The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-08-17
DONAHUE. THE STRIKER.

POINTS TO BE MADE TO-DAY By HIS coUN-
NOT GUILTY OF CONTEMPT.
General Roger A. Pryor, counsel for B. J. Donshue.
the alleged leader of tho strikers at Horpelisviic will
submit 10 Judge Donohue, Of the Supreme Court tho
following points contained in his brief
The case for the prosecution must stand or fall upon
the afhdavits upon which the writ OF attachment
originally issued II they fail to show an act OF
criminal contempt the respondent must be acquitted
To found attachment there must be "due proof
by affidavit of the iacts charged"
The AFFIDAVIT on which an attachment issues must be
such that. II untrue, 1t would subject the party "a
prosecution for perjury.
If no such proof the Court has no Jurisdiction TO
Issue the writ
An affidavit ION Information and belief" is fatally
insufficient
OF the afhdavits on which The writ of attachment
issued herein the only affecting respondent liz the
petition the reiator Jewctt and that obviously
and altogether insufficient to warrant the attachment
and found the proceeding Tho affidavit is niorm-
alton and belief a3d no explanation Is given Tor not
producing the original evidence The acts OF contempt
alleged are alleged not directly and positively but al
Tentatively and alphabetically. The respondent did
either the one thing or the other, but which he did Is
not absolutely averred The aidavit stands the place
OF Indictment must charge the act categoricaly
and must be SO direct and explicit that II false perjury
the possession Of the not among acts OF
contempt imputed to respondent "Stopping trains,
taking possession OF cars" &c. are stated only as
acts OF resistance 10 tho receiver In executing tho
orders OF the Court, directing him to operate the
railroad and not as an independent substantive
contempt II IS civil contempt doubtless,
but we not here to to that
The only contempt alleged against respondent is Evil
full resstanco to the orders OF tho Court But neither
In the original anidavits indeed the additional
afidavts either is there hint that tho respon-
don't ever heard Of tho ORDERS ever knew Jewot was
receiver that the property of the railroad company
was IN the custody Of the Court Wiiful means de-
termination 10 do what was known to be forbidden.
The books abound with showing that a party
cannot convicted Of contempt Tor violating order
unless he lrst shown 10 have known Of the exist
OF the order. :.
Tho crminaity OF tho contempt consists IN tie in
Iention; and without knowledge OF the orders, &C.,
there could have been no intention to violate thcm.
That other afldavits besides those which tho at
tachment Issued cannot be received considered
until after OF the interrogat0ries is perfectly
clear upon tho language Revised Statutes, page S
section la The additional afndavts are not in the
The power to punish for contempt is exception to
the provisions OF the constitution and II cannot DO ex
tended the least degree beyond the limits imposed
by tho statute No implication .or necessity can add
to the literal meaning OF the words by which the Leg
islature have restricted this power The remedy 10
given by statute and ITS terms must be complied WITH
To authorize u conviction the contempt must be cs
tablished beyond n reasonable doubt Here the case
Tor the prosecution is not only not proved beyond
reasonable doubt but Is utterly destitute Of any legal
evidence OF criminal contempt