People ex rel. Sherwin v. Mead , 64 How. Pr. 41 ( 1882 )

Barker, J.

The court of oyer and terminer, in and for the county of Albany, had jurisdiction to try the relator upon this indictment without any order from the court of sessions, in which the indictment was found, sending the same to the oyer and terminer for trial (3 Revised Statutes, 205, secs. 29 and 30; 2 Ed. Stat., 214; The People agt. Myers, 2 Hun, 626; The People agt. Gay, 10 Wend., 509; The People agt. The General Sessions, 3 Barb., 141; The People agt. Quimbo Appo, 20 N. Y., 577). The court of oyer and terminer being in session while the proceedings were pending the justice of the supreme court had no power to let the prisoner to bail for the reason that the statute limits his authority in express terms (2 Revised Statutes, 728, secs. 56 and 57; The People agt. Clews, 14 Hun, 90; The People agt. Clews, 77 N. Y., 39 and 40). In this case it was distinctly affirmed in this court and in the óourt of appeals that if the court having jurisdiction to try the indictment was in session at the time the judge was applied to to let the prisoner to bail he had no power to do so.

It is claimed by the relator that the bench warrant did not, upon its face, charge the relator with having committed an indictable offense, and for that reason he should have been discharged. The statute authorizing the district-attorney and «■tiler officers to issue bench warrants for the apprehension of indicted parties makes no requirements as to the form of the warrant, or the matters which shall be stated therein; and the sufficiency of the same must, therefore, be determined by the common-law rule on the subject (2 Revised Statutes, part 4, chap. 2, tit. 4, art. 2, sec. 55, Laws of 1847, chap. 338). The statute declares that every person who shall be guilty of any criminal contempt, as defined therein, shall be liable to indictment therefor as a misdemeanor, and upon conviction shall be punished in the mode and manner also determined by the statute. A criminal contempt is defined to be a willful disobedience of any process or order lawfully issued by a court of record. This bench warrant recites the fact that the prisoner had been indicted, the court wherein it was pending, and stated the offense imputed to him. It is not necessary' that a bench warrant issued for the apprehension of the indicted party should be as full and complete in its recitals and statements as a warrant issued under the statute to apprehend a party to be brought before a magistrate for a preliminary examination. It is sufficient if the nature of the offense for which he stands indicted is clearly indicated, and the place and the court in which the indictment is pending. Here the fact is stated that the prisoner is indicted, the court wherein it was found, and the nature and character of the offense imputed to him. It indicated that the offense charged upon him was a misdemeanor and not a felony, and he was sufficiently informed to prepare for trial at the place mentioned in, the warrant (Pratt agt. Bogardus, 49 Barb., 90, and the eases there cited; People agt. McLeod, 1 Hill, 378; Barbour's Criminal Law, 525). It is also urged by the learned counsel for the relator that the bench warrant was void for the reason that being for a misdemeanor there was not a compliance with sections 301 and 302 of the Code of Criminal Procedure. This indictment was found in 1874, before those sections were enacted, and it is provided in section 962 that all actions and proceedings commenced prior to the enactment must be conducted in the same manner as if the same had not been passed. The provision referred to, as to the form and contents of the bench warrant, has no application to this case (The People agt. Sessions, 62 How. Pr. R., 415).

By section 300 it is, in terms, provided that a bench warrant for the arrest of any offender indicted may be issued by the district-attorney in the same manner and form now prescribed by law, at any, timé after such indictment shall be found. Sections 301 and 302 only apply to the form of a bench warrant to be issued by the clerk; and he is authorized to issue a bench warrant, on the application of the district-attorney, in instances where, the prisoner has been discharged on bail, or has deposited moneys instead thereof, and had failed to appear in pursuance- of his recognizance. When the district-attorney issues the bench warrant himself, he is not required to pursue the form provided in section 301; and section 302 seems to be intended to provide for the form of a bench warrant, to be issued by the clerk on the order of the court, when the offense is a misdemeanor only. The point was also made that the court of sessions for Albany county liad no jurisdiction to find the indictment; and that it appears from the indictment itself that the prisoner had not committed -any offense in the county of Albany; and that if he was liable to indictment for disobeying the process of the court, that the offense was committed in the city and county of New York, and not elsewhere. The prisoner is a citizen of the state, owing obedience to its laws, and he is charged with having violated the same. Having been duly notified to attend, at particular time and place, before the tribunals of the state, then and there to give evidence in a pending proceeding, and having willfully and purposely failed so to do, the offense of non-appearance was consummated and committed, in the eye of the’ law, in the county of Albany. The injury to the public, resulting from his non-attendance, occurred in that county, and not in the city and county of New York, where the process was served upon him. Personal presence at the place where the crime is perpetrated is not always indispensable to make out an offense against the accused party, and there are many instances where the offender will not be allowed3 to gainsay that he was not at the place where the crime imputed to him happened. This is one of that class. The court whose process he disobeyed was a court in and for the county of Albany, and the offense charged upon the prisoner consists in not being in the presence of the court, ready to testify when called for that purpose. Por aught that does appear, he was within the county of Albany on the day that he was required to be in court and answer to his name ; and if such was the fact, the district-attorney may prove it upon the trial, with a view of establishing the willful disobedience to the process of the court. The case is similar to the one where a person sends threatening letters from one county to another through the mail. The offense, in such a case, is regarded as consummated at the place and time where they were received by the person to whom they are addressed, and the sender may be indicted and tried in such county. The act of sending produced the injury in the county where it was received, by disturbing and harassing the feelings of the party to whom it was addressed. In the case at bar, the act of non-attendance was an indignity to the court sitting in the county of Albany, and impeded and delayed the administration of justice at that place; and the law presumes that the prisoner intended that his behavior should have that effect and influence (The People agt. Rathbun, 21 Wend., 509; The People agt. Adams, 3 Denio, 190). On the hearing, the relator proposed to show that the officer had other bench warrants in his possession of the same character and import as the one returned, and that the officer had served the same and claimed the right to detain the prisoner by such authority. This was overruled and the relator excepted. If that was a pertinent and proper question for the prisoner to raise upon the hearing, we are unable to discover how the ruling limitirg the inquiry to the validity of the warrant presented by the officer, can lead to a reversal of the order dismissing the habeas corpus proceedings, for the reason that the officer did present valid and sufficient authority for continuing the custody and arrest of the prisoner. The offer which was made to go into an inquiry as to the facts and circumstances upon wffiich the indictment was founded, was properly rejected. The officer had jurisdiction to inquire whether there was any such record of indictment, as claimed by.the people, and if there was none, or the court in which it was found had no jurisdiction over the subject-matter, then to discharge the prisoner. But as to the guilt of the prisoner as charged in the indictment, no inquiry could be made in these proceedings. The prisoner’s counsel has sought to test the validity of the indictment and the sufficiency of the warrant by applying those rules and tests which are applicable to a case where a party is charged with contempt of court, and the court has instituted proceedings with a view to the punishment of the offender, and has condemned him and pronounced sentence and issues its order, of arrest to carry its judgment into effect. These rules have no just application to this case, where the party is proceeded against, upon the complaint of the people, and is in due form indicted by a grand jury attending upon a court having jurisdiction of the offense.' The statute has declared in express terms that every person who shall be guilty of a willful disobedience of any process or order lawfully issued or made by a court of record, is guilty of a misdemeanor, and may be punished therefor. The prosecution by indictment may proceed by the usual and customary course of procedure, without inquiry whether the court, whose process has been held in contempt, has taken notice of the disobedience with a view of punishing the offender as provided by statute. Each of the proceedings is entirely independent of the other. They may be prosecuted at the same time, and a conviction under one is no bar to a prosecution under the other. The order dismissing the habeas corpus proceedings is affirmed, and the form of the order of affirmance will be settled by Mr. justice Beady.

Daniels and Brady, JJ., concur.