S3
THE SUNDAY OBEGONIAN, PORTLAND. DECEMBER
H. E J'GINN FINED
Contempt Proceedings Heard
in Circuit Court.
JUDGE FRAZER'S- DECISION
Throueh His Attorney, Judge
George, Answer Is Made by
Mr. McGinn to Con
tempt Charges.
The rontempt proceedings against
Henry E. MrGinn were called up in
the Circuit Court yesterday morning
when the following proceedings were
had:
JUDGE) SEARS: There is a matter
now set .or this time. I desire to. say
that Jndee rleland on account of ill
ness la unable to be here; he was auite
pick yesterday and unable to come
down. Do you desire to address the
Court?
JUDGE GEORGE: If the Court
please, I appear hore in behalf of
Judge McGinn in tins mauer, ana no
has filed an answer. I don't know
whether the State would ,be ready to
take the matter up now or at some
later period.
THE COURT: The State?
JUDGE GEORGE: Whoever repre
sents the Court in this matter.
THE COURT: I don't think it is
necessary that anyone should repre
sent the Court. The Court is all of the
opinion that the matter be disposed of
at this time.
JUDGE GEORGIA: I suppose the
Coqrt has not heard the answer that
has been filed in the matter?
THE COURT: No, we have not.
JUDGE GEORGE: If the Court will
indulge me I will read it, although I
did not expect to. My throat is n a
condition where I do not care to read
the matter, but I suppose in order to
present It to the Court I would first
have to read it to your Honors.: "With
the usual heading' ".Vow comes the
above named Henry E. McGinn, and ad
mits, etc." (Reading answer as fol
lows:)
Mr. McGinn's Answer.
IN' THK CTKPt'IT COITRT OF THE STATE
OF OREGON, FOR MULTNOMAH
OOUNY.
In the matter of contempt proceedings
asalnst Henry E. McGinn, an attorney of
this court.
Now, conies the above-named Henry E.
McQinn, and admits that the language set
forth in the citation acrved upon him was
uxed by him and is substantially true, and
in mitigation and Justification of the same
says:
I.
That on the ,".d day of November. 1006.
there appeared In tiie Oregon Ian a pieture
of AVI 1 Ham M. Ladd. a citizen of the State
of Oregon, which picture so appearing Jn
said newspaper, Mr. Ladd asserted was a
criminal libel of him, published by said
orc-gonian with Intent to injure and de
fame him.
II.
That the proprietors of. The Oregonlan
contended that said picture was in no sense
a libel; but was o a character with similar
publications made by tne Oregon Journal
concerning the proprietors of The Oregonian,
The Orcgonian asserted that Mr. Ladd was
a stockholder ami a large bondholder of
the bonded indebtedness of said Oregon
Journal, and that said cartoon of Mr. Ladd
was made in a newspaper controversy be
tween the said Oregonlan and the said
Journal, and there was no Intent on the
part of The Oregonlan to defame Mr. Ladd
in any way.
' III.
That the November term of the Circuit
Court commenced on Monday, the 5th day
of November, llKitl. At the beginning of
the term it was not deemed by the Pre
siding Judge of said court. Hon. Alfred F.
Sears, Jr., or by the District Attorney.
John Manning, necessary or expedient to
call a grand jury for tho public business,
but about the loth day of November, ltt06,
the District Attorney, accompanied by Mr.
C E. S. Wood, attorney for Mr. Ladd, wait
ed upon the said Alfred F. Sears, Jr., and
requested him to call a grand jury for the
purpose of considering the publication con
tained in The Oregonlan of November 'A,
11)06. hereinbefore referred to, and as to
whether or not an indictment should be re
turned therefor.
IV.
That the Hon. Alfred F. Sears Jr.. on
Monday, tho liltl. day of November, called
ft grand jury, on which same day the grand
jury took up the Investigation of said al
leged libel. There appeared before the
grand jury the said John Manning, District
Attorney, and Mr. C. K. S. Wood, who was
by the said John Manning appointed Dep
uty District Attorney, and Mr. Ladd as a
witness. Mr. McGinn, representing The Ore
gonian. feeling that It was improper for
tuo prosecution of his client to be con
ducted before said grand Jury, by the at
torney for the private prosecutor, entered
the grand Jury room and protested to said
grand jury against tho appearance of Mr.
Wood as a prosecu tor of h Is cl ien t. M r.
McGinn retired from the grand jury room,
whereupon Mr. Wood, believing the conten
tion made by Mr. McGinn to be a correct
one, wlthdrt-w himself from said grand jury
room immediately thereafter.
v- r
That upon tlie withdrawal from tne grand
Jury room of. tho said Mr, Wood, the grand
Jury, at the request of the District Attor
ney, addressed to Hon. Alfred F. Scars, the
Presiding Judge, substantially the following:
Question:
"Can an attorney of a private prosecutor,
who has been properly appointed Deputy
District Attorney, appear before the grand
Jury with tho District Attorney?" to which
question the said Alfred F, Sears, Jr.. an
swered "Yes."
The grand jury further addressed to said
Alfred F. Sears. Jr.. nrced thereto by John
Manning, District Attorney, the following
question: "What crime Is one guilty of
who breaks Into a grand jury room without
lieing requested by the grand Jury and talks
violently of a matter which Is pending be
fore, said grand jury?" to which question
the said Alfred K. Sears, Jr., made sub
stantially the following answer: "Such a
person a.i you describe lias committed no
crime, but be Is guilty of contempt of court
and may be punished by the court therefor.
VI.
That on or about the 14th day of Novem
ber. 100H. the grand jury, after consultation,
adjudged that no crime iiad been commit
ted in the publication of said libel and that
no indictment be returned therefor
VII.
That the grand Jury adjourned on or
about 4 o'clock of Thursday, the I'lid day of
November, 190R.
That in its final report to the court tho
grand Jury recited the incident of McGinn
appearing before them to protest against
Mr. Wood's appearance as a Deputy Dis
trict Attorney; that said report was unjust
and unfair to McGinn in every way; that it
withheld the fact that McGinn simply pro
tested against Mr. Wood's appearance be
fore the grand jury; that it withheld the
Information that tho grand jury did not
know, tnat Mr. Wood was the private pros
ecutor of Mr. T.add; that It withheld all of
the material facts and recommended that
said McGinn be brought before the court
and punished for contempt. That not one
' w ord of said grand Jury report was written
by any member of the grand jury, but the
whole thereof was prepared by Jonn Man
ning. District Attorney, as aforesaid.
That tr. McGinn, meeting Judge Sears on
the night of said day at the Multnomah Law
Library, was by tho said Judge Invited into
the chambers of him, the said Judge Sears,
whereupon the Judge commenced a conver
sation with said McGinn concerning this mat
ter. That during the course of the conversa
tion; which was a private one. McGinn, having
been Invited thereto by the said Judge, Mr.
McGinn Incidentally mentioned to the said
Judge that on the morning of November 3,
when said publication was made in The Ore
gonian, he, McGinn, had called the attention
of an employe tf said Oregonlan to the fact
that said publication was libelous and that
it might be the causo of trouble. This con
versation which the said McGinn had with
the said Jrdge was by the said Judge re
peated to the said John Manning, the Dis
trict Attorney, and the said John Manning
took said conversation and repeated th
same to Mr. II. W. Scott and Mr. B. B.
Piper, editor and managing editor respec
tlvely of The Oregonlan, Mr. Manning say
lng substantially, "I have had trouble with
the Juurnal people because no true bill was
found against you, meaning the said H. w.
Scott, because your own attorney admitted
to Judgo Sears that the publication w
libelous, and If you do not believe what
tell you I can bring Judge Sears here to
prove it."
VIII.
That on the morning after the conversa
tion between Mr. Manning. Mr. Scott and
Mr.. Piper, which was reported to Mr. lie
Glnn, to wit, Saturday, November 24, the
said McGinn met Judge Sears at the Court
House and asked him, the said Judge Sears,
why he had repeated and given to said Man
nlng a private conversation which he, Mc
Glnn, had with him, the said Judge Sears.
That judge sears answered McGinn substan
tially, that he had inadvertently given said
conversation to said Manning.
IX.
That smarting under the circumstances
and for other reasons not necessary to here.
In set forth, the said McGinn appeared be-
fore the Circuit Court . In bank and de
nounced Mr. Manning for the' part which
he, Manning, had taken in the attack on his.
McGinn's professional character.
That the presiding judge of said court
allowed McGinn to depart from the Court
House without in any manner adjudging
him to be in contempt or Indicating any die-
pleasure.
That one hour after Mr. McGinn had de
nounced the said Manning, the said Alfred
F. Sears, Jr., sent for the said McGinn and
Informed him of Manning's contemptuous
manner in court and indicating to the said
McGinn that he, the said Judge Sears, had
much sympathy for the way that McGinn
had been treated.. That later in the after
noon of said day, the said Judge, without
any apparent reason changed his mind and
adjudged the said McGinn and the said
Manning to be in contempt, cited the said
McGinn to appear before him at 3 -o'clock
in the 24th day of November, 1906, to be
punished for said contempt.. When the said
McGinn appeared at 3 o'clock' said Alfred
F. Sears, Jr., without asking him why he
should not be punished for contempt or
asking him if he had anything to say. why
he should not be punished, fined the said
McGinn $23, and held that Mr. Manning had
been provoked and did not fine him, the
said' Manning. That tne said Manning re.
inalned in the court room, after McGinn had
departed therefrom, abusing said McGinn
without interruption.
X.
When McGinn was fined by the said Judge
cn Saturday, the 24th day of November, for
contempt of court, - the said McGinn Imme
dlately took an appeal from the determina
tion of said Circuit Court to the Supreme
Court of tho State of Oregon, and said
Judge Alfred F. Sears, Jr., allowed said ap
peal and allowed the said Tcnnn to go on
his own recognizance.
XI.
That on Sunday following McGinn con
sulted Judge M. C. George concerning the
phases of the situation and the advisability
of certain further proceedings. That after
full consideration it was mutually deemed
advisable to drop the same and attempt an
amieable adjustment and one that would be
satisfactory to this Honorable Court and all
concerned. That with such a state of mind
on the next morning, Monday, the 26th day
of November, 11)06, the said McGinn attend
ed the opening of the Circuit Court, where
the said Judge Sears presided. The first
case called was a case in which McGinn was
interested and McGinn arose to address the
court, whereupon the said McGinn was told
by said Alfred F. Sears, Jr., as follows: I
will state, Mr. McGinn, that as long as you
remain in recalcitrancy I cannot recognize
you; I cannot recognize your appearance in
Court." And that thereafter occurred the
language which is found in the citation
served upon the said McGinn which is the
basis of the complaint herein. '
That upon the same day the said Alfred
F. Sears, Jr., entered an order suspending
the said Henry E. McGinn from further
practice before the Court, notwithstanding
the fact that Mr. McGinn was an attorney
of the Supreme Court of the State of Oregon
and had been such attorney for twenty-five
years, and that at no time in his profession
al eareer was there ever a charge preferred J
against him of any kind.
WHEREFORE, the said Henry E. McGinn
submits himself to the order and Judgment
of the court, and prays that he go hence
without day. M. C. GEORGE,
Attorney, for
HENRY E. M'GINN.
THE COURT: I think inadvertently
you have; a mistake there, ' Judge
George;there -was no order entered of
he k-ind mentioned.
Judge George's Address.
JUDGE GEORGE: With the Court's
permission, I will erase that on the
statement oC the Judge of this Court.
I will not stop just now, but I will see
that it is erased, and I wish to say, if
the Court please, that as the Court
desires to take action upon this matter
t the present time that with the
Court's permission I will detain your
Honors but a short time in calling your
attention to a few matters that in my
mind have ai bearing upon the decision
that ought to be rendered by your
Honors in this case. This is quasi
criminal, and in all criminal procedure
the motive and the intent with which
an act is done determine the grade and
degree of the offense.' I have known
Judge McGinn for many years, since
he was a boy, and during his long and
distinguished practice at the bar of
this honorable Court.
It has been my privilege and my
honor of being associated with the pre
siding Judge of this Court intimately
as a Judge for nearly ntae years, and
I have no hesitation whatever in say-
ng that there is no man within the
sound of my voice who enjoys a great
er and a higher esteem in my mind
than the present Presiding Judge of
this Court, either as a Judge upon the
Bench or as an advocate representing
he interests placed In his hands, or as
n Judge sitting -upon the Bench to hold
the scales of justice and to do what is
right and to declare what is wrong.
It is, therefore, an unpleasant task for
me to appear in this strained situation
for the purpose of saying a word to
influence a decision and a judgment
upon a matter between two persons
who have been my lifelong friends,
and who, I hope, will always remain
such, and that no word that I may
utter or thought that I might express
would to any degree strain the pleas
ant relationship between us. In be
half of Judge McGinn I want to call
your Honors' attention to the facts and
ircumstances under which he uttered
the words that" have been charged in
the citation. Your Honor recalls that
there was a long train of circumstances
that have led up to this present un
pleasant situation. If this Court is to
nflict upon Mr. McGinn a punishment
for the words uttered here in the
resence of the Court, it may take Into
consideration the state of mind that he
undoubtedly was in at the time these
words were uttered. I was surprised
on. the evening of that Monday to read
in the papers the transaction that had
occurred here in this court-room. I
had left Judge McGinn the evening
oeiore satisnea tnat tne whole matter
would be satisfactorily arranged, con-
istent with the honor and dignity of
this Court and the respect of every
member of the Bar. I know that when
udge McGinn entered this court-room
that morning that he was still in that
tate of mind; but the facts and cir.
umstances occurring in the haste of
is Impetuous temperament, words
were uttered here in the presence of
your Honor, and the full import of
those words cannot be fully compre
hended unless we view tho mind that
was back of the lips that in haste
spoke them. Mr. McGinn thought that
one .of the mistakes that had been
made had been made by the Hon. John
Manning, as District Attorney, when he
abdicated his power as District Attor-
ey through himself and through his
regular deputies to assist the Grand
Jury, a public tribunal in the investiga
tion of a public matter, when he abdi
cated that power and that station to
he private attorney of the private
prosecutor who deemed himself ajf- j
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grieved by some action that had oc
enrred before.
Judge McGinn as a lawyer believed tnat
it was -improper for tne .District Attor
ney to allow any private prosecutor to
appear before the. secret tribunal known
as the grand Jury: that Mr. wood, now
ever eminent he is as a lawyer, how
ever excellent he is as a gentleman, was
the attorney of Mr. Ladd, paid by him
and not by the state, and he had no
right, in the opinion of Mr. McGinn, to
appear before that grand jury and pose
as a representative of the State of Ore
gon; he felt that a wrong was being
done to a client who had entrusted his
interests into his keeping. It may be
said that he should have waited and
apaeared in court and moved to set aside
any indictment that might have been
found under those circumstances, but
your honors recall that the Supreme
Court of this state has decided that there
are but two statutory causes for setting
aside an Indictment, neither of which
embraces this particular matter.
Judge McGinn, while he thought that
that was wrong, that there were other
causes for setting aside an indictment,
that when the constitutional right of any
citizen is Impaired by the action of the
grand jury in framing an indictment,
that there is a. law higher than any
statute of this state, an inherent power
n any court to set aside any indictment
that may have been found under such
circumstances, but there was . the de
cision of the Supreme Court of this state.
higher tribunal than your honors;
whether your honors would have felt
bound or felt that that was really the
adjudication meant by the Supreme Court
in a case of this kind is not for us to
discuss, but 1n th haste of the occa
sion, realizing that the enemy was there
in the secret confines of the grand Jury
working and pleading to indict his client,
believing that the grand jury did not
know its rights fully, in the haste o.f th
occasion he went and protested before
that grand jury on account of their ac
tion. Now all of us know Judge McGinn
and know his impetuous nature. We all
know the zeal that he has for a client.
Ho may have gone too far, further than
your honor would have gone, further
possibly than ' I would have gone, or
others, but are we to judge him by our
standard? Are any of us perfect, are
any of us without fault or without blem
ish? When we are charged before the
bar of public opinion for an offense com
mitted against the majesty and dignity
of the honorable Circuit Court, is it not
proper for us, for a moment, to con
sider the motive and the intent and the
temperament of the one who uttered the
words?
I will not delay this court, but I want
to -call attention to the very time this
charge refers to last Monday morning
and to have your honors consider for a
moment how Judge McGinn looked at
that matter. He came here in the court
he had been intrusted with the interests
of clients he is favored with a large
clientage a case was suddenly but regu
larly called, and It was necessary for
him to represent the interests of that
client. Tour honor, the presiding Judge
of this court, stated to him. that he was
recalcitrant.
Now. Judge McGinn looked at that mat
ter in this light, that he was not. He
had appeared before this court and had
been ' adjudged guilty of a contempt of
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court; the court had exercised its power
and had imposed a judgment of punish
ment. Under the statute of this state
your honors have tho power to fine or
imprison, or, I believe, both to a certain
extent. Your honor had within your
jurisdiction imposed a judgment that he
pay a fine of $150. From that judgment
he had appealed, as he had a right un
der the statute to do.' to the Supreme
Court of the State of Oregon. That ap
peal I am speaking now from this rec
ord, because I know nothing personally
of the facts had been allowed by this
court, and Judge McGinn had gone with
the permission of the court on his own
recognizance. The incident had been
closed. The ofTense had been committed
and a hearing had taken place, judg
ment had been entered and an appeal had
been taken to the Supreme Court of this
state, and that had the effect in the
mind of Judge McGinn to stay all pro
ceedings In that matter pending the ac
tion of the Supreme Court. That he as
an attorney admitted by the Supreme
Court of this state, with no charge pend
ing against him as an attorney, was
practically disbarred by this court by re
fusing to hear him, he felt that that was
a punishment upon the client that he'
represented, in whose absence his inter
ests could not be represented here ex
cept by Judge McGinn; and it was in
this condition of mind, feeling that the
court had exceeded its jurisdiction, that
words were uttered which are the sub
ject of investigation at the present time.
He felt that this court had no right to
disbar him, no right to refuse to hear
him; that the remarks of the court
grated harshly upon him in his condition
of mind, when it stated publicly that he
was in a state of recalcitrancy, when
he felt that he was standing upon his
legal rights as a lawyer and as a man.
I state these things as only ( one or two
of the circumstances that I care to allude
to In this present unpleasant situation,
so that the court may weigh them and
consider them and look at the matter
from the standpoint of Judge McGinn
as far as it can. with a view to doing
what is just and what is right and what
is merciful under all the circumstances
of the case. I am satisfied in my own
mind that while I am not able to present
this matter before your honors as it
should be presented, yet your honors' long
familiarity with this class of procedure,
with your knowledge as members of the
bar of the frailties of human nature
and the zeal that accompanies the dis
charge of duty to clients, you will weigh
and determine this matter and that your
decision will be Just and that it will be
merciful. I thank the court for its at
tention. Judge B'razer's Decision..'
Tho Court (speaking through
Judge Frazer): I have been requested
by Judge Sears to anounce the decision
of the court in this matter. In doing
so, I do not speak for myself alone, but
for the whole court. As far as what
transpired between Mr. McGinn and
Judge Sears before this occasion is
concerned, this court will not now con
sider the same.
As to whether Judge Sears' action in
refusing to hear Mr. McGinn on last
Monday morning was within the law,
it is not necessary now to discuss.
None of these matters excuse or justify
the insulting words which were here.
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spoken on that occasion. They may,
however, be considered, I think, for
one purpose and one purpose only. In
all matters of a criminal nature and
this is, as stated by Judge George, a
quasi criminal proceeding the state of
inind under which a person is laboring
when he commits an offense may .be
considered, especially with reference to
the degree of punishment to be in
flicted. Even in a case of homicide our
statute has made it mitigating circum
stances if a man acts under great ex
citement or great anger and rage and
upon the heat of passion. The circum
stances under which these words were
uttered, as going to show that the de
fendant here was at that time laboring
under excitement and was speaking in
the heat of passion, may be considered
when we weigh the offense for the pur
pose of administering punishment. It
is not the desire of the court to be
severe in this case. The court is will
ing to take into consideration all those
circumstances so far as they go to
show the excitement under which the
defendant was laboring, and - his un
controllable rage at the moment. But
as stated before, that is neither an
excuse nor a justification. No differ
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an error committed by - tho presiding
judge upon that occasion, the defend
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excuse the use of insulting language
to the court. This case is in some re
spects the worst, perhaps I should say,
that has ever occurred before this
court. The language was perhaps more
insulting In some respects than has
ever -to my knowledge been used in
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are nickel-plated.
A pretty little
Rocker the baby
will feel proud of.
Strongly made of
hardwood, in gold
in oak linish. Sa.d-dle-shaped
wood
seat, and wortli a
little more than
the price we ask
for It.
Chair $48
any department of this court. Tho
court could not overlook it. The court
cannot, and preserve its own self-respect
or the respect of the bar and
the respect of the people generally, let
it go without some action being taken.
At the same time the court knows
that the defendant he"re has been for
many years a leading member of our
bar, and that during all the time of his
long practice here he has been among
those most courteous and most re
speotful to the bench. His practice has
always been an honorable one; on
whatever he did or said during the
trial of a case the court could rely. He
has been most kind to the court and In
his treatment of the bench, and hereto
fore, no difference what the error was
that was committed by the bench dur
ing any proceeding, although it may
have been against him, lie always gave
the court due consideration; gave the
court credit for acting honestly, and
took his appeal to the Supreme Court.
Never before, I think, has he used in
sulting language to a court; never be
fore, I believe, lias has been disre
spectful or discourteous. In fact, as I
stated before, he has been more than
usually courteous, and even deferen
tial to the court. His long and honor
able career at the bar should ho taken
into consideration; his uniformly hon
orable conduct, and respectful and
deferential attitude towards the court
should be taken into consideration.
But this is a serious matter; it can
not be allowed to go with a mere nomi
nal fine. On account of the circum
stances I have mentioned, the court
does not want to be unduly severe, and
MmiMty Rocker95c
TO
Goods De
livered Wiien
Promised
Kitchen Cabinet $12.50
Made from white pine and has a
glossy finish that can he kept clean
with a moist rag. Has flour bins, cut
lery drawers, spice boxes and mold
ing boards. It is over 7 feet high, and
the base is 2x4J inches.
Kitchen Cabinet $17.50
Made of selected hardwood, with
white wood top. Only half the work,
and much less than half the numher
of steps in preparing a meal if you
own one of theise Cabinets.
! tfc tTws ,
Roll-Top Desk $18
Made from solid oak. with stamp draw
ers and locker in pigeon-hole case; auto
matic lock on sliding curtain. Sliding
writing leaf. Drawers on one side only.
Roll-Top Desk $27
The Desk pictured above. Solid oak.
drawers on both sides, sliding writing
leaf, book drawer, letter and stamp draw
ers. Top Is 48 inches wide.
Flat-Top
Desk
$15.75
yet it feels that some adequate punish
ment should be inflicted. It is the
opinion of the court that the defend
ant in this case, for the words used
upon last Monday and let it be under
stood that the court now is not passing
sentence for anything that transpired
before last Monday, nor in any other
matter that for the words used in
court last Monday, and for which this
defendant is cited to appear, that ha
pay a fine of $150. ,
Mr. McGinn gave notico of an appeal
to the Supremo Court, pending which ho
will be permitted to practice.
SEATTLE BOY MISSING.
Harry Chesterfield Left His Parent
in June Last,
E. C. Chesterfield. 1420 Tesler way, Se
attle, wants information of his. missing
.boy, Harry, who, until the latter part of
June last, lived with his mother and fa
ther at 14a) Yesler way. Seattle. He was
last heard from at Ellcnsburg, Wash., in
July. He stated at the time that he In
tended to go to work in the harvest fields.
The boy is about 17 years of age. Ho
weighs about ISO pounds, has dark, wavy
hair and dark eye?. There Is a slight
cross to his left eye. His parents will be.
grateful for any information that may
lead to the return of the boy to Seattle.
.iter serious illness Hood's Sarsaparill
imparts1 the strength and vigor so much,
needed.
vv.-xw-v '.. a-'s-i L-arA-os