Bates's Case , 55 N.H. 325 ( 1875 )

Contempt of Court — Evidence. All questions of discretion are referred, by the judge who ordered the attachment, to this court for determination; and upon the facts stated, I cannot doubt that the claim of the solicitor, with respect to the ex parte affidavit of Mary Angell, and the answers of Ellen P. Cheney in the matter of her own contempt, was inadmissible, and the pro forma ruling of the court receiving that evidence, wrong.

After an attachment issues, the proceedings for a contempt are to be regarded and entitled as of a criminal character. State v. Matthews,37 N.H. 454. Where the contempt charged is not committed in the presence of the court, — and especially where it is of so grave a nature as the advising and procuring of a witness in a criminal prosecution to absent herself from court in disobedience to a summons duly issued and served, thus directly obstructing the administration of the criminal justice of the state, — if evidence beyond the examination of the defendant is gone into, I think only such evidence should, in general, be received as would be admissible on the trial of an indictment for the same offence. Indeed, I see no reason why the general course of the trial before the judge should not conform in substantial respects to the trial of all indictment before a jury, and be governed by the same rules.

We need not inquire how far the mode of procedure may be within the discretion of the court, as no such question is presented by the case; but it seems to me the safe course is that dictated by the analogies of the law governing criminal trials, and that the court should be cautious of sanctioning any material departure from that course.

CUSHING, C. J., concurred.