21 How. Pr. 103 | N.Y. Sup. Ct. | 1861
A commitment of a person for refusing to answer a question, to be valid, must, among other things, show on its face that the court or body propounding the question was properly organized, and also that some action or matter was pending before that court or body, in relation to which the person was sworn as a witness, and that the court or body had jurisdiction over the subject matter relative to which the question was propounded.
Though we are bound to take judicial notice of the various courts established by law, and of the judges presiding over them, yet it is different in the case of bodies not continuous in their nature, but summoned from time to time, who are to be summoned in a manner specifically provided, and after being’ summoned are to be organized and sworn before they can proceed with their duties. In the case of such bodies, judicial notice cannot be taken that all the prerequisites have been complied with. .The commitment simply states that the grand jury came into court. It should have gone further, and set forth that the jury of the people of the state of New York, etc., had been duly empannelled and sworn, etc. For aught that appears on the commitment, the question, (though it may be a legal and proper 'one,) was propounded by a body called the grand jury, which, from defect of organization or some other cause, was not a grand jury, or a body authorized to propound the question. As before stated, the proper organization will not be presumed, but must affirmatively appear in the commitment, where the statute uses the words, “ Any contempt specially and plainly charged in the commitment by some court, officer or body having authority to commit for the contempt so charged,” the intention is to guard against the person being kept in custody under a commitment for an alleged contempt where there was no authority to commit for such contempt, or where no contempt is charged. The question then is whether or not the commitment does, on its face, charge that there was a contempt by the prisoner, or show that the prisoner is in custody on a charge of contempt, for which the court or body issuing the commitment must necessarily on a habeas corpus be open for a judicial examination arid decision; were it otherwise, the statute would have read, “ For any cause charged in the commitment by some court, officer or body as being a contempt.”
Thus the statute makes the contempt of a refusal to answer hinge upon the fact of there being depending in the court a cause or matter, the rights or remedies to the parties to which might be impaired by the misconduct of refusal. Unless such cause or matter be depending, there is no contempt in refusing to answer. These two things, then, are requisite to make Up a contempt' of thé kind in’ question:
1st. That there should be a cause or matter in question, the rights or remedies of the parties to which might be impaired by the misconduct of a refusal to answer.
2d. A refusal to answer.
If either of these two be wanting there is no contempt-one of them alone is not sufficient'—-both must concur. Unless a commitment states both the charge is no contempt. The commitment in question omits to state the first, and is consequently for that reason defective. The provisions of part 3d, chapter 3, title 2, article 1, although not so expli
These two sections are intimately connected; sub. 5, sec. 8, depends on sec. 1. Section 1 provides the power for bringing the witness before the court. Sub. 5 of sec. 8 provides the power to get his testimony after he is there. Unless he is brought before the court, it is clear no step can be taken under subdivision 5 of sec. 8. He cannot be brought unless there is a cause or matter pending, and consequently he cannot be proceeded against under sub. 5 of sec. 8, unless there is a cause or matter pending. It surely cannot be contended that the court, or a lawyer present before the court, is at liberty to call upon any man who happens to be in- the court room, and swear him, not in any cause or matter pending, but merely generally, either to tell the truth, the whole truth and nothing but the truth, or true answers make to such questions as shall be put to him, and proceed to ply him with questions, and in the event of his refusing to answer commit him for contempt. The fact of there being some matter or cause pending is the very foundation of the right to commit. Without that foundation the court cannot proceed a single step toward committing for a contempt. As under the other provisions, so under these, two things are requisite to make out a contempt of the kind in question: First, that there should be a cause or action pending; second, a contumacious and unlawful refusal to answer a legal and proper interrogatory.
Both must be stated in the commitment. If the commit
Without knowing whether there was a criminal charge pending, and what it was, it will be impossible for me to say whether the question was legal and proper; unless, indeed, it is to be assumed that the grand jury is a species of inquisitorial body, with full, unlimited power to send for any and all persons in the community, and institute an inquiry into their business and social affairs,' or the disposition of their property.
I am of opinion that it does not appear that the prisoner is in custody for any contempt, plainly and specially charged in the commitment by any court, officer or body having authority to commit for the contempt charged.
The petitioner is, therefore, entitled to his discharge.