Sherwin v. . People

3 N.E. 465, 100 N.Y. 351, 3 N.Y. Crim. 524, 55 Sickels 351, 1885 N.Y. LEXIS 985

• Court: New York Court of Appeals
• Decided: November 24, 1885
• Status: Published

Opinion

Miller, J.

The defendant was convicted on an indictment for contempt in . disobeying a subpoena issued by the district attorney of Albany county in a criminal case, and he pleaded guilty to two other indictments of the same character. He was sentenced for each of the offenses charged, and the question now presented involves the validity of these indictments. If the indictments did not impute to the defendant a criminal offense, in violation of the statute of this state (and were defective in charging such offense) then they are insufficient to sustain a verdict of guilty, or a sentence after conviction, or after a plea of guilty.

The indictments are founded upon the provisions contained in 2 R. S. 692, § 14, which declare that, “ Every person who shall be guilty of any criminal contempt enumerated in the second title of the third chapter of the third part of the Bevised Statutes, shall be liable to indictment therefor as a misdemeanor, and upon conviction shall be punished as hereinafter prescribed.”

To make out an offense within this provision and sustain a conviction under the same, the indictment must charge that the defendant was guilty of some act which constituted a criminal contempt in violation of the statute cited. The only acts which constitute a criminal contempt within the provisions of section 14, are specified in section 10 of 2 R. S. 278, which declare, “ Every court of record shall have power to punish as for a criminal contempt, persons guilty of either of the following acts and no others . . . (Subdivision 3) willful disobedience of any process or order lawfully issued or made by it.”

The subsequent sections, 11, 12 and 15, make provision in reference to the punishment to be inflicted in case of a violation of the provisions of section 10.

The charge made in the indictments against the defendant can only rest upon subdivision 3 of section 10, above quoted, and, in order to sustain the indictments, a case must be made out within the language and meaning of that subdivision, and there must be a willful disobedience of a process or order lawfully issued or made by the court in the exercise of its legal authority.

The court alone can issue the process or make the order a violation of which constitutes the contempt, and it cannot lawfully be issued or made by any intermediate authority. It was evidently intended by the statute that the contempt which was the subject of condemnation and punishment, should be a matter of consideration by the court itself, and that it should pronounce judgment as to its character and the punishment that should bo inflicted.

Each of the indictments against the defendant, among other things, alleges that the writ of subpoena was duly and lawfully issued by the district attorney, and tested in the name of a justice of the Supreme Court, and directed to the defendant commanding him to appear at a Court of Oyer and Terminer at a time specified ; that it was lawfully served on the defendant, and that he was notified to appear and give evidence according to the exigency of the writ. There is no allegation that any process or order was lawfully issued or made by any court of record, and although it is stated to be a writ issued by the people, such statement does not necessarily establish it as a process or order issued or made by a court of record. The allegations in the indictments that it was called a subpoena, and that it was lawfully issued and tested by a justice of the Supreme. Court, did not make it a process or order lawfully issued or made by any court of record. Something more was required to bring it within the statute. It should have been made to appear that a court of record, duly organized, had issued the process or made the order which was disobeyed. It will be observed that section 10, subdivision 3, instead of declaring that a willful disobedience of any order or process of the court can be punished as a criminal contempt, defines the process or order which cannot be disobeyed without subjecting the party to indictment for a misdemeanor, by the use of the term “ lawfully issued or made by it,” thus indicating an intention to include only such process or order as was expressly directed by the court itself, while acting officially in the discharge of its functions.

Courts of Oyer and Terminer have no power to issue subpoenas (2 R. S. 276, § 1); but the subpoena described purports to be issued either by a justice of the Supreme Court or by the district attorney. It is difficult to see how such a process can be regarded as issuing from, or as an order made by any court of record. Section 30, subdivision 3, is highly penal in its character, and cannot well be said to embrace a case where the process or order was not, in fact, lawfully issued or made by a court of record duly constituted for that purpose.

The allegation in the indictment that the process was duly issued by the district attorney is inconsistent with the position that it was issued by a court of record. The writ of subpoena which was issued was expressly authorized by 2 R. S. 729, sections 63 and 64, where power is conferred upon the district attorney to issue subpoenas for witnesses in the precise form alleged. The process was a subpoena issued by the district attorney alone, and the court took no part in his official act in this-respect. It is nowhere alleged in - the indictment that the subpoena in question was a process lawfully issued by the order of any court of record. Without this, there was no power to punish by indictment for a criminal contempt within the language and meaning of the statute. To sustain a charge for a criminal contempt under section. 10, and an indictment under section 14, it should be averred and made to appear that the willful disobedience alleged was, within the-terms of the stat ute, a distinct and clear disobedience of the process or order of the court of record stated in the indictment.

In People v. Gilmore (26 Hun, 1), it was held that to warrant punishment as for a criminal contempt, the mandate, process or order disobeyed must have been lawfully issued or made by some court of record as such; and it was said in the opinion of Davis, J., that if not so issued by a court of record as such court of record, then another and. quite different statute would be applicable to the case. In People v. Riley (25 Hun, 587), Gilbert, J., says : “ There exists no undefined power authorizing the commitment of citizens for contempt in cases defined and limited by statute.” See also Matter of Watson v. Nelson, 69 N. Y. 537 ; O’Gara v. Kearney, 77 Id. 423.

The views already expressed are also supported by the notes of the revisers of the statutes, and the other provisions of the statutes in regard to contempts which are not criminal.

In their notes on section 10 (5 Edm. 426), the revisers say: “ A solid and obvious distinction exists between contempts strictly such and those offenses which go by that name, but which are punished as contempts only for the' purpose of enforcing some civil remedy. This distinction has been observed, and the former are intended to be included in the preceding sections. The latter class are treated of subsequently, among miscellaneous proceedings in civil cases.”

From these remarks it is quite obvious that the contempts which are subsequently provided for among miscellaneous proceedings in civil cases, were not intended to be included among criminal contempts. It follows that the framers of the statute never intended that the disobedience of a subpoena in civil cases should be regarded as a criminal contempt. The provision of section 26 (2 R. S. 538), declaring that, “ Persons proceeded against, according to the provisions of this title, shall notwithstanding, be liable to indictment for the same misconduct, if it be an indictable offense,” is not in conflict with the position last stated. This section merely recognizes the fact that there may be some provision of the statute which makes one or more of the simple contempts a crime, but it does not sanction the idea that disobedience of a subpoena is a criminal contempt, indictable as a misdemeanor under the statute which declares such contempts to be misdemeanors. The distinction made by the revisers is repeated in their note to title 13, chapter 8 of part 3 of the .Revised Statutes (5 Edm. 502), entitled : “Of proceedings as for contempts, to enforce civil remedies and to protect the rights of parties in civil actions.” After having pointed out the distinction between contempts which are really sock, and those which are treated as contempts for the mere purpose of enforcing some civil remedy, they say the former class has been provided for. “ It is the object of this title to provide for the latter class.” As provision is made in the title to which this note is appended, to punish the failure to obey a subpoena, there would seem to be no question that the revisers did not intend to make the disobedience of a subpoena a criminal contempt.

Independent of the provisions of the statute in regard to criminal contempts, there are other enactments relating to the disobedience of subpoenas issued by an. attorney in civil actions or county clerk or district attorney in criminal cases, which define the penalties to which a defaulting witness in such cases subjects himself, and such penalties being designated and no others attached to the same, they must be regarded as alone intended to be inflicted. The explicit provisions of these statutes are controlling and conclusive, and clearly indicate the intention of the law'-makers to provide specially for such cases, and that they should not, by any rule of construction, be regarded as embraced within the provisions of law in regard to willful disobedience of an' order or process lawfully made or issued by a competent court. All other provisions, therefore must be excluded and the penalty incurred must be limited to these plain provisions of the statute, which furnish ample remedies in such cases, as will be seen from an examination of the same. The provisions of the statute in regard to witnesses, their privileges and compelling their attendance (2 R. S. 400, § 42), after providing the mode of their subpoena by section 43, prescribes the penalties for non-attendance, and among those is, he “shall be deemed guilty of a contempt of the court out of which such subpoena issued.” 2 R. S. 400, § 43. If a criminal contempt was intended, it would no doubt have been so declared, for there is a marked difference, as we have seen, between a simple and a criminal contempt under the Eevised Statutes. It is a reasonable and fair intendment, from the language employed, and from the omission to declare otherwise, that it was the intention of the legislature to make full and ample provision for a contempt committed in the case enumerated ; and it would be going very far to hold that under the previous provision a party could be subjected to the penalty arising from a criminal contempt.

A further provision is made for the punishment of con-tempts in proceedings as for contempts to enforce civil remedies and to protect the rights of parties in civil actions, among which are enumerated, “ all persons summoned as witnesses for refusing or neglecting to obey such summons.” 2 R. S. 535, § 1, subdiv. 5). The distinction is thus maintained between the two classes of contempts. The punishment on conviction for a criminal contempt was (2 R. S. 278, § 11), a fine of §250 and an imprisonment for thirty days. Such conviction was (§ 15) no bar to an indictment for the same offense, if it was indictable, but the court, in passing sentence, was to take into consideration the punishment previously inflicted. Section 14, as we have seen, provides that a person guilty of any criminal contempt named in section 10, supra, shall be liable to indictment for the same as a misdemeanor and punished as thereinafter prescribed ; and by section 40 (2 R. S. 697), such punishment was by imprisonment in a county jail not exceeding one year or by fine not exceeding $250, or by both. It is hardly to be supposed that it was intended to embrace in the punishment prescribed, the failure to obey the subpoena issued by a district attorney in a criminal case or by an attorney in a civil action.

Aside, however, from the statutes to which reference has been had, the question considered is, we think, fully settled and disposed of by the provision contained in section 64 of article 2, title 4, chapter 4, part 4 of the Eevised Statutes, which is entitled, “ Of Indictments and Proceedings thereon.” This section fully prescribes the penalty for willfully neglecting to obey a subpoena issued by a district attorney in a criminal case, and settles definitely any doubts which might possibly arise upon the question whether a criminal contempt had been committed. It declares that such disobedience is to be “ pun ished in the same manner and upon like proceedings as provided by law in cases of subpoenas returnable at any Circuit Court, and the person guilty of such disobedience shall be liable to the party at whose instance such subpoena issued, in the same manner, and to the same extent, as in cases of subpoenas issued in any civil suit thus evincing unmistakably that such disobedience of a district attorney’s subpoena stands upon precisely the same ground as, and that it is not a criminal contempt any more than refusing to answer a subpoena in a civil case. By the statutes to which reference has been had, a. violation of a subpoena in either case renders the witness amenable to the same consequences as for a simple contempt, to be punished in the same manner, and to the same extent, and upon proceedings of the same character.

In the face of an express statute, providing in clear and unmistakable language for the penalty to be incurred, there is no valid ground for holding that other penalties are to be inflicted, which are, at least, of doubtful application, and for which the statute itself, under which they are sought to be enforced, does not clearly and directly provide.

It is a well established rule of law that statutes which create criminal offenses are to receive a strict and not a liberal construction, and they should not be enlarged by interpretation beyond their fair meaning and import. The multiplication of offenses by construction of penal statutes is in conflict with the general policy of the law, and a statutory crime can only be created by phraseology which is clear, direct and unquestionable as to its intention. Unless this is manifest, the language employed cannot be held to include a criminal charge. If a new criminal offense was intended to be created by section 10, subd. 3, supra, it was only when a competent tribunal, sitting as a court, and exercising its functions as such, had made a lawful order or directed a process to be issued, and not in a case where the order can be imputed to it by a mere fiction of law.

The Court of Oyer and Terminer, as originally organized, had power under the Revised Statutes (2 R. S. 276, § 1, subd. 1) to issue writs, including a subpoena, and original subpoenas of courts of record were required to be issued under the seal of the court and indorsed by the attorney. 2 R. S. 277, §§ 8, 9.

But the provisions in regard to the issuing of subpoenas in criminal cases are special, and power is given to the district attorney, as an officer under the law, to issue subpoenas which are different from the subpoenas originally intended to be issued by the Court of Oyer and Terminer, and under its seal. By 2 R. S.§ 63, the district attorney is authorized to issue subpoenas without the seal of the court, and they are declared to be as valid as if the seal of the court had been affixed thereto. A subpoena thus issued had the same validity as if it had been signed by the clerk and issued under the seal of the court. As we have already seen, under section 64, the punishment for disobedience of a subpoena issued by the district attorney is the same as in civil cases.

It is thus apparent that it was not intended by the legislature, in conferring authority upon the district attorney to issue subpoenas, and in providing for the failure to obey the same, to create an offense within the meaning of section 10, subd. 3, supra, or to regard the disobedience of the same as a willful violation of an order made or a process issued by the court itself. Such a subpoena is not issued by the court itself or under its seal, but it is a subpoena issued under the statute by an officer of the court expressly authorized for that purpose. If the disobedience of a subpoena issued by the district attorney is a misdemeanor, liable to be punished under indictment, as provided by section 14, supra, then the same rule would be applicable to innumerable cases where subpoenas are authorized to be issued, and for which the statute has provided, which it is needless to enumerate.

The learned counsel for the respondent insists that the subpoena in question was a process of the court, and properly issued by the district attorney, with the same effect as if issued on a special order of the court.

While, as a matter of form and by legal fiction, a subpoena may be regarded as issuing out of and by order of the court, and, for certain purposes, as the act or mandate of the court, and a party upon whom it is served may be compelled to obey the same, and, upon failure to do so, punished for disobedience and for his contempt of the authority of the court, upon a proper application, after he has had full opportunity to he heard in his own defense,—as we have already seen, a subpoena thus issued is neither a process nor order of the court, which is named or embraced within the provisions of the section of the Be vised Statutes already cited. ■

The process or order referred to is one which emanated from the court, while sitting as such, and it requires something to be done by the party to whom it is issued or directed, which is within the province of the court to direct, and which it has full power and authority to command in its capacity as a judicial tribunal. It does not include a process issued merely by the act of a public official, without any direct action or determination of the court.

After a careful examination, we are satisfied there is no authority for the doctrine that the disobedience of a subpoena under our statute, or otherwise, is a criminal offense punishable by indictment, and no adjudicated case upholds such a doctrine. When the defendant’s case was presented to this court, on certain preliminary questions growing out of his arrest in the city of. Hew York, the precise point now under discussion was neither considered nor determined, and the decision then made is not an authority which sustains the position taken by the respondent’s counsel. People ex rel. Sherwin v. Mead, 92 N. Y. 415 ; 1 N. Y. Crim. Rep. 417.

We may concede that a party refusing to obey a subpoena, or in any way obstructing the service of papers, is by law in contempt, but it by no means follows that the proper mode of punishment is by a proceeding by indictment. The usual mode of punishing the offender is by an application to the court, upon notice, where the parties can have an opportunity to be heard, and make an excuse, if any they have, for their conduct in disregarding or disobeying the subpoena.

Whether a willful, contempt is an offense punishable-by indictment at common law, is not material to determine in the case now considered, as the question to be decided depends upon the interpretation to be given to the statutory provisions which have been cited and which bear upon the subject.

After careful consideration we are brought to the conclu sion that neither of the indictments against the defendant contains a legal charge against him of any offense for which he conld properly and lawfully be punished, either for a criminal contempt or a misdemeanor.

The result at which we have arrived disposes of the case, and renders it unimportant to examine and consider the numerous other questions raised upon the trial. It follows that the conviction had and the sentences imposed, for offenses not authorized by law were erroneous, illegal and void. They should, therefore, be reversed and annulled, and the indictments quashed, and the defendant discharged.

All concur, except Fix oh, J., not voting.