The issue in these certiorari proceedings is whether it clearly appears from the record that Honorable Mariano A. Albert, as Judge of First Instance of Manila, acted without or in excess of jurisdiction in punishing Attorney Guillermo Lualhati for contempt of court by imposing a fine of P100 on the attorney.

In the case of the People of the Philippine Islands vs. Remedios Avelino de Linao, the accused was, after trial, convicted of the crime of frustrated parricide by Judge Mariano A. Albert. The accused appealed to the Supreme Court, which affirmed the decision of the lower court, G. R. No. 33909.^[1] Before the judgment of the Supreme Court had become final, the court granted a motion for a new trial, and remanded the record to the court below for the accomplishment of this purpose.^[2] Subsequently the appellate court denied a motion filed on behalf of the accused in which it was prayed that the court grant the petition of counsel to order the holding of the new trial allowed the defendant before any judge other than the trial judge. When the record in the case was received in the office of the clerk of the Court of First Instance of Manila, the case was, following the usual practice, assigned to Judge Albert" for hearing. Thereupon, counsel for the accused asked the judge to refrain from taking cognizance of the case at the new trial, which the judge refused to do. Still not satisfied, a few days before the dates fixed for the hearing, counsel filed what was called an "urgent motion" which, according to the trial judge, was caused to be published in the local papers even before the respondent judge had had a chance to pass upon the same. This motion reads as follows:

"URGENT MOTION

"Comes now undersigned counsel for the accused and to this Honorable Court respectfully states:

"1. Considering that the administration of justice will not, by any means, be affected by Honorable Mariano Albert, Judge of the Court of First Instance of the City of Manila, not taking cognizance of this case, it seems proper, in our judgment, that, in order to avoid any misinterpretation of the action taken by said judge during the trial of this case, and in order to grant the accused a completely impartial trial to which her constitutional right entitles her, this case be taken cognizance of and decided by any other judge of the City of Manila.

"2. That herein counsel sincerely believes that, for the proper administration of justice and for the purpose of protecting the accused against the prejudice which has been necessarily formed by the judge who had presided at the original trial of this case and who had already rendered a judgment convicting the herein accused, and considering that the conclusions of said judge are strongly against the accused in finding her guilty of the crime charged, and that said judge has already formed in his mind a firm and irrevocable conviction of the guilt of the accused as shown by his findings appearing in the judgment condemning the accused, it is now impossible for her to obtain a completely impartial trial from said judge, Honorable Mariano Albert, wherefore, it becomes absolutely necessary that, to do justice to the accused and to avoid any misinterpretation of the action of Honorable Mariano Albert in this case, and because justice and equity so demand, this case be transferred to another branch presided over by another judge who did not have the slightest intervention in this case and, therefore, cannot have any prejudice against the herein accused.

"Wherefore, it is respectfully prayed that Honorable Mariano Albert transfer this case to any judge of the Court of First Instance of Manila in justice to the accused.

"Manila, March 23, 1932.

"(Sgd.) LAUREL, DEL ROSARIO & LUALHATI
"Attorneys for the Accused,
"601-607 Cu Unjieng Building
"Escolta, Manila."

Without loss of time, the trial judge summarily promulgated an order in which he found counsel in contempt of court and imposed a fine of P100 to be paid within twenty-four hours from receipt of the order, with an admonition that if not paid, five days imprisonment would result. As the trial judge construed the motion, "it is, therefore, evident that it is a part of the plan of the defense to avoid the new trial being presided over by the herein judge, and its principal object is to impress upon the mind of the public in general that the undersigned is not capable of administering justice to the accused pursuant to the facts and the law," On counsel being informed of the order of the court, a motion of reconsideration was presented by Attorney Guillermo Lualhati who assumed sole responsibility for the preparation of the motion found to be contemptuous, and who stated that he did not have the slightest intention of impeaching the honesty and rectitude of Judge Albert, and accordingly expressed a willingness to withdraw the motion from the record. The trial judge considered the explanation offered by Attorney Lualhati not satisfactory, but modified the previous order so as to have it directed exclusively against Lualhati. At this point, a petition for certiorari was presented in this court.

It would appear needless to repeat that the question before the court when the extraordinary remedy of certiorari is invoked relates exclusively to determining if the lower court exceeded its jurisdiction. It would likewise appear obvious that a discretionary power is lodged in trial courts, and that with the exercise of that discretion the appellate court should not, and properly can not, interfere unless there is a clear showing of an abuse of discretion. It would be fatal to orderly procedure if the Supreme Court should attempt to substitute its judgment for the judgment of trial judges. Further, it should be emphasized that section 8 of the Code of Civil Procedure provides the grounds for the disqualification of a judge, and that none of the reasons given in the motion constituted a ground for disqualification. Consequently, as this court has heretofore stated, considering the fact that the trial judge was not legally disqualified from trying the case, it was his duty to go forward with the trial. (Joaquin vs. Barretto [1913], 25 Phil., 281; Perfecto vs. Contreras [1914], 28 Phil., 538.) But even this does not state the case completely for the respondent judge, for it should be recalled that a motion had previously been presented to the Supreme Court and denied, and thereafter had been presented to the trial judge and denied, the "urgent motion" constituting the third effort to secure the disqualification of the trial judge.

On the other side of the case it is of course evident that the power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Also, the disclaimer in an effort to purge the contempt was wise, although simply tending to excuse and not to justify the act. We have no doubt that on more mature reflection, the lawyers representing the accused realized the impropriety of the action taken by a member of the firm, and would have been glad to find a means to undo what had been done.

Up to this point, little or no attention has been paid to the authorities. In truth, not one of them is found to be exactly controlling. The case of Perfecto vs. Contreras, supra, was one for libel in which the trial judge considered it his duty to proceed with the trial in the civil case notwithstanding he had been the presiding judge in the criminal case, and in which the Supreme Court sustained him for so doing. The case of United States vs. Guanzon ([1907], 9 Phil., 371), was a prosecution for contempt under the provisions of the Penal Code which the Supreme Court found, on the facts, did not constitute the offense of contempt. The recent case of Carag vs. Warden of the Jail of Cagayan, and Sevilla ([1929], 53 Phil., 85), in which the writ of habeas corpus was denied, was based on the proposition that if the court in committing a person for contempt acted within its jurisdiction, its action is final and the writ of habeas corpus will not lie. The remark was made that "The court to whom the contempt was offered and in whose presence it arose is the best judge of its nature." So much for the Philippine cases.

Harrison vs. State ([1880], 35 Ark., 458), concerned a motion for a new trial on the ground that the judge before whom the case was tried was "so prejudiced against the defendant that he did not give him a fair and impartial trial", which the court found to constitute contempt, the Supreme Court of Arkansas refusing to interfere by writ of certiorari. Toledo Newspaper Co. vs. United States ([1918], 247 U. S., 402), while likewise different on the facts, is yet indicative of the antagonistic trends of thought in the United States Supreme Court, since the majority headed by Chief Justice White upheld the District Judge who had found the defendants guilty of summary contempt and who had imposed a fine upon them because the publication tended to. evoke public suspicion of the judge's integrity and fairness and bring him into public odium, while the contrary viewpoint was presented as only Justice Holmes could present it in a1 dissenting opinion in which it was said that "a judge of the United States is expected to be a man of ordinary firmness of character, and I find it impossible to believe that such a judge could have found in anything that was printed even a tendency to prevent his performing his sworn duty." We have to follow the majority rule.

The case most nearly on all fours with the one before us is the Tweed Contempt Case. In this case, the notorious Boss Tweed came to trial before Judge Davis, but the jury was unable to agree and was discharged. When the case came on for retrial, Judge Davis was again presiding over the court. So distasteful was Judge Davis to Tweed's counsel that they presented to him a paper setting forth the reasons why he should not proceed at the trial and, among other things, stated "The said Justice has formed, and upon a previous trial expressed, a most unqualified and decided opinion, unfavourable to the defendant, upon the facts of the case." At the conclusion of the trial, Judge Davis took action with reference to the paper signed by some of the most eminent lawyers in the State, and in a decision which has become a classic, summarily found them in contempt and imposed fines on the senior counsel, while letting the younger counsel off with words of advice (Costigan's Cases on Legal Ethics, pp. 176-179).

We quite agree with counsel for the petitioner that attorneys should ever be fearless in the discharge of their duties even in the face of a hostile court. To the client, as stated by the canons of legal ethics, the attorney owes entire devotion. This court has heretofore given evidence on more than one occasion, of its desire to safeguard the interests of attorneys. At the same time, the duty of the attorney to the courts is no less sacred, and can only be maintained by rendering no service involving any disrespect to the judicial office which he is bound to uphold. In this instance, the submission of a motion once previously denied by the appellate court which had granted the motion for a new trial, and once previously denied by the trial judge, asking for the disqualification of the judge on a ground not provided by law, which motion the judge construed as misbehaviour intended to make the public believe that he was incapable of administering justice to the accused, left the judge no other recourse, if he was to maintain his self respect as a judge, than to take action by way of finding the attorney who presented the motion in contempt of court. As a consequence, we are driven to the conclusion that the trial judge did not act without or in excess of jurisdiction and did not abuse his discretion when he found the petitioner in contempt of court.

Petition denied, with costs.

Avanceña, C. J., Street, Ostrand, Villa-Real, Hull, Vickers, and Imperial, JJ., concur.

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^[1] Promulgated March 10, 1931, not reported.

^[2] 56 Phil., 360.

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