Ex parte Barry

Works, J. This is an application for a writ of habeas corpus. The following affidavit was filed in the superior court of the city and county of San Francisco, charging the petitioner with contempt of court:—

“ State of California, ) ' SS “City and County of San Francisco. )

“William J. Dixon, being duly sworn, deposes and says that one Henry Bingham is the defendant in an action wherein the people of the state of California, upon the relation of Charles J. Swift, is plaintiff; that said action is now pending in the superior court of the city and county of San Francisco, state of California, and is still undetermined; that said Henry Bingham did interpose and file a demurrer to the complaint in said action, which said demurrer was, after full argument, on the second day of August, 1889, by the said court sustained, and on said last mentioned day the said plaintiff was given leave to amend his said complaint within ten days thereafter; that the time granted said plaintiff by said court to amend his said complaint has not yet expired; that one James H. Barry is the editor of a paper published weekly in the city and county of San Francisco, state of California, which said paper is called the Weekly Star; that on the third day of August, 1889, and while said action was then and there pending in said superior court, said James H. Barry did publish and caused to be published at the city and county of San Francisco, state of California, in the said paper, the Weekly Star, the following false, malicious, untrue, libelous, and defamatory matter of and concerning Honorable F. W. Lawler, judge of the superior court of the said city and county of San Francisco, state of California:—•

[605]“ ‘ A CRIMINAL JUDGE.

“ ‘We charge Francis W. Lawler, judge of the superior court of San Francisco, with deliberate lying about the law, deliberate intentional falsification in his official capacity, and deliberate intentional denial of justice. He is not merely a fool, hut an impudent rascal; a criminal on the bench. He ought to be impeached and removed from office, and disfranchised, indicted, and punished by fine and imprisonment; made a convict of. But our criminal machinery and our legislature are so often elected and used (just as Lawler acts), not to punish wrong-doing, but on purpose to protect it, that such a proceeding is hopeless. If the information which we have received is wrong, let the editors of the Weekly Star be at once arrested on a charge of criminal libel. We invite and defy Lawler to venture to defend himself even in a San Francisco court by this proceeding. We shall make the crime of this judge so plain, that even the wayfaring men, though fools, shall not err therein.