Drake v. State

¶1The indictment is founded on section 4136 of the Code of 1876, which declares a witness failing or refusing, without a good excuse, to be determined by the court, in obedience to a summons, to appear before the grand jury, and testify as to any gaming within his knowledge, is guilty of a contempt, and also of a misdemeanor. There is no averment in the indictment of the character of the summons issued to the defendant, nor by whom, or what authority it was issued, nor by whom, or when it was served, nor when it was returnable. The offense is of the same character as that of resisting process; and an indictment for it, according to the rules of pleading at common law, would have been fatally defective, unless it averred the issue of a summons by proper authority, with a proper description of it, the time of its return,. and service by a proper officer.— 2 Bish.' Cr. Pr. §§ 891-93. The statutes have changed the common-law rules of criminal pleading, dispensing with many averments which were regarded as indispensable, reducing indictments rather to a statement of legal conclusions than of facts. Forms of indictments for many offenses are given, which are declared sufficient in all cases to which they are applicable; and it is further declared that, in other cases, analogous forms may be used. — Code of 1876, §4824. A form is prescribed for resisting an officer in executing process, which states the officer, and contains a mere general *64description of the process, stating its character, and the officer or authority issuing it. If the present indictment had stated, and thereby shown, that the summons issuing to the defendant was issued by an officer having authority to issue it, and the officer by whom it was served, it would have conformed substantially to the form of indictment for the anal-' ogous offense of resisting process, and would have been sufficient. Without these averments, it is insufficient. A witness is not bound to obey any other than a legal summons, legally served; and untii the issue and service of such process is averred and proved, the court can pronounce no judgment against him. The County Court should have sustained the demurrer.

¶22. The statute authorizes a proceeding against the delinquent witness for a contempt, and for a misdemeanor. If the proceeding is for a contempt, the court, without the intervention of a jury, hears the evidence, and pronounces judgment. Of necessity, if the witness offers an excuse, the court must then determine its sufficiency — in the words of the statute, whether it is a good excuse. The affidavit of the witness may then be received, or the court may examine him orally. But, when the witness is proceeded against by indictment for a misdemeanor, he has a right to a trial by jury; and of that trial the indispensable elements are, that the court must adjudge the law, and the jury render a verdict on the facts. The defendant cannot, by his own affidavit, or his oral examination, testify as to any fact. The excuse on which he relies, if he makes any, must be proved by witnesses. The jury determine, as matter of fact, whether it is proved : but, whether the facts relied on are, as matter of law, a sufficient excuse, the court must determine. The County Court erred, in referring to the jury a question .of law, which it should have decided — what was a sufficient excuse for failing or refusing to obey the summons to appear before the grand jury. — 1 Brick. Dig. 337, §25.

¶3The judgment must be reversed, and the cause remanded. The prisoner must remain in custody, until discharged by due course of law.