Petitioner, an attorney at law, was cited for contempt in the above entitled court for certain alleged contemptuous acts committed in the presence of the trial judge, who sentenced petitioner to five days in the county jail. By this writ petitioner seeks to annul the order of contempt.

Counsel for the respective parties stipulated in open court in response to the order to show cause here issued, that the return herein filed by respondent may be considered as a “rejoinder” and it was agreed that the entire matter may be submitted to the court for decision on its merits.

A reviewing court may, in such a proceeding, examine the allegations of contemptuous acts alleged to determine if they do in fact constitute contemptuous acts sufficient to give the court jurisdiction to punish petitioner for contempt, and the review may extend to the whole of the record of the court below where it is necessary to determine the jurisdictional fact. (Hotaling v. Superior Court, 191 Cal. 501, 506 [ 217 P. 73 , 29 A.L.R. 127 ]; Bennett v. Superior Court, 73 Cal.App.2d 203, 210 [ 166 P.2d 318 ].)

A proceeding to punish a defendant for contempt is in its nature a criminal proceeding, and the charge and finding thereon, and the judgment of the court, are to be strictly construed in favor of the accused. (Schwarz v. Superior Court, 111 Cal. 106 [ 43 P. 580 ].)

Here the action of the trial judge grew out of the trial of Henry Ford McCracken, who was charged with murder, kidnapping, and child stealing, in Orange County. Petitioner, a young attorney of limited trial experience, was appointed by the court to defend the defendant. After a protracted jury trial of many weeks, attracting much publicity, a jury returned a verdict of guilty of child stealing, not guilty of kidnapping, and disagreed on the charge of murder. Immediately thereafter, a trial was had on the charge of murder, which trial consumed a considerable amount of time and resulted in a verdict of guilty of that charge. Thereafter his plea of not guilty by reason of insanity was heard. The jury found defendant sane at the time of the commission of the offense. The several trials involved days of testimony and no doubt the parties concerned were tired, in a high state of anxiety, and desirous of an early determination of the issues presented.

It appears that during the sanity hearing a Dr. Musfelt was called as one of the Court’s appointed psychiatrists. He testified, in substance, about the medical examination he made of the defendant and concluded that in his opinion the defendant was sane at the time of the commission of the alleged offense. Petitioner, as counsel for defendant, cross-examined this witness and consumed about 112 pages of transcript in so doing. A small portion of that cross-examination bore upon the subject of “schizophrenia.” After terminating this cross-examination, on the following day, petitioner, who had made some further study of the subject, asked permission of the court to recall the witness for further examination. The request was granted and the following examination was had:

(The following proceedings took place at the judge’s bench, outside the presence and hearing of the jury:)

(Then followed a lengthy dissertation by the witness on the subject.)

(The following proceedings took place at the judge’s bench, outside the presence and hearing of the jury:)

(The following proceedings took place in open court, within the presence and hearing of the jury.)

Thereafter, similar questions were propounded and answered without objections. Objections were sustained to many of them ^nd overruled as to others. The jury was then excused. The trial judge and counsel retired to the court’s chambers and the court remarked:

This is a fair exemplar of the proceedings leading up to the order of contempt, which we will designate as charge No. 1. Predicated upon this showing, the court found that petitioner willfully, deliberately and with complete disregard of the rulings of the court, asked the witness leading questions and sought to cross-examine him for the purpose of placing before the jury the subject matter excluded; that such actions tended to interrupt the due course of the trial and impair the respect of the authority of the court.

The next charge (designated as No. 2) is that petitioner made disrespectful remarks to the judge in chambers, in this, that petitioner was endeavoring to explain to the court why he was compelled to examine the medical witness produced by the court to prove his defense. He said:

Another incident is cited (which we designate as Charge No. 3) as occurring at the bench when petitioner assigned a statement of the judge as prejudicial error and remarked: “I don't know what number it is,” (the number of the assigned errors up to that time.)

In another charge (No. 4) respondent claims contempt in the following demeanor:

(The following took place at the Court’s bench outside the hearing of the jury.)

These constitute the major acts claimed to be contemptuous. As to the latter’s claim (No. 4) a mere recitation of the dialogue between the parties clearly shows that Mr. Davis may have made the remark instead of the trial judge, or at least the petitioner believed that the remark was made by the prosecuting attorney and not by the court at that time, and so indicated by his answer to the court’s question. Apparently the court was satisfied of the fact that petitioner thought that the prosecuting attorney made the remark at the time. The judge did not assign such remark as contemptuous and did not warn petitioner nor rebuke him for making such a remark. He admits in his statement that he did not remember this conversation until he discovered it in reading over the record after the trial was completed.

In Gallagher v. Municipal Court, 31 Cal.2d 784, at 797 [ 192 P.2d 905 ], the court stated:

No wilful contemptuous conduct thus appears.

As to charge No. 3, the record shows that petitioner did, on other occasions, cite statements of the judge as prejudicial error, and apparently was endeavoring to list the number of such assigned statements in sequence. Petitioner claims that he thought the court was keeping track of the assigned errors by number. Likewise, it also here appears that the judge did not assign this statement as contemptuous at the time, nor did he “warn” nor “rebuke” petitioner for such claimed misconduct. It does not appear that this claim is deserving of particular consideration.

As to charge No. 2, it appears that the statement was made by petitioner in the court’s chambers, in which he clearly demonstrated to us that all parties had been through a “trying eight weeks”; that the court felt as though petitioner was merely endeavoring to have it commit some prejudicial error in the trial of the action by its rulings, and the court accused petitioner of such conduct. The petitioner endeavored to explain his actions, and probably did unkindly remark: “We feel there is enough in the record already.” Petitioner claimed that on the trial of the “not guilty” plea, the court had already committed what petitioner believed were prejudicial errors, and that he did in this manner inform the court of that fact. These remarks rather indicate that both counsel and the trial judge were rather tired and were, to some extent, wearing upon the nerves of each other. Stand ing alone, it does not appear that this remark would justify the judgment of contempt and the punishment inflicted.

As to charge No. 1, a more serious problem is presented. There is confusion in the record as to whether petitioner recalled the witness for further cross-examination or whether he recalled him for the purpose of making him his own witness. The record shows that the witness was under cross-examination when dismissed. The following day petitioner asked permission of the court to recall the witness for further examination. He stated:

The court sustained an objection to a proper question then propounded on cross-examination, on the ground that the “matter has already been gone into on direct examination. ’ ’ The ruling on the named ground was clearly erroneous because the court-appointed witness had testified on direct examination and was then on cross-examination on the subject. The petitioner, to avoid the erroneous ruling, apparently offered to make the witness his own witness and the court thereafter “sustained” an objection to it. The petitioner then approached the bench, as heretofore indicated, and correctly explained to the court that since the witness was a court-appointed witness and had been examined by the court, the defendant should have had a right to cross-examine the witness on the subject matter. Apparently foreclosed of this right, petitioner then maintained a right to call the witness as his own witness for the purpose of bringing out certain testimony, and the court stated that if petitioner saw fit to make the witness his own he could do so, but it would allow no cross-examination. Thereafter, objections to several questions were sustained as leading, until the petitioner propounded the following question: “Well, a person who has schizophrenia, if a person has schizophrenia, will it show up organically?” The court overruled an objection to this question, as “leading” and as “improper direct examination,” and thereafter considerable testimony was admitted bearing on the subject. The judge then again sustained objections to a series of similar questions on the subject, on the ground that they were leading, and overruled others. It should be noted that after many such rulings were sustained on the ground that the questions were leading, petitioner inquired of the court: “Is it my understanding, then, Your Honor, that the ruling means I am not to ask any questions on schizophrenia at the present time of this witness ? The Coubt ; Nothing of the kind. Mb. Chula : .What, sir? The Coubt: Nothing of the kind.” Petitioner then proceeded as indicated.

As heretofore stated, the petitioner, being young and inexperienced in the trial of criminal cases, was appointed originally by the court to defend the defendant. The record indicates that petitioner did, on several occasions, ask the permission of the court to withdraw as such attorney, which request was denied. It does appear that he did prosecute the first trial with some degree of success. The trial judge immediately ordered a retrial of the remaining charges at a time when public opinion was aroused and all parties were in a somewhat nervous state of mind. In the trial of the insanity action no doubt the petitioner felt a keen responsibility rested upon him in his efforts towards his client. Apparently the defendant was without funds to employ medical experts in his own behalf and petitioner was endeavoring to make use of the testimony of the medical witnesses appointed by the court for the purpose of establishing defendant’s claimed defense of insanity. We see no valid reason why counsel for the defendant should not have taken advantage of this privilege because, as indicated by petitioner in presenting his reasons for further examination of the medical witness, he pointed out that under section 1027 of the Penal Code it is the duty of the alienist appointed by the court to examine the defendant and investigate his sanity and to testify in any proceeding in which the sanity of the defendant is in question. He may be called by either party to the action or by the court itself. When called by the court or by either party to the action, the court may examine the alienist and either party may cross-examine him in the order directed by the court. When called by either party to the action the adverse party may examine him the same as in the ease of any other witness called by such party.

In People v. Hickman, 204 Cal. 470 [ 268 P. 909 , 270 P. 1117 ], it was held that a person charged with a crime is presumed to be sane until the contrary is established by a preponderance of the evidence, and it was stated that where insanity is introduced as a defense, to prove it by a preponderance of the evidence does not affect the other rule that the burden of proving sanity is on the prosecution, and that the rule relating to the defense of insanity does not shift the burden of proof from the People to the defendant but only-shifts the burden of introducing evidence and declares the amount or quantum of evidence which he must produce to overcome the presumption and show his insanity. It therefore appears that a broad latitude should be allowed counsel for defendant under the circumstances in meeting the burden imposed upon him by law. It does appear that petitioner was somewhat persistent in his endeavors to establish by the witness certain medical testimony, and in doing so he did ask repetitious questions bearing on this subject. Hypothetical questions directed to an expert witness are not necessarily leading questions. In Dees v. Louisiana Oil Refining Corp., (La.App.) 162 So. 597, 600 , the court said: “Leading questions are always permissible when experts are being interrogated as witnesses.” The general rule appears to be that stated in Galveston, H. & S. A. Ry. Co. v. Powers, 101 S.W. 250 , 254, where it is .said:

See, also, People v. Wheeler, 60 Cal. 581 [ 44 Am.Rep. 70 ] ; Rose v. National Lead Co., (Mo.App.) 94 S.W.2d 1047 ; Alaska United Gold Min. Co. v. Keating, 116 F. 561 [ 53 C.C.A. 655 ]; Estate of Melvin, 85 Cal.App. 691 [ 259 P. 980 ] ; 32 C.J.S. 344, § 550, note 23; State v. Allemand, 153 La. 741 [ 96 So. 552 ]; Sanguinett v. May Dept. Stores Co., 228 Mo.App. 1161 [ 65 S.W.2d 162 ]; Strever v. Woodard, 160 Iowa 332 [ 141 N.W. 931 , 46 L.R.A. N.S. 644]; Edwards v. Burke, 36 Wash. 107 [ 78 P. 610 ] ; 22 C.J. p. 705, § 794, footnote 14(a). There are, however, a few cases, based upon the questions there presented, which we have discovered that might indicate a contrary holding. See Missouri, K. & T. Ry. Co. of Texas v. Johnson, (Tex.Civ.App.) 193 S.W. 728 ; 22 C.J. 710, § 798, and cases cited.

Respondent points out that it was immaterial whether the court’s ruling was or was not correct; that it was nevertheless petitioner’s duty to abide the ruling of the court and not persist in propounding leading questions, citing Penal Code, section 1044, and Fisher v. Pace, 336 U.S. 155 [ 69 S.Ct. 425 , 93 L.Ed. 569 ].

This general statement may be true. However, where the trial court makes an erroneous ruling as to the admissibility of a certain line of evidence, counsel for defendant should be given much latitude in pressing his point and in convincing the court of the error, at the time it is made. The correctness of the ruling may bear upon the question whether such persistence in pressing petitioner’s claimed right is solely in the interest of his client’s defense or whether his actions constitute wilful disobedience of a ruling, particularly where petitioner inquired of the court, if by its ruling it meant that petitioner should not pursue the subject of schizophrenia any more, and the court remarked: “Nothing of the kind. ’ ’ When an expert witness has testified that in his opinion a defendant was sane at a particular time, considerable latitude should be allowed counsel for the defendant to cross-examine the witness so testifying on the subject matter. (32 C.J.S. 369, § 560.)

It does appear, from the 112 pages of testimony pertaining to the cross-examination of this doctor, that very few pages were devoted to the subject of schizophrenia. From a reading of the questions as propounded, to which questions the court sustained objections on the ground that they were fully covered by a previous cross-examination, it is difficult to determine from the record whether they were in fact fully covered. It is true that the court did allow the witness to answer many of the questions propounded by petitioner on this subject and clearly indicated that it did not intend to preclude the petitioner from propounding questions about schizophrenia. The court did not permit the witness to answer the questions, mainly on the ground that the questions were leading.

As pointed out by respondent, defense counsel, however zealous in his client’s behalf, has, as an officer of the court, a paramount obligation to the due and orderly administration of justice, and at all times should maintain a respectful attitude toward the court. A disavowal of intentional disrespect or wrongful intent is no defense to a contempt order. (Daily v. Superior Court, 4 Cal.App.2d 127 [ 40 P.2d 936 ].)

It is true that an attorney cannot always be right and may be wholly wrong in his position upon the legal question under argument, and to the mind of the court so plainly wrong that the latter may conceive that it requires no enlightenment from the argument of counsel. But, whether right or wrong, he has the right to an opportunity to present his theory of the case on any occasion where the exigency of the pending point in his judgment requires or justifies it. (Platnauer v. Superior Court, 32 Cal.App. 463, 475 [ 163 P. 237 ] ; Bennett v. Superior Court, 99 Cal.App.2d 585, 595 [ 222 P.2d 276 ].) An attorney has the duty to protect the interests of his client. He has a right to propound a legitimate argument and to protest an erroneous ruling, and there is no rule permitting a court to punish an attorney because he is honestly mistaken in his interpretation of the law when he presents his mistaken views to the court in a proper and respectful manner.

In Gallagher v. Municipal Court, 31 Cal.2d 784 [ 192 P.2d 905 ], the court cited with approval Platnauer v. Superior Court, supra, and stated, at page 788:

In Caldwell v. United States, 28 F.2d 684 , the court held that punishment of an attorney, as for contempt, for repetition in different form of a question to which objection had been sustained, was unwarranted; and that since there was no showing that there was any wilful attempt to evade the court’s ruling, it pointed out that “unless a ruling is amplified by an explanation of the reasons therefor, attorneys, especially in the course of rapid cross-examination, often put a question in different form, as a matter of caution, and with no desire to evade the ruling of the court, or to be contumacious,” and said:

See, also, Sprinkle v. Davis, 111 F.2d 925 [128 A.L.R 1101], where it is said:

In the instant case the record would not sustain a finding that anything petitioner said or did was boisterous, noisy, offensive, or threatening in any manner. In the contempt proceedings had before the trial judge, he so stated. In that statement he based his order mainly upon the claim that his ruling was that the questions propounded were leading and suggestive; that since petitioner had recalled the witness as his own witness, and so informed the court, and since petitioner thereafter proceeded to cross-examine him after the court admonished petitioner not to do so on several occasions, he violated the court’s ruling in pursuing such conduct.

We have examined the entire record presented pertaining to these proceedings and fail to find therefrom, contrary to the trial judge’s finding, that the acts complained of show that petitioner did “willfully,” “deliberately,” and “with complete disregard and in flagrant violation of” the admonitions of the court, ask leading questions for the purpose of placing before the jury improper matter, and that such actions were so contumacious as to justify the order or the penalty inflicted.

Accordingly, the order adjudging petitioner guilty of contempt of court and imposing sentence thereon is annulled.

Barnard, P. J., and Mussell, J., concurred.