CONCURRING OPINION.
PARKER., J.(concurring). I concur in the result reached by a majority of the court for the reason that the information filed is insufficient to support the proceeding. It is for the protection of the public in the due administration of justice that contempt proceedings are devised and authorized. In this- case, however, the information fails to allege certain necessary facts in order to make the publications complained of contemptuous per se. After stating Judge Mechem’s relations, personal, business, and political, with Mr. Bursum, it states: ‘ ‘ The New Mexican has realized from the beginning of the Bur-sum libel suit campaign that it must try its case before the people. ’ ’ But the information does not state, by way of innuendo or otherwise, that “meaning thereby to refer to Judge Mechem as a political judge in whose court defendants could not secure justice on account of the political domination of Mr. Bursum.” Doubtless this is what it may be inferred the publication was intended to communicate to the public. The fact remains, however, that it is not so alleged.
In this connection it is to be remembered, as pointed out in the majority opinion, that this is a proceeding for a criminal contempt, and that many, if not most, of the attributes of criminal proceedings inhere in the same. Thus it is said that such proceedings as these should conform as nearly as posible to proceeding in criminal cases, the evidence must be sufficient to establish guilt beyond a reasonable doubt, and the accused should be bodily present in court at the time of the sentence. The respondent is not obliged to incriminate himself, and the rule against the conviction on the sole testimony of an accomplice applies. On the other hand, the proceeding differs from a strictly criminal proceeding in some particulars. The defense of double jeopardy is not available and tbe respondent is not entitled to a formal trial. See 6 R. C. L. tit. ‘ ‘ Contempt, ’ ’ § 43. Another feature of the proceeding may be illustrated by suggesting that courts, possessing no criminal jurisdiction 'whatever, such as chancery and probate courts, still have all of the powers to punish for contempt that other courts possessing general criminal jurisdiction have. The proceeding is not strictly a criminal proceeding nor a civil proceeding, but is sui generis.
So far as the guaranties usually attending a person charged with the crime are concerned, however, the proceeding is essentially in its nature a criminal proceeding, and the respondent is surrounded by most of these safeguards. I see no reason, therefore, why those guaranties should not be extended to a respondent in a contempt proceeding such as this, in regard to all of the essential features involved. There is no reason why the rules of pleading should be relaxed so that the complaint or information should be substantially less accurate or technical than an indictment. The consequences of conviction are highly penal in character, and the charge should be substantially, if not technically, certain and exact.
It may be admited that any ordinary person reading the articles which appeared in the newspaper could not but be impressed with the idea that there was a more or less deliberate attempt on the part of the publishers to convey the idea that Judge Mechem was dominated by personal and political influences, so that justice could not be obtained in his court by persons opposing those influences. But it remains, however, the fact that it is not so alleged in the complaint or information, and such a conclusion can only be drawn by inference, which might vary according to the mental attitude of the reader. There is no absolutely certain and unequivocal deduction from the publication which can be drawn. It could hardly be contended that the publications could be made the subject of a civil or criminal libel suit without the innuendo suggested.
Innumerable authorities have been examined in this connection, and, while there is some divergence of opinion as to the strictness with which complaints or informations should be viewed, I believe that the general consensus of opinion of the courts is that the information must and ought to be explicit and certain, and, if the article requires interpretation, the proper interpretation thereof should be set out by way of innuendo.
For these reasons I agree in the result.