c32:No. 15822

CAMERON, Circuit Judge
(concurring in part and in part dissenting).
I concur in the reversal of the judgments of the Court below, but not in the discharge of appellant nor the reasons upon which that action is based in the majority opinion, I would remand the case for trial by jury.
I.
If the Judge had jurisdiction to try appellant, I think his findings are amply supported by the evidence. In the contempt hearings before him the Government introduced only the transcripts of appellant’s testimony before the grand jury. That testimony, standing alone, would, in my opinion, have sustained a finding by the trial Judge that appellant had no- cause to fear prosecution for income tax evasion or to apprehend that the answers he refused to give would tend to incriminate him of such a charge.
Appellant, himself, introduced as his witnesses three agents of the Internal-Revenue Service and proved by them that appellant and his lawyer had freely stated to them that the money in question was-not his money and was not retained by him; but was paid by him as an agent of Baleo, Inc. to certain city officials to reward them for employing Baleo in connection with certain public works. In the various conferences preceding presentation to the grand jury both appellant and his lawyer staked reliance solely upon the claim that the questions, if answered, would tend to make appellant liable to prosecution -for violation of state-laws, and the claim of possible federal involvement was not made until the invalidity of the former claim had been-pointed out by the federal officials.
The showing before the District Judge was strong indeed and he was fully justified in reaching the conclusions of fact announced by him. But I do not think he had jurisdiction to try the fact issues,, but think they should have been submitted to a jury.
II.
The trial Judge, sitting as judge of the-facts and the law, found appellant guilty of acts which violated not only the-Court’s order, but federal statutes as well as state statutes, e. g., 1 Vernon’s Texas Penal Code, Arts. 158, 160, 167. So finding, he entered judgments taking appellant’s liberty from him. It is abhorrent to Anglo-Saxon justice as applied in this country that one man, however lofty his station or venerated his vestments, should have the power of taking another man’s liberty from him.
Society has always permitted one exception, — the limited right of courts to punish for contempts. But that exception has been grudgingly granted, and has been held down uniformly to the “ ‘ “least possible power adequate to the end proposed.” ’ ”
III.
The limitations of that power have been drawn closer and closer through the years and it is clear now that a judge can impose imprisonment for contemptuous conduct which constitutes also a crime only when such conduct takes place in his presence. The early decisions of the Supreme Court were disposed to lodge broader powers in the judge; but a study of the history of contempt trials and the more recent decisions reveals that all agencies dealing with contempt procedures have combined in a steady progress towards stricter limitations upon the power of judges to punish con-tempts and broader observance of accused’s constitutional rights.
IV.
(a) The power of American Courts to punish contempts, frequently referred to as inherent, sprang from the practice in English Courts in effect when the Constitution was adopted. That practice has uniformly relegated to “the usual criminal procedure” charges of disobedience of court orders constituting also “infractions of the law”. The history which gave rise to the constitutional provisions guaranteeing the right of trial by jury “is succinctly summarized in the Declaration of Independence in which complaint was made that the Colonies were deprived ‘in many cases, of the benefits of Trial by Jury’ ”.
(b) The Constitution provides, “The Trial of all Crimes * * * shall be by Jury * * But those fresh from experiences with tyranny were not content with this general guarantee, and Amendments VI and VII were promptly adopted, the former providing: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * [Emphasis added.] The concept of a criminal “prosecution” is broader than a “trial” and the addition of the more inclusive term indicates a determination to afford the right of trial by jury to those subjected to prosecution of any sort which might result in fine or imprisonment. The selection of the language of the Sixth Amendment is hardly explainable upon any other postulate.
(c) The history of legislation on the subject has demonstrated a deliberate and consistent “ ‘Congressional purpose drastically to curtail the range of conduct which Courts could punish as contempt.’ ” And, on the same page, the Supreme Court pointed out that the attitude of Congress and of that Court in recent years had shown a definite determination to adhere to the thesis: “ ‘The exercise by federal courts of any broader contempt power than this would permit too great inroads on the procedural safeguards of the Bill of Rights, * * * and leave determination of guilt to a judge rather than a jury.’ ”
The Judiciary Act of 1789 conferred on courts the general power to punish for contempts, the language being the substantial equivalent of that now embraced in 18 U.S.C.A. § 401. Abuses arose under that Act leading Congress to pass the Act of March 2, 1831 (footnote 1, supra) wherein a second section was added which subsequently became a part of the Criminal Code and now constitutes 18 U.S.C.A. § 1503 and § 1505. The Nye case establishes that this action of Congress manifested the purpose of relegating a broad category of offenses theretofore dealt with as con-tempts to the normal processes of criminal trials.
The Clayton Act of October 15, 1914, as if adopting the evolution manifested by the two Gompers decisions, specifically provided trial by jury to persons coming within the purview of that Act when charged with violation of court decrees where the acts constituted also violation of criminal laws. And the Norris-LaGuardia Act of 1932 broadened further the scope of jury trials in labor cases. Finally, by passage of the Federal Rules of Criminal Procedure and the new Criminal Code of 1948, Congress, using the language of the Clayton Act, has provided specifically- for jury trial in all contempt prosecutions, civil and criminal, based upon violation of a court order, provided “the act or thing done or omitted also constitutes a criminal offense * * * ”.
It is also noteworthy that Congress requires that all prosecutions for contempt of Congress be by indictment or information and trial under the usual safeguards of ordinary criminal cases.
(d) The Supreme Court has kept pace with Congress in drawing closer and closer the boundaries of the categories of contempt prosecutions which can be tried without observance of all of the safeguards of the Bill of Rights, including the right of trial by jury. We discussed some of those cases in Matusow, supra, and reversed for failure of the Court below to. observe the provisions of the Bill of Rights in the conduct of contempt trial.
Mr. Justice Holmes had blazed the trail towards dealing with contempt charges involving crimes as ordinary criminal cases, in the second Gompers decision. And the Supreme Court, in ■1941 declared that the prior decisions discussed in the case had been based upon “a plain misreading of language and history * * Ever since that epochal decision the Supreme Court has, without exception, followed and added strength to the rule requiring “meticulous regard for those separate categories of offenses * * *, so that the instances where there is no. right to jury trial will be narrowly restricted.”
V.
(a) While the majority opinion does not decide the question of right to jury trial, it expresses some doubt as to whether appellant had not waived the right for failure to file a request therefor. But, as stated in the majority quotation from Emspak v. United States, 349 U.S. 190, 198, 75 S.Ct. 687, 692, 99 L.Ed. 997, “the courts must ‘indulge every reasonable presumption against waiver of fundamental constitutional rights.’ ” Appellee here does not contend that appellant waived his right to jury trial, arguing the question on the merits although referring to it as an afterthought. The fact is that appellant was never given the chance to accept or reject a jury, but was put to trial at a time when his counsel was pleading for delay in order that more complete preparation might be made. There was no waiver under established principles.
(b) Except for the proviso at its end that it does not apply to cases brought or prosecuted in the name of the United States, appellant would he entitled to a jury trial under the express terms of 18 U.S.C.A. § 3691. But, under identical language, the Supreme Court held that trial by jury was mandatory in a suit brought in the name of the United States, Michaelson v. United States, 1924, 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162; and cf. Gompers and Nye, supra, both prosecuted in the name of the United States.
Moreover, a strange incongruity would be presented if it should be held that protection of the Bill of Rights should be withheld from a litigant contesting with the sovereign against whose activities its terms are specifically directed, while that protection is categorically vouchsafed to a litigant at grips with a private adversary.
(c) A situation such as is here presented makes a peculiar call for trial of contempt charges by a fact-finder other than the author of the order the accused is charged with disobeying. What the Supreme Court said in Murchison, supra, 349 U.S. at pages 136-137, 75 S.Ct. at page 625, about the necessity of avoiding even the probability of bias applies here as does its quotation (ib.) from Offutt that “justice must satisfy the appearance of justice.” [348 U.S. 11, 75 S.Ct. 13.] It transcends recognized frailties of human nature to suppose that a judge can be free from the inclinations arising from natural pique which would be engendered by a direct refusal by the accused to obey an order freshly made by him, and the temptation to strike back which inevitably accompanies ruffled pride. Doubtless such considerations are among the factors which induced Congress to give special treatment to hearings which involve charges of violating court orders. Cf. 18 U.S.C.A. § 402 and § 3691.
VI.
In my opinion we ought to dispose of this appeal upon this procedural question rather than to reverse a finding of fact by the trial Judge which tends to leave the Government in a state of impotence in its efforts to detect and punish crime.
. E. g., 18 U.S.C.A. §§ 1503 and 1505 (and cf. Wilder v. United States, 4 Cir., 1906, 143 F. 433), which statutes originated as § 2 of the Act of March 2, 1831, 4 Stat. 487, Rev.Stat. § 725, which was the Contempt Act upon which most of the decisions of the Supreme Court have been based. § 1 of that Act is now 18 U.S.C.A. § 401. And cf. also the Conspiracy Statute, 18 U.S.C.A. § 371, and the Perjury Statutes, 18 U.S.C.A. § 1621 et seq.
. Matusow v. United States, 5 Cir., 1955, 229 F.2d 335.
. Cammer v. United States, 1956, 350 U.S. 399, 404, 76 S.Ct. 456, 458.
. Including those listed in footnote 8 of the majority opinion.
. Mr. Justice Holmes in the second Gompers case, Gompers v. United States, 233 U.S. 604, 610-611, 34 S.Ct. 693, 695, 58 L.Ed. 1115.
. Adams v. United States, 1942, 317 U.S. 269, 276, 63 S.Ct. 236, 240, 87 L.Ed. 268.
. Article HI, Section 2, Gl. 3.
. “Criminal Case” as used in the Fifth Amendment providing that no person shall bo comj>elled to be a witness against himself in any criminal case has been construed generally to include every sort of proceeding which might lead to taking a person’s liberty. See “The Fifth Amendment”, by R. Carter Pittman, 42 A.B.A. Journal 509.
. Cammer v. United States, supra, 350 U.S. at page 404, 76 S.Ct. at page 458.
. 1 Stat. 73, 83.
. For a full discussion of these abuses and the history of the Contempt Statutes see Nye v. United States, 313 U.S. 33, 45, 61 S.Ct. 810, 85 L.Ed. 1172 et seq.
. 38 Stat. 738, 15 U.S.C.A. § 12 et seq.
. Gompers v. Buck’s Stove & Range Co., 1911, 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, and Gompers v. United States, 1914, 233 U.S. 604, 34 S.Ct. 693, 58 L.Ed. 1115.
. The Court of Appeals in Michaelson v. United States, 7 Cir., 1924, 291 F. 940, 942, stated that the Act was written by the labor unions for the purpose of affording special protection to that group.
. 47 Stat. 70, now 18 U.S.C.A. § 3692.
. Cf. Rule 42 F.R.Crim.Procedure.
. 18 U.S.C.A. §§ 401, 402, and 3691.
. 2 U.S.C.A. § 192.
. The Government concedes in its brief in this case that Matusow was entitled to jury trial, but attempts to distinguish this case from Matusow’s.
. Gompers v. United States, 1914, 233 U.S. 604, 34 S.Ct. 693.
. Nye v. United States, supra, 313 U.S. at page 51, 61 S.Ct. at page 817.
. No case decided since Nye has shown .any tendency to slow down or reverse the steps by which the current trend has been established. United States v. United Mine Workers, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, does not conflict with that statement. It was there pointed out specifically that the claim of right to jury trial was based entirely on the assertion there rejected that the trial was governed by the Norris-LaGuardia Act. It was further stated that advisory jury was waived.
The following cases further develop and strengthen the quoted principle: In re Michael, 1945, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30; In re Oliver, 1947, 333 U.S. 257, 274 et seq., 68 S.Ct. 499, 92 L.Ed. 682; Sacher v. United States, 1952, 343 U.S. 1, and dissenting opinions at page 14 et seq., 72 S.Ct. 451, at page 457, 96 L.Ed. 717; Offutt v. United States, 1954, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11; In re Murchison, 1955, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942.
. Cf. Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, and Buie 23(a), Federal Buies of Criminal Procedure.
. After providing that a person wilfully disobeying a court order, shall be prosecuted under § 3691 — that is, with jury trial— where the act done is of such character as to constitute also a criminal offense under federal or state law, 18 U.S.C.A. § 402 provides :•
“Such fine shall be paid to the United States or to the complainant or other party injured by the aet constituting the contempt, or may, where more than one is so damaged, be divided or apportioned among them as the court may direct

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