
    Scott and Light v. State.
    (Knoxville.
    September Term, 1902.)
    1. CONTEMPT. Decoying witness from State — Technical defenses not favored.
    Where in a prosecution for contempt by decoying a witness from the State to prevent his appearance before the grand jury,' the .defenses interposed are based upon alleged technical defects in the .subpoena and manner ,of service on the witness, whatever effect might be given to such defenses if relied upon by a witness proceeded against for failure to attend, they should be given no weight at all when invoked by-third parties under prosecution for decoying the witness away, it appearing that the witness himself recognized the validity of the .subpoena and .the legality of the service. (Post, pp. 392-394.)
    
      2. SAME. Power of the courts to punish for.
    In this State the power of the courts to punish for contempt i.s purely statutory and is restricted to certain designated cases. (Post, pp. 394-395.)
    Code construed: Sec. 5918 (S); 4881 (M. & V.); 4106 (T. & S.),
    3. SAME. Issuance of process essential to sustain prosecution for.
    To sustain a charge of contempt for decoying a witness from the State it is necessary to show that a subpoena -was isued for the witness; that is, the existence of process which was interfered with must be shown by proper proof. (Post, pp. 392-394, 396.
    Code construed: Sec. 5918 (S); 4881 (M. & V.); 4106 (T.&S.).
    Case cited: Hatfield’s case, 3 Head, 233.
    
      4. SAME. Case in judgment.
    Plaintiffs in error were prosecuted in the circuit court upon a charge of contempt for decoying a witness, one Johnson, out of the State, with the purpose of preventing his appearing as a witness before the grand jury, in -a bound over case. One of the defenses interposed was that Johnson had not been lawfully subpoenaed and alleged defects in the subpoena and manner of service were specified, but it appeared that the witness recognized the binding force of the service. It was also ‘insisted that no subpoena was ever issued for Johnson. The record shows a subpoena for one Hardy; instead of Johnson, but refers in terms to the proper subpoena, .showing that the wrong subpoena was inserted by a mistake of the clerk of the court below. The testimony is clear .that defendants supposed .that a legal subpoena had been served on Johnson, and under that belief they decoyed him out of the State, with the purpose above stated. The defendants were found guilty as charged and have appealed.'
    Heed: 1st. That the judgment of conviction must be reversed because of failure to prove the existence of the subpoena or process which was interfered with. 2d. That in view of the strong proof of their guilt, defendants are not entitled to be discharged, but will be remanded for a new trial, when, proof of the proper subpoena may ¡be made. (Post, pp. 392-394, 396.)
    5. CONTEMPT. Proceedings — Practice.
    It is not necessary that a prosecution for contempt be instituted by petition, an oral motion based' on an affidavit making out a prima facie case is sufficient. (Post, pp. 396-397.)
    6. SAME. Same. Same.
    If the affidavit on which the motion is based be meager, as in this case, it may be amended on the remand, so as to more fully shows the facts. (Post, p. 397.)
    7. SAME. Same. Judgment of court should show what.
    In a prosecution for contempt, by motion based p.n affidavit, the action of the court thereon in awarding or denying the attachment should substantially appear in the order of the court and it should show the substance of the motion and the charge contained in the affidavit, but not its evidentiary details; and the substance of the order should appear in the attachment if awarded. {Post, p. 397.)
    FROM HAMILTON.
    Appeal in error from the Circuit Court of Hamilton County. Floyd Estill,, Judge.
    Job Y. Williams and Shepherd & Frierson, for Scott and Light.
    Charles T. Cates, Jr., Attorney-General, for State.
   Mr. Justice Neil

delivered the opinion of the Court.

The defendants were tried in the court below upon a charge of contempt of court. The charge, in substance,. was that one Charley Johnson had been subpoenaed by the State to appear and give his testimony before the grand jury in the case of the State against Ed Royston, who had been bound over on a charge of forgery; that the defendants, knowing the said Charley Johnson had been so subpoenaed, decoyed him out of the State of Tennessee, and into the State of Alabama, with the purpose of preventing his appearing as a witness in the said case.

The defense made was that the said Charley Johnson had not been lawfully subpoenaed as a witness in the case referred to; and thereunder were the following specifications: (1) That tbe subpoena alleged to bave been issued appears, from tbe face of tbe affidavit wbicb is tbe foundation of tbe present proceeding, to bave required tbe said Charley Johnson to appear before tbe grand jury, and not before tbe court, to give evidence before tbe grand jury; (2) that tbe affidavit shows that tbe subpoena.was issued in vacation, without showing that it was issued upon the request of tbe attorney-general of the district; (3) that tbe affidavit shows that tbe subpoena required Charley Johnson to appear upon tbe second day of tbe term, and not upon tbe first day; (4). that it does not appear that any subpoena was ever issued at all; (5) it does not appear that any subpoena, if issued, was legally served.

Leaving out of view these technical defenses, tbe testimony clearly shows that tbe defendants are guilty, that they supposed tbe subpoena was in every respect a legal one, and that under that belief they decoyed tbe witness out of tbe State. Under such a state of facts tbe court is not inclined to give technical objections any moré weight than they are entitled to striotissimi juris.

As to tbe first, second, third and fifth' grounds, whatever weight they might be entitled to if relied upon by a witness who was being proceeded against for a failure to attend, we think they should be given no weight at all when put forward as defenses by persons under prosecution for decoying tbe witness away, when it appears, as in the present case, that the witness himself recognized the binding force of the subpoena.

The fourth ground, however, must be sustained, because, instead of setting out the subpoena in the case of the .State against Ed Royston, the bill of exceptions 'contains a subpoena in the present case, and one, moreover, not for Charley Johnson, but for one Charley Hardy,. The language of the bill of exceptions, referring in terms to the proper subpoena, however, convinces us that the one now appearing in the record was inserted by a mistake of the clerk of the court below. Nevertheless, the judgment of that court must be reversed on this ground, because, if in fact no subpoena for Charley Johnson was ever issued, he could not be made a legal witness, and so bound to appear (Hatfield’s case, 3 Head, 233); and the defendants, in that view, committed no contempt of court in inducing him to leave this State and go into, the State of Alabama to keep from testifying. It is unnecessary to determine whether the facts stated would support an indictment, as the matter before us is whether these facts would make out a case of contempt of court, this being a contempt proceeding. That, they would not support a charge of con-, tempt is shown by the fact that the 'power of the courts of this State to punish for contempt is limited to the cases laid down in Shannon’s Code, sec. 5918, subsecs. 1 to 6, inclusive. These are as follows: “(1) The wilful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice; (2) the wilful misbehavior of any of the officers of said courts, in their official transactions; (3) the wilful disobedience or resistance of any officer of the said courts, party, juror,. witness, or any other person, to any lawful writ, process, order, rule, decree, or command of said courts; (4) abuse of, or unlawful interference with, the process or proceedings of the court; (5) wilfully conversing with jurors in relation to the merits of the cause in the trial of which they are engaged, or otherwise tampering with them; (6) any other act or omission declared a contempt by law.” The sixth subsection has been decided to be applicable to only such acts or omissions as may be declared by statute to be contempts, and so does not apply. The only other subsection which could have any possible bearing upon the facts stated is the fourth one. But that subsection can not apply, because, on account of the absence of the subpoena, it is not shown that there was any process issued which was interfered with.

So, however strong the purpose of the defendants was to commit the contempt, and how willingly soever they entered upon and executed a plan which they thought was the placing beyond the jurisdiction of the court of a- witness who, as they believed, bad been subpoenaed to go before tbe grand jury, yet, because tbis record, as it stands, does not show that the supposed witness was a real witness, in a legal sense, tbe conviction can not be sustained. But under tbe circumstances we do not think tbe defendants should be discharged. As already stated, it seems most probable that by a mere oversight tbe wrong subpoena got into tbe bill of exceptions. In view of tbis fact, and tbe strong proof of tbe defendants’ guilt otherwise, tbe case should be remanded for a new trial, rather than disposed of finally here, as might be done in tbis kind of case. Attempts to interfere with tbe pure and efficient administration of justice in tbe courts of tbe country merit tbe severest condemnation and punishment, and persons charged therewith, and whom tbe facts show to be morally guilty, can not be allowed to escape punishment on mere technicalities, when tbe record shows, or can legally be made to show, that tbe substantial requirements of tbe law have in other respects been-complied with in the proceedings which such persons have sought to divert. All such charges should have the fullest investigation.

The defendants’ counsel have furnished the court with a learned and able brief upon the form of the pleadings required in contempt proceedings. We do not deem it necessary to go into this matter at any length. The general form of the proceeding as in-, stituted is correct; that is, an affidavit and an at--tachment. Undoubtedly, the affidavit, or, if more than one,' then- all of the affidavits together, should make out a prima facie case of contempt; and the application for the attachment should be based on such affidavit or affidavits. In the present case the affidavit is meager, but on the remand it may be amended in such way as to more fully state the facts.

We do not think that a petition is at all necessary. An oral motion based on the affidavit is sufficient. The action of the court upon the motion and affidavit in awarding or denying the attachment, should substantially appear in the order of the court on the motion, and this order should recite the substance of the motion granted or denied; also briefly the substance of the charge contained in the affidavit, but not its evidentiary details; and the substance of the order should appear in the attachment writ if awarded. This brief and simple practice is the one which the court recognizes as having been long in use in this State, and is altogether sufficient for the purposes of the inquiry.

Let the judgment be reversed and remanded as above indicated.  