2 Daly 530 | New York Court of Common Pleas | 1868
It is declared by statute that if it appear by the return to a writ of habeas corpus that the party suing out the writ is in custody for any contempt specially and plainly charged in the commitment, by some court, officer, or body having authority to commit for contempt so charged, that the officer granting the writ shall immediately remand the party (2 Rev. Stat. 567, p. 40). And it is further provided that no court or officer shall have power to inquire into the justice or propriety of any commitment for a contempt made by any court, officer, or body according to law, and charged in such commitment (Id. sec. 42). The return shows that Percy is detained in the Eldridge street jail, in pursuance of an order made by Justice Barnard, in the Supreme Court, imposing a fine of $200 for behavior on the part of Percy, in the immediate view and presence of the court, tending to interrupt its proceedings and impair the respect due to its authority. The order, in compliance with the statute (2 Rev. Stat. 278, sec. 13), sets forth the particular circumstances of the offense, and directs that Percy stand committed until the fine is paid, for a period not exceeding thirty days, and as all this appears upon the face of the return, my plain duty, as it appears to me, is to remand him. My inquiry is limited by statute to two points: (1) Is the contempt specially and plainly charged in the commitment ? (2) Had the officer authority to commit for the -contempt which is charged ? In respect to the first, the circumstances are set forth in the order of commitment, and they amount to a criminal contempt, as the offense is defined by the Revised Statute (2 Rev. Stat. p. 278, sec. 10), and in respect to the second, a justice of tine ¡Supreme Court has authority to commit for su Hu contempt.
It is objected that there is no commffcmuut in this case; that Percy is held under an order of the court, hud that the statute, therefore, is inapplicable. Cqurts, of record, however, might always commit for contempt b;y an order. I h was decided in the case of The People v. Nevins (1 Hill, 154), that this power was not only not taken away the Revised Statutes, but that it was distinctly recognized by Hie provision therein enacted upon the subject of contempts. 'Where the court, therefore, makes an order that a party be com-mitted for contempt—com-
The statute declares that the punishment for a criminal contempt of this description may be by fine or by imprisonment in the jail of the county where the court is sitting, or both, in the discretion of the court, and it is therefore objected that the order does not state by whom it is to be carried into effect, or declare where Percy is to be imprisoned. It was decided in Russell v. Hubbard (6 Barb. 654), that a warrant of commitment by a justice of .the peace, upon a conviction for petit larceny, was void which was not directed to any officer, or class of officers, or person authorized to execute it, and that it afforded no protection to the constable who actually executed it. It may therefore be doubted whether the order made by the court in this case should not have directed the sheriff to take the relator and •confine him in the jail of the county for thirty days, or until he paid the fine, but the point is one that it is not necessary for me -to pass upon, for even conceding that the order of commitment was defective in this respect, it would not avail the relator upon a writ of habeas cvpryus, for the statute declares (2 Rev. Stat. p. 568, sec. 43, 44), that if it appear upon the hearing that the party was guilty of 4 criminal offense, the court or officer before whom he is brought shall remxand him, if the offense is not bailable, to the custody of the offi cer or person by law entitled thereto, even though the commitment was irregular, and this was the rule of the common law;] the practice being, if the commitment was defective., to formally discharge the prisoner from .the imprisonment and then recommit him for the offense (The King v. Mark, 3 East B 1646), The contempt appearing here
The last objection made is that it does not appear that any interrogations were propounded. This is also a matter that cannot be inquired into upon habeas corpus. Where the order is one which the court have authority to make, all jurisdictional steps and all matters of regularity are to be presumed. A contrary doctrine, says Cowen, J. in People v. Nevins (supra), would turn a habeas corpus into a writ of error to revise the proceedings of court. It may be remarked, however, that the propounding of interrogations are not necessary where the contempt is committed in the view and presence of the court. The court takes judicial notice of the fact, and the conviction and punishment are summary (2 Rev. Stat. 218, § 12; Pitt v. Davidson, 31 Barb. 91.)
Percy must, therefore, be remanded.
