The Pacific commercial advertiser. [volume], May 27, 1901, Page 2, Image 2

About The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921

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after the acquaintance between them was formed aa aforesaid, such friendly
relations being largely social up to the early part of the year 1900;
That at that time sharp differences began to arise In the Republican
party in Hawaii upon matters affecting party policy and party discipline;
That affiant, as well as the said judge, were Republicans and took oppos
ing sides as to the differences aforesaid within their party, and that such
opposing views between affiant and said judge led to a number of sharp dis
cussions between them in which it became manifest and apparent to affiant
that he and said judge were hopelessly drifting apart, politically speaking;
That during the month of April or May in the year 1900 said judge in
formed affiant that he was opposed to the policy of the Advertiser, and pro
posed to assist in establishing a newspaper in opposition to said Advertiser,
and the policy and principles advocated in said newspaper under the editor
ship of affiant; and, during said months last above named, finally approached
affiant fcnd offered him the editorship of the proposed newspaper, and in
pressing said offer during said months, visited affiant very frequently, and
made long stays with affiant at his office and elsewhere; and during these
interviews said judge persistently urged said affiant to accept his proposition
and laid before affiant in detail his political aspirations and plans;
That, during the pendency of said negotiations on the part of said judge
to secure affiant's services as editor Of his proposed paper, affiant continued
in said Advertiser to steadily oppose the policy of said judge in political
matters;
That, notwithstanding this, said judge persisted in his solicitation that
affiant join political fortunes with nim and take charge of a newspaper as
aforesaid; and in this connection affiant says that said judge, in pressing his
solicitations upon affiant as aforesaid, and in outlining his own political plans,
laid bare to affiant many matters strictly personal to said judge, showing
the unlimited ambitions of said judge, and an inordinate opinion of his own
abilities and qualifications, and, generally, the personal weaknesses of said
judge
(At this point Judge Humphreys interrupted Mr. Kinney and ordered him
to stop reading the affidavit. The remainder of the affidavit is as follows):
That affiant, while treating the solicitations aforesaid of the said judge
with courtesy, as a matter of fact, had no confidence either in the solicita
tions of said judge, or in his ability to make good his plans for his own ad
vancement or the advancement of affiant, and finally declined all the offers
and propositions aforesaid, but did so, as far as possible, in a way not to
wound the feelings of said judge, or incur his personal emnity or ill will;
That after affiant refused the office aforesaid, said judge became quite
cool in his personal conduct toward affiant, although no open rupture occur
red between them. Thereafter said judge did establish a newspaper called
the Republican, which has ever since been published in the city of Honolulu,
and that said newspaper has, as affiant is informed and believes, been en
tirely under the control, fiirection and management of said judge, from its
establishment to date. That, in due time after the passage of the Organic
Act, creating the Territory of Hawaiii, said judge received his present ap
pointment, and shortly thereafter, for reasons unknown to afflarvt, said judge
again became very friendly In his conduct toward affiant, manifesting said
friendliness by repeated visits to affiant in his office, and protestations of
friendliness of one knid and another, and thereupon said judge proposed,
without the request or suggestion of affiant, to appoint affiant's brother a
clerk of this court;
That thereupon, coupled with said offer, said judge made the direct sug
gestion to affiant that, in consideration of such appointment, he, affiant, use
his position in the Advertiser to further the political fortunes of said judge;
and in this connection affiant says, that the exact words of said Judge, In
making the suggestion as aforesaid, were as follows: "You understand that
this is a case of backscratching."
That affiant told said judge that he could not use the Advertiser to either
reward affiant's friends or attack his enemies; whereupon the judge waived
the point and said he was still ready to make the appointment, and there
upon, did make the appointment, assuring affiant that he had arranged the
matter satisfactorily with the other judges;
That after said appointment the affiant varied in no particular the policy
of said paper, nor did he abate in any degree whatsoever his opposition to
the political policies favored by said judge, and that thereupon, and as affi
ant believes by reason of affiant's continuance in said course, said judge cut
off all friendly relations with affiant, and at the expiration of three months,
affiant's brother was summarily dismissed from his office as affiant verily
believes, because the affiant failed to modify the policy of the Advertiser In
its opposition to the plans and policies of said judge;
And affiant further states that, at the same time with the dismissal of
his brother and the occurrences herein last referred to, said judge cut off aK
personal relations with affiant whatsoever, his speaking acquaintanceship
ceased, and said judge began to show violent personal animosity against affi
ant, as evidenced by the attacks that were opened up against affiant in the
editorial columns of the judge's newspaper, the Republican aforesaid, and
otherwise;
That for the period of six months past the said Republican has been bit
terly opposed to the Advertiser, and that said newspapers are politically
opposed to each other and in open rivalry to each other in a business and
political way, and the relations of the editorial and business managements of
the respective papers aforesaid are very much strained;
That within three weeks affiant received a personal message from said
judge through a reporter of the Advertiser in effect as follows: "I take this
opportunity to send word to the editor of the Advertiser that I have the
most profound contempt for him and for the vicious and criminal policy
which he Is pursuing in this community;"
That, as affiant is informed and believes, the said message was delivered
by the said judge in connection with a request, from a reporter of said Ad
vertiser acting on the direction of said affiant, to ascertain how and under
what circumstances certain licenses to practice law had been issued to a
large number of members of the present Legislature;
That in its issue of the 22d instant, and after the arrest of affiant for per
jury, the following article appeared in the editorial columns of said Republi
can, being aimed at affiant, as affiant charges and verily believes, and pub
lished with a view of prejudicing the merits of affiant's cause in this court,
and of arousing public sentiment against him; and said affiant verily beMeves
and charges that said article was inspired by said Judge for said purposes;
And affiant further states that, by reason of the premises and otherwise;
that he. affiant, verily believes and charges that he cannot secure at the
hands of said judge a fair and impartial trial of his cause herein, but that
said Judge is hopelessly biased and prejudiced against affiant and is not capa
ble of giving affiant, and will not give affiant, his right to a fair and impar
tial trial. (Signed): WALTER G. SMITH.
Subscribed and sworn to before me this 25th day of May, 1901.
EDITORIAL IN THE REPUBLICAN ABOVE REFERRED TO.
. "One of the basest crimes.
"The crime of perjury has for years been considered the most infamous
that a man of education and refinement can be guilty of. There is something
absolutely cold-blooded and deliberate about perjury that stamps it as beyond
almost any other felony. There are palliating circumstances ofttlmes in
practically all other felonies that the law takes cognizance of. A man may
commit homicide In the heat of anger or under great provocation. A man
may steal when urged by hunger, or a man may turn out to be an embezeler,
who In the handling of trust funds permits himself to be tempted to use
such funds, intending to make them good at a subsequent date. In all such
cases there may be, and ofttimes are, extenuating circumstances that gain
for the offender a large degree of sympathy. But there is no such excuse for
the perjurer. Perjury must be, and is. In the very nature of things, commit
ted deliberately, with premeditation, and with cool calculation. The perjurer
Is the most debased of all creatures. He not only deliberately stamps himself
as an outcast unworthy of belief, and of the company or countenance of
honest men, but he stamps himself as a pariah who is ready at any time to
sell honor, virtue, everything that he may gain by it. The enormity of the
offense is shown by the laws providing penalties for the offense. Here in
Hawaii the penalty Is not more than twenty years Imprisonment at the dis
cretion of the court, a punishment ten times greater than provided for almost
any other felony expepting murder."
THE AFFIDAVIT OF J. H. FISHER.
Territory of Hawaii, Island of Oahu, ss.
And now comes J. H. Fisher, and upon oaTth deposes and says:
That he is a stockholder and the treasurer of the Robert Grieve Pub
lishing Co.. Ltd., the owners and publishers of a newspaper called the Hono
lulu Republican, now being published in Honolulu;
That affiant, in his capacity as aforesaid, has the custody of the stock
books of said company, and knows the ownership of the stock of the fame;
That A. S. Humphreys, now Judge of the First Circuit Court of Hawaii,
is a stockholder in said corporation, and is the owner of 335 shares;
That Mrs. Julia Afong, the mother-in-law of said A. S. Humphreys, Is the
owner of 350 shares of the stock of said corporation;
That the said A. S. Humphreys holds the proxy of and votes the stock ol
the said Julia Afong at all meetings of the said company;
That the shares of stock now held by the said A. S. Humphreys and Julia
Afong constitute the majority of the shares of the corporation and carry the
control thereof; the number of shares of said corporation now being 1,090, and
the number of shares owned by said A. S. Humphreys and said Julia Afong
amounting to 685;
That the said A. S. Humphreys, although not a director in said corpora
tion, is practically in control of said company and the policy of said paper.
(Signed): J. H. FISHER.
Subscribed and sworn to before me this 25th day of May, A. D. 1901.
(Signed): GEO. L. BIGELOW.
Notary Public.
THE INTERRUPTION.
From the point above Indicated, where Judge Humphreys Interrupted Mr.
Kinney, the proceedings were as follows:
The Court Now you can Just stop reading that affidavit, right there, sir.
Mr. Kinney I desire to be heard upon that matter.
The Court The court will not hear you any further upon that affidavit,
sir, and you can stop right there.
Mr. Kinney But I wish to be heard upon the right of the court to stop
me from reading the affidavit.
The Court The court will not permit you to read an insulting affidavit
in this court.
Mr. Kinney The court don't apprehend my point. I stop when the court
tells me to stop. The court don't apprehend
The Court The court apprehends your motive, and you will not be per
mitted to read that affidavit, sir, In this court.
Mr. Kinney I desire to be heard upon
The Court And the court has ruled that you will not be permitted to
read that paper, sir.
Mr. Kinney I bow to the ruling of the court, and ask to be heard upon
that point.
The Court And the court will not hear you upon that point
Mr. Kinney There, the court has apprehended my motion, and if the
court denies it, I now desire to enter an exception to the refusal of the court
to allow me to continue the reading of this affidavit, and further, as an
abuse of discretion on the part of the court. And also, to enter my exception
to the ruling of the court denying me the right to be heard upon that
question as an abuse of discretion on the part of the court.
The Court The exception may be noted and the motion for a change of
venue in this case from the personnel of the court is stricken from the flies,
and the attorneys who filed that motion are directed to appear before this
court at 2 o'clock this day to show cause why they should not be punished
for contempt.
Mr. Kinney I note an exception, not to the appearance at 2 o'clock, but
I do note an exception to the striking of this motion from the files and the
evidence on the ground that it Is an abuse of discretion on the part of the
court and a denial of the right of this defendant to be freely heard without
intimidation on the part of the court on the question of the right of your
honor to try him. . ... . . .
The Court A man who Insults and defames and belittles and besmirches
the court very likely presumes that the court Is prejudiced against him.
Mr Bailiff call Walter G. Smith to the bar.
Mr. Dole-If the court please, I d o not wish to act hastily or without
consideration, and I would suggest to the court in order that neither the
court nor the Attorney General may act hastily, that the arraignment be postr
poned until 2 o'clock.
The Court Until 2 o'clock?
Mr. Dole Yes, your honor.
The Court The arraignment may be postponed until 2 o'clock. The ar
raignment is postponed solely on the request of the Attorney General. The
court Is ready to proceed with it, but solely on the request of the Attorney
General the arraignment is postponed until 2 o'clock.
(To Mr. Smith) You will appear at the bar of this court, sir, at 2 o'clock.
THE CONTEMPT PROCEEDINGS.
At 2 o'clock the courtroom was crowded, nearly all the members of the
bar and many business men being present.
F. M. Hatch appeared for General Hartwell, and A. G. M. Robertson for
Messrs. Kinney and Ballou.
The following written returns were filed by the three attorneys:
W. A. KINNEY'S RETURN.
SHOWING CAUSE BY W. A. KINNEY WHY HE SHOULD NOT BE
COMMITTED FOR COMTEMPT.
Now comes W. A. Kinney, in response to the order of the Honorable A.
S. Humphreys, first judge of the Circuit Court of the First Judicial Circuit,
to show cause why he should not be committed for contempt for filing a sug
gestion of the disqualification of the Hon. A. S. Humphreys in the case of the
Territory of Hawaii vs. Walter C. Smith for perjury, and motion to assign
said cause to some other presiding circuit judge, and affidavits therewith,
and for showing of cause, says:
That he is an attorney at law duly licensed to practice in all courts of the
Hawaiian Islands, and has been so since April 17, 1883; that he Is at present
a member of the firm of Kinney, Ballou & McClanahan, attorneys for Wal
ter G. Smith in the case of the Territory of Hawaii vs. Walter G.
Smith, indictment for perjury; that the affidavit of Walter G. Smith
acorn panying the suggestion of disqualification of the Honorable A. S. Hum
phreys in said case of the Territory of Hawaii vs. Walter G. Smith, was
dictated by respondent on the morning of Saturday, May 25, A. D. 1901, in the
presence of said Walter G. Smith and other counsel in the case, from informa
tion which had previously been furnished respondent by said Walter G. Smith;
That from said information so furnished respondent by Walter G. Smith,
respondent deemed Jt his duty as an attorney at law acting in behalf of his
client to make a suggestion of the disqualification of the Honorable A. S.
Humphreys on the ground of bias and prejudice, and to present the same if
said Honorable A. S. Humphreys did not of his own motion decline to hear
said case, which opinion was concurred in by other counsel in the case, to
wit: A. S. Hartwell and respondent's law partner, S. M. Ballou, and that,
acting in good faith and In pursuance of his duty as an attorney, and from
no Improper or ulterior motive whatever, and believing that affidavits In sup
port of a suggestion of disqualification for bias and prejudice, although
necessarily reflecting most severely upon the judge to which they were di
rected, were necessary in behalf of his client, respondent dictated the affidavit
In support of said suggestion.
OBJECT OF THE AFFIDAVIT.
That respondent, in support of his suggestion of disqualification for bias
and prejudice, relied upon the complete estrangement between said Hon. A.
S. Humphreys and said defendant W. G. Smith and the causes relating there
to, and that it was necessary, as an attorney aforesaid, that the affidavit
show that said estangement was due to some deeper cause than the refusal
of a business proposition made by said Hon. A. S. Humphreys before his
judicial appointment, to said Walter G. Smith, but that it was respondent's
duty to show that said estrangement was from causes which would of neces
sity cause the bitterest emnity between said Hon. A. S. Humphreys and said
Walter G. Smith, to wit: The refusal of said Walter G. Smith to share in the
snid Hon. A. S. Humphreys' political aims and plans, after a full and com
plete disculosure of the same to said Walter G. Smith to the extent that
said Walter G. Smith became the repository of all of said Hon. A. S. Hum
phreys' political hopes and aspirations, to a degree which involved in his
refusal a repudiation, not only of Judge Humphreys' offer, but of Judge
Humphreys, himself.
That said respondent in drafting said affidavit studiously avoided insert
ing therein any matters disparaging to said Honorable A. S. Humphreys,
except such matters as respondent deemed absolutely essential for a prop
er presentation of the causes of bias and prejudice sought to be shown;
and respondent affirms particularly that while his client had communicated
to him in connection with this matter the details of the political plans and
aspirations as revealed by said Hon. A. S. Humphreys to said Walter G.
Smith, this respondent refrained from including them in said affidavit because
of his said determination to include nothing therein which he did not deem
essential to the establishment of bias and prejudice on the part of said Hon.
A. S. Humphreys toward said Walter G. Smith.
JUDGE DID NOT SAY HE WOULD NOT SIT.
Respondent did not file said motion, with the accompanying affidavits, in
court until he had first ascertained by a direct question to the court whether
the court would not of its own motion decline to hear the said case of the
Territory of Hawaii vs. Walter G. Smith, and respondent alleges that he
would not have filed said motion had the court of its own motion declined to
hear said cause.
And respondent specifically alleges that in preparing said affidavit and In
filing the same with the accompanying motion, respondent was at all times
acting in the interests of his client, and at no time did respondent intend any
contempt of court, nor did respondent insert in said affidavit any matters
and things disparaging to said Judge Humphreys except such matters and
things as are Inseparably connected with such a motion for disqualification
on the grounds of bias and prejudice, and only such matters and things which
respondent believed, In his capacity as attorney at law, were necessary for
the support of his motion, and for the protection of the rights of his client.
Wherefore, this respondent prays that he may be hence dismissed.
Dated. Honolulu, May 25, A. D. 1901.
(Signed): W. A. KINNEY.
Honolulu. Oahu. Territory of Hawaii, ss.
W. A. Kinney, being first duly sworn, on oath, deposes and says:
That he is the respondent above named; that he has read the foregoing
showing of cause and that all and singular the matters and things therein
alleged are true. (Signed): W. A. KINNEY.
Subscribed and sworn to before me this 25th day of May. A. D. 1901
(Signed): P. D. KELLETT JR.,
Clerk.
THE RETURN OF A. S. HARTWELL
SHOWING CAUSE BY A. S. HARTWELL WHY HE SHOULD NOT BE
. COMMITTED FOR CONTEMPT.
Now comes A. S. Hartwell, In response to the order of the Honorable A. S.
Humphreys, First Judge of the Crrcoit Court of the First Judicial Circuit, to
show cause why he should not be committed for contempt In filing a suggestion
of disqualification of the Honorable A S. Humphreys in the case of the Terri
tory of Hawaii vs. W. G. Smith for perjury and motion to assign said cause to
some other presiding Judge and affidavits therewith, and for showing of cause,
says :
That he is an attorney-at-law, authorized to practice in all courts of the
Hawaiian Islands, and has been such ever since the year of 1874. That respond
ent Is one of the attorneys for Walter G. Smith in the case of the Territory of
Hawaii vs. 'Walter G. Smith for perjury, and as such was present on Saturday
morning, Many 25th, A. D. 1901, during a portion of the time when W. A. Kin
ney was dictating In the presence of Walter G. Smith an affidavit in support of
a suggestion of disqualification of the Honorable A. S. Humphreys on the ground
of bias and prejudice and motion to assign said cause to Borne other Circuit
Judge, and that the respondent is fully responsible for the filing of said motion
and the affidavit in support thereof and Intended thereby no contempt of the
Honorable A. S. Humphreys, but TlSelieved and still believes that the matters and
things in said motion and affidavit contained were such as might properly be in
serted in a motion for disqualification on the grounds of bias and prejudice of
the presiding Judge and were, In the opinion of tnis respondent, necessary for
the maintenance of said motion and were approved by this respondent solely up
on that ground and without any ulterior motive whatsoever.
NECESSARY FOR PROTECTION OF CLIENT.
And this respondent further says that he deemed the filing of said motion
and affidavit necessary for the protection of the interests of his client In said
cause of the Territory of Hawaii vs. W. G. Smith, and that respondent approved
of the preparation and filing of said motion for that and no other reason, and
respondent submits that such affidavit and motion made under such circum
stances, are privileged.
Wherefore this respondent prays that ho may be hence dismissed.
Dated Honolulu, May 25th, A D. 1901. ALFRED S. HARTWELL.
Honolulu, Oahu, Territory of Hawaii, ss.
A. 8. Hartwell, being first duly sworn, on oath deposes and says: That he Is
the respondent above named. That he has read the foregoing showing of cause
and that all and singular the matters and things therein alleged are true.
ALFRED S. HARTWELL.
Subscribed and sworn to before me this 25th day of May, A. D. 1901.
HENRY SMITH,
Chief Clerk Judiciary Department.
THE RETURN OF S. M. BALLOU.
Showing of Cause by S. M. Ballou why he should not be committed for contempt.
Now comes S. M. Ballou, In response to the order of the Honorable A. S.
Humphreys, First Judge of the Circuit Court of the First Judicial Circuit, to
show cause why he should not be committed for contempt for filing a suggestion
of disqualification of the Honorable A 8. Humphreys In the case of the Terri
tory of Hawaii vs. W. G. Smith for perjury and motion to assign said cause to
some other presiding Judge and affidavits therewith, and for showing of cause
says:
That he is a member of the firm of Kinney, Ballou & McClanahan, attorneys
for Walter G. Smith In the case of the Territory of Hawaii vs. W. G. Smith, in
dictment for perjury. That he is an attorney-at-law duly licensed to practice in
all courts of the Hawaiian Islands and has been so since June 15, 1895. That E.
B. McClanahan, the remaining member of the firm of Kinney, Ballou & Mc
Clanahan, attorneys of record for said Walter G. Smith, has been absent from
the Hawaiian Islands for more than one month last past and Is now absent and
has no connection whatever with the matters and things herein referred to.
That this respondent was present during the dictation of the greater portion
of the affidavit of Walter G. Smith annexed to the suggestion of disqualification
of the Honorable A. 8. Humphreys, and that respondent personally drafted the
suggestion of disqualification and motion to assign said cause to some other pre
siding Circuit Judge.
AFFIDAVIT PRIVILEGED MATTER.
That respondent approved of the affidavit of Walter G. Smith as dictated in
the presence of said Walter G. Smith by respondent's law partner, W. A. Kin
ney, and believed said affidavit to be privileged matter and to contain nothing
that was not tn respondent's opinion necessary for establishing the fact of bias
and prejudice on the part of the Honorable A. S. Humphreys toward said Wal
ter G. Smith.
That this respondent In approving of said affidavit aforesaid and In drafting
said suggestion and motion, had no intention of acting in contempt of the Cir
cuit Court of the First Circuit or of the presiding Judge thereof, but believed
the matters and things In said motion and affidavit contained to be necessary for
the protection of the interests of his client. Walter G. Smith.
Wherefore this respondent prays that he may be hence dismissed.
Dated Honolulu, H. T., May 26th, A D. 1901.
(Signed) S. M. BALLOU.
Honolulu, Oahu. Territory of Hawaii s.
a M. Ballou, being first duly worn, on oath deposes and says: That he is
the respondent above named. Thai ar nas read the foregoing showing of cause
and that all and singular the matters and things therein alleged are true.
(Signed) S. M. BALLOU.
Subscribed and sworn to before me this 25th day of May. A. D. J901.
(Signed) P. D. KELLETT, JR.,
Clerk.
THE PROCEEDINGS.
mi, mr. Konertsoi
;y's return.
Judge Humphreys said: The Court is of
I . ,,,.,-1 t h.. AiiAtimi. rtf ,..... . . .
plete typewriting Mr. Kinney's return ked 'or
committed :n open court, and where the co , n th&t w!l
grant, as it was in this case, that no written lt ls direct 1
.i . , ... 1 null retn. i. vl anii -
therefore rennire a arttian r .- i 'lUrri 1 "i
. ..v.. .tin. i, ,0 ,. m..d - "I'teato
fifteen minutes to receive this return, and court7?
(Here the court took a recess until 2:15 ) ger' K
MR. HATCH'S ARGUMENT
As nn n the returna n.. ..
w .cau mr. Hatch orfj
I ask leave of your Honor to change a date . aadreed tho
1... 1 T 1 1 1 i, . ll WlLK In.
ua.ic nucu o uuSc naimcu commenced to nrr,i , hi
c . . v. iom ii. .i ' I -1. 11 Inn, - . . 7
I i
n,
September 30. 1868. He was then on tho tw,v . sw' niek t
ler the dat
The Court. I think that Is ImmateriRi k'... ouht to h. .i.8'
far as this controversy ls concerned, it mv he date
. w.ueq.
THE STATI TK
Mr. Hatch. The Act to organize the Judlelarv n
rn ...,... HB of tVia Oiw-11 T atvo l ' "''Part In..
causes for the reasons shown here. tll chB
' Ninth. Any Circuit Court may, upon sau.sf
oartial trial cannot be had in nnv one ' . lorJ Koof l
- rename in . v"i i i.-
Hon Ihoroln cViall havo haH ,.. " ' uUl Clin.
. .. . . " . l" hiarrt . " "0
otner circuit court, ana order the record t.. i t
however, that any Circuit Court may, in :t ,ii .
parties to any civil cause pending in such , .,., , 'un' upon
recori
section 627. at :.,... . into.'
. . " "'ere
, .'"'eo ...m-.":
. ri1 i JiurT. Hrin r it tii rniv,r,io i. uu Vftw .
' - !s ..P...J .. ! ft
miii, in me x fiiai i.aw&, section M',, jit rjaofl . lllrei
t4It shall be lawful for any court of record or Jud
any criminal proceedings pending therein u-hM.v lherof &t
r "'vu-lll. wnt.;h.-. " ftl
or not tn nrder that t,.e venue h.. nhn 1 , rl lr'S Venn l
, vuuiikvu. UHil In
Honolulu or in some particular judicial circuit; in su h al th tnu
sons as the justice of tne case may requm- a'nd Kiiku lEJPS for
the court or Judce mav in its or hie JKl to dunk
" T " ' " UOn. lmnn... .
AFFIDAVIT WAS PROPER
That I submit la statutory authority In the bro
submission to a trial Judge of such a auesii, n ... t,,ra
venue wnicn is autnorizea Dy law is not limited "'ea. xj,
count or prejuuice m tne community, or prejudice 0f h ot
any particular juror summoned to trv th. v. . . ,he Panel
son tne justice or tne case may requir.-. Now We . j . nMe
""i smnh
Honor nleases. and it is the Dosition of .in, i .... n..
might be alleged as showing prejudice on the art r 1 'hal M
. - M B
nreutfllnir at tn.. trial. ' lu"iemm J
DUTY OF ATTORNEY.
And that It Is equally the duty of counsel li f 10tc ... .
as counsel would do If facts were Within their knowlMfo ,
tk. ne o , , ""i-e which tu..i
inrjuuiic un ie ""j mtu jmui in: itain )( ,i , ,
counsel to their client is a serious thin;. It is .' C4la- 1
ately assumed by every man when he Is adniitto.t .'. ',"ra,,on W k
court or any other court. The resnnrwihiu... . Hf "
sel as to what matters he is lust it:.- ", ! ourst.
it Is his dutv to alleee in nrotprt In.. h . . 'lnCi
, Zm . .. 1 'u.Tt'SIS or
unioriunaie imng it, in me periormance of that dutv
that ot tne court, out, i suDmit that the duty of
that counsel would be unworthy of the Confidence
should hesitate to present to a court any
think should be presented in order to ohtain a ruling n, .
a fear of consequences or by an idea that the m;.tipr .
with the favor of the court. That is an idea which mail7J2
C V 1 , - "C t "1
n s r ' 1 1 ri t . i Run m l r in n is m ot ion i w Kiiph - o ... ..i i .
V ; " ouuuiu not BUblMr ha
imanvcrsitm m iu couri.
3r Ms client &
"S viti
Ixt .1. .
matt.-r which th, 191
A PRIVILEGED COMMUNICATION.
A communication jnade to the C'jurt. an affidavit filed has
iletre. If anv document can have the chnr:ict.r .f . i. n. .
is an huiohvu uitu in me cunuuci or a cause at any period dun
of a cause in the Interest of the client. It is only wh.-n ... .
sented, if it should be, which is not presented in the Interett "Sfi
the action would be open to criticism.
Now, we simply submit that it was the fluty of counsel in thi
sent to your iioiior everyimiiK w sue ti i lie nature of th.. ,-, a
nection wun tne question, ine issue wn:cn was raised, and that In
tnee matters were set up nere, notning was done which property
counsel to criticism or to punishment, or should subject them to
That in brief is the position we take, and I do not care to elabci
all. I call your Honor's attention to the statute and to the duly of
suomtt that counsel were wunin tneir auty.
MR. ROBKRTSON'S ARGUMENT.
It seems to me to be a self-evident proposition, that a fair ani
not only requires an impartial jury, hut also a Judge prenidhK
1 : ... ...... .;.,.. . . . .. . . i : . . . , . . . !
no ia auau:uici nee nviii any uiao Jin j nuii i- luwaro QelOdH
in any particular case.
It seems to me also under the statute here, and by the right tf
who honestly believes that the Judge presiding in the court la tbkt
arraigned believes that that Judge is biased or prejudiced apiM
ports the fact to his counsel, it becomes the absolute duty ui vmi
the showing in a proper way In court, and to ask for a danp
i lie rJ e a 1 ion u: ine 11 01 nip cttut- iu suint. ni uer j ijuki", u M i:
the motion which was tiled In this case this morning.
As counsel has stated, if any communication, any written wttli le
within the category of privileged matter, certainly suel & pnat&it
kind would fall within that category. It goes without aijiir tat
to show cause or prejudice on the part of the trial Jtlip tanrt
hum l v i v il u "in cALiruicu v.. ..tu-i ".-. - - .
was defending a person accused of crime and, In the owt ol i
came to counsel's attention that his duty to his client ailed lor t
showing, counsel would naturally hesitate and weigh archill ill fl
circumstances in connection with the matter before laying U Bitter
court.
Such appears to have been the Intention of counsel In ihii tut
IIIC l 1 l 17 T. 1 1 1 p, UIIB 1HU1 lllllft. ,l.,.'. " V. j ww. .......
tinn whether vour Honor intended to Dresidp at the trial ol tne
Mr. Smith, feeling that if It was not your Honor's intention to fk
trial there would be no occasion for touching upon the matter? fan,
were of a very delicate nature, and matters that ooun.'l wow w
ilv hrina- to the Attention of the court. As I say, counsel uW I
of your Honor this morning evidently with that purpose wd Intent.
CIRCUMSTANCES SHOW NO CONTEMPT.
It seems to me almost impossible to imagine a case wbere M
Incr nn ti nnlnl nf iliac nf a nresldinir .Tlldcp toward hlS ClieOt, H
o " ' .w A. v. . . . . . ....... " . o 3-
ino- tHa. ohnntnir nf annh hiaa in court, that matters WOUld not UW
w.v. , .,,. W.
sented that, under different circumstances would very reauuj
n niiTi'iint n rtt iiiiotnoi fsinramnT t t imii hi i r iwiiu'i
Or H-1,1 Hill U 1IU UViUVU v will- Jilfl v mm --
nnlntnn hoc a oroat donl to rin with the Consideration Of til?
a m.-ivt Imnnrlsnt henrlno- unnn it for that vei"V reBSOn. " "vu '
... 1 VhflttAM HBL
and inn nuhtemv contemnt ot court lor counM'i i'J ""b
.i. . - . , . i an ji : 1 ,1 ,1..:.. mnminp : S8T wvw
ine nature reierreu iu sn isse asuuasi. wtru uu - .
edly contemptuous to bring such matters up in a proceeding
---- - . ... it.,,. In wfiif!
not called for by virtue of the nature oi tne procet-uius -
DUTY OF COUNSEL.
. , v. bi honor or his duty
or to the public, who would hesitate to present to the court .-u -j
honestly believed that the showing of it snouia au"'u "
change of venue, or the calling In of some other Judge, a no
..... ' . .. - ,iin, nronerly en
oi gooo iaitn. i suomit tnat no proper inuit-vu...,,, -
and conducted by counsel, when It Is done in absolute gooo
be considered as a contempt of court. However mistaken
... n, y . - .... of dIS-r-
case I say, however mistaken counsel may " ; , nyif
exercise of his Judgment, unless It Is apparent that WBM J"
does is done with disrespect and in contempt of your h
cannot be properly construed as a contempt of court.
That Is the position that counsel who are oeiuie . - ft
ter. Certain representations were made to them t , ' fal uaM
anrl ns thev lonkeil nt It. in the nrODer conduct of the M
tection of their client's interests. It was' demanded ttia
.. . i.-. - . ..- . '... their duty to me
ent, upon tneir uuty to tne court, asiu. ui" - - SU(,j, t ww
they fearlessly and Independently present to the co
brought to their attention, as It appear n
nsrainst Walter OL Smith. .... truth
This .s not a question, If the court please, coun9el
the allegations In Mr. Smith's affidavit. If, for ,,-ndi1
a defendant on trial, filed an affidavit setting roriti '"" a
on the part of the court, that are untrue, tend ing M
the accused and his counsel to bring tne luui. lf s
sltion entirely different from the one beiore u should u
b llMJ
niiiuii ciiiueiji uiacieiu i'viu v..-w tlon en0J'u
tlon, hearing and showing, anything of that d' 'iP - ,t ,
11 1 .....11 V on! n. l- n TI.'M'ni ,v iff
time. As I sv. the Question before the court ui-suo
statement contained in Walter G. bmitn - " affidavit 18
1 1 uuui now so, 1 1 h .'i-'u iaii.i v.. ww ipeal gruiiii. -
to show what we earnestly believe a ,. nn the
"r '. Mil on
of venue a legal objection to your Honor s i , ln
mv. t ..w. j f it ia the position 01
CtU2e. i : -il ao X uuucioiauu ' - - .,, RAR-
DEFENDANTS' STANDING AT THb
IhDf lw.li. ctandine at trie ua' '. . .itlrt
to show that they are not men who treat "B"1 ' , ajie u
.i i i . -. w j recognize ... ii
vise uur. iney are not men wssu uu iiv- , ( trat cou" -
court unit tia hrninr a nH rosnect that tne June. l... to tuw
l w - i .vl . V, ih,- P tirOCtr o- ,.
ssi uie iiuaence oi anyioniK Hi . court, "l ,i
show a lack of appreciation of the dignity or i. c!aiB1 to
mere filing and presenting of the ground vn'c a conteniP'
valid ground, should not be properly construea g y,, v
With these remarks I submit the matter m
Ballou. N
JUDGE HUMPHREYS'
Judge Humphreys Immediately gave fi - u'';."nffSii,
ine returns oi tne tnree resi"i"c"" , ar i:cii
It ' i
.. . - " . -. ihpm arc
m. iiaiiou, set forth the fact tnat eacn ; " .r.,hSe
The license to practice law ls a very vaiua. ' " ed protef
the license a position and right to one of the ' ' t0n a' 1 ,,t
him to and he generally receives greater g!ves M ,
low-cltlzens than Is accorded to others. The uV.,ce
v v r - -
the right to practice law, but It ls his duty
Indeed,
n .i u oo-irressiveiy- ., tBf
an, emueauy, eninusiasucaiiy o-nu bd- .g e,a theP
lawyer might be, "I will die with my hack to u otiecfu
Tn nnnthor untiirv Tvril F.rsklne. Stan""f , rfefleu M
law Jurlo-es that ever nreslded In Wcstmlr--Sttr. ...ffltMul
Chief Justice then presiding, and when ne ' " ,. kine f
1 .v.- onnroachf d kTj . staoi "
was It that you could dare look Mansnem 0 lM - m
. . . . . , 3 . .. Vi'.m : -A try
the bar an unknown advocate, and defy h'm ' t..ggn$ '
"I did It, sirs, because I felt my little children