dissenting.
On February 1, 1939, Hon. Marcelino Romany, Judge of the District Court of San Juan, issued an order requiring Manuel Torres to appear before him and show cause why he should not be punished for contempt. In the preamble to said order, as the facts constituting the above contempt, *597lie sets out as follows: That on the day in question during a prosecution for murder in said district court, in which a jury had been impaneled, Judge Romany “was assaulted by the accused shortly after the court adjourned just as the judge was leaving his office and precisely in the corridor closé by the court room;” that the conduct of the accused tended to interrupt the proceedings and to terrorize the jurors who were impaneled; and that such fact constitutes contempt because the same undermines the prestige of the courts of justice.
On the day set in the order the accused appeared assisted by counsel, and to the question from the court whether he had anything to allege he answered that he denied the charges against him, whereupon the court entered judgment sentencing the accused to thirty days in jail and to pay a $200 fine. The accused took the present appeal from the above sentence and assigns as error the conviction of the accused by the court of constructive contempt without the hearing of any evidence.
There is no controversy as to the facts, as stated in the order to show cause, constituting contempt, if proven; and 1hat such contempt should be punished severely, as a protection of the prestige of the courts to which citizens owe obedience and respect.
The point argued by the defense and the prosecution and which has given rise to an interesting discussion by the members of this court, is as follows:
Was it error for the trial court to convict the defendant, notwithstanding his denial of the charges against him, without hearing evidence tending to substantiate said charges?
Any act or conduct tending to prevent or obstruct and which does prevent or obstruct a court from administering justice, or which undermines its authority or dignity constitutes contempt. Contempt may be either direct, or indirect or constructive. In the volume dealing with Contempt of the “National Lawyers’ Manual,” by Dangel, contempt is defined as followed:
*598“7. Direct Contempt. — A direct contempt consists of something done, or omitted to be done, in the presence of the court tending to impede or interrupt its proceedings or reflect upon its integrity. It occurs only where the acts constituting the contempt have been committed in the presence of the court. It is an insult committed in the presence of the court, or of a judge when acting as such, or a resistance of or interference with the lawful authority of the court or judge in his presence, or improper conduct so near to the court or judge acting judicially as to interrupt or hinder judicial proceedings.
“8. Indirect Contempt — Indirect contempt is synonymous with constructive contempt. It consists of an act having a tendency to obstruct and embarrass or prevent the due administration of justice, done at a distance and not during the session of the court nor in its immediate view and presence.
“Aii indirect or constructive contempt is an act done, not in the presence of the court or of a judge acting judicially, but at a distance, under circumstances that reasonably tend to degrade the court or the judge as a pudicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court or judge.” (Italics ours.)
See: 23 A.L.R. 183; 27 A.L.R. 1219; 31 A.L.R. 1226; 49 A.L.R. 647; Globe Newspaper Co. v. Com., 188 Mass. 449; Hurley v. Com., 188 Mass. 443; Blackemburg v. Com., 272 Mass. 25; Bailey on Habeas Corpus, sec. 62, p. 212; Weldon v. State, 234 S.W. 466; and Turquette v. State, 298 S.W. 15.
Under the facts as set out in the order to show cause, the act charged against defendant Manuel Torres constitutes indirect or constructive criminal contempt. It is criminal, because the assault upon the person of the judge, committed under the circumstances set out in said order, affects the authority, prestige and dignity of the court and tends to obstruct the free and proper administration of justice. It is indirect or constructive, because the alleged “assault” or attack did not occur while the court was in session, nor in the immediate presence of the court, nor so close by the court while in session that it tended to interrupt the proceedings, nor at a time when the assaulted judge was performing judicial functions. The fact was committed “after the court *599liad adjourned, just as the judge was leaving his office, and precisely in the corridor close by the court room.”
All of the authorities agree that where direct contempt is involved, committed in the immediate presence of the court or so near the place where the court is sitting that it tends to interrupt its proceedings, the court has the inherent power to impose the punishment summarily, without the necessity of hearing evidence. This power is moreover expressly conferred on courts by section 3 of the Act of March 8, 1906, (which amended that of March 1, 1902), which provides that “when contempt is committed in the immediate presence and view of the court, the punishment therefor may he imposed immediately by the judge of the court, or the presiding judge thereof.” On p. 206 of the National Lawyers’ Manual, supra, it is said:
“The trend of the court in modern times is that even in direct contempt there should be proceedings, wherein the accused should be formally charged, orally or in writing, with the facts alleged to constitute the contempt, and complete speeiñeations be given in detail. There should be required a hearing by the court, and proof should be necessary to establish the guilt of the accused.” (In this connection the case of Blackenburg v. Com., 272 Mass. 25, is cited.)
In the instant case the trial judge gave as his opinion, and so stated in his judgment, “that it is unnecessary to hear evidence in contempt proceedings wherein the judge is the person assaulted, inasmuch as the judge, need not pass upon any evidence because he has already personal knowledge of the facts and could never decide that an assault was never committed, as.such fact was personally known to the judge and, consequently, the submission of evidence was quite unnecessary.”
Where, as in the case at bar, an indirect or constructive contempt is involved, the accused is entitled to a hearing on the charge brought against him, in which he should be given an opportunity to examine the witnesses for the prosecution *600and to produce Ms own witnesses. Any personal knowledge that might be had by the trial judge is no substitute for the evidence in support of every conviction and judgment.
“The judgment of contempt should not be entered without any evidence being received by the court upon the basis of facts within the mind of the judge only, tut not a matter of record in the case. Unless this is the rule, the finality of judgment or conviction can never be impeached because of some fact within the knowledge, or assumed knowledge, of the judge, not a matter of record, and, upon review by the reviewing court, not carried into the return on the writ of error. The individual knowledge of a fact on the part of the trial judge, not a matter of common knowledge, should not dispense with proof of such fact, or at least the placing of the fact of such knowledge by the judge upon the record and resort should not be had to it for the purpose of suplementing the record. The reason for this is important, for, if the judge enters a judgment or conviction of record upon facts known or believed to be known to him, without being called upon to notice judicially such facts at the time and incorporate the same in the record, no opportunity is afforded the accused claiming the invalidity of the judgment to controvert the facts in the mind of the judge and no opportunfiy is presented for the reviewing court to have knowledge of such facts known to the judge, or which he believes he knows, but not commonly known.
“When the contempt is not in open court, there is no right or reason to dispense with the necessity of charges and the opportunity to the accused to present his defense by witnesses and argument.” National Lawyers’ Manual, supra, pp. 206, 207.
The necessity to bear evidence in a prosecution for criminal indirect contempt is evident. Tbe accused is protected by the statutory presumption of innocence until his guilt is established beyond any reasonable doubt. The burden of proof in criminal contempt proceedings falls upon the complainant, and it devolves upon the latter to prove the allegations of contempt beyond every reasonable doubt. The accused can not be compelled to testify against him. See: N.L.M. “Contempt,” pp. 76 and 242; Michaelson v. U. S., 266 U.S. 42; Gompers v. Bucks Stove & Range Co., 221 U.S. *601418, 441; People v. Spain, 307 Ill. 283; Com. v. Madeiros, 255 Mass. 304; Clark v. U. S., 289 U.S. 1; 35 A.L.R. 451; Root v. McDonald, 260 Mass. 344.
The facts in Cooke v. United States, 267 U.S. 517, 69 L.Ed. 767, are similar to those of the case at bar and the decision therein lays down the doctrine applicable to cases like the one under consideration. Attorney Cooke and his client Walker were sentenced by the Federal District Court to thirty days in jail for contempt. Walker had been sued several times and in one of the suits the jury adjudged him to pay $56,000. The day after the verdict, while the court was open trying another case, and during a 10-minute recess, Walker, on instructions from bis attorney, delivered to the judge in the latter’s office, a few feet from the court room, a letter marked “Personal,” where referring to the suits pending in which Walker was a defendant, the attorney advised and prayed the judge to withdraw from the cases to avoid the necessity for the attorney to challenge him formally. In the letter the judge was charged with passion, prejudice and bias against Walker. The judgment was affirmed on appeal by the Circuit Court. The case was taken on certiorari to the Federal Supreme Court which reversed the judgment and remanded the case to the lower court for further proceedings not inconsistent with the opinion rendered through Mr. Chief Justice Taft. The Supreme Court, after agreeing with the lower court that the letter in question was contemptuous, said:
“But while we reach this conclusion, we are far from approving the course of the judge in the procedure, or absence of it, adopted by him in sentencing the petitioner. He treated the ease as if the objectionable words had been uttered against him in open court.
“To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the^offense. *602Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law. Such a case had great consideration in the decision of this Court in Ex parte Terry, 128 U. S. 289. It was there held that a court of the United States upon the commission of a contempt in open court might upon its own knowledge of the facts without further proof, without issue or trial, and without hearing an explanation of the motives of the offender, immediately proceed to determine whether the facts justified punishment and to inflict such punishment as was fitting under the law.
“The important distinction between the Terry Case and the one at bar is that this contempt was not in open court. This is fully brought out in Saving, Petitioner, 131 U. S. 267. The contempt there was an effort to deter a witness, in attendance upon a court of the United States in obedience to a subpoena, while he was in a waiting room for witnesses near the court room, from testifying, and the offering him money in the hallway of the court-house as an inducement. This was held to be ‘ misbehavior in the presence of the court ’ under section 725 R. S. (now section 268 of the Judicial Code). The Court, speaking by Mr. Justice Harlan, said (page 277) ;
“ ‘We are of opinion that, within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for use of its officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court. It is true that the mode of proceeding for contempt is not the same in every case of such misbehavior. Where the contempt is committed directly under the eye or within the view of the court, it may proceed “upon its own knowledge of the facts and punish the offender, without further proof, and without issue or trial in any form,’ ....
“We think the distinction finds its reason not any more in the ability of the judge to see and hear what happens in the open court than in the danger that, unless such an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public in the ‘ very hallowed place of justice,’ as Blackstone has it, is not instantly suppressed and punished, demoralization of the court’s authority will follow. Punishment without issue or trial was so contrary to the usual and ordinarilv indispensable hearing before judgment, *603constituting due process, that the assumption that the court saw every.thing that went on in open court was required to justify the exception,- but the need for immediate penal vindication of the dignity of the court created it.
“"When the contempt is not in open court, however, there is no such right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument. ...”
In the ease at bar, the accused was sufficiently advised as to the charges ag*ainst him. The denial of such charges by the accused raised an issue similar to that raised by a plea of “not guilty.” Hence, as the contempt herein involved was not committed in open court, the necessity arose to hold a trial and to hear evidence in support of the charge. By failing to proceed thus, the accused was deprived of the due process of law and the sentence imposed on him is void.
In the case at bar as in that of Cooke v. United States, supra, it has been assigned as error that it was the assaulted judge who took cognizance of the case and punished the accused. The Federal Supreme Court, in the above case, when considering the issue, expressed itself as follows:
The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indipensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not aways possible.
. . . .All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of *604contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. (Citations.)
“The ease before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows. We think, therefore, that when this case again reaches the District Court to which it must be remanded, the judge who imposed the sentence herein should invite the senior circuit judge of the circuit to assign another judge to sit in the second hearing of the charge against the petitioner.”
The main objection of the writer of this opinion against the proposed affirmance of the judgment is that the accused and appellant was convicted without the production of any evidence against him, that is, without due process of law. The necessity for this evidence is evident. Neither in the order to show cause, which can not be considered as evidence, nor in the judgment, is there established any relationship or connection between the assault upon the judge and the case under prosecution in the district court. A statement from the judge would certainly have established such connection, which is absolutely necessary for the act, which was not committed in open court, to constitute contempt of court. No record or transcript of evidence is before this court to enable it to determine whether the conviction of the defendant rested on sufficient evidence. The affirmance of the judg*ment, therefore, must necessarily rest on the presumption that what the trial judge had in mind was sufficient legal evidence to warrant the conviction of the accused. There is no law authorizing such presumption. If there were any such law, its effect would be the destruction of the presumption of evidence in favor of every accused.
The precedent that would be established by the proposed judgment, that is, that a citizen may be deprived of his liberty without any evidence against him being produced, on the mere fact that the judge bringing the charge, who is the one to *605try him, is acquainted with the facts, is in our opinion a dangerous one. The dignity and prestige of courts would neither he impaired nor injured by setting up the legal doctrine that where an alleged contempt has not been committed in the immediate presence of a court in session and consists in an offensive act against the person of the judge, the latter shall appoint another judge to take cognizance of the case and shall take the stand to sustain the charge brought by him so as to give the accused an opportunity to cross-examine him.
For the foregoing reasons I dissent from the majority opinion, and it is my opinion that the judgment ought to have been reversed and the case remanded to the lower court with instructions to have the case tried d& novo before either of the other three judges of the District Court of San Juan.
I am authorized by Mr. Justice De Jesús to state that he concurs in this opinion.