United States v. Zavelo

• Decision Date: 25 March 1910
• Citation: 177 F. 536
• Parties: UNITED STATES v. ZAVELO et al.
• Court: U.S. District Court — Northern District of Alabama

177 F. 536

UNITED STATES v. ZAVELO et al.

United States Circuit Court, N.D. Alabama, Southern Division.

March 25, 1910

O. D Street, U.S. Atty.

C. B Powell, for defendants.

GRUBB District Judge.

This matter comes up for decision upon a rule served upon the respondents, at the instance of the United States attorney citing each of them to show cause why they should not be attached for a contempt of the Circuit Court arising out of the facts herein set out.

The respondent Zavelo was a defendant in a criminal prosecution in the District Court. Certain witnesses for the government were brought to Birmingham, the place of trial of this cause by it from another state, but were regularly subpoenaed as witnesses in the cause. After the termination of the criminal suit, which resulted in an acquittal of the respondent Zavelo, Zavelo instituted civil suits for malicious prosecution, arising out of the criminal prosecution, against the witnesses who had testified in behalf of the government, and caused process to be executed on said witnesses, after the disposition of the criminal case, but before the witnesses had left, or had had reasonable opportunity to leave, the place of trial on their return journey to their homes. The other respondents were the attorneys of record of Zavelo in the civil suits and the state officers who served the civil process on the witnesses and persons who assisted the officers in making such service.

The question presented is as to the extent of the privilege of witnesses to be exempt from the service of civil process, which did not involve arrest, while attending another court in another cause, and as to whether persons violating such privilege are in contempt of the court, in attendance upon which the witnesses were when so served.

The privilege of a witness of freedom from arrest under civil process during the time he reasonably consumes in coming to court, attending upon it, and returning from it to his home, is well established by the authorities. Larned v. Griffin (C.C.) 12 F. 590, and cases cited. As this privilege extends to the witness for a reasonable time after his discharge as a witness, to enable him to reach his home, it is clear that the reason supporting it is not altogether that the detention of the witness may prevent his presence and testimony in the cause at the term at which he is summoned to testify, by reason of his confinement under the writ of arrest. The probability that the fear of arrest may prevent his return to the place of trial at a future term, if his presence be thereafter required, operates also in support of the rule, as does the general deterrent effect upon the attendance of witnesses at court of a contrary rule.

The purpose of the privilege is not so much for the advantage of the witness as for the proper and efficient conduct of the court in the procuring of the necessary attendance of its witnesses. This being the reason of the rule, it seems clear that the difference in effect in this respect between writs of arrest and other civil processes is a difference of degree rather than one of kind. The deterrent effect would exist, but possibly not so forcibly, in the latter as in the former class of process. That the possibility of being so subjected to service of process in a civil suit, which could not otherwise reach a witness, would be a material inducement operating to prevent his attendance upon court in all cases in which his attendance was optional and could not be enforced by subpoena, is manifest. This seems an ample reason for extending the rule to process not involving arrest of the person; and the authorities support the extension, though not with unanimity. In re Healey, 53 Vt. 694, 38 Am.Rep. 713; Bridges v. Sheldon (C.C.) 7 Fed. 17-45; Atchison v. Morris (C.C.) 11 F. 582. Contra: Blight v. Fisher, 3 Fed.Cas. 704; Ex parte Schulenberg (C.C.) 25 F. 211.

As the privilege is for the advantage of the court, as well as for the witness, it seems that the willful violation of the privilege should constitute a contempt of the court, and that the setting aside of the service of the process would not adequately and completely redress the wrong, at least in so far as it directed against the court. This view is sustained by the three first cases cited above. In 16 Am. & Eng.Ency.Pleading, 983, the rule is stated as follows:

'It is generally held that a person who causes the arrest of a privileged party or procures the service of a summons in violation of privilege may be punished for contempt of the court, whose guaranty of protection is thus violated.'

To what extent is this conclusion modified with respect to federal courts by the provision of section 725, Rev. St. U.S. (U.S. Comp. St. 1901, p. 583), which limits the jurisdiction of the federal court to punish for contempt to three classes of cases: (1) Misbehavior of any person in the presence of the court or so near thereto as to obstruct the administration of justice; (2) misbehavior of officers of the court in their official transactions; and (3) disobedience or resistance to any lawful writ, process, order, rule, decree or command of the court by any person?

So far as this proceeding relates to the...