to the judge when out of court, but on account of his official action, and insults and menaces offered to the judge directly and personally out of court, but on account of the judge's official action, will afford a basis for proceedings to disbar an attorney. People v. Green (Colo.) 3 Pac. 65; Beene v. State, 22 Ark. 149; People v. Green, 9 Colo. 506, 13 Pac. 514; Ex parte Bradley, 7 Wall. 364.


Appeal from district court, Barnes county; Roderick Rose, Judge.

Herbert Root was convicted of contempt of court, and suspended from practicing as an attorney at law, and appeals. Reversed.

Newman, Spalding & Phelps and Herbert Root, in pro. per., for appellant. Herman Winterer, State's Atty., and John F. Cowan, Atty. Gen., for the State.


WALLIN, C. J.

The record in this case shows that Herman Winterer, state's attorney for Barnes county, on December 28, 1895, presented to the district court for said county (which was then in session, at Valley City) a number of affidavits purporting to contain charges against the appellant of various criminal contempts of court, committed by him at diverse times and places. Upon filing the affidavits, the district court issued an order to show cause, as follows: “It is ordered by the court that Herbert Root, the party named in said affidavits, be, and is hereby, ordered to show cause before this court on the 2d day of January, at 10 o'clock a. m. of that day, why he should not be punished for contempt of court, and why he should not be debarred from practicing law in this county, in this court.” The order, together with said affidavits, was served upon the appellant,-and, in response thereto, he appeared before the district court; whereupon the following proceedings were had: “On January 2, 1896, this case was called for trial. The defendant, Herbert Root, being present in court, attempted to except to the jurisdiction of the court, but was refused permission to do so until the following proceedings were had: ‘Court: Mr. Root, do you admit the facts in the affidavits served upon you? Mr. Root: I do not, sir.’ The state's attorney is now ordered to file interrogatories in accordance with section 5942 of the Revised Codes of 1895, specifying the facts and circumstances of the offenses charged. Thereupon the interrogatories were duly filed.” For the purposes of this opinion, it will be unnecessary to set out the interrogatories at length. It is enough to say that they consist of pointed questions, requiring specific answers, touching the truth of the several charges as contained in said affidavits. Before answering the interrogatories, the record shows that the accused filed with the clerk, and read to the court, a motion to vacate the order to show cause. The ruling was as follows: “Motion overruled by the court, the defendant not being permitted to present any argument or explanation as to said motion; whereupon the following proceedings were had: ‘Mr. Root: You will not hear any law on this? Court: No; I don't want to hear any law.” Upon the following day (January 3d), the defendant filed his answer to the interrogatories. Upon the issues thus joined, a trial was had, at which the prosecution called a number of witnesses, who were sworn and examined touching the subject-matter of the various charges set out in the affidavits; whereupon the court, after filing findings of fact, entered judgment against the defendant, as follows: “I do hereby adjudge and consider that the defendant is guilty of contempt against this court, in this: that he has used language respecting this court in the court room, and in the presence of the court, respecting cases pending for trial in this court at the present term, such as to impair the respect due to its authority, and thereby directly tending to interrupt its proceedings, and whereby the administration of justice has been and is brought into disrepute, and the court disgraced; that the defendant has used such language aforesaid concerning this court, and respecting cases pending in this court, at the last term of the court, being the June term, 1895, of this court, in Barnes county, North Dakota, as did impair the respect due to this court and to its authority, and such as to bring the administration of this court into disrepute, and to disgrace this court; that the language aforesaid, and the conduct of the defendant as aforesaid, has been such that he is not a fit and proper person to longer practice law at this bar, until further order by this court. And I hereby adjudge and direct that the defendant be confined in the county jail of Barnes county, North Dakota, for a period of thirty (30) days, commencing at noon of this 4th day of January, A. D. 1896, and that he pay a fine of two hundred ($200) dollars to the clerk of this court; that in case of default made by the defendant of the payment of this fine,...

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19 practice notes
  • Ex Parte Landry
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 28, 1912
    ...v. Welch, 12 Nev. 158; Bradbury v. Bliss, 23 App. Div. 606, 48 N. Y. Supp. 912; People v. Adams, 6 Hill (N. Y.) 236; State v. Root, 5 N. D. 487, 67 N. W. 590, 57 Am. St. Rep. 568; Lowe v. State, 9 Ohio St. 337; State v. Kaiser, 20 Or. 50, 23 Pac. 964, 8 L. R. A. 584; Commonwealth v. Snowden......
  • Creekmore v. United States, 4591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 17, 1916
    ...in error cites, as to the same effect, Snyder v. State, 151 Ind. 553, 52 N.E. 152; Early v. People, 117 Ill.App. 608; State v. Root, 5 N.D. 487, 67 N.W. 590, 57 Am.St.Rep. 568; In re Nickell, 47 Kan. 734, 28 P. 1076, 27 Am.St.Rep. 315; In re McKenna, 47 Kan. 738, 28 P. 1078; Thomas v. Peopl......
  • State v. Simpson, Cr. N
    • United States
    • North Dakota Supreme Court
    • October 31, 1951
    ...making a charge of contempt must be tested by the rules of criminal procedure applicable to indictments and information. State v. Root, 5 N.D. 487, 67 N.W. 590. A careful consideration of the affidavits show that they fulfilled the requirements of the statute and rules. The defendant was ma......
  • Kiskaddon v. Dodds, 192
    • United States
    • Superior Court of Pennsylvania
    • October 13, 1902
    ...exists to confer this title. No one has a vested right to do wrong: Satterlee v. Matthewson, 16 S. & R. 191; Finlayson v. Peterson, 5 N.D. 487 (67 N.W. 953); Foster v. Essex Bank, 16 Mass. 245; Lycoming v. Union, 15 Pa. 166. The orphans' court had jurisdiction: Lair v. Hunsicker, 28 Pa. 115......
  • Request a trial to view additional results
20 cases
  • Ex Parte Landry
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 28, 1912
    ...v. Welch, 12 Nev. 158; Bradbury v. Bliss, 23 App. Div. 606, 48 N. Y. Supp. 912; People v. Adams, 6 Hill (N. Y.) 236; State v. Root, 5 N. D. 487, 67 N. W. 590, 57 Am. St. Rep. 568; Lowe v. State, 9 Ohio St. 337; State v. Kaiser, 20 Or. 50, 23 Pac. 964, 8 L. R. A. 584; Commonwealth v. Snowden......
  • Creekmore v. United States, 4591.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 17, 1916
    ...in error cites, as to the same effect, Snyder v. State, 151 Ind. 553, 52 N.E. 152; Early v. People, 117 Ill.App. 608; State v. Root, 5 N.D. 487, 67 N.W. 590, 57 Am.St.Rep. 568; In re Nickell, 47 Kan. 734, 28 P. 1076, 27 Am.St.Rep. 315; In re McKenna, 47 Kan. 738, 28 P. 1078; Thomas v. Peopl......
  • State v. Simpson, Cr. N
    • United States
    • North Dakota Supreme Court
    • October 31, 1951
    ...making a charge of contempt must be tested by the rules of criminal procedure applicable to indictments and information. State v. Root, 5 N.D. 487, 67 N.W. 590. A careful consideration of the affidavits show that they fulfilled the requirements of the statute and rules. The defendant was ma......
  • Kiskaddon v. Dodds, 192
    • United States
    • Superior Court of Pennsylvania
    • October 13, 1902
    ...exists to confer this title. No one has a vested right to do wrong: Satterlee v. Matthewson, 16 S. & R. 191; Finlayson v. Peterson, 5 N.D. 487 (67 N.W. 953); Foster v. Essex Bank, 16 Mass. 245; Lycoming v. Union, 15 Pa. 166. The orphans' court had jurisdiction: Lair v. Hunsicker, 28 Pa. 115......
  • Request a trial to view additional results

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