New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1874-05-27

raised by Implication. hut must be ara
in paeget, agt state Attn Conn 60 that such statutes
to be G ,s atsr Of on wasou
lansing 400. Potter, j. says "fresuhp''ons are IN
I'm statutory provisions upon the subject Of
contemps, Mr.. Brron has sought to wrench meaning
spirit Although have Invoked the rule OF construe
ton applicable 20 all penal statutes yet without regard
meaning of the provisions OF the Revised Statutes on the
subject OF eonemp the decision OF Judge Fancner was
decision without being guilty OF Violation OF )udicai
duty.
SECOND POINT.
The commitment void its face, for the reason
that 1t imposed on Mr. shanks an Illegal punishment
The Court of Oyer and Terminer OF Kings County had
no power TO impose an indefinite or perpetual term OF
imprisonment The attention OF the Court Is invited 70
following provisions Of the Revised statutes which
define and limit n tine DI
SIC Every Court Of Record sh,l have power 70 punish io
crnal contempt n Of either Of The following ae Anu no
others;
The cOntumacOus aud refusal person be sworn
when swOu the like refusal to answer anJ legal
ssc Punishment. Tor contempt. be by o.. BY i%ph,S1
IN the discretion Of the court but exceed the
shall be G.'h'Trsi he 50 -,
If s. and d SSs' reasonable P %s
,ssd IN @ article he psrcuar hi. Ohense sha
ct h TS i order or sa he pens .eOu. . be
.usd to extend to any cceeas .anst paIe. ec for
sSIePp 6 4S gSPos" o. 10 sniiL'n r. Ely
These sections found IN psr sPer G
Of and the spSnee that m
order If properly drawn. will operate as commitment
possess much legal efficiency as formal commit
the authorities and by the Revised Statutes which as
shOwn sPeak o. a a TO ali nsns and PURPOSES
and The same Ths Kings eo@ns Hs "aa
unde eighth section above clteu
| under which he Imprisoned, fols io TO e5l' Inc
saed in the 9th subdivisions Of quoted
The commitment states the ofense oi Mt snsnks sun
stantially In very language or SUBDIVISION o. ~
states that the nterrogatory was legal and proper
and that his refusal to answer was and hp
having convicted Mr. shanks under the SIN section pro.
parI of the commitment Tor order which used
conmitmen) directing tho nGicton of the punishment
for t .he ea1 Gf sas hS1 the SAID O. shan
s @ saS Ss & 3 " y s s1' for tR hs
criminal aforesaid whereof he eoaTee ., H.,
question propcanded to he has refused Dol 523)
Kings County oyer and 1ermner could inhict upon
convicted as Shanks, under the sh section spe-
officially defined by very next Section namely, Sec
ton O. above set forth The latter section expressly for
bids the Court 10 commit TO- psIn Pr any n aopgsr FERN
fines the power Of the Court with reference to the pun
either in the discretion the Court II the punishment
he fine, the specific sum must 1e stated ,de III IL
| the punishment be imprisonment, the term or
| length of the imprisonment must DO named
! in Inc commitment There is no more
applicable to this for making the term of imprs
oament perpetual or Indefinite, than for making the
and Terniner had adiudged that for the contempt of
which they had convicted shankS ne should pay me,
without naming specific sum WI It be coptsnded that
such a judgment could be enforcedf Clearly not be.
under the ninth section the Court required II
the punishment be hne, TO name DEFINITE sum, not
| exceeding t25O. In the same way and by the same
section Court. If they imprsOn, are directed 10
| specify definite term OF imprisonment not ex-
ceedng 80 days II the punishment for Grim,
| nal contempt he the payment OF a nne, ana
judgment wonld be void; and the party guilty OF the
to the extent Of dollar On the same principle II the
punishment be Imprisonment, but defnite term OF
forced Tor the reason that is absolutely void A
mitnent defective III this particular Is absolutely void
This is a plain case, where the court tkings County
Oyer and Terminer) adudged-or attempted to adudge
party guilty OF a" criminal contempt ana imposed
Imprisonment punishment. IL Is not case where
the misconduct complained OF consists In the omission
OF the SS to aGy in % tine tine
he shall be imprisoned only until he shall
have performed such or duty.-ta X s., $685. 49,
! 9th El).
That the Kings County Oyer and Tcrmincr condemned
sa 40 BY the i OF
guage provisions of the Revised Statutes cited
Second: The form followed is the commitment In the
follow this form word for word Except in regard to the
of the party the maine OF the Court the description
a subsequent point under investigation by the Grand
Jury commitment in shankss follows the form
in Iackeys word for word with only tins difference
the Imprisonment in Hackley's case was limited to
days and in Snanks's 1t was indefinite or perpe
ua by the of the commitment II is adjudge1, in
each case, that the party shall be punished for his Of
the only difference being that III The one case the
punishment legal and in the other IL was Illegal In
the matter oiwason, Lansing 40. Judge Potter shows
very clearly that where the Court adjudged party
guilty of 4" criminal contempt" they cannot fine or
mprison except as authorized by the ninth section
above quoted by which the imprisonment must
Potter shows the way some confusion has
ton not having been paid to the distinction between the
two classes of contenpts recognized by the Revised
na%e a. for C % snSfs aHd
remedies" &c. The distinction between these two
classes OF contemps, and the statutory provisions
plicabe each will be particularly considered IN
subsequent point The fact that the ofenso az there
any of which shanks declared TO be guilty
that OF "crmina contempt Of itself furnishes cOnclu
proof that Section 9, limiting the imprisonment TO
days applies to hs case. Mr. Brton, in his brief,
submitted 10 this Court, says: Tnat shanks "de-
taiued upon criminal charge TO wit, criminal
tempt II declared By K s. 18th Ed D. 49, sec
(5tn EJJ y 973 IA" The commitment in express
words, alleges that shanks was convicted OF criminal
adjudge the said W. F. q. Snanks guilty OF criminal
contempt Qol s2). The section to which NJ. Britton
Shanks to indictment for misdemeanor," Is as follows:
Every who shall be guilty Of criminal contempt
v.ei shall be liable indictment therefor m-ee,nor
L. s. 973, sec IA, 9th Bl)
No contempt is "crlminal contempt" unless 1t
within this section. Tue reference contained in this
section those sections already quoted, including
Section Q. which defines aud limits the powers OF the
regard to imposing punishment fine OF not
than $3.50, and Imprisonment not exceeding 30
days This section making criminal contempt indct
question that Section 9, defining the punishment
when the party adjudged guilty, not trial upon
indictment, but by the Court, does apply cases like
the al bar. That the punishment Gndehnte or per-
petual mprisonmenD imposed shanks by the Kings
County Oyer and Termner, was illegal is clearly shown
by Judge Fancher IN his opinion IL the punishment
were Illegal II necessarily follows that the commitment
directing that Shanks should undergo that
void. Judge Fancher says: