
    The People ex rel. Dilworth Choate v. George C. Barrett, a Justice of the Supreme Court.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 18, 1890.)
    
    1. Contempt—Petit jury a constituent part oe the court.
    The petit jury is as much a part of the court as the judge himself who presides, and when it is engaged in the prosecution of the business of the court, according to law, there the court is present.
    2. Same.
    A contempt committed in the presence of the jury, while they are performing the functions devolved upon them by law, and which must be performed out of the sight and hearing of the judge or anybody else, is, in the eye of the law, committed in the immediate view and presence of the court.
    8. Same—Former discharge.
    A newspaper reporter was discovered secreted in the jury room during their deliberations and was taken before the judge. He was questioned and ordered to give up his notes of the jury’s proceedings, which he did, but refused to promise not to publish such proceedings. He was then discharged from custody and published a statement of what he had heard. On a proceeding to punish him for a criminal contempt, Held, that the judge had not, when relator was brought before him, determined that relator should not be punished, but only that, in the then condition of the case, he was not in a position to adjudicate thereon; and that such proceeding did not constitute a former arraignment and discharge.
    4. Same—Practice.
    Where .a contempt has been committed in the presence of the court, but which the judge has failed to see, he is not obliged to proceed thereon without proofs or process, and the proof must be presented before him in a legal and formal manner.
    Hearing of a writ of certiorari, requiring the Hon. George C. Barrett, one of the justices of the supreme court, assigned to and presiding at the court of oyer and terminer, to return to the general term of this court all proceedings had before him, and all orders, papers, proofs, testimony and affidavits concerning the commitment of one Dilworth Choate for contempt of court
    The opinion of Mr. Justice Barrett upon the return of the order to show cause was as follows: • ,
    Barrett, J.—“It is a duty imposed upon all courts to preserve order in court, and see to it that its proceedings are not interrupted,” said Judge Mason, in The People ex rel. Greeley v. The: 
      
      Court of Oyer & Terminer, 27 How. Pr., 18, “or that the respect and authority due to the court are not impaired. And the statute to enable the court to discharge this duty confers the necessary power upon the court.’’
    In the matter at bar, there is no substantial dispute as to the character of the respondent's act. It was undoubtedly a contempt. The principal question is whether such contempt was committed •during the sitting of the court, and in its immediate view and presence. If it was so committed, it is punishable as a criminal contempt, for it certainly tended to interrupt the proceedings and to impair the respect due to the authority of the court. The respondent’s act was not only a contempt but an exceedingly gross violation of professional propriety. He deliberately prepared for the invasion of the jury room, secreted himself there in advance, and supplied himself with paper upon which to take stenographic notes of what he might ’ hear. He actually took such notes while the jury were deliberating, and although, upon his discovery, he delivered these notes to the court, he refused to promise secrecy, and, notwithstanding our admonition that his conduct was highly improper, and that it was his bounden duty to keep what he heard to himself, he subsequently published his recollections of the debate. All this tended, to quote the language of Finch, J., in The People v. Court of Oyer & Terminer, 101 N. Y., 249, “to cast discredit upon the administration of public justice.”
    In the State v. Doty, 32 N. J. L. R., 403, the supreme court of Hew Jersey held that the law directs the complete seclusion of the jury, and that any attempt to invade such seclusion is illegal and a palpable violation of judicial authority. “ The jury,” said the learned and able Chief Justice Beasley, “ cannot be isolated unless the court is prompt to punish those who infringe in the slightest degree the order directing such isolation. I think public policy requires that no one should escape punishment who is found in any respect invading the privacy of the jury room.”
    In this state, the statute expressly requires the jury, in criminal cases, while deliberating, to keep together in some private and convenient place; and the officers are sworn not to permit any person to speak to or communicate with them, nor to do so themselves, unless it is by order of the court. Code Grim. Pro., § 421, The conduct of the respondent was a deliberate violation of the statute and of those just principles which, from time immemorial, have been established to secure the independence and impartiality of jurors.
    The question remains whether this plain contempt was committed in the immediate view and presence of the court. It certainly was committed during the sitting of the court. The sitting of the court was continuous while the jury was deliberating. There was no adjournment or suspension of the sitting. The judge was actually upon the the bench in the court room during the earlier part of these deliberations. Later on, the judge retired to the judge’s chambers, in the same building and on the same floor •with both the court room and the jury room. But the court was at all times in session and remained so until after the rendition of the verdict. The contempt was not committed in the immediate view and presence of the judge. The judge, however, is not the court. A court has been well defined to' be “ an organized body with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers, viz.: attorneys and counsel, to present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and secure due order in its proceedings." Burrill’s Dictionary.
    Lord. Coke describes it to be “ a place where justice is judicially administered." Referring to this definition, Mr. Waite (Prac., vol. 1, p. 221), says that the term “place” must be understood figuratively, for a court is properly composed of persons consisting of the judge or judges and other proper officers, united together in a civil organization and invested by law with the requisite functions for the administration of justice.
    This is a correct view of the subject. The court is clearly an organization invested by law with certain functions for the administration of justice. A contempt committed in the immediate view and presence of any constituent part of that organization, during the sitting of the court, and tending to interrupt the proceedings of such constituent part, is a contempt in the immediate view and presence of the court. This was expressly held in Bergh's case, 16 Abb., N. S., 284. The particular act there under consideration was the delivery to the grand jury of an aspersive letter from an unofficial person. This was deemed contemptuous behavior committed during the sitting of the court. “I think," said the learned recorder, “that the term ‘behavior’ may cover the writing and delivery to the grand jury of a contemptuous and insulting letter. It is clear, from the elementary writers; and from what the court of appeals implied in the Hackley case, 24 N. Y., 78, that the grand jury room is an enlargement of the court room and part of the court sitting. Handing to the petit jury a letter containing remarks upon the case pending before them, has been at nisi prius adjudged a contempt ; the jury for convenience being outside of the court room proper, it is true, but legally and technically, nevertheless, a part' of the court sitting; and both the grand and petit jury rooms were merely extensions of the court apartment, and are under equal jurisdiction.”
    In Commonwealth v. Crans, 2 Pa. L. J., 453, the court said it was “clear that a grand jury are as much attacheddo the court as a petit jury. * * * In contemplation of law a grand jury are supposed to be personally present in court; * * * they differ from a petit jury only in this particular, the latter hears both sides of the case, but both receive legal information from the same tribunal.”
    Mr. Rapalje, in his work on Contempts, § 67, says that the grand jury being merely an appendage to the court, the refusal by a witness to answer questions put by them is a contempt of the court by whose order the grand jury was impaneled. For this proposition he cites many cases in this and in other states, notably The People v. Naughton, 7 Abb., N. S., 421; People v. Kelly, 24 N. Y., 74, and People v. Fancher, 4 T. & C., 467.
    In The People v. Naughton, Mr. Justice Pratt held the grand jury was a constituent part of the court of oyer and terminer, and that the proceedings were a part of the proceedings of that court. See p. 423.
    In The People ex rel. Hackley v. Kelly, 21 How. Pr., 54, the supreme court of this department at general term held that the grand jury was an adjunct of the court as well as the petit jury. It was there insisted that the commitment was illegal because the contempt did not occur in the presence of the court, but in the grand jury rooms before the jury as an independent body. Leonard, J., answered this contention by saying that, “ When summoned, sworn and organized, the grand jury are a constituent part of the court for the performance of the functions and duties devolved upon .the court, as much as a body of twelve petit jurors impaneled for the trial of a person charged with crime. * * * When the witness has been brought before the grand jury to testify, he is for the time in the custody or under the control of the court and the grand jury. He stands in the same relation to the ■court as a witness on the stand before the court and a petit jury.”
    It will be observed that the reasoning in many of these grand jury cases proceeds upon the analogy to the petit jury. That the latter body is directly and immediately a constituent part of the court, and the petit jury room, an adjunct to the court, is treated throughout as a postulate admitting of no question. This becomes entirely clear when we free our minds from the popular-notion that the judge is the court. He is a constituent part of the organization, but he is not the court. Nor is the court room the court, nor the jury room, nor the petit jury. The court is the totality of the constituent parts. It consists of the entire judicial organization for the trial of causes, and it is immediately present whenever and wherever, from the opening to the adjournment of the sitting, these constituent parts are actually performing the functions devolving upon them by law.
    If the judge happens to leave the bench and the court-room for .a few moments, while counsel is summing up to the jury, and during his absence an assault is made upon the speaker, can there be a doubt that a criminal contempt is thereby committed? This is not because the act is done in the court-room, but because it is •done in the court. The court is in session and present, though the magistrate is temporarily absent. And further, the jury may decide in the court-room in the presence of the judge, or they may retire to another room to deliberate, or they may even be left in the privacy of the court-room itself; all persons in the latter-case, including the judge, being excluded. Wherever they may be, so long as they are deliberating and performing the functions required of them by law, the court is there present, and a contempt then and there committed is committed in the immediate view and presence of the court.
    
      This conclusion is in precise accord with the view taken by the supreme court of the United States of the federal statute relating to contempts. In the Matter of Savin, 131 U. S., 267, the court examined the question as to when and where a court may be said to be present, and the opinion of Mr. Justice Harlan seems to be directly in point. “We are of opinion,” said that learned judge, “that, within the meaning of the statute, the court, at least when in session, is present in every part of, the place set apart for its own use, and for the use of its officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court. It is true that the mode of proceeding for contempt is not the same in every case of such misbehavior. Where the contempt is committed directly under the eye or within the view of the court, it may proceed upon its own knowledge of the facts, and punish the offender without further proof, and without issue or trial in any form, Ex parte Terry, 128 U. S., 289, 309, whereas, in cases of misbehavior of which the judge cannot have such personal knowledge, and is informed thereof only by the confession, of the party or by the testimony under oath of others, the proper practice is by rule or other process to require the offender to appear and show cause why be should not be punished. 4 Bl. Com., 286. But this difference in procedure does not affect the question as to whether particular acts do not, within the meaning of the statute, constitute misbehavior of the court.
    “ If, while Flores was in the court room waiting to be called as a witness, the appellant had attempted to deter him from testifying on behalf of the government, or had there offered him money not to testify against Groujon, it could not be doubted that he would have been guilty of misbehavior in the presence of the court although the judge might not" have been personally cognizant at the time of what occurred. But if such attempt and offer occurred in the hallway, just outside of the court room, or in the witness room where Flores was waiting, in obedience to the subpoena served upon him or pursuant to the order of the court, to be called into the court room as a witness, must it be said that such misbehavior was not in the presence of the court ? Clearly not."
    The case of the People ex rel. Munsell v. The Court of Oyer & Terminer, 101 N. Y., 245, does not conflict with these views. It was there conceded that the respondent’s act was not a criminal contempt, as such contempts are defined in the Code of Civil Procedure, § 8. It was, however, an exceedingly dangerous contempt, and should be enumerated among the criminal contempts, for the act would probably have entitled the defendant to a new trial in case of conviction. Code of Criminal Procedure, § 465, subd. 2. If the verdict in that case had been the other way, the defendant, under the reasoning of the court, could doubtless have secured the juror’s punishment as for a civil contempt. But his misconduct was not committed in the presence of the court or in the presence of any of its constitutent elements. It was entirely outside of and apart from the court and its judicial machinery. It consisted in the juror’s visiting the scene of the affray unaccompanied by bis fellows, and without the order of the court. Such' an act was not enumerated among criminal contempts, and the statute expressly limits the power to punish ex proprio motu to such enumerated contempts. The court held that the act was not even a civil contempt which the people could punish, because the people had not suffered in their pecuniary interests. But as previously observed, the defendant, if put to expense by the necessity for a new trial, might have invoked the statute as to civil contempts. The case is certainly not in point as to the question now under consideration, and does not in any wise affect the present conclusion. That conclusion is that the respondent was guilty of a criminal contempt, and that such contempt was committed in the immediate view and presence of the court.
    It follows that a commitment should issue. As to the extent of the punishment, I apprehend there can be no question. The maximum authorized by statute is wholly inadequate. The offense, as we have seen, was a grave one. It evinced a total disregard of what is due to the people in the decent and orderly administration of justice. No repentance has been exhibited, no apology offered, no expression of regret vouchsafed. The determination has been to do the wrong, to do it deliberately, and to persist in it defiantly.
    The respondent is committed to the county jail for thirty days, and a fine is imposed of $250.
    
      Frederick B Coudert and Albert Beynaud, for relator; John Wl Goff, for respondent.
   Van Brunt, P. J.

Little need be added to the opinion rendered by Mr. Justice Barrett upon the return of the order to show cause why the relator should not be punished for contempt.

We think that it is therein conclusively established that a petit jury is a body directly and immediately a constituent part of the court,, and the petit jury room an adjunct to the court; and that the petit jury is as much a part of the court as the judge himself who presides. The judge is not the court; the court room is not the court; the jury room is not the court; nor is the petit jury the court. But the court consists of all of these combined, and wherever any constituent part of the court is engaged in the prosecution of the business of the court, according to law, there the court is present.

It might as well be said that a contempt committed before a judge holding a court, and conducting the business devolved upon the court by law in the absence of the jury, is not committed in the-immediate view and presence of the court because of the absence of the jury, a constituent part of the court, as to say that a contempt commited in the presence of the jury while they are engaged in performing the functions devolved upon them by law, and which must be performed out of the sight and hearing of the judge or anybody else, is not committed m the immediate view and presence of the court.

It seems to us to be clear that any disorderly, contemptuous or insolent behavior committed in the presence of any one of the con.stituent parts of the court, while engaged in the business devolved upon it by law, must be a contempt committed in the immediate view and presence of the court. If the presence of the judge is ■essential to the commission of a contempt, we can see no reason why the presence of the jury is not equally indispensable, because each are necessary constituent parts of the court, and each have functions which may in the one case, and must in the other, be performed without the presence of both.

It would seem that the provisions of law regulating criminal •contempts were intended to protect the court during the whole and each and every part of its sittings from disorderly, contemptuous or insolent behavior.

There is another point, however, raised by the relator which requires, perhaps, a more extended consideration, not because there is any doubt as to the disposition which should be made of the •question, but in order that the facts may distinctly appear.

It is urged that the relator could not be a second time placed in jeopardy for the same offense under the same provision of law. The facts attending the commission of the contempt seem to be as follows: There had been on trial, proceeding for several days before the court of oyer and terminer, a criminal action which had excited considerable public attention. The trial had so far progressed that the evidence had been finished, the counsel had summed up, the court had charged the jury, and the jury had retired to the jury room for deliberation. The judge presiding at the trial had left the bench and was awaiting the deliberations of the jury in another room in the court house. After the jury had been deliberating for a period of about two and a half hours, and had written a communication to the presiding judge, requesting some further instructions in regard to the law, the jurors discovered the relator, a reporter of one of the daily newspapers, concealed behind some curtains in the jury room, where he had, prior to the •entry of the jury into the jury room, secreted himself for the purpose of taking notes of their deliberations, and publishing the same in the newspaper which he represented.

Immediately upon this discovery the jurors called in one of the ■officers of the court who had charge of the jury, and delivered this person into his custody. The officer immediately notified the judge, who returned to the court room and the relator was brought before him. He was questioned by the judge and was ordered to deliver up the notes which he had taken of the deliberations of the jury, and did so. He was requested to promise not- to publish any of the deliberations of the jury, which he refused to do. He was then discharged from custody, and published that which he had thus stolen. Subsequently an order to show cause was issued by the said judge, why he should not be punished for a criminal contempt. The relator presented affidavits denying that he had committed any contempt, or intended to commit any. After consideration the relator was adjudged guilty of a criminal contempt, and a commitment was issued by the court of oyer and terminer, directing the sheriff of the county of New York to hold him in custody in the common jail tor thirty days, and, in default of payment of a fine of $250, for thirty days additional.

Upon the hearing of the order to show cause the relator objected that he had already been arraigned and discharged for the same alleged offense; also, that the act which he was charged with did not constitute a criminal contempt under the provisions relative thereto, and that the court had no jurisdiction of the premises.

It is undoubtedly true that a person cannot be a second time placed in jeopardy for the same offense under the same provision of law. And it is urged upon the part of the relator that the first proceedings, however summary, were as fully complete in themselves, -and as thorough proceedings to punish for the alleged offense, as though they had been conducted with all the formalities of a trial before a jury and a consequent dismissal.

This proposition we think to be entirely erroneous. There was no trial at all. The relator was brought before the court in order that the court might make an inquiry into the disturbance which had arisen, and by which the deliberations of the jury had been interfered with.

It was necessary for the court to ascertain whether such a condition of affairs had arisen as to preclude the jury from the further consideration of the questions which had been committed to them for decision. All that the court did, in the investigation which it conducted, was to ascertain the facts and determine whether those facts called upon it then and there to act, and if so, what action was necessary. The judge upon ascertaining the facts released the relator from custody, because he was of the opinion that he had no jurisdiction to act in the then position of the case, and when proof was presented before the judge upon which he could call upon the relator to answer, he did so call, and the relator having been guilty of a flagrant contempt, he was punished therefor. The judge in no manner determined, in a proceeding of which which he had entertained jurisdiction, that the relator should not be punished. All that he determined was that, in the then condition of the case, he was not in a position to adjudicate thereon, and the relator was permitted to depart.

It is true that the judge said to the relator that, if he had taken any notes, “ I direct you to produce them, and if you refuse, I then will act; ” but nothing was said as to what action could or would be taken. The statement of the learned judge in regard to the decision in the Munséll case was a mere expression of opinion, not an adjudication.

It could not possibly be an adjudication unless he had acquired jurisdiction of the relator, and passed upon his offense. The relator therefore was not put in jeopardy by reason of the proceedings taken upon the night when his disgraceful action was discovered.

It is true that § 10 of the Code of Civ. Pro. states that a contempt committed in the presence of the court may be punished summarily, but it does not say that it must be so punished, or that although the offense has been so committed in the presence of the court, but the judge has failed to see the same, he must proceed without proofs or process. The fallacy upon which the whole of this point rests seems to be that an offense cannot be committed in the presence -of the court if the judge does not see it, and cannot assert the facts in his warrant of commitment, of his own knowledge, that the offense has been committed.

Suppose, for example, that during the progress of a trial, while the judge is on the bench and the jury in its seat, a communication is made to one of the jurymen which the judge does not see, but of which he is informed. Can he commit the offender without some proof of the commission of the offense ? And jet even the most critical would saj that this offense was committed in his immediate presence, and still he would be entirely unable to certify of his own knowledge that the offense had been •committed. It would be necessary that he should have proof, and he is entitled to the time to have the proof presented before him in a legal and formal manner.

Our attention is called to the difference between the definitions of a criminal contempt given in the Penal Code and the Code of Civil Procedure. In both a criminal contempt is defined to be disorderly, contemptuous or insolent behavior, committed during the sitting of the court, in its immediate view and presence, and directly tending to interrupt its proceedings or impair the respect due to its authority. In the Penal Code is contained the further definition: “ Behavior of a like character, committed in the presence of a jury while actually sitting for the trial of a cause, or upon an inquest or other proceeding authorized by law.” This subdivision does not appear in the Code of Civil Procedure, and it is urged that it was the intention of the legislature to withdraw such conduct from the consideration of the courts as a criminal contempt. But, giving the broadest interpretation possible to the subdivision, what the first clause cited ■of this provision was intended to mean is not entirely apparent, because it is difficult to see how a contempt could be committed in the presence of a jury, while actually sitting for the trial of a cause, without being committed in the presence of the court, which is provided for in the previous subdivision, as juries do not sit in the trial of causes in the absence of the court. If the Code of Civil Procedure had been passed after the Penal Code, the argument might, perhaps, have had some force. But the Code of Civil Procedure was passed first, and the right to punish contempts committed in the presence of the jury depended upon the well accepted construction that, as the jury were a part of the court, contempts committed before them were committed in the presence of the court. In the Penal Code the codifiers seem to have attempted, without much success, to leave no possible ground for argument, so far as that Code was concerned, that the jury in its deliberations was not a part of the court. It was by no means an expression of the legislative intent, or the legislative opinion, that such commitment did not come within the provisions of subd. 1 of § 8 of the Code of Civil Procedure.

Upon the whole case, therefore, it seems to us that the court had jurisdiction to punish the relator for the contempt which he had committed and that the writ of certiorari should be dismissed, with costs.

Brady and O’Brien, JJ., concur.  