On Rehearing.
DAVIS, Circuit Judge.This case is here on rehearing, and the single question before us is whether or not the second prosecution of the appellant was under section 268 of the Judicial Code (28 U.S.C.A. § 385) or under section 22 of the Clayton Act (28 U.S.C.A. § 387). We held that it was under section 22 of the Clayton Act. We think that our conclusion was correct and briefly restate our reasons therefor.
When the Clayton Act was passed on October 15, 1914, the courts of the United States had power under section 268 of the Judicial Code to punish by fine or imprisonment contempts of their authority, but such power under this section, under which the warden says the appellee was tried, did not “extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree or command of the said courts.”
The Clayton Act conferred upon the courts a new jurisdiction in contempt cases. Section 21 (28 U.S.C.A. § 386) of the act provides that “any person who shall willfully disobey any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia by doing any act or. thing therein, or thereby forbidden to be done by him, if the act or thing so done by him be of such-character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed shall be proceeded against for his said contempt as hereinafter provided,” particularly in. section 22.
This section provides that the trial of the accused for contempt within the purview of section 21 “may be by the court, or, upon demand of the accused, by a jury; * * * and such trial shall conform, as near as may be, to the practice in criminal cases prosecuted by indictment or upon information.” If the accused be found guilty, he may be punished by fine or imprisonment, or both, in the discretion of the court, but the imprisonment shall not “exceed the term of six months.”
If, in violating the decree of the court, a person also in and by the same act commits a criminal offense as defined in section 21, he must be prosecuted for his-contempt under section 22 and allowed: a jury trial.' While the act provides that the trial “may be * * * by a jury,” this provision is not merely permissive, but is really mandatory. Michaelson v. United States, 266 U.S. 42, 45, 45 S.Ct. 18, 69 L.Ed. 162, 35 A.L.R. 451.
Section 24 of the act (28 U.S.C.A. § 389) defines the specific kind of contempt which must be tried under section 22. It provides that nothing contained in sections 21, 22, 23, and 25 of’ *32the act (28 U.S.C.A. §§ 386-388, 390) “shall be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced within section 386 of this title (section 21 of the Clayton Act), [italicizing is ours] may be punished in conformity to the usages at law and in equity prevailing on October 15, 1914,” when the Clayton Act was passed.
In passing section 21 of that act, Congress did not intend to repeal section 268 of the Judicial Code, or to cover the same ground which that section covers. It was careful to keep away from the jurisdiction covered by that section. It merely intended to give the courts additional power in contempt cases. Before the Clayton Act was passed, federal courts sitting in equity did not have the power to punish- for contempt a violation of their decree when the violation also constituted an independent criminal offense.
Contempt is specifically embraced within section 21 of the Clayton Act, so that it must be prosecuted under section 22 of the act and not under section 268 of the Judicial Code, when an order or decree of the court is violated and the violation at the same time constitutes an independent criminal offense. When these two things take place in one and the same act, then the contemner must be prosecuted under section 22 of the act, whether or not the decree was entered in a suit or action brought or prosecuted in the name of, or on behalf of, the United States, or by private parties. The antecedents of the word “same” in section 24, in the sentence beginning with the words, “but the same, and all other cases of contempt,” etc., are not only the con-tempts committed in the presence of the court or so near thereto as to obstruct the administration of justice, but also con-tempts committed in disobedience of any lawful writ, process, order, or decree entered in any suit or action brought or prosecuted in the. name of, or on behalf of, the United States, and all other cases of contempt not embraced in section 21. In other words, these antecedent types of contempts, whether by private parties or the government, must be prosecuted under the law as it was when the Clayton Act was passed, but those contempts; which are specifically embraced within section 21 of the Clayton Act, must be prosecuted under section 22 of the act in which the contemner may demand a jury trial. That is, all kinds of contempt, with one exception, must be tried as they were on October 15, 1914, and that is by the court without a jury. That one exception is created and defined by sections 21, 22, and 24 of the Clayton Act, and there is a good reason for the exception: A person may not be tried and convicted for the commission of a crime, even though the crime involves the violation of the decree of a court, without the right of trial by jury. This right the Constitution gives him (Const, art. 3, § 2).
The case at bar is specifically embraced within section 21 ’ of the act because the contemner violated the decree of the court and committed an independent criminal offense in one and the same act or deed. The thing which he did, and for which he was tried, convicted, and punished in the first trial, is the same thing for which he was tried, convicted, and punished in the second trial. The criminal offense which he committed in the first trial was the violation of the anti-trust laws. He was enjoined from committing the offense again. In doing the same thing again, he admittedly violated the decree of the court, and at the same time committed an independent criminal offense, for if the thing done the second time was not criminal, neither was it the first time. No one contends that Weiner did not commit a criminal offense the first time. Consequently the offense was criminal when committed the second time. His contempt was therefore specifically embraced within section 21 of the act, and he could not be tried under section 2f)8 of the Judicial Code, but had to be tried under section 22 of the Clayton Act. He waived a jury trial, as he could do, and was proceeded against under this section of the act by the court without a jury. Upon conviction he could not be imprisoned for a term exceeding six months,' and having served that term, he was entitled to his liberty.
The judgment of the District Court is affirmed.