"Dis

Third. Did the facts justify a finding of criminal contempt ? In determining whether the behavior of the relator was a criminal contempt we must look to the statute only. (People ex rel. Munsell v. Court of Oyer & Terminer, 101 N. Y. 245.) This is section 750 of the Judiciary Law. The part pertinent is subdivision 1, that reads: "Disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority." The statute does not purport to define or to describe the specific acts of behavior that constitute the contempt. The possible variations of conduct practically forbade "disorderly." orderly," "contemptuous," "insolent," are all general terms. I think that "disorderly" and "insolent" imply contumacy or the like, and are not applicable, but that we must confine ourselves to "contemptuous." Contempts of the character now under consideration have been ascribed to violations "of the rights of the public as represented by their constituted legal tribunals," "an offense against the court, as an organ of public justice," "an act tending to impede or frustrate the administration of justice," "a violation of the rights of the public as represented in their judicial tribunals," "committed against the majesty of the law or against the court as an agency of government," and "words or acts obstructing or tending to obstruct the administration of justice." (People ex rel. Munsell v. Court of Oyer & Terminer, 101 N. Y. 245; Yates v. Lansing, 9 Johns. 417; Black's Law Dict.; People ex rel. Gaynor v. McKane, 78 Hun, 161; State ex inf. Crow v. Shepherd, 177 Mo. 205; 7 Halsbury's Laws of England, 280.)

And first as to the behavior under examination as a juror. Indifference is an element of a jury. (Capital Traction Co. v. Hof, 174 U. S. 15.) Our statute prescribes it. (Code Crim. Proc., § 387.) To that end is the right of challenge and with it the right of examination. In the case whence this proceeding arose, the counsel in charge of the prosecution declared

to the relator, after he was drawn as a juror, that the people desired an indifferent jury (as was their right), which was sought in a jury of those who did not know the defendants or their place then charged as disorderly. Thus the officer charged by law in the first instance to see that a jury was satisfactory to the people had informed the relator of an objectionable feature as far as the people were concerned in any man proposed as juryman in that case. If the relator did know the defendants and their place, he had fair notice that he was objectionable from the viewpoint of the people. He was chargeable with notice that his avowal of such knowledge might prompt further questions aimed towards bias, or subject him to a challenge peremptory; on the other hand, his disclaimer of such knowledge would naturally satisfy his examiner as to any objection founded upon that knowledge. If the relator appeared as of the first twelve persons approved as indifferent, he must be sworn. (Code Crim. Proc., § 387.) This falsehood of the relator represented him as an indifferent juror, so far as a test applied by the people was concerned. And so far this falsehood tended to impede or to frustrate the administration of justice, to violate the rights of the people as represented in their legal tribunal that was to be constituted by a judge and twelve indifferent jurymen. This falsehood was uttered during the sitting of the court and in its immediate view or presence. And I think that such behavior was within the statutory words "tending * * to impair the respect due to its authority." The authority of the court is the official power of the court. (Anderson's Law Dict., "Authority.") The official power of the court was to try the indictment with a jury. The securing of the jury prescribed by law was within the authority committed by law to the court in the last instance, and was within its supervision. And this was a falsehood by a proposed juror, conscious that the purpose of the inquiry was as to his indifference, whereby he impaired the respect due to the court which required the truth.

*

And second as to the behavior in the jury room.

The

relator had taken the oath as a juror which "gives the measure He is to well and truly try the issue joined," etc.

of his duty. (Elbert, Ch. J., for the court, in Stratton v. People, 5 Col. 276, 277.) The return shows that he had answered the assistant district attorney that he would try the cause only upon the evidence given by the witnesses, but he did not. Nor did he leave his fellows so to do, in that he declared to them during their deliberations that he knew the defendants. and their place, that he had visited it on several occasions and that in his opinion the place was all right and correct. Thus avowedly upon his personal knowledge he gave evidence as a witness upon the very issue, namely, whether the defendants kept that place as a disorderly house and a public nuisance. He departed from his office as a juror, to demean himself while a juror as a witness unsworn and not cross-examined, or as an advocate.

Such behavior was during the sitting of the court, and in its immediate view and presence (People ex rel. Choate v. Barrett, 56 Hun, 351; affd., 121 N. Y. 678), and I think that such behavior was contemptuous. The kind of contempt as is within the purview of the statute has further been described as a willful attempt of whatsoever nature to influence jurors improperly in the impartial discharge of their duties, whether it be by conversation or discussions. Emery v. State, 78 Neb. 547, 9 L. R. A. too, State v. Jones, 29 S. C. 201, 233.)

(9 Cyc. 15, cited in

[N. S.] 1124. See, I fail to perceive why

the circumstance that the offender was a juror can affect the principle. It seems to me a fortiori that such act was flagrant. The pertinent principle may be found in the leading case of People ex rel. Munsell v. Court of Oyer & Terminer (supra). The charge against Petit Juryman Munsell was that he privately visited the scene of the affray. Although it had been alleged that he had made that visit against the orders of the court, it was conceded that there had been no order of the court.

In the course of the discussion, the court, per Finch, J., in comment, says: "On the face of the order it is recited that he willfully disobeyed the command of the court. If that was true there was a criminal contempt; but it is here conceded not to be true, and that no order of the court was disobeyed." The principle that survives is this: If, as declared, Munsell would have been guilty of a criminal contempt had there been an order of the court, this juror was guilty of a criminal contempt in that he disobeyed his oath to determine the case only upon the evidence. The obligation of the oath had as much legal solemnity as the order of the court-both regulated the duty of the juror. And I think that such behavior went to impair the respect due to the authority of the court. At the time in question the court in the contemplation of the law consisted both of judge and jury. The authority of the jury was the power to decide the case upon the evidence given by the witnesses. And with such power was correlated the duty to consider the evidence only. If this juror wittingly sought to influence the jury by matters extrinsic to the evidence, his act tended to impair the respect due to the authority of the

court.

The return does not show that the relator was sworn before he made the answers as to his qualifications. But I think that the question of his contempt in his false answers would not be affected if those answers were made without oath. The oath is not a prerequisite, for its purpose is to subject the falsifier to the pains of perjury (Bouvier [Rawle's 3d Rev.], 2566), and, under our statute, to eliminate challenge for actual bias. (Code Crim. Proc., § 376.) The effect of the answers, save upon the relator, was the same whether he was sworn or not. I perceive no logic in the proposition that the commission of perjury is essential to a contempt by false answers. I know of no rule, no requirement of statute, that a proposed juror must be sworn before he answers the questions as to his qualifications, at least in the absence of objection

4

or request. I find no provision of statute law upon the subject, while the reference to the declaration on oath in section 376 of the Code of Criminal Procedure would seem to indicate that an oath was not in contemplation at the outset of an inquiry as to the expression or formation of an opinion, etc. In Zell v. Commonwealth (94 Penn. St. 258, 272), when the trial court allowed the prosecution to challenge jurors for cause on account of answers made without the jury having been first sworn on the voir dire, the court held that in the absence of objection, exception or request there was no error. To the same effect, see State v. Hoyt (47 Conn. 518, 520); Bracken v. Preston (1 Pinney [Sup. Ct. of Wis.], 365, 368); United States v. Cornell (2 Mason, 91, 105). In the case last cited, Story, J., says: "The objection, however, affects to place some reliance upon the fact that the jurors were not sworn or affirmed to the truth of their statements. But this was surely unnecessary, where no doubt was entertained of their perfect veracity. I agree with the doctrine laid down in the book cited by the prisoner's counsel, that where the jurors challenge themselves, they may be sworn to the truth of their asservations. (1 Chitty Criminal Law, 443.*) But when these are undoubted, of what use can it be to make assurance doubly sure? I may add, that in all the courts of New England, where I have seen practice, the course pursued on this occasion has been uniformly adopted. I do not deny that the facts to establish a lawful challenge to the polls may be ascertained by triors according to the course of the common law; all I assert is, that this is not the usual or necessary mode with us; and least of all is it proper, where the facts are not disputed, and the cause of challenge is apparent and admitted, and resolves itself into a mere point of law." It must be remembered that we have not before us any question of due procedure, or one that presents a request that the juror be sworn, or an exception to omission or refusal to administer an oath.

*1st Am. ed.-[REF.]