dissenting. The majority apparently determines that because it is provided in R. 0. 2705.05 that “upon the day fixed for the trial in a contempt proceeding the court shah investigate the charge, and * * * determine whether the accused is guilty of the contempt charge” (emphasis added), it is therefore proper for the judge who *15signed the affidavit charging contempt to preside at the hearing.
I can neither infer nor discern from the above legislation a specific grant of authority to the judge who brings a contempt proceeding by filing an affidavit the right to hear and determine the validity of the same. The use of the generic term “court” in the statute is not specific (unless, of course, summary action in contempt is the subject).
The majority recognizes that the “* * * appointment of another judge to hear the evidence is warranted where the alleged contempt took the form of personal insult or vilification of the judge * * What is not mentioned in the majority opinion is that the appointment of another judge might also be proper in a factual situation like the one now before us. (A course of conduct which the judge originally chose and later eschewed.)
The majority then determines that “because it was proper for Judge Zimmers to conduct the hearing, appellant’s attempt to call him as a witness was correctly rejected.”
However, what the majority fails to explain to my satisfaction is why In re Murchison (1955), 349 U. S. 133, does not mandate reversal.
That case involved a procedure authorized by Michigan law under which a single judge can serve as a grand jury. The same judge presiding at a contempt hearing had also served as the “one-man grand jury” out of which the contempt charges arose.
The United States Supreme Court, in an opinion by Justice Black, at page 136, said:
“A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be *16considered. This court has said, however, that ‘ every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear and true between the, state and the accused, denies the latter due process of law.’ Tumey v. Ohio, 273 U. S. 510, 532. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending, parties. But to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ Offutt v. United States, 348 U. S. 11, 14.”
In the action before us, the judge who heard the contempt case instituted the charges by preparing and signing the affidavit against the attorney involved. He could and perhaps should have been a very material witness in the case against Weiner. Murchison, supra, teaches that the right to cross-examine witnesses is so essential to a fair trial that it should not be interfered with by allowing the judge to refuse to testify or to pass on the credibility of his own testimony.
Although the cause before us may not present facts as clear as in the Murchison case, I believe that justice, in order to be preserved, must “satisfy the appearance of justice.” Murchison, supra, at page 136.
The judgment of the Court of Appeals should be reversed and the cause remanded.
0 ’Neill, C. J., concurs in the foregoing dissenting opinion.