Warner v. State

81 Tenn. 52

• Court: Tennessee Supreme Court
• Decided: April 15, 1884
• Status: Published

Opinions

Turney, J.,

delivered the following opinion.

The grand jury for Shelby county being organized and in session,, the attorney-general, upon his own motion, ordered to be issued a subpoena for the plaintiff in error “to appear .before the grand jury to testify and give evidence on behalf of the State concerning his knowledge relative to a bill of indictment to be 'preferred against divers persons for the offense of gaming committed within the said county of Shelby,” etc.

It was admitted by the attorney-general that the subpoena was issued by his instructions and not at the instance of the grand jury, and that said Warner was not sent before the grand jury upon any indictment against any individual. Warner was interrogated by the attorney-general and the grand jury “as to whether. he knew of any unlawful gaming in the 'Gayoso Club rooms over his saloon.” Refusing to ■answer, the foreman accompanied him to the presence of the court. The court inquired of the prisoner “upon what ground he based his refusal.” He replied that he was president of the Gayoso Club, that there were some sixty members of said club, an'd that he •did not desire to speak of any thing pertaining to the club. That his answer might criminate himself, and therefore he had refused to answer. The court instructed him “that a person was not liable to prosecution for any information given before the grand jury touching any misdemeanor in which ¿he might have taken part, hence he could not criminate himself even if he answered that he had been engaged in said gaming, and that he could not be prosecuted.” He still refused to answer and was committed for contempt of court. The case is before us upon a su-persedeas of the order of committal.

The first question is, was the plaintiff [in error before the grand jury as the law contemplates so as to subject him to punishment for a refusal to answer questions? The acts of 1824 and of 1829, carried to Code by sec. 5087, provides: “The grand jury shall send for witnesses whenever they or any of them suspect a violation of the laws against gaming,” etc. Here it is not pretended that the grand jury sent for the witness. On the contrary that idea is distinctly and in terms negatived by the record as we have seen. He goes before it without any intimation from it that it or any one of its members suspected a violation of the law against gaming. The power' to send for witnesses is conferred alone upon the grand jury. The law conferring such power is in derogation of common law, and must be strictly construed.

Then by what authority does an attorney-general assume to perform the functions and exclusive duties of the grand jury? The mere fact that he is an officer of the court and may visit the grand jury, prepare and present indictments to them, and prepare presentments when directed by the grand jury, does not imply an authority to assume any of the duties assigned by law to a grand juror. If he may assume the office of grand juror for one purpose, why may he not do so for every purpose? If because he-suspects a violation of law, he may of himself and of his own motion order a subpoena for witnesses to-go before the grand jury to give evidence touching the same, why may not the sheriff or constable who waits upon the grand jury do so? Why may not the judge himself or any attorney for the court assume and practice the power?

It requires a judge, attorney-general, attorneys, clerks, sheriffs, etc., to constitute a court, and each is an officer of the court, so if we construe the law directed to grand juries to include one officer of the court, we must for the same reason construe it to embrace all officers of that court.

The attorney-general might, as could any other •citizen, have communicated his suspicions of a violation of law to the grand jury and induced it to send for witnesses, but because he might have exerted an influence to persuade the jury to exercise its inquisitorial power, it does not follow that he is authorized to employ that power also. Any citizen has the right to suggest or make known to the grand jury that the law is being violated, and upon such suggestion or information, the grand jury may, and perhaps under the statute it would be its duty to, send for witnesses, yet the citizen has no right to have witnesses sent for (upon his bare order to the clerk), to be interrogated by the grand jury upon matters of his suspicion or even knowledge.

That the Legislature did not intend to confer upon attorneys-general the power to order process of subpoena, in the sort of case before us, is manifest from section 5090 a, by which he is empowered to call upon clerks between terms for process to secure the attendance of witnesses before the grand jury at the succeeding term when, in his opinion, it is necessary to secure the ends of justice and protect the interests of the State.

This provision occurs in the same chapter with sec. 5087, under the title of “Proceedings before the grand jury.” The expression of this one power is the exclusion of the one claimed. This construction is fortified by sec. 5090, which provides: “The clerk of the court, on application of the grand jury, shall issue subpoenas in such cases for any witnesses the jury may require to give evidence before them, and such witnesses being subpoenaed and failing to attend, will be liable and may be proceeded against as other defaulting witnesses.” This section refers directly to see. 5089, under which it is claimed Warner may be compelled to testify, and shows conclusively that the grand jury alone could order the subpoena) and if it did not. no forfeiture could be had against the witness for failure to attend, and that it is the order of ¡the grand jury which gives life to the subpoena and makes it a process of law. If the witness had failed to attend and a forfeiture had been attempted, a plea that the grand jury had not ordered the subpoena would have defeated it.

There is no such 'connection between the attorney-general and grand jury created by the statute, as will by any reasonable and legitimate interpretation warrant the conclusion that the former, who is not even permitted to be present with the grand jury during its deliberations (Code, sec. 5082), may, in any particular whatever, in whole or in part, exercise any power conferred by statute upon the grand jury.

It follows that Warner was not before the grand jury and court by process of law, while he did appear in obedience to what purported to be a subpoena, that subpoena was unauthorized, was a nullity, and gave the court no jurisdiction. In Hatfield’s case, 3 Head, 233, Judge McKinney, in construing section 5089, says: “The term ‘witness’ must he understood in a legal sense and as is obvious from the context, can only be applied to a person brought before the grand jury by compulsion to testify against others.” In this case that compulsion did not exist because as already stated, the subpoena was not issued by authority of law, as is evident from the entire chapter of the statute from section 5087 to and including section 5092. Under them the power and authority to order the subpoena is vested exclusively in the grand jury — issued upon any other authority is a nullity.

In Poteete v. The State, it is held; Judge Freeman delivering the opinion, that an officer armed with a capias sufficient upon its face, must at his peril, take notice of the authority by which it Avas issued, and if unlawfully issued he cannot justify under it: 9 Baxt., 261.

If as Judge McKinney says, and as all must agree, the term “witness” must be understood in a legal sense, and can only be applied to one brought before-the grand jury by compulsion, a fatal objection to this proceeding is that the witness was not sworn to testify. It is for the failure to testify that he may be. committed for contempt if at all, and he could not testify at all until sworn — until SAVorn to speak the truth, etc., he was not a witness in any sense subjecting him to punishment for contempt for refusing to answer questions, as one of the essential elements of compulsion. The oath, and the only one the law regards as binding the conscience of a witness, was absent. If "Warner had spoken in reply to the questions, never so falsely, he would not have been guilty of perjury or other offense punishable by law. It necessarily follows that if Warner had answered questions criminating himself and others, he would have done so voluntarily and not as one under compul-pulsion to attend and testify, and if indicted for the offense,' as to which he had furnished evidence against others, he could not have successfully pleaded a statutory pardon in bar of the prosecution against him.

Without having been lawfully summoned, and sworn he might have refused to testify in any case, civil or criminal, and the court would have been powerless to compel or punish.

The State is complaining of the obstinacy of the witness, and asking his punishment, therefore must make out a case. The record .fails to show the witness was either legally summoned or sworn. We cannot supply the defect by intendment; nothing is presumed against one accused of violation of the criminal law. The State must show affirmatively every fact necessary to the commission of the offense.

In the next place, was he compellable to answer even though he had been properly summoned and sworn ?

Wc have seen that he was president of a club whose rooms were over his saloon, and as we infer, his property. If we admit that the instructions given to him by the court were correct as far as they went, that is, that he would not be liable to a prosecution for any game in which he might have taken part if he would testify, was it correct as applied to the reason for refusal given by the witness? As we have seen, Warner said he was president of the Gayoso Club, and that he did not desire to speak of anything pertaining to the club, that his answer might criminate himself. Of what he might criminate himself, he does not say. The reason may imply that the offense of which he might criminate himself is more serious than simple gaming. “ He does not desire to speak of auything pertaining to the club, that his answer might criminate himself.” Cleai’ly the meaning intended to be conveyed was, that the testimony sought from him would, if given, involve the club of which he was the president — the chief; that if he spoke of gaming in the rooms of the club there might be developments that would involve him and the club, or him as chief of the club in prosecution for other offenses to which the fact he was called on to prove might lead. The interest indicated by his reason manifests more concern for the club than for himself. What offenses he was seeking to avoid exposing we cannot know. What the club engaged in, what sort of house it kept, whether a gambling den or other establishment .violative of law, good order and morals, we can only speculate. Certain it is, however, he was not influenced to his refusal to answer by the sole dread of the consequences of a confession to participation in a game for money, his apprehension was of tbe consequences to himself on account of the character, conduct aud purposes of the establishment over his saloon, of which he was principal, and he thought, perhaps, that to tell of gaming, and participation therein, would lead to a discovery that would result in his punishment.

If these things were so, as we must infer from the reason given, the exposure of persons engaged in gaming there would have been a crimination of himself. The language of our Constitution is: “And shall not be compelled to give evidence against himself.” Whether the evidence demanded of the witness against himself is to apply to a case already existing, or may be - used in one that may thereafter arise, it is nevertheless under the ban of the Constitutional interdiction. That it may simply point out in one case how a prosecution and conviction may be had for another and different offense, does not avoid the organic provision, and the witness cannot be compelled to testify. If the witness shall crimi-nate himself he can only protect himself by showing that he was examined before the grand jury as to the particular offense charged against him in the indictment: Owens v. State, 2 Head, 455-7. It follows that if his testimony develop other offenses than ^the one inquired of by the grand jury he will not be protected.

So far the case of Hirsh v. The State, 8 Baxt., 89, is not authority in the present. In that case there was no irregularity. I think the holding in that case is not sustainable upon reason or authority.

Section 5089 of Code provides: “And no witness shall be indicted for any offense in relation to which he has testified before the grand jury.”

If, as said in Hirsch’s case, “This enactment was intended expressly to obviate the constitutional inhibition against compelling a witness to criminate himself,” it was not intended to obviate the constitutional inhibition against compelling a witness to give evidence against himself. Nor do I think it can be maintained that the makers of the Constitution intended the words “give evidence” to mean crimi-nate in its strictly legal sense, they intended to and did use a term of more force and comprehension. Being assembled to make an organic law that body certainly had before them Constitutions of other governments as guides. Certainly the Constitution of the United States, with which that of the State must be consistent, was closely consulted, and the language there is, “shall not be compelled in any criminal ease to be a witness against himself.” That is with a view to punish him. That this distinction was in the minds of the convention, and that there was a purpose in the difference of phraseology is sustained by the dissenting opinion in Hirseh’s ease, which was prepared by Chief Justice Nicholson, who was a member of that convention, and who as a lawyer, jurist and statesman had no superior in the State, and perhaps not in the Union. In construing the Constitution, in the making of which he was a most efficient factor, he says:

“We do not concur in the conclusion that the Legislature intended, or that they could if they 'had so intended, to deprive the witness of his constitutional right to refuse to give evidence as to his own criminality.” “The act of testifying constitutes the abrogation of the offense under the law. This only occurs after the witness has voluntarily waived his constitutional right to refuse to testifju If he does not voluntarily waive 'his right he cannot be deprived of it by compulsory law.” Mr. Nicholson certainly understood the language he approved, and properly defined it when he came to pass upon it as judge.

The purpose of the act is to offer inducements to persons who have committed offenses against law in connexion with others to divulge the secret. There is nothing compulsory in the language, nor could there be without a violation of the Constitution. It recognizes by its terms -a want of authority in the Legislature to command the witness to testify, and merely offers a reward to him if he has or will do so. The witness may elect to take advantage of the law, or take chances of a discovery and conviction of himself. JBy it the Legislature proposes to buy the evidence of one guilty man against another or others, and. to pay for it by exemption from indictment for the offense in relation to which he has testified. In this case the court has undertaken to compel the witness to give evidence against himself. The Constitution says this shall not be done. The court claims the authority under . section 5089. Both the Legislature and the courts are creatures of the Constitution, and must conform their actions to its provisions. -The Legislature could not say the witness shall testify, but could and did say* if he will, etc., and the courts can do no more, f The witness must determine for himself whether he will .accept the legislative reward offered for -his testimony!) Whether tire corrstitutional protection .thrown around offenders is good or bad policy, is a question with which courts and legislatures have no concern. They must support and enforce the Constitution as they find it. Being its creatures they must obey its mandates, and not evade them by strained construction for any emergency, however important to public weal it may seem.

The ' language of both the Constitution and the statute is plain, simple and unambiguous. The one is positive in prohibiting compulsion, the other simple in its offer of inducement and reward to an offender to betray his fellow's by voluntary election to testify for the sake of protection to himself.

At common law the rule is, that if an associate in crime will reveal upon his fellows and testify against parties to the same crime, he may reasonably hope the State will in consideration pardon his offense. It was a part of the rule that the government was not bound to apply it. The object of the hope held out by that rule was to increase the means of discovery and punishing offenses.

Our law-makers recognizing the utility of the rule, but seeing that it did not accomplish to any great extent the ends aimed at, modified it by converting a bare hope into an absolute assurance, making, it a positive mandate instead of a discretion resting in the breasts of courts and attorneys-general. So that our statute is -nothing more chan the- common-law rule made certain of application.

Under the common-law rule the offered witness could not be compelled to testify; then why should a- different practice ■ obtain -unde'r the same rule de-dared by statute in more direct and trustworthy terms under a Constitution protecting a witness from giving evidence against himself, while the common-law rule is untrammeled by Constitution except as it comes of usage and precedent?

In State against Hartfield, Judge McKinney, with the statute before him for construction, says “ such person (meaning a person before the grand jury by compulsion) cannot be compelled to criminate himself, but as an inducement to a full and unrestrained disclosure in regard to others without peril to himself it was deemed politic, in the event of doing so, to exempt him from ■prosecution.”

There can be no doubt as to the meaning of this language, it is susceptible of but one construction, which is, that compulsion was not intended, and that inducement was the sole object of the legislation.

Section 9, Article 1, upon the last clause of which the question arises, is as follows: “ That in all criminal prosecutions the accused hath a right to be heard by himself and counsel, to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witness face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecution by indictment or presentment, a speedy public trial by an impartial jury of the county in which the crime shall have been committed, and shall not be compelled to give evidence against himself.”

The character of the question propounded to Warner distinctly notified him that he was accused of the offense. It ]ocated the offense in his property, in the club of which he was president, and of which he was of course a constituent part.

That club was aimed at by the interrogatory. An attempt to involve the ckib must of course involve each and every member; it takes each and every member to make the one organization, an association. To strike at the club is to strike at its several component parts, and especially at its officers and agents, who are presumed to supervise and direct its proceedings.

The attempt to procure indictments or presentments is the initiation of a criminal prosecution, and no trial can be had until this initiatory step has been completed. Before the grand jury all “criminal prosecutions” must commence, and as soon as a question is asked, the prosecution is on foot. The constitutional declaration that the accused shall not be compelled to give evidence against himself applies in all stages of the prosecution from the very first step to the last. , That declaration has no qualification or condition. It is positive and absolutely prohibitory. It contains no word from which it can be inferred that/the Legislature or the courts 'can on account of premises, pledges or enactments compel a person to give evidence against himself. There is nothing from which it can be inferred that because the party may be exonerated from punishment that ’ he may be compelled t<b give evidence against himself. The fact1 that he i¿ not to be punished does not remove the fact that áÉe has given evidence against himself. It is the giving evidence against bimself under compulsion that is forbidden..

When the witness has determined to report- upon his fellows, and has done so, implicating himself as fully as he does his companions, can it be said that because his betrayal of his associates saves him from punishment that he has not given evidence against himself? such an assertion is a contradiction in terms. The giving evidence against himself is the consideration he pays for the reward of not being prosecuted and punished for the offense in relation to which he has given evidence against himself and others.

If prosecuted, his plea is, that while he is guilty, he has given evidence against himself; and the law says to him, “yes, you are guilty, your guilt is known, and you are not undeserving of punishment, but you gave evidence against yourselfthat you might entrap others, and therefore you shall not be punished.” At every step we are met with the faot^ that the . witness gave evidence against himself, that, he 'criminated himself, and without it he has not entitled^ himself to-the benefit of the pardoning statute; all'",of which may be done voluntarily, but not by compulsion. The sole foundation for the assumption that the fitness may be compelled to answer is, that he is b)( his answer exempted from punishment, while the Constitution has no reference either directly or by iiripli-cation to the punishment. \

This seems to me to be rather loose construction. It would be better to read the Constitution as jwe find it, and if it is defective, leave to sovereigjjfr where the power belongs to change, alter or amend. Especially should this be so in a, question that has been pronounced upon by such minds as McKinney and Nicholson, authors of the Constitution, contrary to the construction now insisted for.

Judge McKinney was in the Convention that framed the Constitution of 1834, which contains in its exact words, and by number of article and section the clause now before us. In 1859 he wrote his opinion in Hatfield’s case, construing the statute now being considered, and used the language already attributed to-him in reference to the Constitution made by himself. That opinion was the undisputed law of the land at the time of adoption of the Constitution of 1870, and Article XI., sec. 1, of the latter’, instrument is as follows:

“All laws and ordinances now in force and in use in this State not inconsistent with this Constitution, shall continue in force and use until they shall expire, or be altered or repealed by the Legislature.” The present law was in force and use and not inconsistent with the Constitution, nor has it expired, been altered or repealed.

In all questions involving the meaning of statutes and the intention of the Legislature, it is the duty of courts to construe and define that meaning, and when that is done the statute as construed is the law of the State. So that when the ordinance just cited was adopted, if made this statute, as construed bv the court, the law, to be understood in the light of' the decision. The Convention is presumed to have-known the law- as construed, and to have so adopted it, and to have ,framed the Article in question expressly with a view to the construction already given by the courts, when it transferred the language of the Constitution of 1831 to the Constitution of 1870, it as fully transferred the defined force and meaning of that language, and intended to do so.

In the consultation room two questions are raised which were not suggested on the hearing: -First, that there is no 'bill of exceptions; and second, there is no right of appeal in contempt cases..

The first is predicated upon a recital upon the transcript, which is evidently the officious act of the clerk, made for convenience, and no part of the record as made by the court. That recital has its place in the transcript immediately after the order remanding the defendant to jail, and is as follows:

“The above and foregoing is of record on the minutes of the court, and the following is what the judge signed as accruing on the motion to vacate the judgment.”

After the recital the record is as follows:

“ In the matter of B. R. G. Warner on contempt. This day came into court B. R. G. Warner, and. by his counsel moved the court to set aside the order or judgment in contempt entered up by the court against him March 12, 1884, and on the motion'the subpoena under which the said Warner appeared before the' grañd jury was presented, which, is as follows,” (setting it out with its endorsements). Following these in regular order is the evidence already cited in tliis opinion, and concluding: “The court refused to vacate the said order or judgments in contempt, to which action of the court in so refusing to vacate the said order or judgment of the court, the said B. R. G. Warner excepted, and still doth except. The above is what occurred on the motion to vácate the judgment. This March 14, 1884. James M. Greer, [seal], Judge of the Criminal Court of Shelby County.”

Following this is an order reciting a- prayer for appeal from the judgment, and also from the action of the court refusing to set thé same aside, concluding, “To which action of the court the said B. R. G. Warner excepted, all 'of which appears of l’ecord. Janies M. Green, Judge, etc. This March 14, 1884.”

I am unable to see wherein this is lacking in being a bill of exceptions. ■ The truth of the case is faii’ly stated, is signed by the judge, and is recited to appear of record.

Sec. 2968 of Code is: “The truth of the case being fairly stated in the bill of exceptions, the judge shall sign the same, which thereupon becomes part of the cause.”

Is the truth of the case fairly stated? Plis Honor, the trial judge says so over his official signature and seal. His signature without the seal made the bill of exceptions a part of the record. The statute makes, no allusion to the minutes of the court as kept upon its books.

The statute was construed by this court in Grubbs v. Greer, 5 Cold., 162. The court says: “It is in-sistecl for the defendant, it not appearing on the minutes of the court, the bill of exceptions was signed and sealed and made a part of the decree it does not become a part thereof. We do not think so. By the provisions of section 2968 of the Code it is made “a part of the record.” “The truth of the case being fairly stated/’ etc. This section is conclusive of the question: “Jt is the usual formula to enter %bpon the minutes the action of - the court, but it is not necessary to do so to make the bill of exceptions a part of the record.”

This holding was re-affirmed in McGavock v. Puryear, 6 Cold., 39, the court saying “ It is not necessary under the rulings of this court in' the case of Grubbs against Greer, that the minutas of the court should show the bill of exceptions was signed, sealed and made part of the record.”

In Ferrill v. Alden, 2 Swan, 79, the court says: “'A bill of exceptions is for matter excepted to at the trial and ascertained before the verdict,” etc., is sufficient if the exception be taken at the trial and noticed by the court, and it may during the term be reduced to form, and signed by the judge.

So that it is clear beyond doubt that a truthful statement of the case and exception to the action of the court, signed by the judge, constitute a complete and perfect bill of exceptions, and such is this record in every particular to the smallest detail.

It is next objected in the consultation room, and not by counsel on either side, that there is no right of appeal, and several cases are cited in support of the position, one of them, Burks v. Fleming, 6 Baxt., 333, gave the right of appeal, and held, “The principles of the organic law of the State, as well as of the long established practice of the courts require a very liberal construction of the right of appeal to those whose liberties and property are in any manner endangered. It is by sueh right that petty tyrannies can be kept down in republics.”

I now ask, did this court ever at any time since the decisions were made, regard Martin’s case, 5 Yer., 456, or Galloway’s case, 5 Cold., 335, or the copied illustrations from the two cases in Fleming’s case, 6 Baxt., 381, as conclusive of the question of the right of appeal? I undertake to answer positively, no.

The reasoning in the older eases is an argument ■o'f^ inconvenience, an element not admissible of consideration on the trial of a question involving the liberty of a citizen.

In Hirsch’s case, 8 Baxt., 92, the court says: “ It is insisted by the attorney-general that the contempt being -commiited in the presence of the court, the defendant had no right of appeal from the judgment. How this may be we do not undertake now to decide as the main question is decisive of the case.” If this language means any thing, it -is that the cases already cited did not settle the question, and that it was an open one. If a majority of the court had have been of opinion that the question of right of appeal had been settled, it was wholly unnecessary to go into the merits of the case. From some cause, regardless of Martin’s and Galloway’s cases, and the quotations in Fleming’s case, the question of the right of appeal was not decided. The court would “not undertake to decide it.” If it had been decided, and the court felt it was bound by the decision no undertaking to decide, nor the reason given for the refusal to so undertake was called for.

It would seem, in view of the cases referred to, that a declaration on the part of the court of the kind made, was an admission that the decisions were not only not satisfactory, but were not sound, and that a majority, at least, thought the right of appeal did exist.

In Hundhausen v. Marine Fire Insurance Co., 5 Heis., 702, a contempt case, this court speaking through Judge Freeman, said: “ The action of the chancellor in a case of contempt, such as is before us in this record, is subject to be reviewed, and that writs of error and supersedeas were applicable and appropriate as the remedy of the party, and the motion to discharge the supersedeas mil be discharged

Judge Freeman also says in that case: “This court is the supreme ti'ibunal of the State, and other courts inferior in the sense of being subject in their action to the jurisdictional control of this court, as the appellate tribunal over all such judgments and decrees as they may render affecting the life, liberty, property or rights of the citizen of the State. The Judge adds: “ The particular mode in which this jurisdiction may be exercised, whether by appeal in the nature of a writ of error, or by writ of error and supersedeas, is a matter of regulation by the Legislature, and such restrictions and regulations may be enacted by the Legislature as may be deemed proper so as not to defeat the ultimate control of this court as the Supreme Court of the State over the inferior coiorts ordained by the Legislature.”

In Harwell v. The State, 10 Lea, 544, Chief Justice Deaderick delivering the opinion of the court in a matter of contempt said: “The grand jury is a constitutional part of the court, and any illegal or corrupt interference with them in the discharge of their duties, or attempt by outside influence to control their action would be a contempt of court for which the offender should be punished. But we hardly think the facts disclosed in the evidence are of the character indicated. The judgment of fine and imprisonment was reversed.

In Page v. The State, 11 Lea, 202, in an opinion delivered at this place one year ago, Judge Cooper, speaking for the court, said: “The statute making it a criminal offense to retail spirituous liquors on Sunday is intended to punish the seller', not the buyer, and the latter may therefore be compelled to testify as a witness on the trial of the indictment against the seller, and may be punished for contempt in refusing to testify.” The judgment of fine and imprisonment was affirmed. The opinion concludes: “No point is made as to the right of the appellant to appeal from the judgment.” No point is made as to the right in this case. If, because the point was not made in the one case it assumed jurisdiction of its merits, why decline in the other with precisely the same surroundings. If, in JERrsoh’s case, the point was made, why should the court give jt the go-by, and decide the matter upon its merits ? Why should it assume to raise the question here of its own motion ? Then we have five cases distinctly recognizing the right of appeal, all since the cases of Martin and Galloway, and directly in their faces. For a period of thirteen years the right -of appeal has been recognized and practiced upon by this court. The profession recognizes the change of the rule. The change is consistent with our institutions. If we ignore what we have ’ done, and the practice we have so often adopted, and go back to what is claimed to be the old rule, how will the profession ever know a rule to be settled even for the conduct 'of the members of the bench who have announced it? Do we write to confuse?

If the right of appeal was settled not to exist, the court had no jurisdiction to try the cases cited. It was the duty of the court to have stricken them from the dockets whatever may have been their facts, and not to have trespassed upon the exclusive jurisdiction of inferior courts by affirming and reversing on the merits as we understood them.

For, one I do not believe any power exists in the courts or Legislature to restrain any citizen from being heard by all the constitutional courts of the State in any and all matters involving life, liberty or property. The right of appeal in some form exists in every case, whatever the form of proceedings, and continues fill passed upon by the court of last resort, the Supreme Court.

It seems to. me the reasoning in the case holding that this court may not review contempt cases is not well supported. It is said that “if a writ of error did lie from a judgment of contempt, courts of justice as such could not exist to any useful purpose in times of excitement and turbulence, because they could not protect themselves, etc. That a witness who refused to give his evidence, in contempt of the court, and was to be imprisoned, might pray the writ, and it would be impossible to coerce him,” and yet these cases hold that if he is improperly imprisoned, the writ of habeas corpus will furnish relief. Now the writ of habeas corpus may be issued by the fiat of a different judge to the one who committed for contempt, and he may try the right to the writ. By the service of the writ, the contumacious. witness is taken out of the control (for the time being at least) of the committing judge. The judge trying the right hears the facts of the ease, and may discharge the witness entirely, or he may remand him to prison, If the proceedings in the court of the one judge may be thus interfered with by the judge of another, and the action of the latter judge make it impossible for the former to coerce a witness, by what process of reasoning can it be held that the same results may not be reached by writs of supersedeas from this court.

The case is tried upon the same facts. The action upon the writ of habeas corpus is final if there is an order of discharge. The writ of supersedeas is only the means of bringing the matter to the attention of this. court. The fiat decides no question and • cannot defeat the punishment for contempt, for if the facts satisfy this court that the order of imprisonment was proper, it will be affirmed and enforced. In the habeas corpus proceeding we have the opinion of a single judge, in the supersedeas proceeding we have the opinions of all the judges of the court of last resort as an authoritative settlement of the questions made.

In the one case one judge may be of one opinion and another of a different one, and the rules of law and practice may be and are different in the several circuits. Neither is authority to the others, while the decisions of a court of last resort control throughout the State. If a case falling under the illustration put in the old cases should arise (as is not at all probable if even possible), no judge of this court would grant the writs of error and supersedeas. It is always in the power of the committing court to force the offending party to resort to the supersedeas, and it would be his duty to do so in cases as extreme as the illustritions of the older cases, or even when he was of opinion the contempt was in the least outrageous in its character.

In Hundhausen v. Marine and Fire Insurance Company, Judge Freeman intimates pretty clearly, that writs of error and supersedeas are the remedy in cases of contempt: 5 Heis., 712.

If the argument “ ab inconvenienli” is to obtain for any purpose, why not extend it and say that it would be dangerous to permit the arbitrary power of imprisonment to vest in the bosom of a judge in times of excitement and turbulence, because he might then unlawfully and oppressively imprison a witness for-refusing to answer an illegal and impertinent question pro pounded for the advancement of partisan purposes? The integrity of the citizen may be as safely trusted as the integrity of the judge. Both owe the same allegiance to law which they are presumed to know.

Judge Smith says in Galloway’s case, 5 Cold., 336: “If the judgment for the contempt be for cause for which the court has not jurisdiction, and it so appears upon the record, the judgment is void and no justification for the imprisonment. It stands on the law of universal application to the judgment of courts, that if the court has no jurisdiction, the judgment is void.” I ask who is to decide whether the judgment be void? Is it to be done by a judge' of co-ordinate jurisdiction, or by a court of appellate jurisdiction? ■ Is one circuit judge, one chancellor, or one judge of a criminal court to review and affirm or reverse othérs with the same jurisdiction, or must it be done by a court of appellate jurisdiction? If a judgment is void it can only be vacated by the court rendering it or by a court of appellate jurisdiction. The validity of the judgment here depends upon the construction of the statute, which this court alone can authoritatively construe. It is a strange holding, in a cause originating in the criminal court, the judge of that court giving one construction to -a statute and the circuit judge a different one, or , vice versa, that the opinion of the latter is conclusive, nbt only upon the former, but also upon the Supreme Court. Yet such is the inevitable logic of the theory that habeas corpas is the only remedy in contempt cases, and no appeal lies. I cannot subscribe or assent to any such' restrictive construction of the constitutional guarantee. “ That all courts shall be open, and every man for any injury done him in his lands, goods, person or reputation, shall have remedy by due course of construction of law, and right and justice administered without sale, denial or delay”: Const., Art. 1, sec. 17.

I am unable to comprehend the soundness of that judicial reasoning or the authority for its holding, by which the doors of this constitutional court of last resort — and most important of all courts — are closed and barred against him- who claims in any lawful proceeding to have been injured in person or reputation. This is the “denial” which is condemned and positively prohibited by the .instrument that created this court, and to which this court swears support and allegiance. Let him, who can, explain on reason sounder than that of inconvenience — a reason unknown to the Constitution, and one that cannot be extracted from it, however much it may be tortured by construction. A reason that as well applies to 'all criminal proceedings as to contempt and habeas corpus eases.

Chief Justice Deaderick and Judge Cooke concur in the opinion that the subpoena was unlawfully issued and gave no jurisdiction. That the bill of exceptions is perfect, and that the writs were properly granted.

The supersedeas is made perpetual and the petitioner discharged.

Deaderick, 0. J.,

delivered the following opinion:

In the criminal court of Shelby county the plaintiff in error was imprisoned for alleged contempt of court, in refusing to answer questions, proper in themselves, propounded to him by the foreman of the grand jury in the room of said jury, and in their presence, touching his knowledge of unlawful gaming. He had been summoned, by service of subpoena, to appear before- the judge to testify on a day named.

The record discloses that the foreman of the grand jury with the witness appeared in open court, and informed his Honor that the witness had refused to answer whether he knew of any unlawful gaming for money in the Gayoso Club rooms over his saloon, and similar questions as to gaming, within the last six months.

' The defendant persisting in his refusal the court ordered him to jail for contempt, there to remain until he should purge himself of the contempt, or be otherwise delivered in due course of law. From this judgment defendant prayed an appeal, which was refused, and he was committed to jail. He presented a transcript of the record of the proceedings of said criminal court to one of the judges of this court, and prayed for writs of error, certiorari and supersedeas, which were granted, and the case is now before us for final disposition upon the questions as to whether we have any jurisdiction to revise the judgment, and if so it is erroneous.

The record consists of' a transcript from the minutes of the court, and the certificate of the judge of what transpired on the trial of the cause, officially signed by him during the term of the court. We think this was intended for, and is in every essential particular, a bill of exceptions, and is a part of the record in. the cause. From this record it appears that the subpoena to testify was issued upon the order and at the instance of the attorney-general, and that the grand jury did not order or direct the issuance of any subpoena requiring the witness to appear and testify before them. This power the grand jury have in certain cases specified, gaming being one of them: Code, secs. 5087, 5787 a. But this power being in’derogation of the common-law cannot be extended beyond the express provisions of the statute: 4 Cold., 195; 1 Swan, 19; Meigs, 99.

The attorney-general has no power to direct witnesses in such cases to be sent before the grand jury, nor has the court, but the “ grand jury shall have the right and power” to send for witnesses under said sections, and they only.

Our statutes define what shall constitute contempts of court, and directs that the offense shall not be construed as extending to any other acts than those •specified.

The third specification is' “the willful disobedience ■or resistance of any officer of said courts, party, juror, witness or any other person, to any lawful writ, process, order, rule, decree or command of said courts.”

It is under this sub-section 3, if at all, that the validity of the proceedings and judgment of the inferior court can be maintained. But in my opinion the judgment cannot be upheld and maintained under this sub-section, upon the ground that the judge had no laioful authority to order defendant to do the act, for his refusal to do which, the punishment was imposed. To constitute the offense there must be willful disobedience of a laioful order of the court. The judge had no lawful power to compel another, although in his court room ¡and presence, to go into the grand jury room and testify as to his knowledge of unlawful gaming. This power resides in the grand jury only, and then by subpoena issued by their order. So that to make disobedience of an order of court’'' contempt, the order must be one which the court has the power to make, it must, in the language of the statute, be a “lawful order.”

In this case we think the court below had no power under the facts disclosed to imprison the defendant, and that the writs of certiorari and of error were properly used to secure the revision by this court of a judgment which the said court had no jurisdiction or right to render.

For these reasons I concur in the conclusion announced by Judge Turney, that defendant should be •discharged.

Cooke, Sp. J., concurs in the foregoing opinion.