Page:The Green Bag (1889–1914), Volume 17.pdf/223

 THE GREEN BAG left corner of the mouth and stabbed him on the left side, over lower ribs, upon the left hip, on the left elbow, and on the left hand." O'Neal admitted in his affidavit that the conversation was "however concerning chiefly the bringing of the said suit against the said bank." The great question in the case was whether he made an assault with intent to kill upon Greenhut "concerning chiefly the bringing of said suit, " or whether he was properly repelling an assault made upon him by Greenhut. Upon this point O'Neal and Greenhut were directly at issue. At the hearing Greenhut was impeached only by the opposing testimony of O'Neal, there being no other eye witness to the beginning of the affray. On the other hand O'Neal having sworn in his affidavit made about fifteen days be fore the hearing, "that Greenhut in his an swer to the suit on the $1,500 note had inter posed a defense which this respondent be lieved and believes to be untrue, and known to the said Greenhut to be untrue" admitted on his cross examination at the hearing that he didn't know what the plea in that case was, an admission that did not tend to sustain his credibility as a witness. He admitted he had pleaded guilty to three criminal charges, one, shooting across a public street, and two, for carrying concealed weapons, neither of which were calculated to commend him as a keeper of the peace. A newspaper reporter testified that immediately after the assault O'Neal gave him his version of the facts and said Greenhut gave him the lie when he struck Greenhut and then Greenhut struck him, flatly contradicting O'Neal's subse quent version and proving him the aggressor. At the hearing O'Neal 'exhibited a small pocket knife as the weapon used by him. One witness who held O'Neal and tried to take the knife from his hand, with which he had been asserting his judicial rights against the trustee in bankruptcy, testified that the knife exhibited was not the knife used, and another witness not so positive,

said he did not think it was the same. If he had any regard for the weight of evi dence, how Judge Swayne could have done otherwise than accept Greenhut's version, it is difficult to see. How any intelligent, fairminded man fully informed as to the facts, could have held otherwise is not perceived. A fortiori Swayne did not commit an impeachable crime in so doing. O'Neal was convicted,, sentenced to sixty days imprisonment, a writ of error to the Supreme Court of the United States was sued out, a supersedeas of the sentence was granted and O'Neal wasnever imprisoned a moment for his murder ous assault. That court held that "Juris diction over the person and jurisdiction over the subject matter of contempt was not challenged. The charge was the com mission of an assault on an officer of the court for the purpose of preventing the dis charge of his duties as such officer, and the contention was that on the facts no case of contempt was made out." In other words the contention was ad dressed to the merits of the case, and not tothe jurisdiction of the court. (190 U. S. 36.) The judge's jurisdiction, his right to hear and determine the question of contempt, on such a state of facts was then challenged in a habeas corpus proceeding before Judge Pardee, Judges Shelby and McCormick sit ting with him. They unhesitatingly and unanimously held: "The question before the District Court in the contempt proceeding was whether or not an assault upon an officer of the court, to wit, a trustee in bankruptcy, for and on account of, and in resistance of, the per formance of the duties of such trustee, had been committed by the relator; and if so, was it, under the facts proven, a contempt of the court whose officer the trustee was? Unquestionably the District Court had juris diction summarily to try and determine these questions, and, having such jurisdiction, said court was fully authorized to hear and decide and adjudge upon the merits."" (125 F. R. 967.)