109 Tenn. 390 | Tenn. | 1902
delivered the opinion of the Court.
The defendants were tried in the court below upon a charge of contempt of court. The charge, in substance,. was that one Charley Johnson had been subpoenaed by the State to appear and give his testimony before the grand jury in the case of the State against Ed Royston, who had been bound over on a charge of forgery; that the defendants, knowing the said Charley Johnson had been so subpoenaed, decoyed him out of the State of Tennessee, and into the State of Alabama, with the purpose of preventing his appearing as a witness in the said case.
The defense made was that the said Charley Johnson had not been lawfully subpoenaed as a witness in the case referred to; and thereunder were the fol
Leaving out of view these technical defenses, tbe testimony clearly shows that tbe defendants are guilty, that they supposed tbe subpoena was in every respect a legal one, and that under that belief they decoyed tbe witness out of tbe State. Under such a state of facts tbe court is not inclined to give technical objections any moré weight than they are entitled to striotissimi juris.
As to tbe first, second, third and fifth' grounds, whatever weight they might be entitled to if relied upon by a witness who was being proceeded against for a failure to attend, we think they should be given no weight at all when put forward as defenses by persons under prosecution for decoying tbe witness away,
The fourth ground, however, must be sustained, because, instead of setting out the subpoena in the case of the .State against Ed Royston, the bill of exceptions 'contains a subpoena in the present case, and one, moreover, not for Charley Johnson, but for one Charley Hardy,. The language of the bill of exceptions, referring in terms to the proper subpoena, however, convinces us that the one now appearing in the record was inserted by a mistake of the clerk of the court below. Nevertheless, the judgment of that court must be reversed on this ground, because, if in fact no subpoena for Charley Johnson was ever issued, he could not be made a legal witness, and so bound to appear (Hatfield’s case, 3 Head, 233); and the defendants, in that view, committed no contempt of court in inducing him to leave this State and go into, the State of Alabama to keep from testifying. It is unnecessary to determine whether the facts stated would support an indictment, as the matter before us is whether these facts would make out a case of contempt of court, this being a contempt proceeding. That, they would not support a charge of con-, tempt is shown by the fact that the 'power of the courts of this State to punish for contempt is limited to the cases laid down in Shannon’s Code, sec. 5918,
So, however strong the purpose of the defendants was to commit the contempt, and how willingly soever they entered upon and executed a plan which they thought was the placing beyond the jurisdiction of the court of a- witness who, as they believed,
The defendants’ counsel have furnished the court with a learned and able brief upon the form of the pleadings required in contempt proceedings. We do not deem it necessary to go into this matter at any length. The general form of the proceeding as in-, stituted is correct; that is, an affidavit and an at--tachment. Undoubtedly, the affidavit, or, if more than
We do not think that a petition is at all necessary. An oral motion based on the affidavit is sufficient. The action of the court upon the motion and affidavit in awarding or denying the attachment, should substantially appear in the order of the court on the motion, and this order should recite the substance of the motion granted or denied; also briefly the substance of the charge contained in the affidavit, but not its evidentiary details; and the substance of the order should appear in the attachment writ if awarded. This brief and simple practice is the one which the court recognizes as having been long in use in this State, and is altogether sufficient for the purposes of the inquiry.
Let the judgment be reversed and remanded as above indicated.