47 Ind. 528 | Ind. | 1874
This was a proceeding against the appellant
A question is made as to the sufficiency of the affidavit, but we need not decide it in order to dispose of the case. We may remark, however, that it has not the same defect as the affidavit in McConnell v. The State, 46 Ind. 298. In that case, it was not shown that the statement to the effect that the indictments had been non-prossed was not true. In this case, on the contrary, it is stated in the affidavit that the statement that the indictments had been non-prossed was false.-
The defendant, in answer to the rule against him to show cause, made a sworn statement, “ that the matters and things stated in the affidavit in which he is charged with a contempt of this court are not true; that the facts in the case are these: That on or about the time mentioned in said affidavit, he met the said Miller in the livery stable of one James Cannon; that Miller said to him that he wanted to go to Greenville, and that he had no money; that thereupon he loaned to Miller five dollars with no intent of preventing his being present to testify in the cases set out in the affidavit, as he had been informed by his attorney that the venue in said cases had been changed to Delaware county; that the same was done without the intention of interfering in any way with the process of the court.”
Upon this showing, in answer to the rule, the defendant moved to be discharged from further answering thereto, but Iiis motion was overruled; and the court, over his objection,
In The State v. Earl, 41 Ind. 464, on reading his own and other affidavits, the defendant moved to discharge the rule, because he had fully purged himself of the alleged contempt, and Osborn, J., in delivering the opinion of the court, said:
“We have examined the authorities, and are satisfied that in all cases of proceedings for alleged constructive contempts, except, perhaps, when they are to enforce a civil remedy, if the party charged fully answers all the charges against him, he shall be discharged, as to the attachment, and that the court can not, after that, hear evidence to impeach or contradict him.”
Several authorities were cited in that case in support of the rule, some of which we propose to examine somewhat more at length.
Mr. Blackstone says: “ If the party can clear himself upon oath, he is discharged, but, if perjured, may be prosecuted for the perjury.” In speaking of attachment as a means of enforcing a private remedy in chancery, he says: “ And there, after the party in contempt has answered the interrogatories, such his answer maybe contradicted and disproved by affidavits of the adverse party; whereas, in the courts of law, the admission of the party to purge himself by oath is more favorable to his liberty, though perhaps not less dangerous to his conscience; for, if he clears himself by his answers, the complaint is totally dismissed.”
In the case in 6 Modern, 73, it was said by Holt, C. J.: “ When one is put to answer interrogatories for a fact fully proved against him, he ought to answer in custody; but where it is anything doubtful, the course is to put him to answer, that is, to bind him by recognizance to answer. And in either case, if they purge themselves upon oath, they are discharged; but they may be prosecuted for perjury if they swear false.”
To the same effect is the case in 1 Yeates. In the casein
“We can not receive any collateral evidence as to the offence, but if the respondent, by his affidavit, and answer, on oath to interrogatories proposed by the district attorney, discharges himself of the contempt, no further proceedings can be had against him on the attachment. If, from any collateral evidence, it should appear, that there is reason to believe the respondent has perjured himself, we will recognize him to answer, at the next term of the court, to such matters as may be found against him.”
In a note to this case, the following authorities are cited .as bearing on the subject: Vin. Abr. Contempts A. B.; Prac. Reg. 99, 100; Gilb. Com. Pleas, 20, 21; 12 Mod. 511; Mod. Cas. 73; Com. Dig. Chancery D. 3; Salk. 321; 4 Bl. Com. 283; Rex v. Horsley, 5 T. R. 362; 3 Hawk. P. C. b. 2, ch. 22, secs. 1, 32, 33, 34; 1 W. Bl. 640; Wyatt’s Reg. 138; 2 Burr R. 796; 2 Doug. 516; Bac. Abr. Attachment, B.
In The King v. Sims, above cited, 12 Mod., this is the •opinion: *
“Per Cutiam. If one brought in, in contempt, deny all upon oath, he is of course discharged of the contempt; but If he has forsworn himself, he may be prosecuted for perjury.”
In The King v. Vaughan, 2 Doug. 516, above mentioned, ••the report says:
“ Lord Mansfield stated the practice of the court to be, that, if the defendant, by his affidavit, fully denies the charge, on which the rule for an attachment was granted, that is sufficient; the weight of the evidence, or the credibility of what is sworn, is never considered; but if the defendant is hardy enough to swear falsely, he is left to be punished by indictment. In chancery, he said, they proceed differently: they examine the defendant on interrogatories, and also examine witnesses on both sides, and then decide upon the truth of the charge.”
Bacon, at the place above indicated, says: “Attachments:
In Whittem v. The State, 36 Ind. 196, the following language is used:
" When the rule or attachment has been served., the person accused has the right to be heard by himself and counsel. If the contempt is admitted, the court may render judgment on such admission; but if the defendant denies that he committed the acts complained of, or insists that they do> not constitute a contempt, then the court should hear the evidence, and upon that determine the guilt or innocence of the party.”
In that case, the defendant did not file an affidavit purging himself of the contempt, and when the evidence was closed on the part of the State, he refused to offer any evidence in
In our opinion, the sworn statement of the defendant in this case was a full answer to the accusation made against him in the affidavit, and hence the court should have discharged the rule made against him, and should not have
The judgment is reversed, and the cause remanded, with', instructions to discharge the rule against the defendant.