The People vs. Davis, 15 Wend. 602

By the Court, Cowen, J. It was the duty of the witness to obey the subpoena; and he is guilty of a contempt in disregarding it, and must be punished unless he has furnished us with a legal excuse. Both insolvency and poverty in the witness are sworn to by himself and Mr. Lamb who was one of his assignees. But it is scarcely necessary to observe that these form no excuse in the abstract. If received at all it must be in connection with the situation of the family, or as showing the utter inability of the defendant to defray his expenses.

In rendering these excuses of sickness and extreme poverty,while we are not disposed to deny the validity of either if clearly made out in a proper degree, we cannot allow the witness to judge for himself. Were we to stop and be content wjtj1 jjjg telling us in this general way, “ some of my Family were so sick that, with want of assistance and consider'nS our poverty, I deemed it improper to leave home,” we should surrender our own judgment.

Men often take great latitude in swearing to matters of opinion, even where they are disinterested; and to receive sworn answers framed in that manner, for the purposes of exculpation, would be to render the process of subpoena entirely inefficient. The answer in question is remarkable for being barren of any facts except that of an insolvent assignment, by which we can govern ourselves in coming to a conclusion. Take the allegation of sickness: we have no information as to kind or degree. For aught we know the two children may have had slight colds, or the hooping cough.

Either might pass for sickness, and so might any other slight deviation from good health, in the deposition of a man deeply interested. Seeing himself in danger of a fine, he would of course go on and say “ the sickness was such that I deemed it improper to leave home,” as he does here. Telling us that Mrs. Davis was not able to take care of the children in the night, is equally unsatisfactory, until we learn that they required such care. So of the inability to procure assistance, until we see that the assistance was necessary. Mr.

Lamb comes in and says, “ it was publicly rumored in the neighborhood that two of the family were sick, as stated in said answer;” and he has no reason to doubt it, and verily believes it. If the children were seriously indisposed, it is highly probable they were attended by a physician, whose opinion would have been lawful evidence. He could have sworn generally, as a witness of skill. Mere opinion from any other is not receivable. It is incompetent, according to the settled law of evidence, even from a disinterested witness.

Here the main witness, the man best qualified to speak, is deeply interested, and we yet have but his mere loose opinion, upon all the circumstances, that it was improper for him to leave home. The kind or degree of sickness, or that the children had ever been attended in the night, or that he had ever tried to procure assistance, or whether a physician had attended, is all left out, and the corroborative evidence is, neighborhood rumor and belief; that too comes from a man .who has in other respects made a somewhat intemperate affidavit in respect to the motives and character of Mr. Kelly. I mean Mr.

Lamb, who swears roundly that Mr. Kelly’s affidavit in respect to Davis’ dwelling-house is “ grossly deceptive.” Full thirteen days elapsed, I perceive, between the service of the subpoena and the sitting of the circuit court. Looking at the answer we are to infer that instead of making the least effort to get on his way to the circuit, Mr. Davis folds his arms, and sitting down with his friend Mr. Williams, anticipates the excuses which he now sets up, and directs Mr. Williams to render them to Mr. Hay, the attorney.

But if he means that the letter was confined to the mere excuse of poverty, and want of money, and his family being in danger of suffering for want of common necessaries, it seems to me he was quite premature. He had got ten dollars, the full fees allowed by law. It would have looked much more like a desire to obey the subpoena in good faith, had he made an effort to raise what little balance might have been necessary. We should at least have listened with more favor to the excuse.

He had yet nearly a fortnight within which to make the necessary arrangements ; arrangements for a quick journey to what was usually a short circuit, and certainly not an expensive journey, if conducted with due economy. So poor a man as he and Mr. Lamb make him out to be, of course would not think of travelling except in a very close way; and poor men, if they will- take pains, can travel very cheaply. As to the excuse of inability from, poverty, we should have been much better satisfied with more particularity. Poverty and dependence on daily labor for daily bread, as expressed in the answer and in Mr.

Lamb’s affidavit, are relative terms; and it would have been much more instructive, if instead of such generalities the defendant had sworn that he had no money, and could not get any, after trying, in the course of the twelve or thirteen days opportunity. In the mean time, too, I should suppose that in a civilized, not to say a humane neighborhood, some expedient, even short of a resort to public charity, might have been effectual to save the defendant’s family from suffering for want of food.

We have no account of any attempt to dispose of the family with a view to journey • nor are we here furnished with the degree in which they wanted what the defendant calls the common necessaries of life. He had, about that time, though how long before we are not precisely informed, assigned his property under the insolvent act; and we are not disposed to doubt but that the case was equally honest with the general run of insolvencies. Mr.

Kelly, however, says, that when he went for an explanation why the defendant had not attended under the subpoena, he was told nothing of sickness, or downright poverty; but only that the ten dollars being unequal to the expenses, and the defendant earning 10 shillings per day, which would no more than support his family, he had concluded not to go. The suit was by Kelly, to recover from De Forrest property which he (Kelly) had sold to the defendant, while in good credit; and which it was alleged he had shortly after assigned to De Forrest, with intent to defraud the plaintiff.

He says, also, that he found the defendant and his family in a three or four story house in Pearl street, expensively furnished. This is the account which Mr. Lamb, in his deposition, pronounces to be grossly deceptive ; and he adds, that he has heard the reputation of Kelly spoken of by various persons; that his reputation for truth and integrity is bad in the neighborhood where hé resides, and that from the deponent’s knowledge of his reputation, and his affidavit as to the residence and furniture of the defendant, he would not believe him under oath. It is probable from the depositions of the defendant and Mr.

Lamb, his assignee, that Mr. Kelly had mistaken the furniture of another, in his progress through the lower stories in the Pearl street house for that of the defendant. It is not a very surprising mistake, on the part of a stranger, resident so far in the country as Queensbury, Warren county. The defendant and Mr. Lamb both being residents in New-York, have greatly the advantage as to accuracy in this respect. The only surprise is that the parties being thus located, and without any apparent means of adequate knowledge, Mr. Lamb should have undertaken to pronounce on Mr. Kelly’s general credibility upon oath.

This is but another illustration of the great care with which even witnesses who appear to be without interest should be kept to premises, instead of going off into a general conclusion. There is reason to believe, also, from the depositions, that the costs of the circuit in June are not the first bill to which Mr. Kelly has been subjected by the non-attendance of the defendant. The first loss was probably the reason why Mr. Hay, the attorney, intimated on the back of the ticket, that an attachment would be the consequence of a default in this instance.

I am aware that the defendant admits no such intimation on the ticket. What is still more remarkable, he read the ticket carefully through, and it contained no duces tecum clause, as he feels confident. He is also confident that no original subpoena was shown to him. Unfortunately, young Mr. Hay swears positively that he delivered the ticket, a copy of which is annexed to his affidavit.

The ticket served is not now produced, for which the defendant assigns this reason : “ The said ticket is not now in the possession of this defendant, nor can he have access to the same, if the same is not lost or destroyed, in time for these answers.” It was quite easy for him to put the ticket out of his possession, and pro« cure it to be destroyed. That would have literally satisfied the reason given. That the ticket has gone by any accident we are not told ; nor would even that be very satisfactory, in the face of the great caution which appears to have been taken by the attorney of Mr.

Kelly, to fix on this defendant the alternative of an open contempt, or deliberate and rather hazardous perjury, in respect to service and contents, at least. After two such extraordinary denials, and an account of the document, which leaves so much room to suspect its wilful suppression, not to say a perjured misrepresentation of its contents. I suspect that had the excuses come in a more tangible shape, resting as they do upon the unsupported oath of the defendant, they could hardly be received. Falsus in unofalsus in omnibus, is a maxim which does not stop at nisi prius.

All the rulps of- evidence which govern in the estimate of its weight or effect, are essential to the discovery of truth, whether addressed to a jury, or coming in the form of written answers or depositions. The suit of Mr. Kelly was, it seems, an attempt to snatch what he thought due to him from the wreck of a fraudulent insolvency. The defendant was largely indebted to him when he assigned ; and owed him at least every true explanation. He swears that Mr.

Kelly told him he did not- know that his non-attendance had made any difference, and finally expressed his own opinion that his testimony would have been an injury to Kelly. Judging from what is before us, it is to be feared, for more than one reason, that it would indeed fail to do Kelly much good. The excuse is, however, exactly in keeping with several others which have been assigned. It is asking us to sanction the contempt, on the ground that the witness is advised and believes that his testimony was not material. Mr.

Kelly swears that to him the defendant admitted as a prominent reason,that he feared an explanation might implicate himself. The giving of this is distinctly denied by the defendant; and both he and his assignee, Mr. Lamb, are vociferous in asserting that the insolvency is a very hon- ■ est one. We hope so ; but we cannot, without some better reason than we have yet seen, exempt -him from the test of a cross-examination, if Mr. Kelly shall insist upon it. The case is open to farther observation, but I forbear to pursue it. .

The process of subpoena demands great and extraordinary effort, on the part of the witness, to obey. It commands him expressly to lay aside his business and excuses. And while it lays him under severe obligations, it clears away obstructions in the path of obedience. The witness was always privileged from arrest on civil process in going, staying and returning. It is not denied that serious sickness in his family, such as would prevent a prudent father or husband from leaving home on his. own important business, would save him from the imputation of a contempt, and perhaps from an action.

But such a case ought clearly to be shown to the court, and not left to be judicially inferred by the witness, when arraigned on a criminal charge. . He may exculpate himself by swearing to facts, in ariswer to the interrogatories, provided he remains uncontradicted. But his oath must give facts as contradistinguished from his inferences.

Above all, where • the summons allows hin%i full time, he should struggle to get ready, as he would to go abroad on his own pressing business, If inevitably disappointed, after exhausting every reasonable expedient, he ought certainly to be excused from the payment of a penalty, which presupposes some degree of neglect, at least. Witnesses are the

summary instruments of investigation in all our common law courts. It is not till a positive disability is apparent that their domestic examination will be received as a substitute for their actual presence. The important right of oral examination and cross examination is at stake, and every good citizen, if he could be supposed to regard-nothing beyond his own rights, should struggle for the front rank in the order of obedience.

The least we can say of the case before us is, that it presents an unpleasant contrast to all this ; great diligence, from first to last, in devising colorable excuses, without lifting a finger in preparation to go forward. The defendant must be fined, and the fine ought, at least, to be so large as to indemnify the plaintiff Kelly against the expenses of the last circuit, with the costs of this proceeding. 2 R. S. 538, § 21. An affidavit was made by Mr.

Kelly on the 13th of June last, which was affixed to the papers upon which the attachment issued, showing that the cause went off at the circuit under the advice of counsel, in consequence of Davis’ absence. We are satisfied that a loss has accrued by the misconduct of Davis, in not obeying this summons. 2 R. S. 535, § 1, sub. 5. In that case the statute, 2 R. S. 538, § 21, requires us to impose a fine to be paid over to the party aggrieved, equal to his loss, together with costs and expenses.

The whole of these are claimed to be fifty dollars, which appears to be a moderate estimate for the costs of the circuit, and the'expenses of the proceeding on this attachment. The fine is, therefore, fifty dollars, and the defendant must stand committed till that fine be paid. 2 R. S. 538, § 25. The commitment will be to the jail in the city of New-York, unless it be rendered unnecessary by an immediate payment.

The reporter has the impression that it was referred to the clerk, to ascertain the costs of the circuit and of the attachment, and that he was directed to insert such sum in the order as should thus be ascertained.