Majority
p. 49Ex parte Chamberlain.
Headnote
witnesses for l defendant, tíoi^forTmis^ot^bound "o attend the trial unless their fees are paid as in civil cases; otherwise as to prosecutions for felony.This court will not grant a mandamus to compel an inferior court to punish a man for a contempt, unless the civil rights of an individual are implicated in the proceeding.
When this is not the case, every court must be the judge whether a contempt has bee» committed against it.
Motion for a mandamus to the Justices of the General Sessions of the Peace of the county of Oneida, commanding them to attach and punish John Garter, for non-attendancc in that Cqurt as a witness. Chamberlain had beeh in-
p. 50
dieted for an assault and battery, which was tried at the February term of that Court, 1825. He subpoenaed Garter to attend as a witness in his behalf; he neglected to appear> anq was attached ; but was discharged by the Court, upon his answering, to the interrogatories, that no fees had been tendered to him.
Against the motion, the 2 R. L. 29, which prescribes the fees of witnesses, and the 1 R. L. 524, s. 20, which makes it obligatory on witnesses to attend, upon being subpoenaed, and paid for travel to and from Court, and one day’s attendance, were cited ; also 1 Ch. C. L. Phil. ed. 613. But it was replied, that these apply to civil causes only ; that the statute, (1 R. L. 497, s. 12,) provides, that all persons charged with crimes shall be entitled to have counsel, and compulsory process to compel the attendance of witnesses; that this wholesome provision of the law would he virtually denied the person charged with a crime, and confined in jail, without friends or money, should the doctrine acted upon by the Court belorv prevail.
E. Allen & J A. Spencer, for the motion.
H. Denio, contra.
Cur. adv. vult.
At a subsequent day,
The Court, said they had looked into this subject, and thought the distinction lay between misdemeanor and felony ; that in the former case the defendant must tender his witnesses their fees, as in 'civil cases; but that in prosecutions for felonies they were compellable to attend without fees. They should have denied this motion at once, on the ground that it sought for a mandamus to compel an inferior Court to punish for a contempt, had the matter rested there ; for every Court must he the sole judge whether a contempt has been committed against it or not; but as the private rights of an individual were also impli cated, they had for that reason looked into the merits.
Motion denied.