Lead Opinion

Contempt of Court — Evidence. All questions of discretion are referred, by the judge who ordered the attachment, to this court for determination; and upon the facts stated, I cannot doubt that the claim of the solicitor, with respect to the ex parte affidavit of Mary Angell, and the answers of Ellen P. Cheney in the matter of her own contempt, was inadmissible, and the pro forma ruling of the court receiving that evidence, wrong. *Page 326

After an attachment issues, the proceedings for a contempt are to be regarded and entitled as of a criminal character. State v. Matthews,37 N.H. 454. Where the contempt charged is not committed in the presence of the court, — and especially where it is of so grave a nature as the advising and procuring of a witness in a criminal prosecution to absent herself from court in disobedience to a summons duly issued and served, thus directly obstructing the administration of the criminal justice of the state, — if evidence beyond the examination of the defendant is gone into, I think only such evidence should, in general, be received as would be admissible on the trial of an indictment for the same offence. Indeed, I see no reason why the general course of the trial before the judge should not conform in substantial respects to the trial of all indictment before a jury, and be governed by the same rules.

We need not inquire how far the mode of procedure may be within the discretion of the court, as no such question is presented by the case; but it seems to me the safe course is that dictated by the analogies of the law governing criminal trials, and that the court should be cautious of sanctioning any material departure from that course.

CUSHING, C. J., concurred.

Concurrence Opinion

The authority to punish for contempt is necessarily implied in the establishment of a judicial tribunal. 1 Bishop Cr. Law, sec. 186.

The proceeding is in all cases summary before the judge, without the intervention of a jury. 2 Bishop Cr. Law, sec. 255; State v. Matthews,37 N.H. 456.

The procedure is various in different jurisdictions; and I apprehend that the discretion of the court is very broad, and will seldom be revised upon writ of error or appeal, so essential is it to the maintenance of the dignity of the court and the supremacy of the law that the offence should be punished summarily and with little delay. It has therefore been held by the United States circuit court, that even in courts not of record, nor having a general power to impose fine or imprisonment, a contempt committed in facie curiae may be punished instanter. Hollingsworth v. Duane, Wall. C. C. 51. And probably the customary procedure in such cases is, as in the state of Maine, to punish summarily, after such hearing as the presiding judge may deem just and necessary. Androscoggin c. R. R. Co. v. Androscoggin R. R. Co., 49 Me. 392.

If the offence was not committed in the presence of the court, the general practice seems to be to issue an attachment, or an order to show cause why an attachment should not issue, and this proceeding should be founded upon affidavits furnished to the court. Re Judson, 3 Blatch. 148. The object of the attachment is merely to bring the offender into court. State v. Matthews, before cited.

When the respondent appears, the case is ordinarily governed by the *Page 327 analogies of criminal procedure; and although the respondent will be allowed to make his own answer, and also to demand that the prosecutor should file interrogatories, still, under the established practice in this state he will not be allowed to discharge himself merely upon his own answers (thus affording the court and the prosecutor no redress except by process of indictment for perjury — see United States v. Dodge, 2 Gall. 313); but proofs upon both sides may be taken, and the court will thereupon determine, from a consideration of the whole evidence, the guilt or innocence of the accused. State v. Matthews, before cited.

It seems to be more appropriate, and at the same time safe enough for the protection of the court, to adhere as closely as possible to the plan and method of criminal procedure, except in the matter of a jury trial. The attachment should be substantially like an indictment, at least to the extent of giving the respondent sufficient information concerning the nature and the particulars of the offence charged; and the rules of evidence and the presumptions of law applied in criminal cases should be observed.

In the case before us, I am therefore of the opinion that the respondent could not be permitted to purge himself of the alleged contempt upon his answers alone to interrogatories; but, also, that the affidavit of Mary Angell and the record of the examination of Ellen P. Cheney were inadmissible.

The respondent's

Exceptions must be sustained.