195 F. 299 | S.D.N.Y. | 1912
(after stating the facts as above). Motion is made to dismiss the proceedings upon several grounds:
When the judiciary act of March 3, 1911, abolished the Circuit Courts, it carefully undertook to preserve all acts, rights, suits, and proceedings, and also to provide for the prosecution of all offenses and for all penalties, forfeitures, or liabilities incurred prior to the taking effect of the new act. Sections 299, 300. The relevant phrase of the latter section is:
“All offenses committed * * * muy be prosecuted and punished * * in the District. Courts, in the same manner and with the same effect as if this act had not been passed."’
If the “act had not been passed," the Circuit Court would still be sitting in this district with power to punish for a contempt committed in such court. The plain meaning of the act is that for the purposes enumerated the District Court acts as if it were the Circuit Court, merely with its name changed. Touching all pending matters the court is continuous; it is one court only from the beginning of the proceeding to its conclusion. The situation is not such as we find in removed causes where a case is transferred from one court to another ; the original court still continuing in existence as a court independent of the other. The proceeding and the court both pass over. Any construction such as that here contended for would lead to the absurd result that all the orders and decrees, injunctive or mandatory, of the old Circuit Court, were practically abrogated on January Í, 1912, because, if such an order or decree cannot he enforced, it becomes mere waste paper. Congress certainly did not contemplate such an absurd result, and there is nothing in the language of the sections which would require its acceptance.
3. That defendants have concededly complied with the order directing the impounding of the cameras.
Nothing of the sort is conceded. Some cameras were turned over
The converse is well-settled law in this circuit (Underwood Typewriter Company v. Elliott Fisher Company [C. C.] 156 Fed. 588), and no authority is cited to support defendant’s proposition.
It is thought that perjury upon the witness stand in the presence of the court may well be considered a contempt. It is misbehavior of such a sort as “to obstruct the administration of justice.” The New York authorities cited on the brief are not persuasive; the language of the state statute being different from that of section 725, U. S. Rev. Stat. ([U. S. Comp. St. 1901, p. 583] now section 268, Judicial Code). There seems to be no good reason for confining contempts to boisterous disturbances in the courtroom.
It is, however, essential that the offense be committed in the presence of the court, and for that reason the present prosecution for alleged false swearing must fail. The testimony was not given on the witness stand, but was embodied in affidavits verified elsewhere, before some notary public.
Nor is it thought that the prosecution can be sustained on the theory that the subsequent presentation of affidavits known to contain false statements was in the presence of the court. That presentation was not made by the persons here proceeded against, but by the counsel of some of them. It was not their personal act. In Chicago Directory Company v. U. S. Directory Company (C. C.) 123 Fed. 194, the fabricated exhibit which the witness had prepared was brought by himself into the courtroom and by him presented to the court.
Nor can the prosecution be sustained on the theory of a conspiracy to obstruct the administration of justice by causing false affidavits to be presented. Such a conspiracy might constitute a contempt, but it certainly was not entered into in the courtroom.
On Reargument.
Upon consideration of the arguments presented at the rehearing, I am satisfied that there was error in the decision filed February 2, 1912, holding that the various acts complained of were not committed in the presence of the court, or so near thereto as to obstruct the administration of justice. The opinions cited—Ex parte Savin, 131 U. S. 267, 9 Sup. Ct. 699, 33 L. Ed. 150, and Kirk v. U. S., 163 U. S. 49, 16 Sup. Ct. 911, 41 L. Ed. 66—are persuasive to a contrary conclusion. There is no essential difference between “obstructing the administration of justice,” by tampering with a juror or a witness, or by preparing, verifying, and securing the presentation of a false affidavit, intended to influence the action of a court.
The former order of dismissal, if it has been actually entered, is therefore vacated and set aside, and the motion to dismiss the proceedings is denied.
The cause will be taken up for hearing on Monday May 27th, at 10:30 a. m. As there may be conflicting testimony, which will present a question of fact as to what was or was not in fact done, there will be a jury in attendance, to whom there may be submitted such concrete questions of fact as may at the time seem desirable. This does not mean that the whole case will be. tried by the jury. The trial is one for the court, but the court is willing to have a jury decide which of two or more opposing witnesses is truthfully stating the facts.
Since a panel is specially called for this date (May 27th), counsel for both sides must be prepared to go on when the case is called.