
    Supreme Court—General Term—First Department.
    
      May, 1885.
    PEOPLE ex rel. MUNSELL v. COURT OF OYER AND TERMINER.
    Crminal Contempt. —Mandate.—Misdemeanor.
    Where there is authority by law for the making of an order or direction by a court, in the progress of a trial, the making of it, whether orally or in writing in the presence of and to the person to be affected by it, is a lawful mandate of the court, and a willful disobedience thereof is a criminal contempt.
    It is not necessary that such mandate be put into the form- of a writ,' process or written order, and served on the person to be affected by it.
    Where the misconduct committed by a person during a trial is forbidden by statute and not by a mandate of the court, the person is guilty of a misdemeanor, but not of criminal contempt.
    Writ of Certiorari to review the proceedings of the court of Oyer and Terminer of New York county, May 11, 1885, by which Harvey M. Munsell, the relator, was sentenced to be imprisoned for thirty days and to pay a fine of $250.
    The relator was called as a juror in the’ case of the People v. Short, in which the defendant was indicted for an assault on one Phelan, with intent to kill, at the offices occupied by O’Douovan Rossa and Patrick Joyce, situate in the third story of Ho. 12 Chambers street, in the city of Hew York.
    For the purpose, as he alleged, of getting information as to the location and arrangement of the premises, the juror during recess went to the house where the assault took place, and which was across the street from the court-house where the trial took place, entered it, and examined the scene of the assault. He stated afterward that he did this because he did not understand the diagrams of the premises produced on the trial.
    This fact coming to the knowledge of the district-attorney, he made a motion to punish the juror for this misconduct.
    Upon such motion the order above referred to was made.
    The relator then obtained a common law writ of certiorari returnable at General Term.
    
      John Vincent and Ira Shafer, for the relator.
    
      Randolph B. Martine, district-attorney (A. EL. Purdy, assistant), for the respondent.
   Davis, P. J.

The restrictive character of section 8 of ;the Code of Civil Procedure may be such as to require the reversal of the order of the court of Oyer and Terminer in this case, but I am not able to concur with my brother Daniels in the limitation his construction of that section imposes on the power of the courts to punish for criminal contempts.

The third subdivision of section 3 is the one brought into consideration in this proceeding. It is, when read in connection with the first clause of the section, in these words : “ A court of record has power to punish for a criminal contempt a person guilty of either of the following acts and no others. . . . 3. Willful disobedience to its lawful mandate.” '

The second subdivision of section 3343 of the same Code declares that “ The word mandate includes a writ, process or other written direction issued pursuant to law out of a court, or made pursuant to law by a court or a judge, or a person acting as a judicial officer, or other person named or otherwise designated therein to do or refrain from doing an act therein specified.”

It is assumed and urged, that this provision has the effect to so define and limit the words lawful mandate,” as used in the subdivision of section 8 above quoted, that there can be no punishment under it for criminal contempt except for violation of such written orders or directions as áre therein particularly mentioned. I think this is an erroneous construction of the provision. As my brother Daniels says, the word mandate ” is one newly introduced in this connection by the codifiers, and it is frequently used in the Code. It was, therefore, to declare, not what it should signify, but that it should, when used in the Code, include certain specified things, some of which, it might otherwise be held, were not included. The provision that these shall be included in the word are by no means an exclusion of anything else properly within its signification. The things mentioned in subdivision 2 of section 8 had other legal or commonly accepted names, and for that reason might have been held not to be included in the word mandate, and to prevent the result it was enacted that they should be so included. A statute of inclusion, in such a case, is not one of exclusion. This is amply illustrated by other subdivisions of section 3343. As, for instance, subdivision 11: The word affidavit includes a verified pleading in an action, or a verified petition or answer in a special proceeding.” It will hardly be argued that such pleading, petition or answer are the only affidavits known to the Code. Subdivision 17: “ The word territory, when applied to a portion of the United States without the state includes the District of Columbiabut it would be absurd to hold that by force of this section there are no territories except the district of Columbia. These are simply illustrations of the intent-of the Legislature, in enacting the numerous provisions of inclusion in the section, not to exclude whatever else is properly embraced in a word or phrase.

Other subdivisions, which are intended to define or limit the meaning of a word or phrase, are couched in different language, as for instance, in subdivision 24: “ the word folio signifies one hundred words counting as a word each figure necessarily employed.” We are, therefore, I think, in determining what is meant by the words “ lawful mandate ” in section 8 of the Code, to look elsewhere, as well as to the provisions declaring that certain specified writs, processes and orders, in writing, are included in it. A court of record has power to make lawful mandates which are not included in writs, processes or written orders. In some cases it is expressly enjoined that the courts shall do so. Section 415 of the Code of Criminal Procedure requires that the court shall direct the jury, at the time of each adjournment, during the trial, that it is their duty not to converse among themselves on any subject connected with the trial, or to form or express any opinion thereon until the case is finally submitted to them. I entertain no doubt whatever that such an instruction isa “ lawful mandate ” to be obeyed as such by each one of the jurors, and that its willful disobedience may be punished as a criminal contempt, when properly proved before the court. The word mandate has a well-known signification, Webster defines it to be : “an official or authoritative command ; an order or injunction ; a commission or judicial precept; and by the canon law a rescript of the Pope issued for certain purposes; and by Scots law a contract by which one employs another to manage any business for him,” which by Roman law must have been gratuitous.

So there is no difficulty, when we find authority in the law for the making of an order or direction by a court in the progress of a trial, in holding that the making of it, whether in writing or orally, in the presence of and to the person or persons affected by it, is a lawful mandate of the court. A willful disobedience of such a lawful mandate is a criminal act. If committed in the presence of the court it may be summarily punished on the spot. If shown to have been willfully committed elsewhere, it may be punished by the court after conviction; on a proper hearing of the accused, as a willful contempt. There can be, I think, no sound reason to doubt that where a court expressly directs or commands an officer or a juror engaged in a trial, to refrain from doing any act forbidden by statute or law, and especially where the law condemns the act itself as criminal, the willful doing of the act after such command or direction is the violation of a lawful mandate which the court may punish as a criminal contempt. As, for instance, where an officer is directed to keep the jury together during recesses or adjournments, and the court for greater caution adds to the requirements of the law its express command to perform this duty, his willful neglect of that duty in permitting the jury to separate, or others to associate and converse with them, may be punished as a criminal contempt. And so, if a jury about to retire for the consideration of their verdict, is expressly commanded by the court not to introduce or allow intoxicating liquors into their room, and the command is willfully violated by any of their number, whereby any of the jury become unfitted for their duties by intoxication, the court may summarily punish the guilty parties. There is no necessity that mandates of this kind be put in the form of writs or processes, or written orders, and served on the persons affected. Their presence, when the order is made, and the hearing of it as a part of the oral proceedings of the court, is abundant notice of a lawful mandate to attach the obligation of obedience, and liability for a willful violation. These things are inherent in the very nature and constitution of courts, and may be regarded as injunctions of the law, and there could be no security for the orderly procedure of trials in courts of justice if the power did not exist to enforce them summarily. It is no answer to say that the guilty persons may be indicted for misdemeanor. That is not an effectual remedy, and it is one seldom enforced and little respected. Suppose, in an important trial of an influential and powerful party, the jury, upon on adjournment, shall willfully separate, going whither they choose, and refuse to return, and thus break up and defeat the trial, or shall openly out of court receive bribes for giving their verdict, is it conceivable that the court is powerless to punish summarily because it has not issued a written command not to do those things, or entered and served an order in writing to that effect? I am not willing to hold that the Code has codified all virtue out of the judicial authority of courts.

In the case of the relator, he committed an act declared to be a misdemeanor under the statute, for which he may be indicted, tried, and, if convicted, punished. His act was one, in the event of the conviction of Short, fatal to justice, for it would require the setting aside of the verdict and a new trial. It was a willful act, because he intended to do just what he did do. He was ignorant of the consequences, and did not know of the statute which regulates the visiting and inspection of premises where an offense has been committed.

The only thing, therefore, that stands in the way of his punishment for criminal contempt is the simple fact that his misconduct was forbidden by statute only, and not by a mandate of the court. If the court has instructed the jury orally or otherwise, that they or either of them could not visit the office of O’Donovan, where the crime was charged to have been committed, unless allowed by the court as prescribed by the Code, I have no doubt that the conviction for contempt would be both lawful and just. The inability to show such a direction is fatal under the requirements of subdivision 3 of section 8 of the Code. The relator escapes from punishment for contempt, not because he did not do a wrongful act declared criminal by-law, but because the learned and able judge who presided at the tidal did not anticipate that any intelligent juror could so far forget or disregard his duty, and so, did not in advance command him to the contrary.

Beady, J., concurs.

Daniels, J.

The relator was a member of a jury drawn for the trial of an indictment against Richard Short for a criminal assault. The indictment was tried in the court of Oyer and Terminer during the present month, and the trial resulted in the acquittal of the defendant. As the evidence has been recapitulated in the opinion of the learned judge presiding at the trial, the verdict appears to have been inconsistent with the facts established by it, and that was believed to have been in part brought about by the misconduct of the relator.

During the progress of the trial, certain diagrams were used to exhibit the premises where the assault had been committed, and the relator, without any liberty or suggestion on the part of the court, repaired to the premises for the purpose of observing them and acquiring information in that manner not supplied by the evidence submitted to the jury. His conduct in this respect was highly reprehensible, and deserving of the censure and condemnation pronounced in the opinion of the justice presiding over the court of Oyer and Terminer. It exhibited the mind of the juror not to have been in that impartial condition which was necessary to enable him, in compliance with the oath that had been administered to him, to decide the case according to the evidence, and that his disposition was to secure other and additional information, apparently for the purpose of officiously aiding him in the disposition of the case. This was a gross violation of duty upon 1ns part, and of the spirit and intent of the oath which he had taken, rendering the verdict of the jury irregular, and possibly authorizing the court to set it aside.

But this misconduct, reprehensible as it was, did not subject him to punishment for a criminal contempt, unless some warrant shall be found in the statutes of the state, subjecting him for it to such punishment. Whether statutory authority including the case as it was presented by the proofs before the court, can be found which will authorize the imposition of this punishment, was not considered in the discussion of the case by the learned judge presiding at the trial.

It was rather assumed, as it plausibly might be, that the authority existed because of the misconduct of the juror and the necessity for its correction by summary punishment. It was deemed proper, therefore, to apply it to his case, not only adequately to punish his own misconduct, but to protect the administration of justice from miscarriage by means of similar, or other misconduct of jurors in other cases. The punishment pronounced upon the relator was the extreme sentence provided by section 9 of the Code of Civil Procedure, for the punishment of a criminal contempt, and the point to be determined now is whether it was established, by the proof produced before the court, that this offense had been committed by the juror. It has been urged, that it was so committed, for the reason that he had no right to proceed to view these premises without the liberty of the court, and none to réceive any communication or information relative to 'the matter pending before him, except according to the regular course of proceeding upon the trial. These restraints upon jurors have been provided for by section 411 of the Code of Criminal Procedure, and section 73 of the Penal Code. But it has not been declared in either section that a violation of the restraints so provided for, by a juror, should constitute a contempt of the court, in which he may at the time be serving. The section first referred to prescribes no punishment whatever for violating its implied prohibition that the juror shall not view the premises without the direction or assent of the court; and for violating the séction secondly referred to, it has been declared that the juror shall be guilty of a misdemeanor ; and that is the only consequence declared to result from his irregular and unlawful conduct in the violation of this section. It has also been provided- by section 415 of the Code or Criminal Procedure that the jurors shall be admonished at every adjournment, not to converse‘among themselves on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted. But this section has not declared that jurors who may contravene its provisions shall be liable to be punished in proceedings by way of contempt. The duty imposed by each of these sections is exceedingly important for the preservation of the impartial state of the juror’s mind during the progress of a criminal trial, and too much care cannot be taken to ensure the observance of the directions contained in these provisions of the statutes.

But it has been the policy of the Legislature of the state for many years to clearly define the cases in which persons may be punished for criminal contempts. In civil cases, where misconduct has been made the subject of punishment by way of contempt, the provisions of the law have not Been so explicit, but they have placed the courts at liberty, in cases not expressly provided for, to award such punishment, where it has been usually adopted and practiced in á court of record, to enforce a civil remedy of a party to an action or special proceeding, and where it may be required to protect the right of a party. Subdivision 8, section 14, Code of Civil Procedure. But this extended right of proceeding has been expressly confined to such misconduct as may defeat, impair, impede or prejudice, a right or remedy of a party to a civil action or special proceeding, which excludes all cases of misconduct arising in the course of criminal proceedings. That misconduct has been otherwise provided for by section 8 of the Code of Civil Procedure, and by that it has been declared that, “ a court of record has power to punish for a criminal contempt a person guilty of either of the following acts, and no others.”

This language has been made use of to include the class of eases in which misconduct may be punished as a criminal contempt, and to exclude all other classes of misconduct from the range of such punishment, and such is its effect, with the exception of cases afterwards added by the provisions of the Code of Criminal Procedure.

These provisions are contained in sections 243, 350 and 619 ; but they include no other proceedings or cases than may be made out for the punishment of misconduct of a grand juror, or of a party obtaining an order staying proceedings, from one judge, after an application for it has been denied by another, or of a witness for disobeying a subpoena, or refusing to be sworn, or testify, in a criminal case.

¡Neither of these sections includes the case of the relator, or of misconduct of the nature of that charged against him in the course of these proceedings. But the sole and only authority for proceeding against and punishing him for viewing the premises without the leave of the court, is contained, if it exists at all, in subdivision 3, section 8 of the Code of Civil Procedure already mentioned. This section consists of six subdivisions, but the 3d is the only one having any possible relation to the misconduct of this juror, and that subjects a person to punishment by the court for a criminal contemp't, “ For willful disobedience to its lawful mandate.”

This word mandate is of quite recent introduction in the laws of the state, and came into use by the enactment of the Code of Civil Procedure, and a definition of it has been given by subdivision 2 of section 3343.

By this definition it has been declared that “the word mandate ’ includes a writ, process, or other written direction, issued pursuant to law out of a court, or made pursuant to law by a court, or a judge, or a person acting as a judicial officer, and commanding a court, board, or other body, or an officer, or other person, named or otherwise designated therein, to do or refrain from doing an act therein specified.” By this definition, the word includes only such commands, or directions, as may be made in writing. For the writ, or process, mentioned in' it must necessarily be in writing, and the other directions included are mentioned as written directions. Arid that this subdivision is to be so understood and construed is manifest from the first paragraph of the section containing it. For by that it has been declared that, “ In construing this act, the following rules must be observed except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof.” And one of the rules so referred to, is that which has already been mentioned defining the signification of this word “ mandate.”

No contrary intent within this language concerning the meaning has been declared in any portion of section 8 of the Code of Civil Procedure. Neither is the existence of any such intent apparent from that section, or subdivision 3, or any section preceding or following it; and the result accordingly is that the mandate mentioned in subdivision 3 of section 8, will include no more than a writ, or process, or some other direction made in writing, and no such direction was given by the court to the jury requiring them to abstain from, or avoid, viewing these premises, and there accordingly could be no willful disobedience to any lawful mandate of the court upon this subject by what was done by this juror. There was no such mandate as the subdivision includes, and it is clear accordingly that it could not have been violated by the juror. That the violation of the other sections of the Code of Criminal Procedure, and of the Penal Code which have been mentioned could not subject the misconduct of the juror to punishment, under subdivision 3 of section 8 of the Code of Civil Procedure is equally as clear. For that subdivision has not been made, or so defined, as to subject the juror to punishment by proceedings for a criminal contempt, for a failure to comply with or observe the directions contained in these other sections. For neither of these sections is a writ, process or other written direction; within the language employed in subdivision 2 of section 3343 of the Code of Civil Procedure. But they stand entirely independent of this subdivision, prescribing the authority to be exercised, the duty to be observed, and the' legal consequences of a failure to comply with their directions, so far as that was deemed to be necessary by the body enacting the statutes.

But if it should be assumed that a verbal direction not to visit or view the place in which the crime was charged to have been committed, or to avoid receiving information, or evidence, concerning the case, would bring the misconduct of the juror within subdivision 3 of section 8 of the Code of Civil Procedure, the case against him would still be unsustained ; for there was not only no evidence produced upon the application to punish him, of such a verbal direction having been given by the court to the jury, but beyond that it has been stated positively, without any denial - of the statement, that no direction was given to the jury upon this subject. And without such a direction, either in writing or in words, there certainly could be no mandate for the jurors to disobey. And as there was none, a case of criminal contempt- was not made out against this juror under the provisions of the law declaring and defining the power to be exercised by the court over the subject of criminal contempts.

It may well be held that the misconduct of this juror not only deserved condemnation, but beyond that an adequate degree of punishment. But only that punishment could be inflicted upon him which the law may have provided for a case' of this description. Upon the subject of punishment for offenses and punishable misconduct, the statutes of the state have endeavored to define the cases in which it may be imposed and the course of legal proceedings which shall precede its imposition. The cases of criminal contempts form no exception to this rule, and care has been taken to avoid the exercise of arbitrary authority, by defining and declaring in clear language the misconduct for which a person may be punished by proceedings for a criminal contempt. And it is only in the cases which have been prescribed by the Legislature, as proper subjeets for such punishment, that it can be imposed upon’ an offender. The case made against this juror was not one of the cases so defined and prescribed, and while his misconduct well deserved adequate punishment, so long as it was not within tiie provisions of the law declaratory of cases of willful contempt, it could not be made the subject of punishment under these provisions.

The proceedings taken for the release of the juror by means of the writ of habeas corpus do not require special consideration.

They have been practically superseded by the more extended range of examination permitted under the authority of the writ of certiorari, issued to review the proceedings of the court. The habeas corpus may accordingly be dismissed, and as no case was made out against the juror subjecting him to punishment for a criminal contempt, the order or judgment pronounced by the court, adjudging him guilty of such a contempt, and directing his punishment for it, should be reversed, and as it is in substance conceded that no stronger case can be proved against him on a further hearing before the court, he should be discharged.

Beady, J., concurs in the result.  