People, ex Rel. Sherwin, v. Mead

Full title: THE PEOPLE, ex rel. FRANK R. SHERWIN, Appellant, v . MICHAEL L. MEAD…

Court: Court of Appeals of the State of New York

Date published: May 11, 1883

92 N.Y. 415 (N.Y. 1883)

Opinion

Argued May 1, 1883

Decided May 11, 1883

Henry Edwin Tremain for appellant. Nathaniel C. Moak for respondent.

FINCH, J.

The application for the relator's discharge from arrest was properly denied.

1. The statement of the offense charged contained in the warrant was sufficient. That commanded the officer to "take Frank R. Sherwin, who stands indicted in the Court of Sessions of the county of Albany for contempt." It was issued after indictment found (2 R.S. 728, § 55), and by the district attorney, who was duly authorized to issue it (2 Laws of 1847, p. 444); and sufficiently specified the offense charged in the indictment. That was for "contempt." While it is true that an act or omission may be in the nature of a contempt and properly described as such without constituting a crime, yet it is also true that a contempt may be such as to fall within the criminal law and subject the offender to indictment. The statement in the warrant was of a contempt which had already served as the basis of an indictment, and necessarily implied a willful contempt and of a character which constituted a misdemeanor. The person arrested could not be misled by it, and was fairly apprised of the nature of the pending accusation. A warrant issued after indictment found may briefly state the offense, and need not be more precise and accurate than is sufficient to apprise the prisoner of the charge against him. ( Pratt v. Bogardus, 49 Barb. 92.) The Code of Criminal Procedure does not apply (§ 962), nor is this a case of commitment for contempt within 2 Revised Statutes, 567, section 40.

2. It was not necessary to the validity of the indictment that the accused should first have been adjudged in contempt by the court whose process he disobeyed. The two proceedings are wholly independent of each other. One who disobeys the lawful order of a court not only offends against the dignity of the particular tribunal, but also against the public law. The particular court may pass over the contempt and suffer its order to be spurned, but the offense against the people remains. Their authority has been contemned, the administration of public justice assailed, and its power despised. For such an offense the guilty party may be punished by indictment, although the court whose order has been disobeyed may take the indignity in silence. The statute has made such disobedience, when willful in its character, an offense against the people, and not left it dependent upon the action or non-action of the specific judge or court. The statute contemplates that both remedies, or either may be pursued. If the court has first moved and proceeded against the offender by attachment and inflicted punishment, he may nevertheless be indicted for the same wrong, but in that event the sentence is to be affected by the previous punishment. (3 R.S. [6th ed.] 442, § 14.) We have considered the argument very elaborately stated, founded upon the phrase in the criminal statute, "every person who shall be guilty of a criminal contempt," and construing the word "guilty" to mean adjudged guilty by the court whose process has been disobeyed, without being convinced by it. We have no doubt that the language means guilty in fact of the willful disobedience which constitutes a criminal contempt, although not so adjudged by the court whose process has been disregarded.

3. It is said the offense was not committed in the county of Albany. The relator was served with a subpoena requiring him to appear before the Court of Oyer and Terminer at Albany. He did not so appear. The disobedience and the contempt were there, and could be nowhere else. The order, if obeyed, was to be obeyed in Albany, and, if disobeyed, could only be disobeyed there. The witness was called in Albany, and omitted to appear and answer in Albany. We have no doubt that the offense for which he was indicted was committed there; if, indeed, it shall be shown upon the trial that any offense was committed at all.

4. There was no error in refusing to take bail when the application was made. At that time the Albany Oyer and Terminer was in session, and in such case the justice of the Supreme Court to whom the application was made in New York had no power to let the prisoner to bail. (2 R.S. 728, §§ 56, 57.) The Albany Oyer and Terminer had authority to try the prisoner, although the indictment was found in the Court of Sessions. (2 R.S. 205, §§ 29, 30.) The very object of bail is to cover an interval before the session of the next court at which the trial can be had. It takes the place of the imprisonment during such interval. When, therefore, there is no such interval, and the court being in session, the presence of the prisoner is due at once, there is no necessary occasion or proper cause for bail, unless by the court sitting, and the statute, therefore, denied the authority in such event to any tribunal except the court in session before which the indictment was triable. ( People v. Clews, 77 N.Y. 39.) There is no difficulty in harmonizing the provisions of title 2 and title 4. The first relates to arrest before indictment found and the last to the indictment and proceedings thereafter. The whole subject was considered in the Clews' Case, and its argument does not need to be repeated.

Some other objections have been considered but do not require discussion.

The order of the General Term should be affirmed, and it should be "ordered and adjudged that said Frank R. Sherwin appear at the next General Term of the Supreme Court, to be held in the first judicial department, on the first day of said General Term, at the opening of said General Term, or as soon thereafter as counsel can be heard, and on such other days and times as may be fixed by it, and abide by and perform its judgment or order in the premises."

All concur.

Ordered accordingly.