Sherwin v. People

Decision Date24 November 1885
Citation3 N.E. 465,100 N.Y. 351
CourtNew York Court of Appeals Court of Appeals


Thos. H. Edsall and Saml. Hand, for appellant.

N. C. Moak, for respondent.


The defendant was convicted on an indictment for contempt in disobeying a subpoena issued by the district attorney of Albany county in a criminal case, and he pleaded guilty to two other indictments of the same character. He was sentenced for each of the offenses charged, and the question now presented involves the validity of these indictments. If the indictments did not impute to the defendant a criminal offense, in violation of the statutes of this state, (and were defective in charging such offense,) then they are insufficient to sustain a verdict of guilty, or a sentence after conviction or after a plea of guilty. The indictments are founded upon the provisions contained in 2 Rev. St. 692, § 14, which declares that ‘every person who shall be guilty of any criminal contempt enumerated in the second title of the third chapter of the third part of the Revised Statutes, shall be liable to indictment therefor as a misdemeanor,and upon conviction shall be punished as hereinafter prescribed.’ To make out an offense within this provision, and sustain a conviction under the same, the indictment must charge that the defendant was guilty of some act which constituted a criminal contempt in violation of the statute cited. The only acts which constitute a criminal contempt within the provisions of section 14 are specified in 2 Rev. St. 278, § 10, which declares ‘every court of record shall have power to punish as for a criminal contempt persons guilty of either of the following acts and no others: * * * (Subd. 3.) Willful disobedience of any process or order lawfully issued or made by it.’ The subsequent sections 11, 12, and 15 make provision in reference to the punishment to be inflicted in case of a violation of the provisions of the tenth section The charge made in the indictments against the defendant can only rest upon subdivision 3 of section 10, above quoted, and in order to sustain the indictments a case must be made out within the language and meaning of that subdivision, and there must be a willful disobedience of a process or order lawfully issued or made by the court in the exercise of its legal authority. The court alone can issue the process or make the order, a violation of which constitutes the contempt, and it cannot lawfully be issued or made by any intermediate authority. It was evidently intended by the statute that the contempt which was the subject of condemnation and punishment should be a matter of consideration by the court itself, and that it should pronounce judgment as to its character and the punishment that should be inflicted.

Each of the indictments against the defendant, among other things, alleges that the writ of subpoena was duly and lawfully issued by the district attorney, and tested in the name of a justice of the supreme court, and directed to the defendant, commanding him to appear at a court of oyer and terminer at a time specified; that it was lawfully served on the defendant; and that he was notified to appear and give evidence accordingto the exigency of the writ. There is no allegation that any process or order was lawfully issued or made by any court of record; and although it is stated to be a writ issued by the people, such statement does not necessarily establish it as a process or order issued or made by a court of record. The allegations in the indictment that it was called a subpoena, and that it was lawfully issued and tested by a justice of the supreme court, did but make it a process or order lawfully issued or made by any court of record. Something more was required to bring it within the statute. It should have been made to appear that a court of record duly organized had issued the process or made the order which was disobeyed. It will be observed that section 10 of subdivision 3, instead of declaring that a willful disobedience of any order or process of the court can be punished as a criminal contempt, defines the process or order which cannot be disobeyed without subjecting the party to indictment for a misdemeanor, by the use of the terms ‘lawfully issued or made by it;’ thus indicating an intention to include only such process or order as was expressly directed by the court itself while acting officially in the discharge of its functions. Courts of oyer and terminer have power to issue subpoenas, (2 Rev. St. 276, § 1;) but the subpoena described purports to be issued either by a justice of the supreme court or by the district attorney. It is difficult to see how such a process can be regarded as issuing from or as an order made by any court of record. Section 10 of subdivision 3 is highly penal in its character, and cannot well be said to embrace a case where the process or order was not in fact lawfully issued or made by a court of record duly constituted for that purpose.

The allegation in the indictment that the process was duly issued by the district attorney is inconsistent with the position that it was issued by a court of record. The writ of subpoena which was issued was expressly authorized by 2 Rev. St. 729, §§ 63, 64, where power is conferred upon the district attorney to issue subpoenas for witnesses in the precise form alleged. The process was a subpoena issued by the district attorney alone, and the court took no part in his official act in this respect. It is nowhere alleged in the indictment that the subpoena in question was a process lawfully issued by the order of any court of record. Without this there was no power to punish by indictment for a criminal contempt within the language and meaning of the statute. To sustain a charge for a criminal contempt under section 10, and an indictment under section 14, it should be averred and made to appear that the willful disobedience alleged was, within the terms of the statute, a distinct and clear disobedience of the process or order of the court of record stated in the indictment.

In People v. Gilmore, 26 Hun, 1, it was held that to warrant punishment as for a criminal contempt the mandate, process, or order disobeyed must have been lawfully issued or made by some court of record as such, and it was said in the opinion by DAVIS, J., that if not so issued by a court of record as such court of record, then another and quite different statute would be applicable to the case. In People v. Riley, 25 Hun, 587, GILBERT, J., says: ‘There exists no undefined power authorizing the commitment of citizens for contempt in cases defined and limited by statute.’ See, also, In re Watson v. Nelson, 69 N. Y. 537;O'Gara v. Kearney, 77 N. Y. 423. The views already expressed are also supported by the notes of the revisers of the statutes, and the other provisions of the statutes in regard to contempts which are not criminal. In their notes on section 10 (5 Edm. 426) the revisers say:

‘A solid and obvious distinction exists between contempts, strictly such, and those offenses which go by that name, but which are punished as contempts only for the purpose of enforcing some civil remedy. This distinction has been observed, and the former are intended to be included in the preceding sections. The latter class are treated of subsequently, among miscellaneous proceedings in civil cases.’

From these remarks it is quite obvious that the contempts which are subsequently provided for among miscellaneous proceedings in civil cases were not intended to be included among criminal contempts. It follows that the framers of the statute never intended that the disobedience of a subpoena in civil cases should be regarded as a criminal contempt. The provision of section 26, (2 Rev. St. 538,) declaring that ‘persons proceeded against, according to the provisions of this title, shall, notwithstanding, be liable to indictment for the same misconduct, if it be an indictable offense,’ is not in conflict with the position last stated. This section merely recognizes the fact that there may be some provision of the statute which makes one or more of the simple contempts a crime, but it does not sanction the idea that disobedience of a subpoena is a criminal contempt, indictable as a misdemeanor under the statute which declares such contempts to be misdemeanors. The distinction made by the revisers is repeated in their note to title 13, c. 8 of part 3 of the Revised Statutes, (5 Edm. 502,) entitled, ‘Of proceedings as for contempts, to enforce civil remedies, and to protect the rights of parties in civil actions.’ After having pointed out the distinction between contempts which are really such, and those which are treated as contempts for the mere purpose of enforcing some civil remedy, they say the former class has been provided for. ‘It is the object of this title to provide for the latter class.’ As provision is made in the title to which this note is appended to punish the failure to obey a subpoena, there would seem to be no question that the revisers did not intend to make the disobedience of a subpoena a criminal contempt.

Independent of the provisions of the statute in regard to criminal contempts, there are other enactments relating to the disobedience of subpoenas issued by an attorney in civil actions, or county clerk or district attorney in criminal cases, which define the penalties to which a defaulting witness in such cases subjects himself; and such penalties being designated,...

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  • Gabrelian v. Gabrelian
    • United States
    • New York Supreme Court — Appellate Division
    • May 20, 1985 one time limited only by constitutional restraints and now pre-empted by the Legislature (see Judiciary Law, art. 19; Sherwin v. People, 100 N.Y. 351, 3 N.E. 465; In re Barnes, 204 N.Y. 108, 97 N.E. 508; Dollard v. Koronsky, 67 Misc. 90, 121 N.Y.S. 987, affd. 138 App.Div. 213, 123 N.Y.S.......
  • People v. Carillo
    • United States
    • New York Supreme Court — Appellate Term
    • February 4, 1964 reference to some other standard that all men subject to their penalties may know what acts it is their duty to avoid. Sherwin v. People, 100 N.Y. 351, 3 N.E. 465. A criminal statute should be construed narrowly that acts, otherwise innocent and lawful, do not become crimes unless there ......
  • James v. Powell
    • United States
    • New York Supreme Court
    • October 27, 1966
    ...not (personally physically) served with the order to show cause and affidavits and did not voluntarily appear.' And, in Sherwin v. People, 100 N.Y. 351, 3 N.E. 465, the defendant disobeyed the subpoena of the district attorney, and it was held that there was no lawful order and that therefo......
  • People v. Pestronk
    • United States
    • New York Magistrate Court
    • November 19, 1956
    ...may not only read but readily understand. The courts traditionally and consistently condemn strained construction, Sherwin v. People, 1885, 100 N.Y. 351, 3 N.E. 465, 3 N.Y.Cr.R. 524, and technical construction, People ex rel. Murray v. Becker, 1912, 78 Misc. 666, 138 N.Y.S. 771; People v. S......
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