
    The People, ex rel. Frank R. Sherwin, Appellant, v. Michael L. Mead, Respondent.
    A warrant issued after indictment found may briefly state the offense, and need not be more precise and accurate than is sufficient to apprise the prisoner of the charge against him.
    A warrant so issued by a district attorney as authorized by the statute (Chap. 338, Laws of 1847) for the arrest of the relator, stated that he stood indicted “ for contempt ” ; on habeas corpus, issued on the petition of the relator. Held, that this was a sufficient specification of the offense; that as the statement was of a contempt which has already served as a basis of an indictment, it necessarily implied a willful contempt, of a character constituting a misdemeanor.
    Also held, that as the indictment was found prior to the enactment of the Code of Criminal Procedure the provisions therein (§§ 301, 302) as to the form of bench warrants did not apply (§ 962), nor was it a case of. a commitment for contempt specified in the provision of the Revised Statutes (2 R. S. 567, § 40) in relation to habeas corpus.
    
    Also held, that it was not essential to the validity of the indictment that the accused should first have been adjudged guilty of contempt by the court whose process he disobeyed.
    The relator was served with a subpoena, requiring him to appear before the Court of Oyer and Terminer in the county of Albany. He was called, and omitted to appear. Held, that he was properly indicted for contempt in that county; that the offense was there committed.
    The indictment was found by the’ Court of Sessions of Albany county ; the application for the writ of habeas corpus was made to a justice of the Supreme Court in New York. At the time of the hearing thereon the Court of Oyer and Terminer in and for Albany county was in session. Held, that the Oyer and Terminer had authority to try the prisoner (2 R. S. 205, §§ 29, 30), and so that the justice had no authority to let the prisoner to bail. (2 R. S. 728, §§ 56, 57.)
    (Argued May 1, 1883;
    decided May 11, 1883.)
    Appeal from an order of the General Term of the Supreme Court, in the first judicial department, made the first Monday of May, 1882, which affirmed an order of a justice of that court, dismissing a writ of habeas corpus and refusing to admit the relator to bail. (Eeported below, 28 Hun, 227.)
    On the 4th day of February, 1882, the relator was in custody in the city of Hew York, by virtue of a bench warrant, issued by the district attorney of the county of Albany, dated the 3d day of February, 1882, wherein defendant was commanded to take into custody the relator, “ Who (the warrant stated) stands indicted by the Court of Sessions of the county of Albany, for contempt, and bring him before said court, at the City Hall, in the city of Albany, in said county, if the said court shall then be in session, together with this warrant, but if the said court be not , in session, you are hereby commanded to deliver him, together with this warrant, to the keeper of the Albany county jail,” etc. On the day aforesaid, a justice of the Supreme Court in the city of Hew York, on the petition of the relator, issued a writ of habeas corpus, commanding the person having the custody of the relator to bring him before the justice that he might be discharged, the petitioner claiming that he was illegally arrested and detained, and if it should ■ appear that he was lawfully in custody, that he might be let to bail. An immediate return was made by -Mead, wherein he stated that he had arrested the prisoner, and held'him pursuant to the said warrant, a copy of which was annexed, and by no other process. The proceedings were adjourned until the 8th day of February. The hearing proceeded from day to day until the 1st day of March, when said justice dismissed the proceedings, and remanded the relator to the custody of Mead. It was made to appear that the Court of Oyer and Terminer in and for the county of Albany commenced a term of its court on the 6th of February, and was in session during the pendency of the proceedings. The indictment charged in substance that the prisoner had been duly and lawfully subpoenaed to attend a term of the Court of Oyer and Terminer in and for the county of Albany, at the City Hall, in the city of Albany, on the ISth day of May, 1874, at three o’clock in the afternoon of that day, then and there to testify and give evidence on behalf of the people, concerning a certain indictment, then to be tried in said court; that said writ of subpoena was on the . 1st day of May, 1874, at the city of Hew York, State of Hew York, exhibited to the said prisoner, and duly served upon him, and that the prisoner, with an intent to impede and obstruct the due course of justice, unlawfully and willfully disobeyed the writ of subpoena, and did not appear before the Court of Oyer and- Terminer at the time and place specified in the writ of subpoena, to testify as by said precept he was commanded, to the great hindrance and delay of public justice, and in contempt of said court.
    
      Henry H&uym Tremam for appellant.
    If a court had not the power and authority to send forth such process as it has issued, and in the manner in which it did issue it, then there was no competent court, and therefore no process. All is coram non judiee and void. (People v. Liseomb, 60 27. Y. 568, 571; 5 Hill, 164.) When a relator appears charged with contempt of any kind or nature whatsoever, in all cases the charge of contempt shall be so far inquired into upon the habeas corpus proceedings as to ascertain its details and the limitations, authority and jurisdiction of the court or officer undertaking to pursue a citizen on such an allegation. (3 B. S. [6th ed.] 887, §§ 55-57, marg. p. 567, §§ 40-42 ; Code of Civil Pro., § 2032 ; id., § 2016, re-enacting 3 B. S. 563, § 22.) The law of this State never has permitted an indictment as for a criminal contempt until some contempt shall have been declared to have been committed by some court or officer competent to make such a judicial declaration. (3 B. S., marg. p. 693, § 14; id. 278; Code of Civil Pro., §§ 8, 9, 10, 11, 12, 13, 14 ; Penal Code, §§ 143, 680 ; 3 B. S. 534; Code of Civil Pro., title 2, §§ 852, 853, 857; Code of Crim. Pro., §§ 615-619.) Our jurisprudence assumes every man innocent until he is adjudged guilty ; therefore, a person who “is guilty.” of criminal contempt and therefore liable to indictment under the above section must be a person who has been adjudged guilty. (Penal Code, 407, 412, 413 ; 3 B. S., §§ 56 [68], p. 449, marg. p. 286; id., §§ 11 [12], p. 441, marg. p. 278 ; id. [6th ed.] 442, .marg. p. 278, §§ 14 [15].) Wo man who has simply .failed to respond to a subpoena served upon him in a distant part of the State can, with any reason or by any authority, be designated as a criminal, and be indicted in the first instance, without even an opportunity to be heard before the court whose process he is alleged to have disregarded. (Cowp. 386 ; Dougl. 561; 2 Caines, 92; Code of Civil Pro.; § 853; Code of Crim. Pro., § 619; In re Clements, 36 L. T. R. [N. S.] 332; Kobourne v. Thompson, 13 Otto, 168.) Until a witness not attending under a subpoena shall have been brought before the court or magistrate issuing such subpoena, he is liable only civilly, not criminally. (Reg. v. Rendle, 11 Cox’s Cr. Cas. 209 ; Rex v. Lord Assulston, Andrews, 310 ; Ex parte Langdon, 26 Vt. 682; State v. Matthews, 37 N. H. 450 ; N. Y. Code of Crim. Pro., § 619; N. Y. Code of Civ. Pro., § 853 ; State v. Newton, 1 Grant, 454 [Penn. 57] ; People v. Nevins, 1 Hill, 158 ; Mack v. People, 82 N. Y. 236.) Ho man can be proceeded against for a criminal contempt arising from his alleged disobedience of a subpoena until after he shall have been given the opportunity to explain to the court issuing the subpoena,. his ambiguous act. (People v. Few, 2 Johns. 290; People v. Van, Wyck, 2 Caines, 334; Reg. v. Russell, 7 Dowl. 693 ; 1 Gabbett’s Cr. L. 287; Reg. v. Lefroy, L. R., 8 Q. B. 134; 11 Mod. 59 ; 2 Bish. Cr. L., § 268; Wharton’s Cr. Pl. & Pr., § 968 [8th ed.] ; State v. Nixon, Wright [Ohio], 763; McConnell v. State, 46 Ind. 298; Whitten v. State, 36 id. 211-213; Pitt v. Davison, 37 N. Y. 239 ; People v. Wilson, 64 Ill. 205 ; Scholes v. Hilton, 10 M. & W. 15.) Every warrant is to recite accurately the accusation, and that no man can be arrested or held to answer before a jury “ for contempt ” unless the court offended and the time, place and method of offense be stated in the warrant of apprehension. (Pratt v. Bogardus, 39 Barb. 92; Barb. Cr. L. 535 ; People, ex rel. Greeley, v. N. Y. Oy. & T., 27 How. Pr. 14.) A warrant in derogation of personal liberty is to be strictly construed, and is “ not to be varied or enlarged by any intendments or presumptions.” (People v. Bergen, 6 Hun, 268.)
    
      Nathamñel C. Moak for respondent.
    The indictment in question having been found in 1874, section 301 of the Code of Criminal Procedure does not apply. (Code of Crim. Pro., § 962; Willett v. People, 27 Hun, 469, 470-1; People v. Sessions, 10 Abb. N. C. 192; 62 How. Pr. 415.) The Albany Oyer and Terminer having been commenced February 6,1882, and continued in session until after the termination of the proceedings, that court had jurisdiction to try the indictment against Sherwin, even though the indictment was found in the Court of Sessions and had not been sent by that court to the Oyer. (2 R. S. 205, §§ 29, 30; 2 Edm. Stat. 214; People v. Myers, 2 Hun, 6, 26; People v. Gay, 10 Wend. 509, 511; People v. Gen. Sessions, 3 Barb. 144,147; People v. Quimbo Appo, 20 N. Y. 544.) A justice of the Supreme Court may let to bail after indictment, provided it shall appear that the court having cognizance of the offense and jurisdiction to try the same is not sitting at the time the application for bail was made. (People v. Clews, 14 Hun, 90, 92; S. C., 77 N. Y. 39, 40; Babcock's Case, 2 Abb. Pr. [N. S.] 204, 210.) The bench warrant was properly issued by the district attorney. (2 Laws of 1847, p. 444; 1 Laws of 1872, pp. 728, 729, § 25.) The indictment charged an offense. (2 E. S. 278, § 10, subd. 3; 2 Edm. Stat. 288, 289, 715; 2 E. S. 692, § 14; id. 278, § 15; Code of Civ. Pro., § 13; People, ex rel. Negus, v. Dwyer, 2 Civ. Pro. Rep. 379, 382-4; People v. Gilmore, 88 N. Y. 627.)
   Finch, J.

The application for the relator’s discharge from arrest was properly denied.

1. The statement of the offense charged contained in the warrant was sufficient. That commanded the officer to “ take Frank E. Sherwin, who stands indicted in the Court of Sessions of the county of Albany for contempt.” It was issued after indictment found (2 E. S. 728, § 55), and by the district attorney, who was duly authorized to issue it (2 Laws of 1847, p. 444); and sufficiently specified the offense charged in the indictment. That was for “ contempt.” While it is true that an act or omission may be in the nature of a contempt and properly described as such without constituting a crime, yet it is also true that a contempt may be such as to fall within the criminal law and subject the offender to indictment. The statement in the warrant was of a contempt which had already served as the basis of an indictment, and necessarily implied a willful contempt and of a character which constituted a misdemeanor. The person arrested could not be misled by it, and was fairly apprised of the nature of the pending accusation. A warrant issued after indictment found may briefly state the offense, and need not be more precise and accurate than is sufficient to apprise the prisoner of the charge against him. (Pratt v. Bogardus, 49 Barb. 92.) The Code of Criminal Procedure does not apply (§ 962), nor is this a case of commitment for contempt within 2 Be vised Statutes, 567, section 40.

2. It was not necessary to the validity of the indictment that the accused should first have been adjudged in contempt by the court whose process he disobeyed. The two proceedings are wholly independent of each other. One who disobeys the lawful order of a court not only offends against the dignity of the particular tribunal, but also against the public law. The particular court may pass over the contempt and suffer its order to be spurned, but the offense against the people remains. Their authority has been contemned, the administration of public justice assailed, and its power despised. For such an offense the guilty party may be punished hy indictment, although the court whose order has been disobeyed may take the indignity in silence. The statute has made such disobedience, when willful in its character, an offense against the people, and not left it dependent upon the action or non-action of the specific judge or court. The statute contemplates that both remedies, or either may be pursued. If the court has first moved and proceeded against the offender by attachment and inflicted punishment, he may nevertheless be indicted for the same wrong, but in that event the sentence is to be affected by the previous punishment. (3 B. S. [6th ed.] 442, § 14.) We have considered the argument very elaborately stated, founded upon the phrase in the criminal statute, “ every person who shall be guilty of a criminal contempt,” and construing the word “ guilty ” to mean adjudged guilty by the court whose process has been, disobeyed, without being convinced by it. We have no doubt that the language means guilty in fact of the willful disobedience which constitutes a criminal contempt, although not so adjudged by the court whose process has been disregarded.

3. It is said the offense was not committed in the county of Albany. The relator was served with a subpoena requiring him to appear before the Court of Oyer and Terminer at Albany. He did not so appear. The disobedience and the contempt were there, and could be nowhere else. The order, if obeyed, was to be obeyed in Albany, and, if disobeyed, could only be disobeyed there. The witness was called in Albany, and omitted to appear and answer in Albany. We have no doubt that the offense for which he was indicted was committed there; if, indeed, it shall be shown upon the trial that any offense was committed at all.

4. There was no error in refusing to take bail when the application was made. At that time the Albany Oyer and Terminer was in session, and in such case the justice of the Supreme Court to whom the application was made in Hew York had no power to let the prisoner to bail. (2 R. S. 728, §§ 56, 57.) The Albany Oyer and Terminer had authority to try the prisoner, although the indictment was found in the Court of Sessions. (2 E. S. 205, §§ 29, 30.) The very object of bail is to cover an interval before the session of the next court at which the trial can be had. It takes the place of the imprisonment during such interval. When, therefore, there is no such interval, and the court being in session, the presence of the prisoner is due at once, there is no necessary occasion or proper cause for bail, unless by the court sitting, and the statute, therefore, denied th.e authority in such event to any tribunal except the court in session before which the indictment was triable. (People v. Clews, 77 N. Y. 39.) There is no difficulty in har- , monizing the provisions of title 2 and title 4. The first re-" lotes to arrest before indictment found and the last to the indictment and proceedings thereafter. The whole subject was considered in tlie Clews’ Case, and its argument does not need to be repeated.

Some other objections have been considered but do not require discussion.

The order of the General Term should be affirmed, and it should be “ordered and adjudged that said Frank R. Sherwin appear at the next General Term of the Supreme Court, to be. held in the first judicial department, on the first day of said General Term, at the opening of said General Term, or as soon thereafter as counsel can be heard, and on such other days and times as may be fixed by it, and abide by and perform its judgment or order in the premises.”

All concur.

Ordered accordingly.  