People ex rel. Taylor v. Forbes

• Citation: 143 N.Y. 219,38 N.E. 303
• Parties: PEOPLE ex rel. TAYLOR v. FORBES, Justice.
• Decision Date: 09 October 1894
• Court: New York Court of Appeals

143 N.Y. 219

38 N.E. 303

PEOPLE ex rel. TAYLOR

v.FORBES, Justice.

Court of Appeals of New York.

Oct. 9, 1894.

Appeal from supreme court, general term, fourth department.

Certiorari proceedings by the people, on the relation of Frederick L. Taylor, against Gerrit A. Forbes, justice of the court of oyer and terminer for county of Tompkins, state of New York. From a judgment of the general term dismissing the writ (28 N. Y. Supp. 1123), relator appeals. Reversed.

Frederick Collin, for appellant.

S. D. Halliday, for respondent.

O'BRIEN, J.

The relator was adjudged guilty of contempt by the justice presiding at a court of oyer and terminer held at Ithaca in March, 1894, for refusing to answer certain questions propounded to him as a witness before the grand jury. The general term, upon certiorari, has affirmed the determination.

At the outset, the objection is made by the learned counsel for the respondent that the order is not reviewable. This position is based upon the language of section 515 of the Code of Criminal Procedure, as amended by chapter 372 of the Laws of 1884, abolishing writs of error and certiorari, and enacting that judgments and orders in criminal cases and orders in special proceedings of a criminal nature may be reviewed only by appeal. But we think that the ‘special proceedings of a criminal nature,’ referred to in this section, are those designated as such in that Code; that is, the various special proceedings enumerated and provided for in part 6 of the Code of Criminal Procedure. By section 962, that Code applies to criminal actions and to all other proceedings in criminal cases which are therein provided for. Proceedings for contempt are not provided for in that Code, nor is a criminal contempt thus defined, or the punishment therefor prescribed, except in section 619, which refers to cases of disobedience to process and refusal to answer as a witness; and in these cases the remedy is referred to the procedure prescribed in civil cases provided for in the Code of Civil Procedure. The offense of which the relator was convicted is created, and the procedure and punishment prescribed, by sections 8 and 9 of this Code, and the manner of reviewing the determination is to be found there. Section 2148. This section clearly contemplates that an order made in contempt proceedings may be reviewed by certiorari, and such has always been the practice. People v. Court of Oyer and Terminer, 101 N. Y. 245, 4 N. E. 259;People v. Barrett, 56 Hun, 351, 9 N. Y. Supp. 321;Id., 121 N. Y. 678, 24 N. E. 1095;People v. Dwyer, 90 N. Y. 402. It was not intended that any change should be made in the practice in such cases by the amendment to section 515 of the Code of Criminal Procedure. Full force is given to the language of that section by confining it to such actions and special proceedings as are defined and regulated by that Code; and, as no provision is there made for proceedings to punish for contempt or to review any order made in such proceedings, the practice is governed by the same procedure as applies to ordinary cases where private rights are involved, the determination to which may be reviewed by means of the writ of certiorari; and so we think that the record is properly before us for review. The merits of the case, or the powers of the court to punish the relator for contempt, upon the facts and circumstances disclosed, must therefore be considered.

The case grew out of the conduct of certain of the students at Cornell University on the 20th of February, 1894. That was the date of the customary annual banquet by the freshman class of the college. It is supposed, and is perhaps a fair inference from what appears in the record, that other students at the college, and especially those of the sophomore class, conspired to disturb the banquet by a new form of that species of annoyance or outrage popularly known as ‘hazing,’ which constitutes such a great reproach to college life, and is so disgraceful to all who participate in it. At all events, during the evening, while the banquet was in progress, a quantity of chlorine gas, of such poisonous power, was injected into the dining hall and the adjoining kitchen, that it caused the death of a colored servant in the kitchen, and many of the students attending the banquet were also seriously affected by it. The result was produced by placing two jugs in a room just below the banqueting rooms, containing the essential chemicals and substances for the generation of the gas, which was conducted into the kitchen and dining hall above by means of a rubber tube, fastened over the mouth of each jug, and passing upward through holes for that purpose bored in the ceiling and floor above. The act was of such an unusual and peculiar nature, and it was followed by such serious consequences, that public sentiment demanded the detection and punishment of its authors and perpetrators. The grand jury was instructed by the court to institute an inquiry with the view of ascertaining the person or persons responsible for the offense, and the relator was subpoenaed before them as a witness. The district attorney appeared before them, and participated in the examination of the witnesses; and, during the investigation, the questions which the relator declined to answer were propounded to him. The court convicted the relator summarily as for contempt ‘committed in the immediate view and presence of the court,’ upon the statement as to what occurred in the grand jury room by the district attorney, and without any further judicial inquiry as to the facts. The record contains that part of the examination of the relator before the grand jury wherein the alleged contempt was committed. It discloses the fact that the witness was pressed by the district attorney to answer the questions, and, having been brought before the court during the progress of the examination, was, in substance, instructed that the questions were of such a character that he was, under the circumstances, bound to answer. He testified in the broadest terms, in reply to questions propounded to him, that he had no connection whatever with the transaction on the evening of the banquet, and which was the subject of the inquiry. These questions were general, and so framed that he could easily see their bearing and tendency. They gave him an opportunity to deny in general terms that he was the author and perpetrator of the offense, or in any way connected with it; but, when questioned as to particular facts and circumstances, he refused to answer. The order of commitment contains upon its face a statement of the proceedings in the grand jury room which constituted the contempt of which the witness was convicted. From that it appears that the relator refused to answer questions framed evidently for the purpose of ascertaining the person or persons who placed the jugs in which the gas was generated in the room under the dining hall. He was asked if he knew where the jugs were purchased, who purchased them, when purchased, and to whom they were delivered after they were purchased. These questions were framed in various forms, and sometimes repeated. After testifying that he was a student at the university, that his home was in New Jersey, that he boarded at No. 6 Cook street, in Ithaca, he was asked who his roommate was. He then stated to the district attorney: ‘I wish to throw myself upon the privilege which the law allows me, and decline to give evidence, on the ground that it may tend to criminate me.’ He was then asked the following question: ‘Do you say that it will tend to criminate you to state who your roommate is?’ His only reply was: ‘I wish to throw myself upon my privilege, and decline to give evidence, on the ground that my answer may tend to criminate me.’ The witness was then brought into court; and, after consultation with the presiding judge, he returned to the grand jury room, and testified that his roommate then and since he came to college was Carl Dingens; that both of them had taken a course in chemistry; and, substantially, that they were familiar with methods of generating chlorine gas. Other questions having more or less relation to the transaction on the evening of the banquet were asked and answered, but none of them gave the information sought to be obtained by the questions before referred to, which he declined to answer. On a report of these facts to the court by the district attorney, an order was directed to be entered whereby the relator was adjudged guilty of contempt for refusing to answer, and that for such contempt he be imprisoned in the county jail until purged of the same, not exceeding 30 days.

The broad question thus presented upon these facts is whether the relator was in fact guilty of such conduct as subjected him to the power of the court to punish for contempt, or simply exercised a right secured to him by law. It must be assumed that the act by means of which a deadly gas was conducted into the rooms above, resulting in the loss of life, was of such a character, and perpetrated with such intent, as to subject the author, or any one who aided or assisted, to criminal punishment. The relator, though in fact he may be innocent, was so...