
    In re Michael BAER.
    No. 55274.
    Supreme Court of Louisiana.
    Sept. 19, 1974.
   In re: District Attorney for the Parish of Orleans applying for writ of certiorari.

Writ denied. The showing made is not sufficient to justify this court’s exercise of its supervisory jurisdiction.

SUMMERS, J.,

dissents. I am of th^ view the writ should be granted. The language of Article 66 of the Code of Criminal Procedure is clear and explicit. It requires : “Upon written motion of the attorney general or district attorney setting forth reasonable grounds therefor, the court may order the clerk to issue subpoenas directed to the persons named in the motion ordering them to appear at a time and place designated in the order for questioning by the attorney general or district attorney respectively, concerning any offense under investigation by him .”. To say that appearance without submitting to questioning satisfies this legislation is to disregard the elementary definition of subpoenae which is “. . . a process to cause a witness to appear and give testimony commanding him to lay aside all pretenses and excuses, and appear before a court or magistrate therein named at the time therein mentioned to testify for the party named under a penalty therein mentioned.” Black’s Law Dictionary.

BARHAM, J.,

concurs. Contempt can be used only for failure “to appear” under subpoena. Failure to testify must be a refusal to answer a non-incriminating question after receiving a specific order from a “court” to answer. Failure to testify then constitutes contempt. C.Cr.P. Art. 21.

DIXON, J.,

concurs in the denial, believing the ruling of the trial judge was correct.

CALOGERO, J., takes no part.  