Gill v. United States

• Decision Date: 10 December 1919
• Docket Number: 43.
• Citation: 262 F. 502
• Parties: GILL v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

262 F. 502

GILL v. UNITED STATES.

No. 43.

United States Court of Appeals, Second Circuit.

December 10, 1919

Santiago P. Cahill, of New York City (S. P. Cahill, of New York City of counsel), for plaintiff in error.

Francis G. Caffey, U.S. Atty., of New York City, and George Winship Taylor, Asst. U.S. Atty., of Baltimore, Md.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

The defendant was committed on July 3, 1918, for contempt of court. On that day he was before a grand jury in the Southern district of New York and declined to answer certain questions which were put to him. He claimed no privilege, but merely refused to answer. He was taken before District Judge Augustus N. Hand, who directed him to be again taken before the grand jury and instructed him to answer the questions. He was accordingly again taken before the grand jury, and he again declined to answer. The grand jury thereupon presented the facts to the court, and the court, finding that he willfully and contumaciously refused to answer and was without any legal excuse therefor, entered an order committing him to the custody of the United States marshal to be detained in Ludlow Street Jail until he should signify a willingness to answer the questions or otherwise purge himself of the contempt.

That the order committing for contempt was a final order cannot be questioned. Whether an order committing one for contempt is final, or whether it is interlocutory, depends upon its character. If the order is remedial, it is merely interlocutory, and reviewable only upon an appeal from the final decree. If, however, the order is punitive, it is a final judgment, criminal in its nature, and reviewable upon a writ of error without awaiting the final decree. And the order is deemed punitive when its purpose is to vindicate the authority of the court by punishing the act of disobedience as a public wrong. In re Merchants' Stock & Grain Co., 223 U.S. 639, 32 Sup.Ct. 339, 56 L.Ed. 584. And it cannot be questioned that the conduct complained of, being against the dignity and authority of the court and in a criminal proceeding, is a criminal contempt. The Supreme Court holds that judgments in criminal contempt proceedings are reviewable only by writ of error (Grant v. United States, 227 U.S. 74, 33 Sup.Ct. 190, 57 L.Ed. 423), and that judgments in civil contempt proceedings are reviewable by appeal only (In re Merchants' Stock & Grain Co. supra).

The order in question, being a final order, might have been reviewed in this court by writ of error, if the writ had been sued out within six months after the entry of the order. 26 Stat. 829, Sec. 11 (Comp. St. Sec. 1647). Instead of suing out a writ of error within the six months, nothing was done until seven months elapsed, when defendant petitioned the court to enter an order declaring the...