STATE vs. RICHARD RAYNAL KEENE, 11 La. 596

STATE vs. RICHARD RAYNAL KEENE, Eastern Dist. June, 1837. ON AN ATTACHMENT FOR A CONTEMPT OF COURT. The use of abusive and impertinent language and epithets, towards the court, or any one of the judges thereof, contained in a petition for a re-hearing, signed by the party and filed with the clerk, is good and sufficient grounds for an attachment, to show cause why the party offending shall not be fined and imprisoned for a contempt of court.

Where a party signs a petition for a re-hearing with his own name, using contemptuous language, and is the plaintiff in the case, he will be considered as acting in his individual capacity, although he be a licensed attorney, and punished as such for a contempt of court. The maximum punishment for a contempt of court, committed by a party to a suit, is ten days imprisonment, and a fine of fifty dollars and the costs. This case is an attachment for a contempt of court.

On the 21st June, 1837, the defendant, who was plaintiff in a civil suit, filed with the clerk of the Supreme Court, a petition for a re-hearing, which contained the following contemptuous language and abusive epithets, against the court, and one of the judges in particular. “ Supreme Court of the State of Louisiana. “ The appellant, now, premising his disclaimer of any and every view to personality or disrespect, concludes his petition of review, by a

summary reference to the criticism that occupies the foreground of the judgment which has given rise to this petition. - The young judge who drew up that judgment; (the appellant merely refers to the official age of that judge, without meaning to diminish his claim, whatever it may be, to the honors of physical maturity or chronological seniority, because that official age only had its beginning since the termination of the last session of our senate;) the young judge, it is repeated, who drew up that judgment, dedicated its foreground to the criticism in question, doubtless on account of his opinion of the transcendant importance of the subject matter of that criticism.

And that sdbject matter, forsooth, is the language, or figure of speech used by the appellant in his pleadings in the court below ; and that language or figure of speech, derived from a practice universally participated in by people of the highest rank and best education, without the use of a single indecorous word, was adopted by the appellant, as explained in argument, to put an end to the cavils and importunities of the adverse counsel, about the extent and measure of the-appellant’s vituperation of Relf’s manoeuvres in respect of Daniel Clark’s wills.

And for this legitimate purpose, a legitimate metaphor, taken from the genteel and fashionable, nay, lady-like games of whist and ecarté, was resorted to.

The appellant merely said that ‘ Relf, after shuffling, cutting, and dealing Clark’s will-pack, turned up for himself an executor-trump.’ ” An Ephraim Avery gospelizer indeed, who wished to render permanent, by synod-ratification, an evangelical call, which, through new-born zeal in the service of Calvin’s sect, in dereliction of Westley’s fold, had been provisionally conferred upon him, in the synod’s recess, for probation, by a nominator for synod-confirmation of candidates for holy orders and holy offices; such a gospelizer, indeed, might well enough have made that metaphor a text for the out-pourings of his hypocrisy and cant.

But surely the appellant could never have foreseen or anticipated that it would have been made the subject of animadversion, now, after having passed unscathed through the fiery furnace below; especially by a judge, who, in his recent character of attorney of or for the United States, when, as such, he was bound by his elevated station, to set an example to his brethren of the bar, of courtesy and respectfulness towards a brother lawyer, distinguished as much for his urbanity and refinement as he is for his knowledge and eloquence, used such language, and that, loo, in open court, in high-pitched tone, as shocks the ear of g00(J breeding, and puts delicacy to the blush !

Relf, doubtless from a consciousness of the propriety of the appellant’s metaphor, acquiesced in the use that was made of it, for the record furnishes no trace of his opposition thereto. But Soulé, from a sense of injury, was not acquiescent in the belligerent action of the United States’ attorney; for, besides putting in, instanter, his contestatio litis, he reconvened upon his warlike adversary, with a demand for satisfaction in chivalry.

But lo ! that adversary, in hallelujah accents, plead a peremptory exception, founded, not in Louisiana law, but in the code of holy writ! “ Hence, then, does it appeár, that to óne and the same • personage, in his character of national advocate, a peremptory exception to a reconventional demand, was every thing, although ■that exception is unknown to the laws and customs of Louisiana; whilst, in his character of a state judge, a peremptory exception, founded on Louisiana law, goes for nothing ! “The appellant, claiming due weight for the full and irresistible proofs in the record, that show that the verdict given against him was contrary to law and evidence; and being deeply impressed with the wrongs inflicted upon him by the judge it quo, in the first place, in letting a garbled and mutilated document go to the jury, without the rightful and essential accompaniment of the

schedule to which that document referred; and, in the next place, in biassing and warping the sentiments, and exciting and bespeaking the sympathies of the jury, in favor of the appellee, by trampling upon the law of reconvention and of peremptory exceptions, thereby giving them, the jury, to understand that the defendant, Relf, was a fit candidate for damages, because the plaintiff, Keene, in accordance, with his rights as a citizen, and his duties as an advocate, had shown, incontestibly shown, that the fate of Daniel Clark’s last will and estate was such as he, Keene, had set forth in his allegations in relation thereto; the plaintiff and appellant, Keene, being thus impressed, prays of this honorable court a new hearing in this case; and moreover, prays that this new hearing be decided upon by a full bench of senate-sanctioned judges.” “RICHARD RAYNAL KEENE, p. p.” This petition was handed to the judges the same evening after it was filed, and one of them took it to his chamber for examination.

On returning to court the next day, the judge communicated the contents and extraordinary character of the petition, to his colleagues. On consultation it was ordered, that an attachment issue against Richard Raynal Keene, Esq. to show cause why he should not be punished for a contempt of court. On the 23d of.June the court met, and the defendant was brought into court, by the sheriff of the city and parish of New-Orleans. Mazur eau, attorney < general, appeared on behalf of the state, and read 'the part of the petition for a re-hearing, relating to the contempt.

He commented on the violent and abusive language which it contained, and moved that the defendant be fined and imprisoned for a contempt of the judicial tribunal and authority of the state. Keene, in propria persona, defended, and urged that the language used, was not contemptuous and libellous, but only cutting and severe, which he intended it should be ; that it was decorous in the manner, and such as might be used in a lady’s drawing room, without giving offence to the most chaste or delicate ear. 2.

The defendant further contended, that if he was, in any .manner, guilty of a contempt, it was in his capacity of attorney and counsellor at law. He relied on the statute of March 27th, 1823, and the first section, to show that an attorney at law could not be fined exceeding one hundred dollars and imprisoned, not exceeding twenty-four hours. He also cited the second sectiqn of this act, and contended, that according to its provisions, no contempt by an attorney' at law could be committed, unless what was said or done had been done in the presence of the court. 1 Moreau’s Digest, 281.

The Attorney General, in reply, showed that the contempt in this case, was committed by the defendant, in his private capacity, as a party plaintiff in the suit, in which he applied for a re-hearing; that the law in such cases is to be found in the Code of Practice. It was unnecessary in this case whether the contemptuous language and abusive epithets were used in court or out of it; it was equally a contempt if it was contained in a written document addressed to the court and signed by the party, and which the court were bound, officially, to notice.

This, he contended, was a gross contempt, and should be punished to the extent of the law. He cited the 131st

article of the Code of Practice, as follows: “ The judges of the Supreme, District, and Parish Courts, have the power to punish all contempts of their authority, by fine, not exceeding fifty dollars, and imprisonment for a period not exceeding ten days for each offence of that kind.” Martin, Presiding Judge, pronounced the sentence of the court, as follows : ' The pains which the defendant has taken to read, for the information of the bar and the by-standers, the petition he had previously filed in this court, for a re-hearing in his case, dispenses us with the necessity of noticing, particularly the different parts of it, which have no reference to the judgment of which he complains, but are evidently introduced to vent his abusé against the member of this court, who was in that case its organ in drawing up its opinion.

This abuse is of such a nature, and the facts which are stated are so totally unconnected with the object of the application, that the attack on this judge cannot be attributed to an excess of zeal in an endeavor to attain that which the defendant might consider as his right. Most of the facts alleged are absolutely irrelevant and untrue. The attack was entirely unprovoked; the defendant