Page:The Green Bag (1889–1914), Volume 17.pdf/222

 THE IMPEACHMENT OF JUDGE SWAYNE mick and Shelby sitting and concurring •with him he held: "The relator is an at torney and counsellor of the United States Circuit Court for the Northern District of Florida and as such one of the officers of the court within the intent and meaning of the above statute. As such officer he was and is charged with conduct in and out of court, which if accompanied by malicious intent or if it had the effect to embarrass and obstruct the administration of justice was such mis behaviour as amounted to a contempt of court. To hear and decide whether the relator was guilty of such contempt was clearly u-ithin the jurisdiction of the court" (112 F. R. 139). When sustained by three disinterested judges, Judge Swayne could hardly be said beyond a reasonable doubt to have wrongfully asserted jurisdiction. He sentenced them to two years disbarment and imprisonment for ten days and one hundred dollars fine. Mr. Blount immedi ately called his attention to the erroneous disbarment and it was at once remitted. The statute only authorized fine or impris onment. No one at the time consulted the statute and the respondents made no ques tion as to the propriety of the sentence. No one seems to have known at the time that the sentence could not be cumulative. A petition for habeas corpus was made out and seventeen reasons alleged as the ground thereof, but the illegal sentence was not relied upon. Judge Pardee in his opinion called attention to it and gave the respond ents the option of serving the time or pay ing the fine. They had both served three days. Beiden elected to complete the time but Davis paid the fine, so that neither was injured by the erroneous sentence. There was nothing to show that Judge Swayne knew the requirements of the stat ute in this respect, and constructive or in ferred knowledge as distinguished from actual would hardly be sufficient upon which to predicate express malice. There was a good deal of conflicting testimony as

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to the language used by Judge Swayne in passing sentence. It was claimed and de nied that he characterized their conduct as a "stench in the nostrils of the decent people." It was at least doubtful whether he used that expression and it was admitted that he expressed regret at being obliged to sentence Mr. Beiden who was some seventy years of age and suffering from facial pa ralysis. On these articles the vote was uniform, 31 guilty and 51 not guilty. The 1 2th article was based on the O'Neal contempt case. On this article the man agers asserted in argument that the facts material to the issue were not in dispute. Nothing could be farther from the facts. On the material facts there was a direct and irreconcilable conflict of testimony. Mr. Greenhut was at one time a director in the American National Bank of Pensacola, of which Mr. O'Neal was president. While such a director the bank negotiated a loan to Scarritt Moreno of $13,000, and received security therefor. There was some question as to its value. The loan with the security was transferred to a director of the bank for $10,000. Meanwhile Greenhut had en dorsed a note to the bank for Moreno, for $1,500. Greenhut refused to pay the note, claiming that the bank had security which should be applied thereto. Moreno became insolvent and Greenhut was appointed his trustee and under the advice of his counsel brought a suit in equity, claiming an in terest for the bankrupt estate in the secur ity, and made the bank a party thereto. The suit was brought on Saturday, and on the following Monday, as O'Neal states in his affidavit, as he was going to the bank he saw Greenhut standing in the door of his store "and it suddenly occurred to respondent to reproach the said Greenhut with having brought the suit mentioned in his affidavit against said bank." He entered Greenhut's store in which an altercation occurred, as the result of which O'Neal cut Greenhut with a knife "at a point behind the left ear, then across the left cheek, ending at the