I dissent.
I agree that the failure of an attorney to attend court at the appointed time for trial of a criminal case, when he is representing a client whose case is being tried, may be contempt of court if he has no valid excuse and the judicial processes are obstructed. (Ex parte Clark, 208 Mo. 121 [106 S.W. 990, 15 L.R.A.N.S. 389]; In re McHugh, 152 Mich. 505 [116 N.W. 459]; Wise v. Commonwealth, 97 Va. 779 [34 S.E. 453]; People v. McDonnell, 307 Ill.App. 368 [30 N.E.2d 80], affirmed 377 Ill. 568 [37 N.E.2d 159] ; Nelson v. Wergland, 104 N.J.Eq. 334 [146 A. 32] ; Vincent v. Vincent, 108 N.J.Eq. 136 [154 A. 328] ; Appeal of Levine, 372 Pa. 612 [95 A.2d 222] ; Klein v. United States, 151 F.2d 286 [80 App. D.C. 106] ; see In re Walker, 275 App.Div. 688 [86 N.Y.S.2d 726] ; In re Mackay, 140 Cal.App. 400 [35 P.2d 385]; Sellers v. Whaley, 84 Ga.App. 715 [67 S.E.2d 241].) However, I cannot conceive how such contempt would be direct. The statute specifically requires that for a contempt to be direct it must involve conduct in the “immediate view and presence of the court” (Code Civ. Proc., § 1211). Such contempt may be punished summarily because the conduct concerned, and all of it, took place where the court heard and saw it, hence the court is in a position to act summarily, as all the facts involved are within his cognizance, and there exists a need *764for quick action to prevent the continuance of actions which will bring the court in disrepute and obstruct the judicial process. Here such conditions do not exist. The only fact that the court knew about was that petitioner did not appear at the trial. It did not know whether that failure was due to circumstances beyond petitioner’s control or was inexcusable neglect or wilful refusal to attend the trial. Without those facts, all of which occurred away from the court, and out of its sight and hearing, it was not in a position to ascertain whether there was contempt.
The majority opinion has little to say upon this subject' except to express its firm belief that petitioner was guilty of contempt. It says: “The latter, not the judge, is the officer of the court who under those circumstances owes a duty of proceeding. The effect of a contrary holding would be to absolve the defaulting attorney from any burden of explanation of his absence, no matter how flagrant and often repeated, unless the judge takes the burden of filing a charge and instituting formal proceedings. This would make of the judge not a judicial officer carrying out the responsibilities of his office, but a complaining witness in an adversary proceeding. Such a rule, we think, would not only be contrary to long established law but would not best serve the administration of justice.” This is wholly beside the point. Even if we assume petitioner should have the burden of excusing his failure to appear, still it should be after affidavit and hearing because the basis of any excuse for his conduct could not be known to the court. In fact no great burden is cast upon the judge because the fact of the failure to appear would ordinarily not be disputable while the main issue, the existence of an excuse, would involve events away from the court. In Klein v. United States, supra, 151 F.2d 286, 288, the question presented, exactly the same as here, was whether the failure of an attorney to appear was direct or indirect contempt. The court held the contempt indirect, stating: “ ‘. . . The petitioner [contemnor] himself was absent. His acts ad interim were likewise absent. His doings went with him. It would seem like an exquisite and palpable contradiction of terms to complain in one breath that the petitioner [contemnor] and his acts were absent, and in the next breath to say that such absence constituted a presence; that is, a contempt committed in the presence of the court. ’ ’ ’ The same issue was presented in Ex parte Clark, 208 Mo. 121 [106 S.W. 990, 997, 15 L.R.A.N.S. 389], and the same result reached and the court *765said: 11 The complaint made and recited of the petitioner was his intentional absence from the courtroom to the delay and embarrassment of a trial in which the petitioner was engaged in counsel, 15 minutes at one time and 55 at another. The petitioner himself was absent. His acts ad interim were likewise absent. His doings went with him. It would seem like an exquisite and palpable contradiction of terms to complain in one breath that the petitioner and his acts were absent, and in the next breath to say that such absence constituted a presence; that is, a contempt committed in the presence of the court. The absence of an attorney, a juryman, a witness, an officer (including even a member of the bench himself), from the courtroom at the precise time due there may be susceptible of many innocent explanations. Bach and every one of these absences are of a kind and, hence on a level, and none of these explanations are within the mere eyesight or earshot of any court of ordinary mortal endowments. These explanations can only come to the court by evidence aliunde his eye or ear, so that it would seem that absence ought not to be dealt with as essentially in the same class as things that happen in the view or hearing of the court. We think that is the more gracious and the better view comporting with the good sense of the thing, comes well within the quoted definition of an indirect contempt, and is sustained by the reasoning of well-considered cases.” The same was held in State v. Winthrop, 148 Wash. 526 [269 P. 793, 795, 59 A.L.R. 1265], the court saying: “It is plain, we think, by this record, that appellant’s conduct, viewed by the court as contemptuous, consisted in his inexcusable absence from the court when the case of Lynch v. Page was called for trial. We are unable to see how such absence on the part of appellant occurred in the presence or view of the court.” To the same effect is Ex parte Hill, 122 Tex. 80 [52 S.W.2d 367, 368], where the court said; “It affirmatively appears therefrom that the district court has attempted to enter a summary final order adjudging relator in contempt for an alleged act of contempt, which, if it occurred at all, occurred outside the presence of the court. It is true that the judgment recites ‘said actions were committed and done in the presence of the Court, ’ etc., but the judgment also affirmatively shows that the offense relator was accused of was the act of being thirty minutes late in attending court. In other words, the alleged act of contempt was for being absent from court. Obviously the offense of being absent from court could not take place in the presence of the court. We there*766fore take it that the statement in the judgment to the effect that the contempt occurred in the presence of the court is an erroneous legal conclusion not justified by the facts found, but utterly repugnant thereto.
“We do not think that the fact that when the relator did appear in court he attempted to offer the court an explanation for his alleged tardiness meets the' rules of due process required to give the court power to punish him for contempt. ’ ’ Indeed, where the precise question here presented has been involved and the matter discussed there is a unanimity of agreement that the contempt is indirect. Yet this court chooses a contrary course without reason and in face of the principle that contempt is a serious matter and should not be dealt with summarily unless the conduct is clearly within the immediate view and presence of the court. It relies upon two cases, Ex parte Sternes, 77 Cal. 156 [19 P. 275, 11 Am.St.Rep. 251], and In re Carr, 65 Cal.App.2d 681 [151 P.2d 164], which do not involve the question here presented, are not in point and are of doubtful .validity. In the Sternes ease the person found guilty of contempt was a deputy sheriff who failed to produce his prisoner in habeas corpus proceedings. The court was primarily concerned with whether he could attack the court’s contempt judgment. There was a hearing on the very question of whether the deputy had the ability to produce the prisoner. The court said: “The first inquiry before the superior court upon the return made by the respondent Sternes [deputy] therein was to determine the issue as to whether said Ah Fong was or was not in his custody or under his control at the .time of the issuance of or service of said writ upon him, said Sternes. It appears from the judgment that the judge proceeded to take testimony as to said matter, and found as a fact that said Ah Fong was in the custody and under the control of said Sternes at the time of the issuance and service upon him of said writ, and that it was within the power of said Sternes to produce the body of said Ah Fong in obedience to the writ at the time of service of the writ upon him. This is the record of the court, acting within its legitimate powers, and that record must be considered as speaking the truth, and as conclusive until it has been in some way set aside or vacated. ’ ’ (Emphasis added.) While the court did thereafter say that the deputy’s failure to produce the prisoner was a direct contempt, it did so for the reason that: “An order to show cause or notice of a motion for an attachment would not have *767served Sternes any useful purpose. He had an opportunity, as shown by the judgment, to explain the circumstances of his failure to obey the writ, and the court was not in duty bound to accept as true his return to the writ. The court may have erred in its proceedings subsequent to the issuance and service of the writ, and, by a misapprehension of the facts or misconstruction of the evidence, have done the petitioner here a great injustice; but so long as that court permits its record to remain as it is, other courts must treat it as the action of that court, and as conclusive upon all the matters decided by it and essential to its judgment.” (Ex parte Sternes, supra, 77 Cal. 156, 163.) In other words, notice and hearing were had. In the Carr case the order was for a mother to produce her child, and she had been so ordered while she was in court and the matter was continued at her request and accordingly the District Court of Appeal stated: “. . . petitioner had an opportunity before the order was made to explain the reasons of her failure to obey” it. The real holding in those cases is that the requirement of an affidavit may be waived rather than that the contempt was direct. Such holding is, of course, contrary to the law. (Phillips v. Superior Court, 22 Cal.2d 256 [137 P.2d 838] ; Frowley v. Superior Court, 158 Cal. 220 [110 P. 817]; In re Davis, 31 Cal.2d 451 [189 P.2d 283].) Moreover, it has been held that such conduct is an indirect contempt. (In re Rose, 90 Cal.App.2d 299 [202 P.2d 1064]; Hughes v. Moncur, 28 Cal.App. 462 [152 P. 968].)
The subject has been analyzed: “A direct contempt being an open insult to the person of the judges while presiding or a resistance to the powers of the court in its presence, while a constructive contempt is an act done, not in the presence of the court, but at a distance; which resists the court’s authority, as, for instance, disobedience to process or an order of the court such as tends in its operation to obstruct, interrupt, prevent, or embarrass the administration of justice. Direct contempts include only those acts of which the court itself has personal knowledge; which takes place in the presence of the court or so near physically as to impede the proceedings. Indirect contempts consist of all contemptuous acts which occur out of the presence of the court, and of which the court itself has no personal official knowledge. (Dangel, Contempt, § 14.)
The majority opinion states: “As expressly stated in the commitment the court did not—and it was not hound to—he*768lieve petitioner’s unsworn statement that he failed to appear at the appointed hour for resumption af the trial because he had been asleep. Nevertheless, the very character and extent of petitioner’s derelictions as found in the commitment seem to indicate that perhaps his misconduct may have been contributed to by illness of some form. Whether such misconduct was on the one hand deliberately and maliciously calculated or, on the other hand was materially contributed to by illness or other mitigating condition, is a matter of substantial moment to the petitioner and to the court.” (Emphasis added.) But it must be remembered that petitioner had no opportunity to present evidence in support of his excuse for being late. He had been found guilty of contempt even before he arrived in court after the noon recess. The situation would not have been different if petitioner had stated that his automobile had broken down on his way to court, or that the public transportation system, which he was using, failed to function. In either ease, according to the majority view, the court was not bound to believe petitioner or accord him an opportunity to furnish proof of the truth of his statement. In other words, his mere absence from court at the time fixed for his appearance is conclusive proof of his guilt, and he is accorded no opportunity of showing that his failure to appear was wholly blameless.
The situation here presents an ideal case for the application of the rules which must be applied in cases of indirect contempt. The alleged contemptuous conduct does not take place in the presence or hearing of the court, and notice and hearing must therefore be had to give the court jurisdiction.
Under the holding of the majority here, whenever an attorney is late for a court session, the judge can find him guilty of contempt and sentence him to five days in jail without complaint, hearing or evidence, regardless of any excuse or justification the attorney may have to offer. In my opinion such a holding is out of harmony with both the statutes of this state and the great weight of authority in state and federal jurisdictions.
For the foregoing reasons I would annul the judgment of contempt here imposed.
Shenk, J., and Traynor, J., concurred.
Petitioner’s application for a rehearing was denied February 10, 1955. Shenk, J., Carter, J., and Traynor, J., were of the opinion that the application should be granted.