
    Frank H. Sherwin, Plaintiff in Error, Appellant, v. The People of the State of New York, Defendant in Error, Respondents.
    To warrant an indictment and punishment under the Revised Statutes (2 R. S. 692, § 14), as for a criminal contempt, for a willful disobedience of a “ process or order lawfully issued or made ” by a court of record (2 R. S. 278, § 10), it must appear that the process or order disobeyed was lawfully issued by some court of record as such; it is not sufficient to show that it was issued by a public official without any direct action or determination by the court. A subpoena issued by a district attorney in a criminal action is not such a process or order, and a willful disobedience thereof is not an indictable offense under said statutes.
    (Argued October 5, 1885;
    decided November 24, 1885.)
    These are writs of error and appeals to review judgments of the General Term of the Supreme Court, in the third judicial department, entered upon orders made the third Tuesday of November, 1884, which affirmed judgments of the Court of Oyer and Terminer in and for the county of Albany, convicting plaintiff in error of misdemeanors.
    The material facts are stated in the opinion.
    
      Thomas H. Edsall for appellant.
    In order to sustain either a charge of a summary character, as for a criminal contempt under 2 R. S. 278,* § 10, or an indictment under 2 R. S. 692,* § 14, it was absolutely essential to aver that the willful disobedience in question was, in the language of the statute, a disobedience “ of some process or order lawfully issued or made by ” some court of record, which court must be named, and with which the proof will correspond. (People v. Gilmore, 26 Hun, 1; 88 N. Y. 626; People v. Riley, 25 Hun, 587; Lansing v. Lansing, 4 Lans. 377; Hosack v. Rogers, 11 Paige, 603 ; Matter of Wattson v. Nelson, 69 N. Y. 537; O'Gara v. Kearney, 77 id. 423; McGarty v. Bennett, 1 M. Law Bul. 26; Matter of Clark, 2 id. 22; Matter of Quinn, 2 id. 38; Matter of Bloomingdale, 1 id. 26.) Assuming that the disobedience of the subpoena was a misdemeanor, and as such indictable, this indictment is not sufficient to charge the offense. (2 Edm. 288, § 10; Clark's Case, 12 Cush. 320; 2 Archbold’s Cr. Pl. [Waterman’s ed.] 290 ; 4 Hawkins’ Pleas of the Crown [7th ed.], 31; People v. Weston, 4 Park. 226; The King v. Cowhurst, 2 Lord Raym. 1363; Souser v. People, 8 Hun, 302.) On error, the questions whether the offense charged, and of which the defendant is convicted, is a crime, and whether the indictment has charged an offense known to the law, are reviewable and available to reverse, even if that objection was not specifically urged at the trial. (People v. Gaffney, 50 N. Y. 425; People v. Fillinger, 15 Abb. 128 ; People v. Babcock, 15 Hun, 347; Polinski v. People, 73 N. Y. 66; People v. Allen, 43 id. 28; People v. McDonnell, 92 id. 657; People v. Thompson, 41 id. 1.) The defendant should have been discharged on the ground that there was no proof of any guilty or criminal intent on his part to disobey the subpoena; that there was no proof of any “ willful disobedience” such as was absolutely required by 2 R. S. 277*, § 10; 3 Greenl. on Ev., 15, § 13. (People v. Aitkin, 19 Hun, 327; People v. Boas, 29 id. 377; Jenkins v. Waldron, 11 Johns. 114; Babcock v. People, 15 Hun, 347.) The sentences imposed upon the defendant were illegal. (2 R. S. 692*, § 14 ; id. 697*, § 40 ; People v. Hartung, 22 N. Y. 95; Shepherd v. People, 25 id. 406.)
    
      Nathaniel C. Moak for respondent.
    A subpoena is a process of the court. (Yorks v. Peck, 31 Barb. 350; Broom’s Leg. Max. [7th Am. ed.] 817.) Writs and processes may be issued by attorneys. (2 R. S. 278, § 9 ; 1 Burr., Cr. [2d ed.] 52, 53, 94-5, 1 R. S., § 1; 1 Edm. Stat. 86, 88 ; 1 R. S. 97.) Attorneys and counselors are judicial officers. (1 R. S. 97, § 1, subd. 3; id. 98; id. 120, § 24, subd. 3; id. 287, §§ 66, 68 ; 1 Edm. Stat. 86, 89,110,298; Waters v. Whittleman, 22 Barb. 593.) Courts of Oyer and Terminer are provided for by title 4, chapter 1, part 3 of the Bevised Statutes, and are courts of record authorized to issue subpoenas. (1 R. S 204, §§ 28, 29, 30;-. id. 276, § 1; 1 Edm. Stat. 287; 2 R. S. 729, §§ 63, 64; 2 Edm. Stat. 753.) The clerks are allowed to issue blank seals, which may be applied to any process not requiring a previous allowance, such as writs of copias, subpoena, etc. (Graham’s Pr. [2d ed.] 120.) A writ wanting a seal was not, independent of being dispensed with by statute, void, but voidable. (Graham’s Pr. [2d ed.] 120; People v. Dunning, 1 Wend. 16; Jackson v. Brown, 4 Cow. 550; Dominick v. Eacker, 3 Barb. 17.) Disobedience of a subpoena is clearly, under our statute, a criminal offense, punishable: by indictment. 
      (People v. Mead, 64 How. 45; 28 Hun, 230 ; 92 N. Y. 419 ; Graham v. Blake, 2 Daly, 55 ; Price v. Hutchinson, L. R., 9 Q. B. 534; Conner v. Wood, 5 Abb. 84; Mead v. Norris, 21 Wis. 310.) Indictment was the proper remedy. It secured the accused the right of trial by jury rather than subjected him to the arbitrary will and power of the offended court or judge. (State v. Spears,2 Spears [S. C.], 23; Whart. Cr. Pr. & Pl. [8th ed.], §§ 959, 960-1; Reg. v. Martin, 5 Cox’s Crim. Cas. 358; U. S. v. Jacobi, 1 Flippen, 109 ; In re Elerbe, 4 Crim. L. Mag. 60; Riggs v. Supervisors, 1 Woolw. [U. S.] 377; Ex parte Kearney, 7 Wheat. 38; New Orleans v. Steamship Co., 20 Wall. 387; Dixon’s Case, 3 Opin. Att’yGen’ls, 622; Conger’s Case, 4 id. 317; Rowan and Wells’ Case, id. 458 ; Hollinsworth v. Duane, Wallace’s C. C. 77.) In cases of misdemeanors, an indictment in the language of the statute is valid. (People v. Taylor, 3 Denio, 91; Cox v. People, 80 N. Y. 502; Frazer v. People, 54 Barb. 306; Tully v. People, 67 N. Y. 15 ; Pontius v. People, 82 id. 339; Eighmy v. People, 79 id. 546; Burns v. People, 59 Barb. 531; Campbell v. People, 8 Wend. 636; Low v. People, 2 Park. Cr. 40; Holmes v. People, 15 Abb. Pr. 159; People v. Treadway, 3 Barb. 470; People v. Bennett, 57 N. Y. 120; People v. Rynders, 12 Wend. 431; 2 R. S. 728, § 52; 2 Edm. Stat. 751; 1 Whart. Cr. L. [7th ed.], §§ 216-218; Tomlinson v. People, 5 Park. 320 ; Commonwealth v. Hall, 97 Mass. 570; Fralich v. People, 65 Barb. 51; Mapes v. People, 69 Ill. 526.) The facts were amply pleaded and the indictment good. (People v. Loop, 3 Park. Cr. 559 ; People v. Rynders, 2 id. 37; People v. Clemens, 26 N. Y. 197 ; Haskins v. People, 16 id. 344; Quinlan v. People, 6 Park. Cr. 9 ; Low v. People, 2 id. 37 ; Holmes v. People, 12 Abb. Pr. 154; Wilson v. People, 5 Park. 178; Rosecrans v. People, 5 N. Y. S. C. 467.) On proof of defendant’s failure to obey the subpoena a prima facie case was made out against him. (People v. Davis, 15 Wend. 608; Commonwealths. Phillips, 3 Pittsb. 427, 430.) It was not necessary to show by direct, affirmative evidence that defendant was a necessary or material witness. (Courtney v. Baker, 3 Denio, 30; Butler v. People, 2 Colo. 295; Matter of Muller, 7 Blatchf. 23; Matter of Rhodes, 65 N. C. 518; Morris v. Whitehead, id. 637; State v. Sauvinet, 24 La. Ann. 119 ; Fanshaw v. Tracey, 4 Biss. 490 ; People v. Mead, 28 Hun, 232; People v. Rathbun, 21 Wend. 509; People v. Adams, 3 Denio, 190; Tecumseh Town Site Case, 3 Neb. 284; Leland v. Cameron, 31 N. Y. 115; People v. Carpenter, 24 id. 86; Moore v. Tracy, 7 Wend. 229; Perkins v. Nugent, 45 Mich. 156 ; Comm. v. Reynolds, 14 Gray, 90.) It was not necessary to show a jury was impaneled, or the trial of the indictment against Phelps was commenced. (Hurd v. Swan, 4 Denio, 75; Barrow v. Humphreys, 3 B. & Ald. 598; Mullett v. Hunt, 1 Crompt. & Mees. 752 ; Dixon v. Lee, 1 Crompt., Mees. & Rosc. 645 ; Cogswell v. Meech, 12 Wend. 147, Penal Code, §§680-1; 2 Bish. Cr. L. [7th ed.] 261; 1 id., § 1067; People v. Fancher, 4 Thomp. & Cooke, 471; People v. Mead, 92 N. Y. 420; People v. Klugman, 49 How. Pr. 488; Matter of Hallenbeck, 55 id. 401; People v. McTameny, 30 Hun, 505 ; Foote v. People, 56 N. Y. 321.)
   Miller, J.

The defendant was convicted on an indictment for contempt in disobeying a subpoena issued by the district attorney of Albany county in a criminal case, and he pleaded guilty to two other indictments of the same character. He was sentenced for each of the offenses charged, and the question now presented involves the validity of these indictments.

If the indictments did not impute to the defendant a criminal offense in violation of the statutes of this State (and were defective in charging such offense), then they are insufficient to sustain a verdict of guilty or a sentence after conviction or after a plea of guilty.

The indictments are founded upon the provisions contained in 2 R. S. 692, § 14, which declare that every person who shall be guilty of any criminal contempt enumerated in the second title of the third chapter of the third part of the Be-vised Statutes, shall be liable to indictment therefor as a misdemeanor, and upon conviction shall be punished as hereinafter prescribed.”

To make out an offense within this provision and sustain a, conviction under the same, the indictment must charge that the defendant was guilty of some act which constituted a criminal contempt in violation of the statute cited. The only acts which constitute a criminal contempt within the provisions of section 14 are specified in section 10 of 2 E. S. 278, which declares, “ Every court of record shall have power to punish as for a criminal contempt persons guilty of either of the following acts and no others * * * (subd. 3.) Willful disobedience of any process or order lawfully issued or made by it.”

The subsequent sections (11, 12 and 15) make provision in reference to the punishment to be inflicted in case of a violation of the provisions of the tenth section.

The charge made in the indictments against the defendant can only rest upon subdivision 3 of section 10, above quoted, and in order to sustain the indictments a case must be made .out within the language and meaning of that subdivision, and there must be a willful disobedience of a process or order lawfully issued or made by the court in the exercise of its legal authority.

The court alone can issue the process or make the order, a violation of which constitutes the contempt, and it cannot lawfully be issued or made by any intermediate authority. It was evidently intended by the statute that the contempt, which was the subject of condemnation and punishment, should be a matter of consideration by the court itself, and that it should pronounce ju gment as to its character and the punishment that should be inflicted.

Each of the indictments against the defendant, among other things, alleges that the writ of subpoena was duly and lawfully issued by the district attorney and tested in the name of a justice of the Supreme Court, and directed to the defendant, commanding him to appear at a Court of Oyer and Terminer at a time specified; that it was lawfully served on the defendant; that he was notified to appear and give evidence according to the exigency of the writ and that he failed to do so. There is no allegation that any process or order was lawfully issued or made by any court of record, and although it is stated to be a writ issued by the people, such statement does not necessarily establish it as a process or order issued or made by a court of record. The allegations in the indictment that it was called a subpoena, and that it was lawfully issued and tested by a justice of the Supreme Court, did not make it a process or order lawfully issued or made by any court of record. Something more was required to bring it within the statute ; it should have been made to appear that a court of record duly organized had issued the process or made the order which was disobeyed.

It will be observed that section 10, subdivision 3, instead of declaring that a willful disobedience of any order or process of the court can be punished as a criminal contempt, defines the process or order which cannot be disobeyed without subjecting the party to indictment for a misdemeanor, by the use of the terms lawfully issued or made by it,” thus indicating an intention to include only such process or order as was expressly directed by the court itself while acting officially in the discharge of its functions.

Courts of Oyer and Terminer have power to issue subpoenas (2 R. S. 276, § 1) but the subpoena described purports to be issued either by a justice of the Supreme Court or by the district attorney. It is difficult to see how such a process can be regarded as issuing from or as an order made by any court of record. Section 10, subdivision 3 is highly penal in its character, and cannot well be said to embrace a case where the process or order was not in fact lawfully issued or made by a court of record duly constituted for that purpose.

The allegation in the indictment that the process was duly issued by the district attorney is inconsistent with the position that it was issued by a court of record. The writ of subpoena which was issued was expressly authorized by 2 R. S. 729, £§ 63 and 64, where power is conferred upon the district attorney to issue subpoenas for witnesses in the precise form alleged. The process was a subpoena issued by the district attorney alone, and the court took no part in his official act in this respect. It is nowhere alleged in the indictment that the subpoena in question was a process lawfully issued by the order of any court of record. Without this there was no power to punish by indictment for a criminal contempt within the language and meaning of the statute To sustain a charge for a criminal contempt under section 10 and an indictment under section 14 it should be averred and made to appear that the willful disobedience alleged -was, within the terms of the statute, a distinct and clear disobedience of the' process or order of the" court of record stated in the indictment.

In People v. Gilmore (26 Hun, 1) it was held that to warrant punishment as for a criminal .contempt the mandate, process or order disobeyed must have been lawfully issued or made by some court of record as such, and it was said in the opinion by Davis, J., that if not so issued by a court of record, as such court of record, then another and quite different statute would be applicable to the case. In People v. Piley (25 Hun, 587), Gilbert, J., says: “ There exists no undefined power authorizing the commitment of citizens for contempt in cases defined and limited by statute.’’ (See, also, Matter of Watson v. Nelson, 69 N. Y. 537; O'Gara v. Kearney, 77 id. 423.)

The views already expressed are also supported by the notes of the revisers of the statutes, and the other provisions of the statutes in regard to contempts which are not criminal.

In their notes on section 10 (5 Edm. 426) the revisers say: A solid and obvious distinction exists between contempts, strictly such, and those offenses which go by that name, but which are punished as contempts only for the purpose of enforcing some civil remedy: This distinction has been observed, and the former are intended to be included in the preceding sections. The latter class are treated of subsequently, among miscellaneous proceedings in civil cases.”

From these remarks it is quite obvious that the contempts which are subsequently provided for among miscellaneous proceedings in civil cases were not intended to be included among criminal contempts. It follows that the framers of the statute never intended that the disobedience of a subpoena in civil cases should be regarded as a criminal contempt.

The provision of section 26 (2 R. S. 538), declaring that “ persons proceeded against, according to the provisions of this title, shall, notwithstanding, be liable to indictment for the same misconduct, if it be an indictable offense,” is not in conflict with the position last stated. This section merely recognizes the fact that there may be some provision of the statute which makes one or more of the simple contempts a crime, but it does not sanction the idea that disobedience of a subpoena is a criminal contempt, indictable as a misdemeanor under the statute which declares such contempts to be misdemeanors. The distinction made by the revisers is repeated in their note to title 13, chapter 8 of part third of the Revised Statutes (5 Edm. 502), entitled “ of proceedings as for contempts, to enforce civil remedies, and to protect the rights of parties in civil actions.” After having pointed out the distinction between contempts which are really such, and those which are treated as contempts for the mere purpose of enforcing some civil remedy, they say the former class has been provided for. “It is the object of this title to provide for the latter class.” As provision is made, in the title to which this note is appended, to punish the failure to obey a subpoena, there would seem to be no question that the revisers did not intend to make the disobedience of a subpoena a criminal contempt.

Independent of the provisions of the statute in regard to criminal contempts, there are other enactments relating to the disobedience of subpoenas issued by an attorney in civil actions, or county clerk or district attorney in criminal cases, which define the penalties to which a defaulting witness in such cases subjects himself, and such penalties being designated and no others attached to the same, they must be regarded as alone intended to be inflicted. The explicit provisions of these statutes are controlling and conclusive, and clearly indicate the intention of the law-makers to provide specially for such cases and that they should not, by any rule of construction, be considered as embraced within the provisions of law in regard to a willful disobedience of an order or process lawfully made or issued by a competent court. All other provisions, therefore, must be excluded, and the penalty incurred must be limited to these plain enactments which furnish ample remedies in such cases, as will be seen from an examination of the same.

The statute in regard to “ witnesses, their privileges and compelling their attendance ” (2 R. S. 400, § 42), after providing the mode of their subpoena, prescribes (§ 43) the penalties for non-attendance, and among those is, he “ shall be deemed guilty of a contempt of the court out of which such subpoena issued.” If a criminal contempt was intended it would no doubt have been so declared, for there is a marked difference, as we have seen, between a civil and a criminal contempt under the Revised Statutes. It is a reasonable and fair intendment from the language employed and from the omission to declare otherwise, that it was the intention of the legislature to make full and ample provision for a contempt committed in the cases enumerated, and it would be going very far to hold that under the previous provision a party could be subjected to the penalty arising from a criminal contempt.

A further provision is made for the punishment of contempts in proceedings as for contempts to enforce civil remedies and to protect the rights of parties in civil actions, among which are enumerated all persons summoned as witnesses for refusing or neglecting to obey such summons.” (2 R. S. 535, § 1, subd. 5.) The distinction is thus maintained between the two classes of contempts.. The punishment on conviction for a criminal contempt was (2 R. S. 278, § 11) a fine of $250, and an imprisonment for thirty days. Such conviction was (§ 15) no bar to an indictment for the same offense if it- was indictable, but the court in passing sentence were to take into consideration the punishment previously inflicted.

Section 14, as we have seen, provides that a person guilty of any criminal contempt named in section 10 (supra), shall be liable to indictment for the same as a misdemeanor and punished as thereinafter prescribed, and by section 40 (2 R. S. 697) such punishment was by imprisonment in a county jail not exceeding one year or by fine not exceeding $250, or by both. It is not to be supposed that it was intended to embrace in the punishment prescribed the failure to obey the subpoena issued by a district attorney in a criminal case or by an attorney in a civil action.

Aside, however, from the statutes to which reference has been had, the question considered is, we think, fully settled and disposed of by the provision contained in section 64 of article 2, title 4, chapter 4, part 4 of the Revised Statutes, which is entitled of indictments and proceedings thereon. This section fully prescribes the penalty for willfully neglecting to obey a subpoena issued by a district attorney in a criminal case, and settles definitely any doubt which might possibly arise upon the question whether a criminal contempt had been committed. It declares that such disobedience is to be “ punished in the same manner and upon like proceedings as provided by law in cases of subpoenas returnable at any Circuit Court; and the person guilty of such disobedience shall be liable to the party at whose instance such subpoena issued in the same manner and to the same extent as in cases of subpoenas issued in anyecivil suit, thus evincing unmistakably that such disobedience of a district attorney’s subpoena stands upon precisely the same ground as, and that it is not a criminal contempt any more than refusing to answer a subpoena in a civil case. By the statute to which reference has been had a violation of a subpoena in either case renders the witness amenable to the same consequences as for a simple contempt to be punished in the same manner and to the same extent and upon proceedings of the same character.

In the face of an express statute providing in clear and unmistakable language for the penalty to be incurred, there is no valid ground for holding that other penalties are to be inflicted which are, at least, of doubtful application, and for which the statute itself, under which they are sought to be enforced, does not clearly and directly provide.

It is a well-established rule of law that statutes which create criminal offenses are to receive a strict and not a liberal construction, and they should not be enlarged by interpretation beyond their fair meaning and import. The multiplication of offenses by construction of penal statutes is in conflict with the general policy of the law, and a statutory crime can only be created by phraseology which is clear, direct and unquestionable as to its intention. Unless this is manifest, the language employed cannot be held to include a criminal charge. If a new criminal offense was intended to be created by section 10, subdivision 3 (supra), it was only when a competent tribunal, sitting as a court and exercising its functions as such, had made . a lawful order or directed a process to be issued, and not in a case where the order could be imputed to it by a mere fiction of law.

The Court of Oyer and Terminer as originally organized had power under the Revised Statutes (2 R. S. 276, § 1, subd. 1.) to issue writs including a subpoena, and original subpoenas of courts of record were required to be issued under the seal of the court and indorsed by the attorney. (2 R. S. 277, §§ 8, 9.)

But the provisions in regard to the issuing of subpoenas in criminal cases are special, and power is given to the district attorney, as an officer under the law, to issue subpoenas which are different from the subpoenas originally intended to be issued by the Court of Oyer and Terminer and under its seal. By 2 R. S. 729, § 63, the district attorney is authorized to. issue subpoenas without the seal of the court, and they are declared to be as valid as if the seal of the court had been affixed thereto. A subpoena thus issued had the same validity as if it had been signed by the clerk and issued under the seal of the court. As we have already seen, under section 64, the punishment for disobedience of a subpoena issued by the district attorney is the same as in civil cases.

It is thus apparent that it was not intended by the legislature in conferring authority upon the district attorney to issue subpoenas, and in providing for the failure to obey the same, to create an offense within the meaning of section 10, subdivision 3 (supra), or to regard the disobedience of the same as a willful violation of an order made or a process issued by the court itself. Such a subpoena is not issued by the court itself or under its seal, but it is a subpoena issued under the statute by an officer of the court expressly authorized for that purpose. If the disobedience of a subpoena issued by the district attorney is a misdemeanor liable to be punished under indictment as provided by section 14 (supra), then the same rule would be applicable to innumerable cases where subpoenas are authorized to be issued, and for which the statute has provided, which it is needless to enumerate.

The learned counsel for the respondent insists that the subpoena in question was a process of the court and properly issued by the district attorney with the same effect as if issued on a special order of the court. While as a matter of form and by legal fiction a subpoena may be regarded as issuing out of and by order of the court, and, for certain purposes, as the act or mandate of the court and a party upon whom it is served may be compelled to obey the same, and upon failure to do so be punished for disobedience and for his contempt of the authority of the court, upon a proper application, after he has had full opportunity to be heard in his own defense, as we have already seen, a subpoena thus issued is neither ' a process nor order of the court which is named or embraced within the provisions of the section of the Revised Statutes already cited. The process or order referred to is one which emanates from the court, while sitting as such, and it requires something to be done by the party to whom it is issued or directed which is within the province of the court to direct, and which it has full power and authority to command in its capacity as, a judicial tribunal. It does not include a process issued merely by the act of a public official without any direct action or determination of the court.

After a careful examination we are satisfied there is no authority for the doctrine that the disobedience of a subpoena under our statute, or otherwise, is a criminal offense punishable by indictment, and no adjudicated case upholds such a rule. When, the defendant’s case was presented to this court on certain preliminary questions growing out of his arrest in the city of New York, the precise point now under discussion was neither considered nor determined, and the decision then made is not an authority which sustains the position taken by the respondent’s counsel. (People, ex rel. Sherwin, v. Mead, 92 N. Y. 415.)

We may concede that a party refusing to obey a subpoena, or in any way obstructing the service of papers, is by law in contempt, but it by no means follows that the proper mode of punishment is by a proceeding by indictment. The usual mode of punishing the offender is by an application to the court, upon notice, where the parties can have an opportunity to be heard and make an excuse, if any they have, for their conduct in disregarding or disobeying the subpoena.

Whether a willful contempt is an offense punishable by indictment at common law is not material to determine in the case now considered, as the question to be decided depends upon the interpretation to be given to the statutory provisions which have been cited and which bear upon the subject.

After careful consideration we are brought to the conclusion that neither of the indictments against the defendant contains a legal charge against him of any offense for which he could properly and lawfully be punished either for a criminal contempt or a misdemeanor.

The result at which we have arrived disposes of the case and renders it unimportant to examine and consider the numerous other questions raised. It follows that the conviction had, and the sentences imposed for offenses not authorized by law were erroneous, illegal and void. They should, therefore, be reversed and annulled, the indictments quashed and the defend; ant discharged.

All concur, except Finch, J., not voting.

Judgment accordingly.  