Byron White

“ Although counsel for the defendant did not object, the witness believed that the prosecutor's questions presented the defendant's case in a bad light or failed to elicit the whole truth. [1] On several occasions the trial judge instructed the witness to answer the questions as they were asked, if he could, but not to rephrase the questions or to offer testimony gratuitously. [2] When Ungar failed to heed these instructions, the judge admonished him in chambers 'to confine his answers to the questions' and to leave the defense to the accused's counsel ”

“ The State, among other arguments, denies Ungar's right to any hearing at all, relying upon Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717, as permitting the judge summarily to convict for contempt at the conclusion of trial. We do not and need not, however, deal with the circumstances in which a trial judge may or may not constitutionally resort to summary proceedings after trial. For in this instance, assuming a nonsummary hearing was required, [8] the hearing afforded petitioner satisfied the requirements of due process. ”

“ Treating both the appeal and the Article 78 proceeding identically, the Court of Appeals ruled in the amended remittitur that rights under the Fourteenth Amendment had been raised and passed upon and stated that 'appellant argued that such rights were violated by (1) the trial judge's refusal to grant an adjournment of the contempt proceeding upon proof of the engagement of his counsel ”

“ There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; Torres v. United States, 270 F.2d 252 (C.A.9th Cir.) ; cf. United States v. Arlen, 252 F.2d 491 (C.A.2d Cir.) .
Ungar was served with a showcause order on Thursday at about 5 p.m., [10] the hearing being scheduled for the following Tuesday at 10 a.m. ”

“ Therefore the amended remittitur is determinative in this Court on the constitutional issues raised and necessarily passed upon in the state courts. Bailey v. Anderson, 326 U.S. 203, 66 S.Ct. 66, 90 L.Ed. 3. That remittitur speaks of rights asserted and passed upon under the Fourteenth Amendment and does not indicate that a state statute was 'drawn in question' and sustained over constitutional objections. See Mergenthaler Linotype Co. v. ”