
    Myers v. The State.
    
      Contempt of court — What is — See. 5639, Rev. Stats, construed — Proceedings in contempt renewable o-n error.
    
    1. The furnishing by a correspondent for publication, and procuring to be published in a newspaper, an article containing statements regarding a judge then engaged in the trial of a cause, imputing to him conduct in respect to the case upon trial, which, if true, would render him an unfit person to preside at the trial of the cause, with knowledge on the part of the correspondent that such newspaper has a large circulation in the county where the trial is in progress, and with reasonable ground to believe that the same will, when published, be circulated in the court room and about the court-house during said trial, and there read, and which was, afterward, during the trial, circulated and read therein, is a contempt of court.
    2. Sucli act comes within the purview of section 5639, Revised Statutes which provides that, “A court, or judge at chambers, may punish, summarily, a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice,” and may he punished summarily, and such punishment is within the discretion of the court trying the case.
    3. A proceeding to punish for contempt under -said section, including the question whether or not the court, in awarding punishment, has exercised a reasonable discretion, may be reviewed upon error. '
    
      4. The fact that the presiding judge is the subject of libel in the article which forms the basis of the contempt proceeding, does not render him incompetent to try the complaint.
    ■5. Upon such trial it is competent for such judge to take judicial notice of pertinent facts connected with the transaction which come within the cognizance of his own senses.
    
      8. It is not competent for him to take judicial notice of, and consider in his ■ deliberations, that the respondent had been guilty of another contempt of the same court, for which he had theretofore been tried and found guilty. And where it appears that the consideration of such facts may have influenced the exercise of discretion, in fixing the penalty, to the prejudice of the respondent, the proceeding will be reversed for such error.
    (Decided May 21, 1889.)
    Error to the Court of Commou Pleas of Franklin County.
    The plaintiff in error was tried at the April term, 1888, of the Court of Common Pleas of Franklin County, upon a charge of contempt, which offense consisted in the writing of a certain article, and causing it to be published in a daily newspaper published in the city of Cincinnati. At the time of the writing and publishing, there was upon trial in said court, a criminal indictment found at a previous term, against one Montgomery, upon a charge of changing and, altering the tally sheet of precinct A, thirteenth ward, of the city of Columbus, just after the state election of the year 1885. The plaintiff in error was jointly indicted with Montgomery, and the case was still pending against him. The article charged, among other things, in substance, that the grand jury which found the indictment referred to — the one upon which Montgomery was then being tried — was called by the judge of said court then presiding, for a special partisan purpose,” and “ never honestly drawn from the box”; that the presiding judge, co-operating with ■the clerk and prosecutor, had packed the grand jury, and that the writer had, in this manner, been indicted “ by rascally and infamous methods.”
    The newspaper had an extended circulation throughout the state, including the county of Franklin, and was freely circulated, sold and read about the court house and in the court room, all which was known to the plaintiff in error at the time of the writing and publishing. The article was, in fact, read on the day of its publication, by many persons in the court room, was much talked about within the bar of the court, and in the presence and hearing of the court.
    A written information was presented by counsel specially appointed by the court for that purpose, alleging against the plaintiff in error, the writing and publishing of the article in question, charging that the same was done by him to vilify, degrade and defame the court and its officers, including the grand jury, and to bring the court and its officers into contempt, and to obstruct the administration of justice in the cause upon trial, and that said acts were a contempt of court. An answer was filed by the respondent, which denied the jurisdiction of the court of the subject matter and of his person ; denied any intention to commit a contempt or to obstruct the administration of justice; alleged that the article was written by the respondent, who was and had been for years a correspondent of the newspaper, as an answer and comment upon a communication which shortly before had appeared in another newspaper also published in Cincinnati; that the article was written upon facts and information which had come to his knowledge, which he believed to be true; that the article was read, before its publication, to a member of the bar of Hamilton county, of high standing, who gave the opinion that the publication of it would not be a contempt of court, which was concurred iu by another lawyer of experience, and that the article was written under the influence of feelings engendered by his personal knowledge of the fact that a grievous and irreparable wrong was being ,done him in connection with the prosecution of the case referred to.
    A trial was had at which evidence was introduced by both parties. The court also took judicial notice of many matters, some of which are quoted in the opinion. The respondent was found guilty, and sentenced to pay a fine of two hundred dollars and costs, be imprisoned ninety days in the county jail, and stand committed until the fine and costs should be paid.
    
      
      R. A. Harrison, E. L. Taylor and T. E. Powell, for plaintiff in error:
    I. The court below had no power to issue the attachment against the defendant below and sentence him to be punished by fine and imprisonment.
    1. On the 2nd of March, 1831, congress passed “ An act declaratory of the law concerning contempt of court.” (4 U. S. Statutes at Large, 587). This act was enacted shortly after, the trial of the district judge of the United States for the state of Missouri, on an impeachment preferred against him in the United States Senate, for issuing an attachment against á member of the bar, for making a publication in relation to a suit which had been decided by the judge.. In 1834, the legislature of Ohio passed an act with the same title, by which the provisions of -the act of congress were made applicable to the several courts of this state. (1 S. & C. Stat. 258). The provisions of this act are still in force. (Rev. Stat. secs. 5639, 5640).
    This act defines and limits the jurisdiction of the courts of this state to issue attachments for contempt of court. It is a limitation upon the manner in which the power shall be exercised, and must be held to be a negation of all other modes of punishment.
    The question is, then, whether, under this act, the court below hád jurisdiction to arrest and inflict summary punishment upon the plaintiff in error for writing an article in fhe city of Cincinnati, and causing its publication in a newspaper printed and published in that city, concerning the conduct of the judge«in a case which was.on trial in said court in the city of Columbus.
    2. The history of this act, the time of its passage, its title and provisions, must be considered together, in order to ascertain its meaning and construction. These show that it was intended to be a prohibition of the exercise of summary jurisdiction over contempts, excepting only such as the first section of the act defines and provides may be punished summarily.
    3. When it was enacted, the act of congress had received that construction by the federal courts. (Ex parte Poulson, 
      Hazzard’s Reg.,vol. 15, p. 380). When an act of congress is adopted in the legislation of one of the United States, its settled contemporaneous construction is deemed to accompany and form part of it. (See Cathart v. Robinson, 5 Pet. 264 ; McDonald v. Hovey, 110 U. S. 619).
    4. As the act defines and limits the extent to which the courts of this state can exercise jurisdiction over contempts, and the manner in which it shall be exercised, the question is, not whether authority exists in the courts of this state to punish contempt of court summarily, but the inquiry is, what is the extent of the power, and the mode in which it may be exercised, under the act.
    5. Arbitrary power is repugnant to the nature of our institutions. There are certain vital principles in our government which prevent the exercise of such power by any department, excepting to the limited extent absolutely demanded by imperious public necessity. Implied reservations of personal rights, arise from the essential nature of all free governments, without which the political compact could not exist. The power to punish summarily, being derived from necessity, the law' of necessity fixes its bounds. The necessity is limited to the preservation of order and decorum in court, and the enforcement of the mandates and decrees of the court. (See 2 Bishop’s Grim. Law, sec. 243).
    6. In this state, it is the legislature, not the court, which has the power to define ■ a crime and ordain its punishment. Contempt of court is a specific criminal offense, punished sometimes by indictment, and sometimes in a summary proceeding. In either mode of trial the adjudication against the offender is a conviction of a crime. (Passmore Williamson’s Case, 26 Penn. St. 18) ; and the imposition of a fine for a contempt is a judgment in a criminal case. (New Orleans v. Steamship Co., 20 Wallace, 387, 392). It follows that the legislature may define and limit the power to punish public or criminal contempts. If the authority of the legislature upon the subject be not unlimited, surely it must be conceded that it exists to the extent of providing that the power to punish by imprisonment and fine, in a summary manner, without the intervention of a jury, shall be exercised only when necessary : (1) to insure order and decorum in the presence of the courts : (2) to secure faithfulness on the part of their officers, and (3) to enforce obedience to their lawful orders, judgments and process; and that when a contempt is committed out of court, as the writing or publication of articles reflecting on the conduct of the judge, other legal remedies shall be pursued to redress the wrong. It is universally held that the jurisdiction of inferior courts of record, is limited to contempts committed in court. (The Queen v. Lefroy, L. R. 8, Q. B. 134). By the common law of England, libels on courts of superior jurisdiction were held to be contempts; but this did not apply to courts of inferior jurisdiction. But in England the power in such superior courts to punish for constructive contempt, originated in a fiction, and was for a purpose that has no analogy in our government. In the superior courts at West-minister, which represent the one superior court of the land, this power was coeval with the original constitution, and has always been exercised by them. These courts were originally carved out of the one supreme court, and are all divisions of the aula regis, where it is said the king in person, dispensed justice, and the power of committing for contempt was an emanation of the royal authority, for any contempt of court is a contempt of the king. The theory of the British government requiring royalty to be invested with an imaginary perfection, is diametrically opposed to the principles of our popular government; so that here, the power has not even a fiction for its support. (See Storey v. People, 79 Ill., 45).
    7. Said acts are founded upon the conviction, justified by experience, that it is unsafe to vest the power to punish, in a summary manner, contempts which consist of publications in newspapers, and the like; and that the exercise of arbitrary power, when imperious public necessity does not require it, is destructive of the legitimate object of its exercise, for the reason that nothing destroys authority so much as the exercise of power pressed too far, especially when the officer exercising it is, from the nature of the subject-matter of the proceeding and his relation thereto, under strong temptation to unduly strain or exercise his power. One of the maxims of the law is, a judge cannot punish a wrong done to himself. (12 Coke, 114). Another is, no one can be judge in his own case. (12 Coke, 13). No class of men can be safely entrusted with irresponsible power; so it is dangerous to entrust any class of officers with arbitrary power, especially in cases where they have a direct personal interest or feeling. In such cases precise limitations are needed; and the congress and the legislature, deeming any shred or remnant of undefined common law power to punish, dangerous, prohibited it; and in doing so have, in effect, enacted that no court of this state shall have power to fine and imprison for contempt of court when that contempt is committed out of court, as the writing or publication of articles reflecting on the conduct of the judge. The legislature provided other remedies for such proceedings. Such legislation has been sustained in New York and Pennsylvania. People v. Court of Oyer and Terminer, 101 N. Y. 245; Foster v. Commomoealth, 8 W. & S. 79. In the latter case, Chief Justice Gibson remarked : “ The end in view was to abolish the obnoxious process of attachment for contempt, in all but a few specified cases; not to narrow a libeler’s liability to punishment, by interdicting any procedure which allows him the benefit of trial by jury.-”
    8. Inasmuch as the courts of common pleas of this state derive their actual existence and jurisdiction from the general assembly, it follows that their power to punish contempts in a summary manner is under its control, and it may deprive the courts of the state of authority to punish in that manner outdoor publications, of any character. The legislature has abrogated the English common law distinction as to the power to punish contempts, between the superior and other courts of record. The fact that such power has nowhere been deemed necessary in inferior courts of record, shows that it is not necessary in superior courts, and but for the fiction that any contempt of such courts is contempt of the king, the distiction would never have had an existence at common law. Business cannot be conducted in any court unless the court can suppress disturbances, and the only means of doing that is by immediate punishment; and, therefore, the legislature expressly empower the courts, whether of superior or inferior jurisdiction, to inflict summary punishment for such contempts.
    9. As the tribunal to punish contempt in a summary manner will be the tribunal whose authority has been contemned, the power is necessarily limited, and the legislature may prescribe the mode of its exercise.
    10. The fundamental fallacy upon which the proceeding in the court below is founded, is the postulate, that the courts of common pleas .of this state have the inherent and absolute power to inflict summary punishment upon any person guilty ■of conduct of such a nature as by the common law of England is punishable as a contempt. This fallacy is based on the assumption that the undefined English common law power of courts of superior jurisdiction to punish as contempt, whatever such courts may adjudge to be contempt of their authority, vested absolutely in the several courts of common pleas of Ohio the moment the general assembly invested them with jurisdiction ; and that, therefore, it was not competent for the general assembly, either when it provided for their organization or afterward, to fix any limitation upon, nor to define, the undefined common law power of the superior courts of England to punish contempts, nor to regulate the mode of the exercise of such power.
    Although power to punish contempt may have vested in the courts of common pleas’ upon their organization, it was, nevertheless, competent for the general assembly, under the authority expressly' conferred upon it by the constitution (Art. IV, sec. 4), to “ fix by law the jurisdiction of the courts of common pleas, and the judges thereof,” to define their iurisdiction to punish for contempt and to prescribe the mode of its exercise.
    Courts of common pleas derive no jurisdiction from the constitution. Their entire jurisdiction is conferred upon them by the legislature. In this respect, the federal courts inferior to the supreme court and the courts of common pleas stand upon the same footing. The former derive their powers from the congress, and the latter derive theirs from the general assembly. The Supreme Court of the U. S. in Ex parte Robinson, (supra), held said act “ declaratory of the law of contempt,” to be valid. And this court has enforced the act of the legislature which was copied from the act of congress. Baldwin v. The State; Lowe v. The State, (supra). In Stevens v. The State, 3 Ohio St. 453, it was held, that the constitution confers no jurisdiction whatever upon the court of common pleas, in either civil or criminal cases; that it is made capable of receiving jurisdiction in all such cases, but can exercise none until conferred by law; and that the jurisdiction of the court of common pleas in any county may, after it has been conferred by law, be taken away by the genei’al assembly and vested in another court created by law. The constitution ordains that there shall be courts whose name shall be courts of common pleas, but that these courts shall have such jurisdiction as may be conferred by law. It would, therefore, be absurd to say that the general assembly simply because the constitution gives a name for a court, but whose jurisdiction is to be fixed by law, can not define and limit the power of such court to punish contempt in a summary manner, whereas it has authority to define and limit the power of other courts created and named by it, and whose jurisdiction in any county may be the same as that vested by law in the court of common pleas.
    11. The power to punish, summarily, for contempt of court, is, in its nature, an exception ,to the provisions of the constitution. It is a power to deprive a man of his liberty, without a jury and without a regular trial. It can not, therefore, be extended, in the least degree, beyond the limits which have been imposed by the statute. No implication, and no fancied necessity, can be permitted to add to the literal meaning of the words by which the legislature restricted this power. Lowe v. The State, 9 Ohio St. 337; Baldwin v. The State, 11 Ohio St. 681; Rutherford v. Holmes, 5 Hun. 317 ; Bachelder v. Moore, 42 Cal. 412.
    12. The phrase “misbehavior of any person or persons, in the presence of the said courts,” signifies, within the meaning of the statute, misbehavior by any person or persons who are in the room or place where and when the court is engaged in the transaction of business. If the legislature had not intended to use the phrase 'in that sense, the clause immediately following, viz.: “ or so near thereto as to obstruct the administration of justice,” would not have been inserted; for, if the word “presence” had been understood in any other sense than actual presence, that being its natural and ordinary signification, the latter clause would have been entirely superfluous. It is clear that the phrase “ in the presence of the court,” was used in the sense of the technical expression, in facie curiae; and contempts “in the face of the court” consist of wilful disturbances in the actual presence of the court. (4 Black. Com. 285). The first section of the act in terms excludes constructive presence, and provides for the punishment of direct contempts in the face of the court, or so near thereto as to obstruct the business of the court. .
    13. The phrase “or so near thereto as to obstruct the administration of justice,” was designed to provide for the summary punishment of any person guilty of disorderly behavioiso near the court room, when the court is in actual session, as to interrupt the business of the court.
    
      Baldwin v. The State, and Lowe v. The State, (before cited); The State v. Goff, Wright’s R. 78; The State v. Colter, Id., 481; Ex parte Robinson, 19 Wallace, 505; Judge Curtiss’ Lectures on the Jurisdiction of Federal Courts, p. 181; Terry, Ex parte, 128 U. S. 289.
    14. If the plain language of the first section of the act had not placed its meaning and effect beyond the reach of a quibble, the provisions of the second section as to the punishment of all other acts of contempt of court by indictment and a trial by jury, would have dispelled any doubt which might have been suggested. “ The obstruction of the administration of justice,” which the first section provides may be punished summarily, includes any such misbehavior “ in, or so near to the court,” while sitting, as interrupts the transaction of its-business; whereas “ the obstructing or impeding the administration of justice or the endeavor so to do,” which the second section provides shall be punished upon indictment found, embraces some act of corruption, or some force, or some threat, by which it is done, but which does not disturb the order and decorum of the court. These are not disturbed by the publication of aD article in a newspaper libeling the conduct of the judge in a cause, whether the same be pending or not at the time of the publication, and whether the judge, or a bystander in court, read the same to himself or not.
    15. The record shows that many of the facts upon which the court founded its sentence were supposed to be of such a nature that the court could take “judicial notice” of them. In acting upon this supposition the court erred. (Bliss on Code Pleading, secs. 177 to 199, inclusive, and cases there cited).
    
      J. T. Holmes, for defendant in error.
    The article was a gross libel, and no word of regret on account of the writing or publication thereof has escaped the respondent or his counsel.
    It was written and published pending the tally sheet trial after careful deliberation by its author. The fundamental doctrine of causation and liability appplies. 1 Bishop’s Crim. L. sec. 641.
    No pleadings are necessary in such a proceeding. Rev. Stats, secs. 5639, 5640; Steube v. The State, 3 C. C. Rep. 383.
    It is claimed that the publication did not affect or interfere with the administration of justice. No one can measure, or weigh, or know, its effect on the administration of justice.
    
      We hnoio the jury disagreed. Reg. v. Wilkinson, 41 Up. Can. Q. B. 42.
    Under the statute, no allegation of such interference is requisite. Misbehavior in the presence of the court completes the offense.
    Sec. 5639 is not as good English as the act of 1834, S. & C. 258, or as the Federal Act of March 2, 1831.
    These are eonstitutional courts, bringing into being with them inherent power to punish such a contempt summarily.
    The general assembly did not create them and cannot, therefore, destroy or limit their right of self-defense, their power of self-protection, in this respect. State v. Morrill, 16 Ark 384, Dandridge case, 2 Va. Cas. 409; Bayard v. Passmore. 3 Yates (Pa.) 438 ; Rex v. Clement, 4 B. & A. 233; Tenny’s case, 23 N. H. 166; Oswald’s case, 1 Dall. 343; State v. Matthews, 37 N. H. 450 ; Cossart v. State, 14 Ark 539; Hawes’ Jurisdiction of Courts, sec. 8; Chandler v. Nash, 5 Mich 409; Rowe v Rowe, 58 Mich. 353; Streeter v. Patton, 7 Mich 341; State v. Frew & Hart, 24 W. Va 416; Arnold v. Com., 80 Ky. 300; Little v. State, 90 Ind. 338; People v. Wilson, 64 Ill. 195; Ex parte Rohinson, 19 Wall. 513; State v. Woodfin, 5 Ind. 199; Neel v. State, 9 Ark. 259; Ex parte Adams, 25 Miss. 893; Bishop’s Stat. Cr., sec. 137, 1st Ed; 1 Thomp. on Tr., secs. 125-128; Holman v. State, (Ind.) 5 N. E. Rep. 557; Cheadle v. State, 110 Ind. 301; Mr. Wirt in Peck’s case, 497, 500—501; Cartwright’s case, 114 Mass. 230; Sturoc’s case, 48 N. H. 428; Darby’s case, 3 Wheeler’s Cr., Cas. 1; Tyler’s case, 64 Cal. 434; Harwell v. State, 10 Lea 544; Storey v. People, 79 Ill. 47; Stimson’s Am. Stat. L. sec. 582; Watt v. Lightwood, 2 R. H. L. 361; Middlebrook v. State, 43 Conn. 257; Cheeseman case, 46 N. J. L. 137; State v. Myers, 19 Law Bulletin, 302-315.
    That the power to punish summarily may be hastily or arbitrarily exercised is not an argument to disprove its existence or the necessity of its being lodged in the courts. Ex parte Terry, 128 U. S. 289-314; Bradley v. Fisher, 13 Wall. 350; Mr. Wirt in Peck’s case, 497; Cheeseman case, 46 N. J. L. 137; Reg. v. Wilkinson, 41 Up. Can. Q. B. 42.
    The ordained and necessary instrumentalities of courts are under the same protection. 4 Bl. 126
    The olfenso of respondent was in the presence of the court and was designed to obstruct the administration of justice.
    
    See. cases and authorities supra; also, Harston’s Code, secs. 1211, 1212; Sinnott v. State, 2 Lea 281; State v. Doty, 32 N. J. L. 403; Com. v. Feely, 2 Va. Cas. 1; Hollingsworth v. Duane, Wall. 77—102; Bronson’s case, 12 Johns. 460; U. S. v. Patterson, 26 Fed. Rep. 509 ; U. S. v. Carter, 3 Cr. C. C. 423; Onslow v. Whalley, 12 Cox’s Cr. Cas. 358; Skipworth v. De 
      
      Castro, Id. 371; Johnson’s case, 20 Q. B. 68; U. S. v. Emerson, 4 Cr. C. C. 188; State v. Garland, 25 La. Ann. 533; Rex v. Wigley, 32 E. C. L. 415; Davis v. Sharon, 1 Cr. C. C. 287; U. S. v. Schofield, Id. 130; Blight v. Fisher, Pet. C. C. 41; Bridges v. Sheldon, 7 Fed. Rep. 19; Stewart’s case, 3 Scam. 395; 2 Bishop’s Cr. L. sec. 259, 7th Ed.
    Corrupt approach to a juror, or similar act, though many miles from the court house, would be punishable summarily under section 5639 or not at all, as a contempt.
    It is argued that the offense is punishable criminally and to punish as for contempt, would violate the maxim “ nemo bis vexari.” This is in the face of all authority. To claim that an assault and battery of a judge while, holding court can be punished by indictment only is to shock the universal sense of decency and order in the administration of justice.
    1 Bishop’s Cr. L. sec. 1067, 7th Ed; Reg. v. Martin, 5 Cox’s Cr. Cas. 356 ; Cartwright’s case, supra.
    
    
      Baldwin v. State, 11 Ohio St. 681, is not fully reported and the files show that the charge made was not under the section of the statute now in question.
    Summary punishment for contempt, is not an infringement of the state constitution which guarantees to the citizen trial by j ury.
    Wall. C. C. 77; 32 N. J. L. 403; 4 Paige, 397; 23 Minn. 411; 7 Biss. C. C. 329; 12 Iowa, 208; 37 N. H. 450; 4 Eng. 259 ; 128 U. S. 289; Cooley on Const. Prov. 390, n. 3; 13 Neb. 446; 24 Tex. 12 ; 4 Ark. 257.
    A mere disclaimer of all intention of contempt does not purge the contempt or relieve the party from the consequences of the act committed by him. Watson v. Savings Bank, 5 S. C. 189; Wartman v. Wartman, Taney’s C. C. 362; State v. Garland, 25 La. Ann. 532; People v. Freer, 1 Caine’s Rep. 518 ; In re Wooley, 2 Ky. 95; Terry’s case, 36 Fed. Rep. 419; Rapalje on Contempts, secs. 49 and 121 and notes. See 9 Fed. Rep. 316; 64 Ill. 195; 24 W. Va. 467; Henry v. Ellis, 49 Iowa.
    The court properly took judicial notice of what occurred under the presiding judge’s five senses, pending the tally sheet trial and tbe proceeding before him, resulting in the punishment of respondent as a witness therein. There is no rule of law requiring an abjuration of such knowledge .under the circumstances.
    The power to punish such contempt summarily inheres in the court, coming into existence at the same moment, and is not conferred on the court, nor carl it be taken away, by the general assembly.
    It is not a part of jurisdiction, technically speaking, under the constitution.
    In this view the Steven’s case, 3 Ohio St. 453, cuts no figure.
    It is contended in behalf of plaintiff in error, that he was entitled by way of defense, to show the truth of his scandalous charges, and 10 Ohio St. 548 and 3 Johns. Cas. 337, are cited to sustain the proposition. Neither case even leans that way, and the line of authority the other way is unbroken.
    For the first time in the history of this cause, counsel in argument move to our ground. “ The statutory enactments on the subject have not changed the law; ” in other words, they are “declaratory of the law concerning contempts.”
    The power in question is sanctioned by immemorial law.
    Counsel say “jurisdiction is power and power is jurisdiction. They are one and the same thing as applied to the courts.” Again, it is said the “courts derive all their powei’s from the act of the general assembly.”
    These positions are untenable.
    The general assembly does not derive its power to punish contempt' from its own act but the power inheres in the body under the constitution. So, with courts established by the organic law. Where the general assembly has power to create a court it may, if not restrained by the constitution,'destroy such court’s power to defend itself and leave it an object of contempt, but not otherwise. 7 Ohio St. 333.
    
      J. H. Collins, for defendant in error.
    I. At common law the publication made by plaintiff in error, is a contempt, clear and unquestioned. In the matter of 
      
      Sturve, 48 N. H. 428 ; Respublica v. Oswald, 1 Am. Dec. 246 ; Respublica v. Passmore, 2 Am. Dec. 388, and note ; State ex rel. De Buys v. Judges Civil District Court, 32 La. Am. 1261 ; Cooley on Torts, 424; People v. Wilson, 64 Ill. 221; Hollingsworth v. Duane, Wall. C. C. 77; Bronson’s case, 12 Johns. 460; State v. Morrill, 16 Ark. 384; Stuart v. People, 3 Scam. 405; 2 Bishop’s Crim. Law, § 259 ; In re Cheltenham, etc., R’y, L. R. 8 Eq. 580; Daw v. Eley, L. R. 7 Eq. 49 ; Littler v. Thomson, 2 Beav. 129; In re Crawford, 13 Am. Jur. 955 ; Regina v. Ounslaw, L. R. 9 Q. B. 219; s. c., Cox C. C. 358; 5 Eng. Rep. 443; Regina v. Skipwith, L. R. 9 Q. B. 219 ; s. c., 5 Eng. Rep. 456; Regina v. O’Dougherty, 5 Cox C. C. 348; Anonymous, 2 Atk. 469 ; State v. Frew, 24 W. Va. 416 ; Matter of Moore, 63 N. C. 397 ; Tenny’s case, 23 N. H. 162; Stovey v. People, 79 Ill. 45; Ex parte Van Hook, 3 City Hall Rec. 54; Ex parte Spooner, 5 Id. 109 ; Dunham v. State, 6 Ia. 245; Ex parte Hickey, 4 Smedes & M. 751; People v. Freer, 1 Cainas, 484; Henry v. Ellis, 49 Iowa, 205; Morrison v. Moat, 4 Edw. Chan. 25.
    II. Even with the strict and limited construction claimed for section 5639, Revised Statutes, the information makes a case thereunder.
    Misbehavior, according to Bouvier, is “ improper or unlawful conduct.” The attorneys for the plaintiff in error not only concede that his conduct was improper and unlawful, but they go beyond this and assert that it was criminal, and so infamous that he cannot be punished therefor, except upon the presentment of a grand jury.
    But was it “ in the presence of or so near the court or judge as to obstruct the administration ofjustice”?
    If the act did, in fact, obstruct the administration ofjustice, it would seem to follow logically, that he was near enough to the court to perform the act. But it is insisted that he was in Cincinnati, and what he did was done there, and that, therefore, he was not near enough to come within the provisions of the statute. In the case of Robbins v. State, 8 Ohio St. 157, it is held, that if the prisoners delivered poison to his victim in Shelby county, to be taken by her in Marion county, and that she there swallowed it,; or if it had been sent to her there by the prisoner for the purpose of being given to her; and if she, having received it from him, should swallow it, by which death ensued, in either case the defendant would be guilty of administering poison in Marion county. Suppose Myers, being in Cincinnati, had, by any means whatever, sent or procured dynamite or other destructive agencies, to have been so used in the court house in Franklin county, as to destroy life, it would not be pi’etended that he might not be charged with being present in the county of Franklin and in the court house, and so using the destructive articles as to commit murder, although in point of fact he was not personally present, but was in Cincinnati.
    In the present case Allen Olds Myers was a defendant in a criminal prosecution; was jointly indicted with one Robert B. Montgomery; a separate trial had been granted, and Mr. Montgomery was being tried, and while so being tried the article here charged was written by Mr. Myers in the city of Cincinnati; was printed in the Cincinnati Enquirer with the full knowledge on the part of Myers that it would be read by thousands of persons in the city of Columbus, and by scores in the court house and court room, during this trial; and its. purpose was to prejudice the public and the officers of the court against the judge presiding at that trial, and for the purpose of influencing the action of the court by unduly overawing and scandalizing it.
    If, in the cases suggested, it would have been perfectly proper and legal to have charged Allen Olds Myers with being' present and administering poison, although personally in Cincinnati, what reason can be suggested against the application of the same rule to the case at bar? It was an attempt on the part of Myers to poison the mind of- the public, and it was his intention to destroy the moral influence of the court by exploding in the court room the publication referred to.
    That an attempt to degrade the court and thus destroy its power and influence amounts to an obstruction of the administration of justice, is fully sustained by the authorities already cited, and in the light of these authorities can not even be questioned.
    III. A liberal construction should be given to statutes which declare and limit punishable causes for contempt. State v. Galloway and Rhea, 5 Caldwell, 326.
    IV. The courts have inherent power to punish contempts, outside of any and all legislative authority. Little v. State, 90 Ind. 338; Underwood v. Duffee, 15 Mich. 361; Chandler v. Nash, 5 Mich. 409; Shoultz v. McPheeters, 79 Ind. 373; United States v. Hudson, 7 Cranch, 32; Sanders v. State, 85 Ind. 318; Cavanaugh v. Smith, 84 Ind. 380; Nealis v. Dicks, 72 Ind. 374; Neel v. State, 9 Ark. 259; Clark v. People, Breese, 340; Ex parte Smith, 28 Ind. 47; Brown v. Brown, 4 Ind. 627; State v. Mathews, 37 N. H. 450; Com. v, Dandridge, 2 Vir. cases, 408; Ex parte Biggs, 64 N. C. 202; Cartwright case, 114 Mass. 238; 4 Blk. Com. 284-288; Acta Canc. 200, 264, 321, 373, 642, 753, 755; The King v. Almon, Wilmot, 243, 254; Clarke’s Praxis, tit. 62; Mass. Col. Laws (ed. 1672), 36 ; Anc. Chart. (o.); Thwing v. Dennie, Quincy, 338; 6 Dane Ab. 528 ; Folger v. Hoogland, 5 Johns. 235; Ex parte Kearney, 7 Wheat. 38; Durant v. Supervisors, 1 Woolworth, 377; Winslow v. Nayson, 113 Mass. 411; McDermott v. Clary, 107 Mass. 501; Rex v. Ossulston, 2 Stra. 1107; S. C. Nom.; The King v. Pierson, Andr. 310; Spalding v. People, 7 Hill, 301; S. C., 10 Paige, 284; 4 Howard, 21; State v. Woodfire, 5 Ired. 199; State v. Williams, 2 Speers, 26.
   By the Court.

The article was a libel upon the presiding judge, but that alone did not form the basis of the information. The intention of the publication was to insult and intimidate the judge, degrade the court, destroy its power and influence, and thus to bring it into contempt; to inflame the prejudices of the people against it; to lead them to believe that the trial then being conducted was a farce and an outrage, which had its foundation in fraud and-wrong on the part of the judge and other officers of the court, and, if communicated to the jury, to prejudice their minds, and thus prevent a fair and impartial trial. Besides, the tendency was, when read by the judge, to produce irritation, and, to a greater or less extent, render him less capable of exercising a clear and impartial judgment. It therefore tended directly to obstruct the administration of justice in reference to the case on trial, and its publication was a contempt of court. The fact that, before its publication, a professional opinion was given that the publication would not be a contempt, does not change the essential character of the defamatory article, nor relieve the respondent of responsibility for its origin and dissemination. Neither was he justified in resorting to such means to right any real or imaginary wrong to himself in respect to the finding of the indictment. A plea' in abatement would have searched the record and caused the indictment to be set aside, if found by an illegal body, or procured by improper means.

The publication came within sec. 5639, Rev. Stats., which reads: “A court, or judge at chambers, may punish summarily, a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.” It is true that the article was not written, nor was it' circulated by the respondent, in the presence of the court. Indeed, it was written in the city of Cincinnati, though dated at Columbus. But the publication was in the court room, as well as elsewhere. It was intended to have effect, and did have effect, in the court house at Columbus, and the writer was just as much responsible for that effect as though he had in the court room itself, and while the trial was progressing, circulated and read aloud the article, or uttered the libelous words verbally. The acts were thus done, if not in the very presence of the court, at least so near thereto as to obstruct its business. For violation of the foregoing section of the statute the punishment is within the discretion of the court. Section 5645, which provides for the punishment by fine of not more than five hundred dollars, and imprisonment for not more than ten days, applies to offenses covered by section 5640, but not to the preceding one above quoted. The discretion here given is a sound, reasonable discretion, and its exercise in a case of this kind is reviewable. It, therefore, becomes unimportant to consider the question much argued, viz: whether or not the legislature may interfere with the inherent® power of courts to punish for contempt. And, as the court had power to try summarily, the form of the complaint is not a material question.

Though the libel was, in large part, against the presiding judge, that fact did. not disqualify him from trying the proceeding in contempt. It was not the libel against the judge which constituted the offense for which the respondent was liable as for a contempt of court. The offense consisted in the tendency of his acts to prevent a fair trial of the cause then pending in the court. It is this offense which constitutes the contempt, and for which he could be punished summarily ; and the fact that in committing this offense, he also libeled the judge, and may be proceeded against by indictment therefor, is no reason why he may not and should not be punished for the offense against the administration of justice.

The statute clearly authorizes, as did the common law, courts to punish summarily, as contempts, acts calculated to obstruct their business. They could not be maintained without such power, nor could litigants obtain a fair consideration of their causes in a court where the jury or judge should be subject, during the trial, to influences in respect to the case upon trial, ■calculated to impair their capacity to act impartially between the parties. Nor is there serious danger to the citizen in its ■exercise. Power must be lodged somewhere, and that it is possible to abuse it is no argument against its proper exercise. But we think the danger more imaginary than real. The judgments of all inferior courts are subject to review. We have an untrammeled press, which, in legitimate ways, may properly exert a powerful influence upon public opinion. All judges are liable to impeachment for any misdemeanor in office. Our entire j udiciary is elective, and all courts are thus easily within the reach of the people. These checks can, we think, be relied upon to prove an adequate protection to the citizen against any arbitrary or unreasonable use of the discretion thus given to the courts.

In considering and disposing of the case the court took judicial notice, without knowledge on the part of the respondent that it would be done, of many matters, among them the following :

That said respondent left the city of Columbus for his home in Cincinnati, Ohio, on or about the 29th day of February, 1888, under his promise to counsel for the state in the-said trial, then pending, to return as a witness upon a telegram at any time one might be sent him; that he received such-telegraphic notice and answered it on the 5th day of March,, 1888, that he would attend as such witness on the following day ; that instead of so attending, he purposely went beyond the limits of the state of Ohio to evade the service of process of any kind from this court upon him, and so remained until the end of the trial aforesaid; that said respondent attended said trial and drew his pay as a witness for said defendant from said 24th day of January, 1888, until the first day of March, 1888, and then absented himself without leave and in violation of the order of -the court, until said trial ended, and has-since, to-wit: on the 7th day of April, 1888, been tried and adjudged by this court in contempt and fined for such absence and has paid such fine and costs.”

It was competent for the court to take judicial notice of pertinent facts connected with the transaction which came within the cognizance of his own senses. But when the court assumed to take judicial notice of the facts which formed the ground of a previous jmoeeeding for contempt against respondent, and of his being adjudged guilty, we think, the court erred. If the facts were competent to be taken into consideration, which is, at least, very questionable, they were the subject of evidence, and could not be judicially noticed. Proof of a previous like offense is not competent evidence save in a small class of cases where guilty knowledge is a necessary element to be shown by the state, and such proof was not necessary in this case. Beyond this, the proceeding there noticed could have been heard before any other judge of the court, and had it been, the impropriety of taking judicial- notice of what was proven, and of the result, would be apparent to every one; and it is none the less so from the fact that the proceeding may have been heard by the j ndge who tried the case in review. The consideration of this incompetent matter was calculated to have a potent influence in determining the sentence imposed. In a case where the penalty is limited by statute, and the sentence is the lowest allowed by law, and where, upon the whole record, the punishment seems justified, a reviewing court might not feel it a duty to disturb the judgment for an error of the character referred to. But in a case where the penalty is discretionary, and it appears, as in this •case, upon the whole record that the punishment is severe, and the court cannot say that the incompetent matter did not affect the degree of punishment inflicted, we feel compelled to reverse the judgment and remand the cause for further proceedings.

Judgment accordingly.  