In re McHugh

Grant, C. J.

(after stating the facts). Attorneys are officers of the court, and it is their duty to be in court upon the trial of causes duly set for trial of which they have had due notice.

The respondents had undertaken the defense of one charged with murder. They had applied verbally for a continuance, which was refused. Four days later they applied by written motion, supported by affidavit, for a continuance. This was refused and the case again set for trial three days later. It was their duty to be present on that day, unless prevented by circumstances entirely beyond their control. ' They were in sufficiently good health to pack their suit cases and take a trip upon the cars and ride into the country, and to return again in three days. Their duty to their client, to the court, and to the administration of justice was to appear in court themselves so that the court might examine them and determine for itself whether they were in too precarious a state of health to enter upon the trial, and whether a proper regard for the rights of the people and of the defendant required a *510 continuance of the case for from two to three months longer, with the alleged criminal confined in the jail. Instead of so doing they presented three motions — one a motion for continuance, to be heard at the opening of court, the other, two to be heard four days later. Under the facts set forth in their affidavit for continuance, made by Mr. O’Neil, on the ground of the absence of a witness, the prosecutor would be bound to produce that witness upon the trial, for she was a witness to the killing. Failure to produce her upon the trial would have been ground for continuance, or an adjournment of the case to procure the attendance of the witness. The motion for the disqualification of the judge was without excuse. The only reason offered for such disqualification was that the judge had criticised a jury in a former trial for acquitting the respondent in that case on the ground of insanity. The respondents asserted that their defense in this case was insanity, and therefore the judge was disqualified. If this be so, then any judge, who, under the circumstances of one case, condemns the verdict óf a jury, rendered on account of insanity, is disqualified forever thereafter from trying a case where insanity may be the defense. The motion itself was little short of contempt of court. Under all the circumstances, the conduct of the respondents was reprehensible, and under the facts it was the province of the court to determine whether their conduct amounted to a contempt, and whether they had purged themselves by their evidence therefrom.

The first legal question presented is, that the acts constituting the contempt were not committed in the presence of the court, and no petition or affidavit was presented to the court as a foundation for the proceedings. Upon this point many authorities are cited by counsel for the people and for the respondents. It is unnecessary to determine this question. The respondents voluntarily appeared in court, and were given the same opportunity to make their defense that they would have had upon the filing of a petition or affidavit and the issuance of an order to show *511 cause. They were not seized upon the capias, but came directly from a foreign country into the court and voluntarily submitted to its jurisdiction. It should require no argument to show that they had waived all irregularities in initiating the proceedings. The following authorities are directly in point: Moore’s Case, 63 N. C. 397 ; Hawkins v. State, 125 Ind. 573 ; In re Savin, 131 U. S. 267 ; Randall v. Brigham, 7 Wall. (U. S.) 523, 540.

In Randall v. Brigham it is said:.

“ He [the respondent] was afforded ample opportunity to explain the transaction and vindicate his conduct. He introduced testimony upon the matter, and was sworn himself. . It is not necessary that proceedings against attorneys for malpractice, or any unprofessional conduct, should be founded upon' formal allegations against them. Such proceedings are often instituted upon information developed in the progress of a cause; or from what the court learns of the conduct of the attorney from its own observation. Sometimes they are moved by third parties upon affidavit; and sometimes they are taken by the court upon its own motion. All that is requisite to their validity is that, when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made, and opportunity afforded him for explanation and defense. The manner in which the proceedings shall be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation.”

The court in Re Savin, supra, quoted the above language with approval, and said:

“So, in the present case, if the appellant was entitled, of right, to purge himself under oath, of the contempt, that right was not denied to him; for it appears from the proceedings in the district court, made part of the petition for habeas corpus, not only that he was informed of the nature of the charges against him by the testimony of Flores, taken down by a sworn stenographer at the preliminary examination, But that he was present at the hearing of the contempt, was represented by counsel, testified under oath in his own behalf, and had full opportunity to make his defense.

“ Our conclusionis that the district court had jurisdiction of the subject-matter, and of the person, and that irregu *512 larities, if any, occurring in the mere conduct of the case, do not affect the validity of its final order.”

If the respondents had refused to appear in court, as was the case in Re Wood, 82 Mich. 75 , or if they had been arrested upon the capias and had denied the jurisdiction of the court for the reason that no affidavit or petition was presented to the court setting forth the facts, the respondents would have been in position to raise this question, but their conduct waived it. They voluntarily placed themselves in precisely the same position as they would have been if the proceeding had been such as they now contend was necessary.

It is urged that the sentences were unwarrantably severe and constitute that cruel and unusual punishment which is prohibited by the Constitution. The punishment is not in excess of that provided by law. It is not for appellate courts to determine the amount of punishment. That must be determined by the trial judge from the facts as they are placed before him. We cannot review the evidence to determine- whether the sentence should have been less. The witnesses were before the court; the conduct of the respondents was also before the court, and it was for that court, not for this, to determine and impose the amount of the sentence.

The proceedings are affirmed.

Montgomery, Hooker,.Moore, and McAlvay, JJ., concurred.