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

length OF the imprisonment TIC steted In the oommit
c %snl t" 1 TO tho County M thirty days ,S
tompuous eondnet IN me view ana th@ term OF
,nprlsoument specified thirty days Whete tne ss
tohco Imposed Illegal one the conr,s nav r. law
In he void II commitment Il not "accOrdhs 10 nav,
marty Is entitled 81 be discharged see oPni oac
Judge Flncher and authorities cited Dy MN n onon NJ
Sill Judge Fancher had not the power 10 reana nu.
shanks under the following section VI the haoeaS
act: -,...nx cam ri,,.d 10, any Grim
nal oa.a,e or Il he sprea testimony offered WITH 'as ts.a %
upon a sS, S Ir ss1 10 e esa1, e party
shall shall eroeei 70 let such parry Sm rhrb remand
. ,,s Ss md sPl s g. ss Sn sss IS 81 D
oo mHs s0H ike that of shans only applies to one
who has been charged but not triea lor bv
magistrate for purpose OF sending the case 10 'e
Grand Jury 50 that ~ o eten does 81 not apply to case
where the Court has attempted summary 10 nyuuxo
shment which the Court has adjudged him to suffer
I'm the cases referred to in TINS section - -, s
4rs ~ the Commitment be defective IN matter OF
form only aud the proofs show the parry gu,i rhe
make out proper commitment and remand nun. lilo
Judges who have power to issue habcas corpus are
clothed with the authority OF magistrates III ,no o'o
Ot commtment The defect in the commitment was
one which he could not amend or IN any way s anv
rho defect was that IL past the power oi au
Judge or Court remedy 1t at the time the matter wa
before Judge Fancher. IL the King: Couny oyer a
Terminer made q void commltment-rehdereu YOU
indgment-ceary Judge Fancher could NOT 90 , orhSr
wise discharge shanks In pursuance Oh Tue ioo"
foy
be shown f@ such a.t % ~ 6 p
from custody restraint under which be held
Where upon regular trials according to the course OF
the common law, Court upon conviction pronounced
ns Trq 9ns s% saeWsS such judgment
and the party entitled to be al charger. ~ mig hvnc
been pronounced the Court unanimously held that the
prisoners were entitled to Judgment OF reversal
and 10 be wholly discharged. In OLeary agt,
People, Park 49, the prisoner contrary Te Court r
- fba
prisoner should be discharged In the following cases
the courts have held that II the vo, o. and the
prisoner should be discharged: Shepherd agt Gomoh
Dea - H Tas Non It'll be the case in this State but
for comparatively recent statute when tno
nennced after triaby jury to send the case back win
instructions to the inferior Court to render proper
proceedings on habeas corr u.s. In the case OF Razky
agi People 20 " 1872 Davies j. said IL, .mD,o, TN, III.
prisoner punished according to the Act Of ls62 We max
10. IN. S Gl ' oonoSs md the .uhodiy
shepherd 60 T. 400 wrong f 'e ep o
could subjected to another trial and would be emitted to MS as
Ist3 the present case that Act became operative before
and % " d Sa me Sss '
W qsG1 tins c 81 S % @ the Supreme ehcr
70 appropriate ugment remit the record to tue oyer
These authorities certainly show that where wrong
or S o. s sb sae
the punishment imposed be Illegal the Judgment Is az
soutely void. Tue defect Is fatal one and cannot n, DC
remcded, unless the Legislature pass statute 10 pro-
vide for such cases As tho commitment dnder Whien
shanks held was absolutely yold, Judge Fahcher
could not do otherwise than DISCHARGE nld
FOURTH POINT.
The statutory provision permiting courts in certain
cases. after adudging party guilty OF contempt to I'M
prison him until he shall perform particular act or dis
charge some particular duty, has no application to this
case
Irnon this nont Mr. Brtton auotcs3 r. g. $685. section
IA bu lp
which shows on ITS face that nave possible ap
pcaon to this willquote the whole section Ii
SIC 49, When the misconduct complained Of consists the Oms
GS Pe'ls s% shall be Sponcd oa per-
such duty and pad such fine as saaH imposed and the
Mr. Britton IN citing this section, omitted tho portion
in italics The next section Is as follows:
skc "a the order and Of comm itment shan
specify duty be performed ard the amount OF the ha and
il il apparent on the face OF these sections that they
have possible application to this case These sections
vsed Statutes providing for Proceedings as for COZ
of parties in cvil actions' The proceeding relation
TO contempt enforce civil remedies have nothing TO
do with the punishment to be inflicted for criminal CON
TEMPT under the provisions OF the Revised Statutes
under Point H. For the purpose OF showing that
Mr. Britton processes TO quote Section 10 tof 81 r. s..
1878 the 5h ED In tins instance citing this
ton. he leaves out very material part. The whole
section is az follows:
70 The & Jd NE k s a oS s2 Sa m %s sSg
testimony witnesses their eIanin The imiuisiIltn Of
oa maOH and proceedings for eopmPt' to enforce the
remedies and protect the us o. parties shall extend to as aai
sia seo sa b! 70 @ provision. any Statute 1
Mr.. Briton. in quoting this section, omitted the por
ton in aics That this section has application to
the present Is apparent on the face OF It, IL pro-
vded by this section that the proceedings for con:
parties" shall extend to proceedings ON indictments,
rst 80 far they may be IN their nature applicable
and second subject 10 the provisions contained III any
statute" The statutory provision IN relation to con-
temps to enforce the rights OF parties in civil cases
hat rmits "A
forms particular act and forbds continuance OF
his Imprisonment after he has performed the act can
have no possible application the present BY the
sections OF the Revised Statutes quoted under Point H.
every Court OF Record has the power OF criminal
contempt like that OF which Mr. Shanks convicted
fine 10 the extent OF $3.50 ana imprison for period OF
not exceeding thirty days This power is given in
press words to any Court Record n the section IN
question applicable TO This case the power 10 I'm.
be taken away. II setting the Court defiance and
usng to answer question which the Court rules TO BIO
proper s In the language OF TINS section, mere oms-
sion to perform act duty which IL is yet in the
power Of the defendant TO perform, then the Court could
only keep such party Ill custody until he should
the question for the section expressly provides that IN
such the person "shall be imprisoned only until
he shall have performed such act duty" II this
the law witness could refuse TO answer question, be
committed TO custody for two or three hours then an
the question: and refuse to answer the next dues-
ton be committed again. remain in custody for several
hours. then into Court and offer to answer. and
continue 10 repeat the that months time OF
the Court might he occupied in the examination OF
witness when half an hour would be sufficient, il he
obeyed the instructions Of the Court and answered the
questions which the Court decided TO be proper.
sruction which would hold this section applicable to
this case would practically nulfy and abolish the
terry provisions cited under point H. AGAIN, the pro-
visions under dlscuSsl0n contained In section 49, shall
be sujecr 10 the provisions contained in statute.
SO that by the terms OF Section &c. il cannot apply
this for this is specifically provided for By
"tbe provisions contained In another statute" namely
Section D. i7a OF 81 K s. 18Th Ed, quoted under Point
II, which many words gives the Court power 70
fine to the extent OF $780, aud to inpson for term not
exceeding thirty days. The construction contened for
by Mr.. Brton would virtually abolish Section g. and
substantially take from the Court the power il
possesses to imprson cOnunaclOus witness for
fnr def nj pxc LING 4.