The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-06-03
No Divinity Doth Hedge
in a Judge.
Continued from Page One.)

itv. though undoubted, is in it's ma
ture arbitrary and it's exercise is not
to be upheld except under the clrcum-
stances and in the manner prescribed
by law. 1t is essential to the validity
Of proceedings in contempt, SubJectlng
a party to fine and imprisonment, that
they show a case in point OF Jurlsdlc-
ton within the provisions of the law
by which such proceedings are author
lied, for mere Prescriptions ana IN
tendments are not to be INDUCED IN
their support.
eff there be no affidavit presented
there is nothing to set the power of
the court in motion, and If the aifl-
davit, as presented, by one, which,
upon it's face, fails to state the sub
stantive facts, which in point OF law
do, or might, constitute a contempt
or the part of the accused, the same
result must follow-fOr there is no
distinction in such a case between the
utter absence of an affidavit and the
presentation of one which is defective
in substance in stating the facts con-
stituting the alleged contempt
In Mccormick VS.. State 46 Ind. 300,
it was said
''The theory that in such case an
affidavit should be filed implies that
all the facts necessary to constitute
the contempt should be stated in the
affidavit
In State VS.. Enthorn, 46 Kan, SIC,
ii is said:
"A careful examination of the au-
thOritieS satisfies us that In all cases
of constructive contempt, whether the
process of arrest issues in the first in
stance or n rule to show cause is
served a preliminary affidavit or in
formation must be filed in the court
before the process can issue. This is
necessary to bring the matter to the
attention of the court, since the court
cannot take judicial notice of an Of
Tense committed out of court and be-
yond it's power of observation.
Courts should never be required to go
about looking for contempts of their
authority. To do SO is sufficient to
rover their dignity and bring them in
to contempt"
In Wilson VS.. Wyoming, 1 Wyo. 1876,
1t is said
1--WE are of the opinion that an error
was committed by the district court
at the very commencement of the pro-
coedings which render it necessary to
set aside the judgement thereof. This
consisted in issuing the process of at
tachment without any valid evidence
whatever before the court upon which
to found such a proceeding"
In State VS.. Blackwell, 10 S. G. 35,
it is said:
at is a fatal objection to rule to
show cause why a party should not
be attached for contempt, for an Of
Tense not committed in the presence
of the court, that it was issued with
out affidavit
In the case of Young VS.. Cannon,
Utah, SCI, the court says:
Mt
which are not committed in the pres
ence of the court, in order to give the
court jurisdiction, it is necessary that
an affidavit be filed stating the facts
constituting the contempt"
In State VS. Henthorn, 46 Kenans, at
page 619, it is said:
9 "This case must be reversed upon
the ground that the court had no
Jurisdiction of the defendant, because
no affidavit or information was fled IN
the court as a basis for the warrant
of, arrest upon which the defendant
was taken into court and tried"
In Thomas VS.. People, l.. X. A.
500. it is held that without a properly
We rified affidavit the court has no Jur-
isdiction over contempt proceedings.
In Wyatt VS.. People, II Cole. 261, it
is said:
'The overwhelming weight of au-
thority in this country sustalnS the
proposition that the affidavit upon
which the proceeding for a construct
i've contempt is based must state facts
which, if established, would consti-
tute the offense: and that if the allie
cations of the affidavit are not suffi-
cient in this respect, the court is with
out jurisdiction to proceed .........
And the rule concerning the material
ity of the affidavit should prevail to-
the same extent in the absence of
statute"
In Thomas VS.. People, IA Cole, at
page 256, it is said
In the absence of the affidavit the
court is without the legal information
necessary to warrant the issuance OF
the attachments. The judge cannot set
upon mere statements. Knowledge
must be brought to him by the means
prescribed by the statute