Supplemental Opinion on Rehearing
POWELL, Presiding Judge.Counsel for the contemnor filed herein an application for rehearing. The petition was supported by an exhaustive brief, and oral argument was granted.
It is contended that the opinion incorrectly states the record, it being argued, in the words of counsel, that: “There was nothing pending at the close of the court term for further consideration by the court than the iswemce raised by the motion of John W. Young. While the court stated that he was continuing the hearing, the continuance was expressly ‘for the purpose of determining whether or not either party is entitled to have this order presently entered, set aside.’ ”
We attempted in our opinion to emphasize that on December 22, 1952 when the court viewed the defendant and Mr. Hebér Finch, Sr., fighting in the court room, he immediately had them conducted before the bench, and1 the stenographic record discloses that the court, among other remarks, said: “I want the record to show that Mr. Heber Finch, Sr., and Mr. John W. Young are here before the court, and were engaged in fighting and had to be stopped by the Bailiff and other attorneys. Unless either one of you can show me some reason to the contrary, it will be the judgment of the court that each one of you will be fined One Hundred Dollars for being in contempt of court.”
As the written order finally entered and quoted in our opinion states, the reasons offered by the contemnors were unsatisfactory. That could have ended the matter. The court was not required to continue the case for further hearing when he acted on view and gave the contemnors opportunity to be heard. .If a contemnor had anything to say, either in defense or mitigation, it was his duty to speak up. This principle is too basic and too well-settled to require further treatment.1 And while the court did assess the fine when the participants failed to give satisfactory reasons, the effect of the action of the court in acquiescing in contemnor Young’s request for continuance for hearing further evidence, in the opinion of this *373•court, was to suspend the order and judgment announced. Further, this conclusion is supported by a consideration of the pro-ceedings as a whole, in spite of the interpretation now advanced by counsel for the •defendant. No effort was made to appeal from the verbal order of December 22, 1952; Mr. Glenn O. Young, father and one •of defendant’s counsel, had said: “On behalf of John, I would like to have it set for hearing.” The court said: “Alright”. And the case was set for further hearing •for January 8, 1953. The filing by counsel for contemnor on December 23, 1952 of a “Motion to Vacate Order and Judgment Holding John W. Young in Contempt of Court”, could not adjudge the nature and -effect of the order of December 22, or con-trol the nature and purpose of the hearing ■set for January 8, 1953. We again con■clude that the contemnor was not placed in double jeopardy, and that the court had jurisdiction to render the final judgment ■of January 10, 1953, filed January 12, and from which the within appeal has been perfected.
Counsel earnestly contends that it was •vital for the court to have known who struck the first blow when the fight between John W. Young and Heber Finch, Sr., commenced in the hall just outside the •door to the court room. It is claimed that ■the facts in relation to this are not correctly stated in the opinion; that when the •contemnors were brought before the court -that Heber Finch, Sr., did not contend that John W. Young struck him first, but on the contrary that the record conclusively shows fhat Finch assaulted Young and that therefore Young had a right to defend himself.
While it is immaterial by reasons of the admissions of Young as set out in the •opinion, who struck the first blow, we cannot agree that the record justifies the conclusion claimed by counsel. The record .-shows that Mr. Heber Finch, Sr., stated to the court: “I was on my way out when he followed me out and jumped on me. He came out there and called me a-.” At this point Mr. Glenn O. Young broke in and interrupted the statement. The ■court then made a statement, and Mr. Glenn •O. Young made a further statement, and then Mr. Finch attempted to complete the statement that he had commenced, by saying: “He followed me out there --”, but he was again interrupted by Glenn O. Young, who said, “And you hit him”, and Mr. Finch said: “Yes, and I am about two times as old as he is. He called me a -The court then broke in. Mr. Finch then said: “If the court please, I want to apologize to the court. I respect the court, and I was on my way home and he followed me out there and jumped me. I want to apologize. I have never showed disrespect to the court in my life.”
No further statement was made by Mr. Finch, Sr. We take it that the original statement by Finch, Sr., that, “He followed me out there and jumped on me”, and the other statements in no way constitute an admission that he struck the first blow. If Finch, Sr., did not strike the first blow, under the later admission of John W. Young that he followed Finch, Sr. and called him the vile name already stated in the opinion, then Finch, Sr. should not have been fined for contempt, but that question is not before us, as he did not appeal his case.
It is apparent that as the contemnors stood before the bar and after some conversation, the court came to the conclusion that he did not and could not see the commencement of the fight and that one of the parties might not be in contempt, and for such reason he decided to hear further testimony. This is evidenced by the court’s statement made on convening of court on January 8, when he said that he permitted the further hearing “on the possibility that one or the other [contemnor] wasn’t responsible for it”. The court thereby recognized and this court recognizes the principle agreed to by appellant in his brief that conceivably fighting in a court room under all circumstances, would not constitute contempt.
For example, if a person was sitting in the court room and conducting himself as a spectator is required, and someone should assault him, he would certainly have a right to defend himself. Therefore, in the absence of provocation on the part of defendant Young, if Finch, Sr. had assaulted him in or just outside the door to the court room, clearly John W. Young would have been en*374titled to defend himself and he would not have been guilty of contempt for so doing. Even where he vilified Finch, Sr., if Finch, Sr. thereupon assaulted him, he would still be entitled to defend himself, but by reason of the provocation could not in a contempt proceeding escape a penalty assessed by the court, where the disturbance was directly caused by such provocation.
It has been held that an attorney who was addressing a jury, and where his argument was germane to the facts of the case, had a right to draw conclusions from such facts. The conclusion involved was that where two witnesses had testified and contradicted each the other, that either one or the other was mistaken, or one or the other had lied. So that witness Beak-ley, who was in the court room as a spectator, hearing the statement, arose and interrupted the court proceedings and admonished the attorney not to say that he had lied, and the attorney repeated his statement and was assaulted by the witness and had to defend himself. The trial court held both in contempt of court, but the Texas Court of Criminal Appeals reversed the trial court as to the attorney. In its opinion it was stated [43 Tex.Cr.R. 359, 65 S.W. 1063]:
“Unless the evidence before . us should show that relator [the attorney] was attempting to provoke Beakley [the witness] to a breach of the peace in the court room at the time of the argument, we could not consider said circumstance as going to illustrate or prove the intent of the relator.”
One judge dissented, and on the principal ground that he thought there was sufficient provocation. See Ex parte Snod-grass, 43 Tex.Cr.R. 359, 65 S.W. 1061. Supporting the opinion of the court is the holding in Ex parte Heidingsfelder, 84 Tex.Cr.R. 204, 206 S.W. 351. See also U. S. v. Patterson, C.C., 26 F. 509. The Texas cases were cited by the defendant. And while we subscribe to the holding in the cases cited, the factual situation in those cases and the within case are so different and the distinction so obvious as to not require further exposition.
In the within case we have seen that at the hearing on June 8, 1953 the defendant admitted that he hurried after Heber Finch, Sr. and overtook him in the hall just outside the court room and called him the vile name heretofore stated in our original opinion, and said to him: “If you don’t stop lying about me I am going to beat hell out of you.” Thus John W. Young, by his words and conduct provoked the fight. Under such circumstances it was immaterial who struck the first blow, so far as determining whether the person provoking the difficulty would be in contempt or not. Young admitted that he grabbed Finch and “started jerking him down by the arm” and they same through the door into the court room where Young claimed that Heber Finch, Jr., interfered.
But counsel argues that “The thing that set up the chain of events which ended up in the melee was the false and unwarranted accusations made by Finch in the presence of the court.” No doubt the matters happening in the case that the court had been hearing, irrespective of whether Finch was right or whether Young was right, furnished the spark that had inflamed and incensed John W. Young. But that hearing had terminated. It was minutes remote. Finch, Sr., was minding his own business, had gotten his papers and had peaceably departed for his office. He was not molesting John W. Young. But Young, regardless of the great difference in their ages, felt compelled to head off Mr. Finch and seek redress and some measure of satisfaction by at least abusing the older man by vile name-calling and threats. He may have felt highly justified in so doing, for it is stated in his brief, “While the language adopted is not particularly complimentary, the person toward whom such remarks are directed can avoid being thus classified merely by meriting a different classification.” Thus is advocated a doctrine permitting a purveyor of insults to arrogate to himself by the very fact of utterance, justification per se.
It is further argued: “While the terms adopted to category Finch, Sr., may in other days have been considered provoca-*375tíve and inappropriate, such certainly is not the case today.” It is further stated that “identical words have been popularized and brought in good repute when used under appropriate circumstances”. It is then recounted that two certain high officials in the Federal government [but not in the presence of the vilified] used the words and it is suggested that high state officials have done likewise.
It is probably only too true that high public officials have so forgotton the dignity of their office as to utter public statements containing vile epithets, but the chances are that they were immediately repentant, for public policy requires the striving for the ideal, and when one speaks in the capacity of a representative of the government or one of its agencies, his fitness for such representation requires official conduct on a higher plane and of a higher moral order than might be expected •of the individual acting in a private capacity. We are constrained to say, “Ill fares the land, to hastening ills a prey” (Goldsmith), where officials'and courts fail to strive for higher standards of conduct.
This court still considers the words in question highly provocative, a goad, as insult, an indignity, that, spoken in anger can be calculated to cause violent reaction from the average recipient, and regardless of the fact that in a prosecution for an assault engendered by the remarks, and that an assailant could not find justification in law, the words might be considered in mitigation of punishment to be assessed, where conviction had, and in the within case the recipient of the epithets at the time they were hurled at him, being peaceably going on his way and attending to his own affairs, the prior bickering between the parties, however in the right defendant might have been, cannot relieve him from the consequences of his conduct recited.
Let the mandate issue forthwith.
JONES and BRETT, JJ., concur.
. See tlie basic case of Ex parte Sullivan, 10 Okl.Cr. 465, 139 P. 815, Ann.Cas. 1916A, 719, and other cases cited on this point in the opinion.
The very cases cited by defendant point out the fundamental requirement that courts have the power to summarily punish for direct contempt. Ex parte Terry, 128 TXS. 289, 9 S.Ct. 77, 32 L.Ed. 405; State v. Woodfin, 27 N.C. 199, 42 Am. Dec. 161. But, as we have seen, in Okla-boma it is necessary, in order for the court to acquire jurisdiction to punish for contempt, that the contemnor be arraigned and asked whether he has any legal cause to show why he should not be adjudged guilty of contempt of court. This was not necessary under the common law, and is not necessary in all the states today. See §§ 61, 69, 70, 12 Am. Jur., Contempt; 57 A.L.R.. 545, note; 17 C.J.S., Contempt, § 62, pp. 73-74.