Carter v. State

¶1 dissenting. I agree with the solicitor-general that the power of a superior court to define and classify contempts of court is not limited by the Code, § 24-105, which reads in part as follows: “The powers of the several [constitutional] courts to issue attachments and inflict summary punishment for contempt of court shall extend only to cases of misbehavior of any person or persons in the presence of said courts, or so near thereto as to obstruct the administration of justice.” Cobb v. State, 187 Ga. 448 (200 S. E. 796, 121 A. L. R. 210). The contrary ruling in Townsend v. State, 54 Ga. App. 627 (188 S. E. 560), must yield to the decision of the Supreme Court in the Cobb case. However, in the same case (59 Ga. App. 695, 2 S. E. 2d, 116), where this court affirmed the judgment finding the defendant guilty of contempt of court, Cobb wrote and published a book in which he specifically denounced the decision of Judge Woodrum of the superior court in a case then pending in that court. Furthermore, Cobb, in his book, used the following intemperate and savage language: “Woodrum is as much a judicial prostitute as is any loose wretch who walks the streets a moral prostitute.” Obviously, Cobb was guilty of a flagrant and inexcusable contempt of court. I also agree with the solicitor-general that “the meaning and intent of a published article are to be determined by a fair interpretation of the language used, and when the only construction of the language used is that it is offensive and contemptuous, a mere statement by the writer or publisher that no disrespect to the court or the Judges was intended furnishes no reason for discharging the rule for contempt.” In re Fite, 11 Ga. App. 665 (7) (supra). However, as stated by this court, in Towsend v. State, supra, “Judge Fite, in a published article in a newspaper, had criticised a decision of the Court of Appeals in a specific case which was still pending in that court, and in so doing had impugned the judicial integrity of the Judges of the Court of Appeals in the rendition of the decision in that case.” (Italics mine.) In that case, Judge Fite, directly and specifically, denounced the court itself. In the instant case, the published language complained of did not directly mention or refer to the court, and I do not think that its, only construction is that it was intended as a criticism of the court. However, the *434 language was ambiguous and, nothing more appearing, might have been construed by some persons as a reflection on the court; but when the defendant on his trial testified under oal'h that he was not referring to the court, but to. third persons whom he named, and tlvis sworn testimony toas not contradicted by any other evidence, I think that his conviction was unauthorized. The evidence for the State was purely circumstantial, and weak at that, while the defendant’s evidence wcos direct, positive, uncontradicted, and unimpeached. “A fact can not be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable and unimpeached testimony that the fact does not exist.” Neill v. Hill, 32 Ga. App. 381 (2-b) (supra). In the last sentence of the language complained of, to wit, “We will bring this picture to'you pending court decision,” the defendant was unfortunate in the use of the word “pending,” but, under all the facts of the ease, it does-not reasonably appear that he intended to violate the restraining order by showing the picture before the court had finally passed on the matter. The only reasonable construction of the language is that' the defendant would bring the picture back when and if the court dismissed the restraining order. In my opinion, the defendant by his sworn statement and by his apology to the court purged himself of any intention to criticise the judicial act of the court in passing the restraining order.