
    Supreme Court—General Term—First Department.
    April, 1890.
    
      (Affirming 8 N. Y. Crim. Rep. 1.)
    PEOPLE ex rel. CHOATE v. BARRETT.
    Cbiminal Contempt—Juby-Room is a past of the Coubt—Pbactice.
    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.
    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.
    Any disorderly, contemptuous, or insolent behavior, committed in the presence of any one of the constituent parts of the court, while engaged in that business devolved upon it by law, must be a contempt committed in the immediate view and presence of the court.
    
      It seems that the provisions of law regulating criminal contempts are intended to protect the court during the whole of each or any part of its sittings, from disorderly, contemptuous or insolent behavior.
    While the jury in a criminal case was deliberating in the jury-room, a reporter of the newspaper was discovered secreted in the jury-room. He was thereupon taken before the judge, and by him questioned, and ordered to deliver up the notes which he had taken of the deliberations of the jury. He was requested to promise not to publish any of the deliberations, which he refused to do. He was then discharged from custody, and published what he had thus stolen. Subsequently, an order to show cause, based on affidavits, was issued by the judge, why he should not be punished, for a criminal contempt. 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.—Held, that this objection was untenable ; that the judge, when the relator had been brought before him, in no manner determined, in a proceeding of which he entertained jurisdiction, that the relator should not be punished. All that he did was to determine that, in the then position of the case, he was not in a position to adjudicate thereon, and the relator was permitted to depart.
    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.
    Criminal contempts are defined by both the Penal Code and the Code ■ of Civil Procedure. In the Penal Code (§ 143, subd. 2), is contained this 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 (§ 8).—Held, that the omission of this [subdivision from the Code of Civil Procedure does not deprive the court of the power to punish contempt committed in the presence of the jury, the jury being a constituent part of the court.
    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 Dihvorth Ohoate for contempt of court.
    The facts are fully stated in the report of this matter at oyer and terminer (ante, page 1).
    
      F. R. Coudert and Albert Reynaud for relator.
    I. Having been previously arraigned and discharged for the same offence, under the same provision of law, the second proceedings were barred and illegal, and placed relator twice in jeopardy against the rights and restraints prescribed by law. To sustain the second proceedings against the relator in this case, it is necessary to exclude charges of alleged contempt from the protection which it is clearly intended to afford, and which has been applied to every other criminal charge known to the law. 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 the formality of a trial before a jury and a consequent dismissal. There would not be a pretense upon such a trial (if that were the mode provided by law in the matter) that such a first proceeding would absolutely bar a second one under the same charge. The statute instead of that mode of trial, provides that the proceeding may be summary, if the offense has been “ in the immediate view and presence of the court ” (§ 10). Upon a charge of that precise nature, the relator was taken into custody by the officers of the court; was arraigned before the court; was interrogated by the court and ordered to deliver up certain property under threat of punishment if he did not.
    He was then reprimanded by the court and discharged. Whether the dismissal or discharge in that proceeding was erroneous or not, he could not be subjected to jeopardy again, and it has been clearly so held in regard to every other offense. See Bishop’s Crim. Law, 982, et seq. There was nothing to prevent the refusal of the court to release the relator from restraint if it was desired to adjourn the proceedings and the consideration of the question involved. But in lieu thereof, the court pronounced absolutely the termination of the proceeding, and the discharge of the relator therefrom, on whatever ground it may have placed its decision. For the same offense in the same forum the relator could not be placed a second time in jeopardy, and the second proceeding, judgment and commitment were, we .submit, erroneous and illegal.
    II. The offence charged against the relator did not constitute a criminal contempt under the provision of the law relative thereto. These provisions are as follows : “ Sect. 8. A court of record has power to punish for a criminal contempt a person guilty of either of the following acts, and no others.
    “ 1. Disorderly, contemptuous or insolent behavior, committed during its sitting, in its immediate view and presence,, and directly tending to interrupt its proceedings or to impair the respect due to its authority.” Code Civ. Pro. § 8. The learned judge has construed the mere presence of the relator in a room distant from the court room, as a contempt committed “ in the immediate view and presence of the court.”' Such a construction is against common parlance, physics and law.
    Penal statutes must be construed according to the common parlance of the people, and not after a refined reasoning and inference foreign to their primary sense, and to the-understanding of those who are to be governed by their language. Further, they are to be construed strictly, and not by the exercise of an extended interpretation. These-are elementary principles of the law. Bishop Stat. Crimes, § 190, 226, et seq. The English language, as spoken and understood by the people, is not competent to express more clearly than the law-makers have done it here, the limitation which they intended to place upon the acts sought to be. included, and the power of the court to punish such acts. It is the natural meaning that the acts contemplated are of an affirmative “ behavior,” committed not only in the“ view and presence,” but in the “immediate” view and presence of the court; and that the court intended is not a “ constructive ” court, nor the separated “ elements ” of the court, potential or otherwise, but what every citizen would readily understand to be a court—that is a complete court, or at least with its most distinctive and vital element: a presiding magistrate, in whose immediate presence the contemptuous behavior would be known and intended to be committed.
    This meaning is made, if it could be, still more distinct by the provisions as to the mode of punishment of the offense contemplated. Section 10 provides as follows :
    “ § 10. Such a contempt, committed in the immediate view and presence of the court, may be punished summariTa¡¡ when not so committed, the party charged must be notified of the accusations and have a reasonable time to have a defense.” Code Civ. Pro. § 10. It is evident that the power to punish summarily is made correlative and dependent upon the self-knowledge of the court in whose “ immediate view and presence ” the offense is committed; and it is also plain that the one to whom is confided the power to punish summarily is the one in whose “ immediate view and presence ” the offense is committed. If the jury, as distinguished from the judge or magistrate presiding over them, are the persons intended in whose immediate view and presence the act may be committed, then it would follow that they, and not the magistrate, must have the power to punish. But a glance at the complementary provisions of the Penal Code brings out ■ the intention of the law-makers in complete relief.
    
      Penal Code, Section 143.
    
      “ Disorderly, contemptuous or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.
    2. Behavior of the like character committed in the presence of a referee or referees . . OB IN THE FBESENOE of a jury, while actuallv sit- ' V ting for the trial of a cause or upon an inquest or other proceeding authorized by law.”
    Code of Civil Procedure Section 8.
    1. Same.
    2.
    OMITTED.
    
      It is manifest that in the eyes of the law-makers, having the exact and literal language of the first subdivision before them, an act committed in the presence of the jury alone, "without the presiding magistrate, was not understood nor meant to cover the acts contemplated or intended by the first subdivision, and that in order to provide for such acts the legislature expressly framed a special provision, creating the latter an offense and punishable in a certain way. And it is equally manifest that the legislature deliberately omitted that provision from the section of the Code of Civil Procedure under which the relator was committed. These remarks dispose of the contention which seeks to attach a constructive meaning to the words “immediate view and presence,” and to the “ court ” intended.
    III. The offense and the power to punish without indictment are wholly creatures of statute in this State, and expressly limited to the specific circumstances set forth, and the cases cited do not affect the matter. The statute provides that courts of record shall have power to punish for a criminal contempt a person guilty “ of either of the following acts, and no others . . .” Code Civ. Pro. § 8. What courts of the United States, or of other States may do, is irrelevant. In the Sabin case (131 U. S. 275), referred to by the learned judge, the statute of the United States expressly provided for offences committed in the presence of the court, “ or near it.” And the reasoning based upon the powers of courts at common law wholly fails here where there is specific limitation and prohibition by the words “ and no others.” The subject was thoroughly determined in the matter of Munsell, where one of the “ elements ” of the court had itself committed the offense. People ex rel. Munsell v. Oyer and T., 4 N. Y. Crim. Rep. 70. The loose and indefinite nature of contempts at common law may, in passing, be illustrated by reference to the following cases : State v. Blackwell, 10 So. Car. 35 ; Commonwealth v. Stewart, 2 Va. Cas. 329 ; Exp. Curtis, 3 Minn. 274 ; Winship v. People, 51 Ill. 296 ; Blight v. Fisher, Pet. C. C. 41 ; Moore 
      v. Clerk, 6 Litt. 104 ; Kahn’s Case, 11 Abb. Pr. 147 ; Dunham v. State, 6 Clarke, 245 ; St. Clair v. Piatt, Wright, 532 ; Stokely v. Commonwealth, 1 Va. Cas. 330 ; State v. Start, 7 Clarke, 501 ; Steel v. State, 9 Ark. 259. It is not a question of a dictionary contempt, or a moral contempt, but of a statutory contempt, punishable by the offended court itself, without indictment and without a jury trial.
    IV. If the jury, sitting in their deliberations, of themselves, and alone constitute a court, as urged, then the right of every citizen to be present seems uncontrovertible. Code Civ. Pro. § 5 ; 88, subd. 6.
    V. The prohibitions of subdivision 1 of section 8 are plainly directed to affirmative and violent action or language, and not to passive acts, and the circumstance concerned here is plainly omitted from the contemplation or intention of the provisions.
    
      John R. Fellows, district attorney, for respondent.
   Van Brunt, P. J.

Little need be added to the opinion Tendered 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 constitutent 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 committed 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 in 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 constituent 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 constitutent 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 Hew York to hold him in custody in the common jail for thirty days, and, in default of payment of a fine of $250, for thirty days additional.

Hpon 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 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 Munsell 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 section 10 of the Code of Civil Procedure 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 yet even the most critical would say 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 intérFupt 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 an 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 subdivision 1 of section 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.

Writ of certiorari dismissed with costs.

Brady and O’Brien, JJ., concur.

Note.—This decision was affirmed by the court of appeals without an opinion, May 9, 1890.  