In re Choate

“It is a duty imposed upon all courts to preserve order in court, and see to it that its proceedings are not interrupted,” said Judge Mason, in People ex rel. Greeley against the Court of Oyer and Terminer ( 29 How. Pr. 18 ), “ or that the respect and authority due to the court are not impaired. And the statute to enable the court to discharge this duty, confers the necessary power upon the court.”

In the matter at bar there is no substantial dispute as to the character of the respondent’s act. It was undoubtedly contempt. The principal question is whether such contempt was committed during the sitting of the court, and in its immediate view and presence. If it was so committed, it is punishable as a criminal contempt, for it certainly tended to interrupt the proceedings, and to impair the respect due to the authority of the court. The respondent’s act was not only a contempt, but an exceedingly gross violation of professional propriety. He deliberately prepared for the invasion of the jury room, secreted himself there in advance, and supplied himself with paper upon which to take stenographic notes of what he might hear. He actually

In the State v. Doty ( 32 N. J. L. 403 ), the supreme court of Mew Jersey held that the law directs the complete seclusion of the jury, and that any attempt to invade such seclusion is illegal, and a palpable violation of judicial authority. “ The jury,” said the learned and able Chief Justice Beasley, “cannot be isolated unless the court is prompt to punish those who infringe in the slightest degree the order directing such isolation. I think public policy requires that no one should escape punishment who is found in any respect invading the privacy of the jury room.”

In this State, the statute expressly requires the jury, in criminal cases, while deliberating, to be kept together in some private and convenient place; and the officers are sworn not to permit any person to speak to or communicate with them, nor to do so themselves, unless it be by order of the court (Code Crim. Pro. § 421). The conduct of the respondent was a deliberate violation of the statute, and of those just principles which, from time immemorial, have been established to secure the independence and impartiality of jurors.

The question remains whether this plain contempt was committed in the immediate view and presence of the court. It certainly was committed during the sitting af the court. The sitting of the court was continuous while the jury was deliberating. There was no adjournment or suspension of the sitting. The judge was actually upon the bench in the court room during the earlier part of these deliberations.

Lord Coke describes it to be “a place where justice is judiciously administered.” Referring to this definition, Mr. Waite (Prac. vol. 1, p. 221) says that the term “place ” must be understood figuratively, for a court is properly composed of persons consisting of the judge or judges and other proper officers, united together in a civil organization, and invested by law with the requisite functions for the administration of justice.

This is a correct view of the subject. The court is clearly an organization invested by law with certain functions for the administration of justice. A contempt committed in the immediate view and presence of any constituent part of that organization, during the sitting of the court, and tending to interrupt the proceedings of such constituent part, is a contempt in the immediate view and presence of the court. This was expressly held in Bergh’s case (16 Abb. N. S. 284). The particular act there under consideration was the delivery to the grand jury of an aspersive letter from an unofficial person. This was deemed contemptuous behavior committed during the sitting of the court. “ I think,” said the learned recorder, “that the term 6 behavior’ may cover the writing and delivery to the grand jury of a

In Commonwealth v. Crans (3 Pa. L. J. 453) the court said it was “ clear that a grand jury are as much attached to .the court as a petit jury. ... In contemplation of law a grand jury are supposed to be personally present in court. . . they differ from a petit jury only in this particular— the latter hear both sides of the case, but both receive legal information from the same tribunal.”

Mr. Eapalye, in his work on Contempt, § 67, says that the grand jury; being merely an appendage to the court, the refusal by a witness to answer questions put to them is a contempt of the court by whose order the grand jury was impanelled. For this proposition he cites many cases in this and in other States, notably People v. Naughton (7 Abb. N. S. 421; People v. Kelly, 24 N. Y. 74 ; and People v. Fancher, 4 Thompson & Cook, 476).

In People v. Haughton, Mr. Justice Pbatt held that the grand jury was a constituent part of the court of oyer and terminer, and that its proceedings were a part of the proceedings of that court (see p. 423).

In People ex rel. Hackley v. Kelly ( 21 How. Pr. 54 ,) the supreme court of this department at General Term,— Held, that the grand jury was an adjunct of the court as well as the petit jury. It was there insisted that the commitment was. illegal because the contempt did not occur in

Leonard, J., answered this contention by saying that u When summoned, sworn and organized, the grand jury are a constituent part of the court, for the performance of the functions and duties devolved upon the court, as much as a body of twelve petit jurors impanelled for the trial of a person charged with crime.

. . . When the witness has been brought before thegrand jury to testify, he is for the time in the custody or under the control of the court and the" grand jury. He stands in the same relation to the court as a witness on the stand before the court and a petit jury.”

It will be observed that the reasoning in many of these grand jury cases proceeds upon the analogy to the petit jury. That the latter body is directly and immediately a constituent part of the court, and the petit jury room, an adjunct to the court, is treated throughout as a postulate admitting of no question. This becomes entirely clear when we free our minds from the popular notion that the judge is the court. He is a constituent part of the organization, but he is not the court. Nor is the court room the court, nor the jury room, nor the petit jury. The court is the totality of the constituent parts. It consists of the entire judicial organization for the trial of causes, and it is immediately present whenever and wherever—from the opening to the adjournment of the sitting—these constituent parts are actually performing the functions devolving upon them by law.

If the judge happens to leave the bench and the courtroom for a few moments, while counsel is summing up to the jury, and during his absence an assault is made upon the speaker, can there be a doubt that a criminal contempt is thereby committed ? This is not because "the aet is done in the court-room, but because it is done in the court. The court is in session and present, though the magistrate is temporarily absent. And further, .the jury may decide in

This conclusion is in precise accord with the view taken by the supreme court of the United States of the Federal statute relating to contempts. In the Matter of Savin ( 131 U. S. 267 ), the court examined the question as to when and where a court may be said to be present, and the opinion of Mr. Justice Hablan seems to be directly in point. “We are of opinion,” said that learned judge, “ that within the meaning of the statute, the court, at least when in session? is present in every part of the place set apart for its own use, and for the use of its officers, jurors and witnesses ; and misbehavior anywhere in such place, is misbehavior in the presence of the court. It is true that the mode of proceeding for contempt is not the same in every case of such misbehavior. Where the contempt is committed directly under the eye or within the view of the court, it may proceed upon its own knowledge of the facts, and punish the offender without further proof and without issue or trial in any form (Exp. Terry, 128 U. S. 289 , 309); whereas, in cases of misbehavior, of which the judge cannot have such personal knowledge, and is informed thereof only by the confession of the party dr by the testimony under oath of others, the proper practice is by rule or other process to require the offender to appear and show cause why he should not be punished (4 Bl. Com. 286). But this difference in procedure does not affect the question as to whether particular acts do not, within the meaning of the statute, constitute misbehavior in the presence of the court. If, while Flores was in the court-room waiting to be called as a witness, the appellant

The case of the People ex rel. Munsell v. The Court of Oyer and Terminer ( 101 N. Y. 245 ) does not conflict with these views. It was there conceded that the respondent’s act was not a criminal contempt, as such contempts are defined in the Code of Civil Procedure (§ 8). It was, however, an exceedingly dangerous contempt, and should be enumerated among the criminal contempts, for the act would probably have entitled the defendant to a new trial in case of conviction(Code Crim. Pro. § 465, subd. 2). If the verdict in that case had been the other way, the defendant, under the reasoning of the court, could doubtless have secured the juror’s punishment as for a civil contempt. But his misconduct was not committed in the presence of the court or in the presence of any of its constituent elements. It was entirely outside of and apart from the court and its judicial machinery. It consisted in the juror’s visiting the scene of the affray unaccompanied by his fellows, and without the order of the court. Such an act was not enumerated among criminal contempts, and the statute expressly limits the power to punish ex propria motu to such enumerated contempts. The court held that the act was not even a civil contempt which The People could punish, because The People had not suffered in their pecuniary interests. But, as previously observed, the defendant, if put to expense by the necessity for a new trial, might have invoked the statute

It follows that a commitment should issue. As to the extent of the punishment, 1 apprehend there can be no • question. The maximum authorized by statute is wholly inadequate. The offense, as we have seen, was a grave one. It evinced a total disregard of what is due to The People in the decent and orderly administration of justice. No repentance has been exhibited, no apology offered, no expression of regret vouchsafed. The determination has been to do the wrong, to do it deliberately, and to persist in it defiantly.

The respondent is committed to the county jail for thirty days, and a fine is imposed of $250.

Upon writ of certiorari to the General Term of the supreme court to review the commitment, the following opinion was rendered.

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

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

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 constituent parts of the court, and each have functions vhich 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:

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

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 on 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

Upon the whole case, therefore, it seems to us that the