to change the general rule of liability in that state by proof of the company's custom of notifying consignees of the arrival of goods, the usage must be shown to be of an established nature, and the notices indicative of an intention on the part of the company to remain liable as carrier till the consignee had had reasonable time to remove the goods. In this case the evidence wa held insufficient to show usage varying the rule.49 Chicago, Ill. ARTHUR P. WILL.

49 See further as illustrating this modification: Reiss v. Tex. & P. R. Co., 98 Fed. Rep. 533; Norton v. The Richard Winslow, 67 Fed. Rep. 259; American Sugar Retinery Co. v. Ghee (Ga.), 21 s. E. Rep. 388; Frank Bros. v. Cent. R. Co., 9 Pa. Sup. Ct. Rep. 129; Tex. & P. R. Co. v. Clayton, 84 Fed. Rep. 305.

CONTEMPT-BRIBING WITNESS-POWER OF

COURT TO PUNISH.

FISHER V. MCDANIEL.

Supreme Court of Wyoming, May 23, 1901.

1. The attempt to bribe witnesses while attending a trial in which they are to testify, which occurs in the hallway of the court house, or adjoining the building on the outside, is punishable as a contempt occurring in the presence of the court.

2. A court has jurisdiction to punish an act in contempt of court, though such act is also an indictable offense.

POTTER, C. J.: Upon the petition of Belle Fisher, claiming to be unlawfully imprisoned in the jail of Carbon county by the sheriff of that county, a writ of habeas corpus was allowed by one of the justices of this court, and made returnable before the court. It appears that one Martin W. Foley was being tried in the district court of Carbon county, on the charge of murder, from the 9th day of July, 1900, to the 14th day of that month, inclusive. On the last-named date the county and prosecuting attorney presented an information charging that the petitioner herein on the 12th day of July, 1900, pending the trial of the Foley case, corruptly approached two of the witnesses for the state and attempted to bribe them to testify falsely in said case, and praying that she be ordered to appear and show cause why she should not be punished for contempt of court. And the court found the defendant to be in contempt of court and fined her in the sum of

charges that her offense was not alleged or proven to have been committed in the presence of the court, or so near thereto as to obstruct the procedure of the court; and the argument of her counsel is based upon that assumption. It is contended that an attempt to bribe a witness out of the presence of the court is not a contempt of court, but was punishable at common law as a crime, and was so punishable by statute in this state. It is not claimed that the court is without jurisdiction to punish as a contempt an act also indictable or punishable as an offense against the criminal laws, but it is conceded that the fact that an act is otherwise indictable does not deprive the court of the essential power to punish the same act as a contempt. It is, however, insisted that the offense charged against petitioner is not, and never was, a contempt of court. Counsel admit that the legislature cannot, by making an act indictable, interfere with the inherent authority of a court to punish for contempt; but they argue that neither the legislature nor the court is authorized to declare a crime to be a contempt which has always been punishable as a distinct, indictable offense at common law. It is practically conceded, if not in so many words, that the attempt to bribe a witness in the presence of the court, or so near thereto as to interrupt its orderly procedure, would amount to a contempt of court. In respect, therefore, to the question of jurisdiction, the contention of plaintiff's counsel is confined to the proposition that the acts charged to have been committed did not occur in the presence of the court, or so near thereto as to interfere with its procedure. The information against the petitioner alleged that her conduct complained of occurred at the city of Rawlins, in the county of Carbon. The court was in session in that city. But the affidavits attached to the information, and upon which it was founded, were more specific. The witness Isherwood deposed that he was corruptly approached by the petitioner near the court house, and that she proposed that if he modify his testimony in the Foley case, and swear falsely from the evidence given by him at a former trial, she would pay him $300. According to the affidavit of the witness Stafford, he was approached by petitioner in the court house. and the proposition made to him was that if he would change his testimony she would do the right thing, meaning that she would compensate" the witness for so changing his testimony and swearing falsely. On the hearing, Isherwood, being asked to state the circumstances of the attempt of the petitioner to bribe him, testified as to the place where it occurred as follows: "At

the court house, downstairs, in the corridors between the two doors, and at that place the proposition was made to him to give false testimony. Both parties were in attendance upon the court as witnesses for the state in the criminal case already mentioned. Miss Fisher denied having made any corrupt propositions to either witness, but in giving her version of the affair she fixed the place of the conversation as "downstairs here," and again, there in the stairway." She stated that several persons were present, and some talk ensued, which she related, and that Dr. Stafford turned aside in the little hallway, and she had some further conversation with him there. She admitted, however, having met Isherwood at the corner of the court house, or "in" the corner, but denied having attempted to induce him to swear falsely.

In the case of Ex parte Savin, 131 U. S. 267, 9 Sup. Ct. Rep. 699, 33 L. Ed. 150, it appeared that the petitioner had been adjudged guilty of contempt for having improperly endeavored to deter a witness from testifying in a case in behalf of the government; the offense of petitioner having been committed once in the jury room temporarily used for witnesses, and once in the hallway of the court building, immediately adjoining the the court room. The question arose whether the misbehavior occurred in the presence of the court. It was held that it did. The court said: The jury room and hallway where the misbehavior occurred were parts of the place in which the court was required by law to hold its sessions." And after quoting the following from Bacon, in his essay on Judicature: "The place of justice is an hallowed place; and therefore not only the bench, but the footpace and precincts and purprise thereof, ought to be preserved against scandal and corruption,"-the court said further: We are of opinion that, within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors, and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court.

If, while Flores was in the court room, waiting to be called as a witness, the appellant had attempted to deter him from testifying on behalf of the government, or had there offered him money not to testify against Gougon, it could not be doubted that he would have been guilty of inisbehavior in the presence of the court, although the judge might not have been personally cognizant at the time of what occurred.

ciple laid down in that case, no doubt can exist but that the offense of petitioner, within legal contemplation, was committed in the presence of the court. The bribing of witnesses or jurors strikes at the very foundation of judicial determination, and the court would be shorn of much of its efficiency in the administration of justice if it possessed not the power to protect itself against such reprehensible conduct as the corrupt interference with witnesses in the very precincts of the court, where the witnesses assemble in obedience to subpoena, and while waiting to be called to give their testimony. Witnesses are not usually required to remain constantly in the court room, and if they are in the hallway, witness room, if any, or about the building, within easy call, the purpose of their attendance is ordinarily observed, until they are required to take the stand. When in the building in obedience to subpoena or order of court they are in attendance upon the court and subject to its order, and we are not inclined to adopt so technical a construction of the law as would permit a person to station himself within the building where the court is held, and there attempt to corruptly influence the testimony of witnesses, without fear of being punished for contempt. The argument of counsel that such conduct would not be in the presence of the court, or so near thereto as to interfere with its procedure or obstruct the adminis tration of justice is, to say the least, unreasonable. It is, moreover, opposed not only by the decision of the United States Supreme Court in the Savin case, but by other eminent authorities. In Sinnott v. State, 11 Lea, 281, it was held that one was guilty of contempt who approached the deputy sheriff, while engaged in summoning jurors, with a list of names of persons whom he endeavored to induce the deputy to summon as jurors, and also approached another deputy and sought to induce him to summon a certain person upon the panel, to the sheriff unknown, although neither of said acts were committed in the court house or in the actual presence of the court. The statute provided that a "willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice," is a contempt, and also that an abuse of or unlawful interference with the process or proceedings of the court is a contempt. The court said: "The attempt of defendant to induce the officers of the court to summon as jurors in the particular case then to be tried certain persons speci

from court to avoid the service of a subpœna upon him, and thereby prevented the government from using him as a witness upon a criminal trial. He was adjudged guilty of contempt, and it was held that the act was punishable as a contempt, though it was done at the residence of the witness, at some distance from the court house, in the town where the court was sitting, on the ground that it constituted a misbehavior so near to the court as to obstruct the administration of justice. The learned judge stated in the opinion that, had the particular misbehavior charged occurred anywhere within the building where the court was held, it would have been misbehavior in the presence of the court, and added: "If it is a contempt to bribe a witness in front of the court house door, is it not a contempt to attempt to do the same thing on the street opposite the court building, or four blocks away? Is not the result the same? Is not the motive of the accused the same? What difference does it make whether the attempt was made on the ground owned by the United States, or at the residence of the witness in the same town, four blocks, or about onequarter of a mile, away from the court building? In one case the misbehavior would be construed to be in the presence of the court, and in the other 'so near thereto as to obstruct the administration of justice,' and the statute, in clear language, is made to apply to both cases." See, also, Ex parte Cuddy, 131 U. S. 280, 9 Sup. Ct. Rep. 703, 33 L. Ed. 154; Montgomery v. Judge, 100 Mich. 436, 59 N. W. Rep. 148; Langdon v. Judges, 76 Mich. 358, 43 N. W. Rep. 310; Hale v. State, 55 Ohio St. 210, 45 N. E. Rep. 199, 36 L. R. A. 254; Steube v. State, 3 Ohio C. C. 383. In Hale v. State the party adjudged to be in contempt had, by promising to pay the expenses of a witness who had been subpoenaed, induced her to leave the county, and thereby prevented her appearance as a witness at the trial of a criminal case. The act was held to be a contempt of court, and punishable as such, notwithstanding that it was by statute constituted a distinct criminal offense, and that no express provision of the statute made the statutory punishment cumulative. It is well settled that, if an act is a contempt of court, the fact that the same act is indictable as a criminal offense does not take away the jurisdiction of the court to punish the offender as for a contempt. We understand this general principle to be conceded, while it is contended that a different rule governs this case. We do not think so. The case comes fairly within the general doctrine, and we apprehend that enough has been said to render further discussion unnecessary.

It is insisted that as section 5087 of the Revised Statutes, providing for the punishment as a misdemeanor of one guilty of disobeying a subpœna, expressly states that it shall not prevent summary proceedings for contempt, while section 5088 contains no such reference to contempt proceedings, and is not, therefore, expressly rendered

cumulative, the remedy under the last-named section for the acts covered thereby is sole and exclusive, and deprives the court of the power to punish such acts as for a contempt. Under similar statutory provisions the contrary was held in Hale v. State, 55 Ohio St. 210, 45 N. E. Rep. 199, 36 L. R. A. 254, upon facts already alluded to in referring to that case. The statute in question (section 5088) provides that "whoever corruptly or by force, or threats or threatening letters, endeavors to influence, intimidate or impede any juror, witness or officer in the discharge of his duty; or by threats or force obstructs or impedes, or endeavors to obstruct or impede, the due administration of justice in any court of this state, shall be fined not more than one thousand doliars, to which may be added imprisonment in the county jail not more than sixty days nor less than ten days." The act of the petitioner clearly amounting to a contempt, bearing in mind the general rule above adverted to (that making an act indictable as an offense does not invade the power of a court to punish for contempt), we are not disposed to hold that petitioner was liable to be proceeded against only under section 5088. The power to punish for contempts in facie curia is inherent in all courts of superior jurisdiction. Legislative authority is not required for its existence or exercise. In this state, indeed, there is no statute conferring the power in such a case as the one at bar. We are clearly of the opinion that section 5088 is not exclusive, and that, where the act amounts to a contempt, it may be punished as such.

NOTE-Contempt of Court.-1. Power to Punish for Contempt Where Other Remedies Exist. The power to punish for contempt cannot be abridged by the legislature, at least over courts created by the constitution. This is the general rule. Hawes v. State, 46 Neb. 150; Matter v. Shortridge, 99 Cal. 526, 37 Am. St. Rep. 78; Hale v. State, 55 Ohio St. 210; Cheadle v. State, 110 Ind. 301, 59 Am. Rep. 199; In re Chadwick, 109 Mich. 588. It would seem to follow, a fortiori, that if the legislature cannot directly abridge the power of a court to punish for contempt, it certainly cannct do so indirectly by making the offense indictable, or making provision for other remedies. It is therefore well settled that the indictability of an offense is no bar to its summary punishment as for contempt. United States v. Debs, 158 U. S. 564, 64 Fed. Rep. 724; Ex parte Acock, 84 Cal. 50; Burke v. Territory, 2 Okla. 499; Pledger v. State, 77 Ga. 242; In re Hughes (N. Mex. 1895), 43 Pac. Rep. 692; State v. District Court, 52 Minn. 283; Matter of Griffin, 98 N. Car. 225; Cartwright's Case, 114 Mass. 230. And it is a general rule that a contempt, though punishable by criminal prosecution of any character, is also punishable in contempt proceedings. United States v. Debs, 158 U. S. 564; Ex parte Savin, 131 U. S. 267; State v. Faulds, 17 Mont. 140, 42 Pac. Rep. 285; In re Cartwright, 114 Mass. 230; Ex parte Bergman, 3 Wyo. 396, 26 Pac. Rep. 914. Thus, in Ex parte Savin, supra, it was held that while the same offense, which constitutes the contempt, is embraced in Rev. St. U. S., sec. 5399, and punishable by indictment, that method of procedure is not conclusive, and the court may proceed

summarily as for contempt. Some earlier cases held to a contrary rule, denying the right of the court to punish for contempt where acts were otherwise punishable. State v. Blackwell, 10 S. Car. 35; State v. Blocker, 14 Ala. 450; In re Kerrigan, 33 N. J. Law, 344.

2. Misconduct "in Presence of" Court.-What constitutes "in the presence of" the court, in order to give court jurisdiction to punish the offense for contempt, is sometimes a difficult question, and is best settled by reference to the authorities. Thus, in Ex parte Savin, 131 U. S. 267, 9 Sup. Ct. Rep. 699, it was held that attempts by persuasion and offer of money to deter a witness duly subpoenaed from testifying in behalf of the government, such attempts being made in the witness room, immediately adjacent to, and in the hallway of, the court room, and while the court was in session, constitute misbehavior in the presence of the court. So, also, it has been held that a contempt in the piazza of the court house, into which the windows of the court room open, is a contempt in the presence of the court. United States v. Carter, 3 Cranch (C. C.), 423. But a peculiar case arose recently in Missouri, where a commitment for contempt "for making a murderous assault upon a person named, in the court's presence," was held to be illegal where the evidence showed that the assault occurred in the rotunda, outside of the court room, and that because of a swinging door, and the density of the crowd, and the nearsightedness of the judge, he could not have seen the occurrence, and that his subsequent inquiries showed that he did not, in fact, see it. Ex parte O'Brien, 127 Mo. 477, 30 S. W. Rep. 158. In this case, however, there were other vital defects in the record on which the court laid great stress in nullifying the commitment. In the case of Commonwealth v. Stuart, 2 Va. Cas. 320, it was held that the making of an affray and riot, accompanied with great noise and turbulence, at a tavern, near the court house, where the judge of the court was, and of which the rioters were advised, during a night of the term, but the court being then in recess, is not a contempt of court. On the other hand, however, it has been held that misbehavior in the court room, in the presence of the judge, after the adjournment of court from one day to the next, but while the judge is attending to business, is punishable as a contempt. Baker v. State, 82 Ga. 776, 9 S. E. Rep. 743, 14 Am. St. Rep. 192. Judges, however, are not proof against rough handling or insult when not acting in their ju dicial capacity, and they may not use their preroga tives as judges to avenge themselves for private wrongs or insults. For instance, to demand loudly and arrogantly of a justice merely engaged in writing a letter requiring his official signature, money which had been collected by him, does not authorize a punishment for contempt. Such writing will admit of interruption. Winship v. People, 51 Ill. 296. So, also, an insult to a parish judge, acting as auctioneer, is not a comtempt of him in his judicial capacity, and cannot be so punished. Detournian v. Dormenon, 1 Mart. (La.) 138. See also Fitler v. Probasco, 2 Browne (Pa.), 137, where it was he d that a justice cannot pun ish summarily for a contempt while he is acting ministerially and not judicially.

3. Tampering with Witnesses and Jurors as Con tempt of Court--Bribing.-Statutes in nearly every state specifically provide that any person, giving or offering any witness, or person about to be called as a witness, anything of value to influence his testimony, or to keep him from testifying, is guilty of

bribery. These statutes also provide punishment. We have seen, however, that such statutes, although they may define the offense, do not exclude the jurisdiction of the court to punish them as for contempt. Ex parte Savin, 131 U. S. 267, 9 Sup. Ct. Rep.699. Moreover, the court is not limited by the definition of the offense by any statute but is allowed a large discretion in decreeing what acts are a contempt. Thus, merely an attempt to create a belief that a juror or other officer of the court having active duties to perform upon a trial can be bribed, is a contempt of court. Little v. State, 90 Ind. 338, 46 Am. Rep. 224. But we must look to the decided cases for a clear solution of this question, as of nearly all questions under contempt proceedings, as the decision in such proceedings is controlled not so much by strict rules as upon the nature and facts of each particular case. Preventing the attendance of witnesses or inducing them to keep away from the trial is, of course, contempt of court. Thus, it has been held that bribing a person, who is known to be a material witness, to remain away from court, is a contempt of court, whether such person has been subpoenaed or not, and though punishable by indictment is also punisable as a contempt committed by misbehavior "so near" the court "as to obstruct the administra tion of justice." In re Brule, 71 Fed. Rep. 943. On the other hand, however, it has been held that a supersedeas, issued in blank as to the names of the parties to the case, is not a valid process upon which to prosecute a rule for contempt, charging one with attempt to bribe another to warn witnesses to avoid service of such subpoenas. Dobb v. State, 55 Ga. 272. So also it has been held that until a party has been supbænaed to attend before the grand jury, or a subpoena has been issued for him, it is not a contempt of court for a person to induce him to absent himself in order that he may not be subpœnaed. McConnell v. State, 46 Ind. 298. In Michigan, however, the rule is the same as is in the federal courts. A recent case in that state holds that under How. Ann. St., sec. 7257, providing a punishment for one who unlawfully detains a witness while going to or remaining at the court where the suit is noticed for trial, it is not necessary, in order to constitute the offense described, that the witness should have been subpoenaed. Montgomery v. Palmer, 100 Mich. 436, 59 N. W. Rep. 148. In that case one L inquired of the deputy sheriff whether he had a subpœna for one B, as a witness, and was told that he had not. Early the next morning L gave B money, and B im. mediately left the state. B's testimony was material. The court held that there was a sufficient basis on which to issue a writ requiring L to show cause why he should not be punished for contempt of court. Merely assisting a person to get away, where it is their own desire and free will, is not contempt; there must be pursuasion or coercion on the part of the de. fendant. Whitten v. State, 36 Ind. 196. For other cases holding it to be contempt to prevent the attendance of witnesses in court, see McCarthy v. State, 89 Tenn. 543, 15 S. W. Rep. 737: Commonwealth v. Feely, 2 Va. Cas. 1; In re Whetstone, 9 Utah, 156, 86 Pac. Rep. 634; Haskett v. State, 51 Ind. 176.

Approaching jurors or witnesses in court for the purpose of influencing their action is, of course, a most flagrant contempt of court: Cuddy, Petitioner, 181 U. S. 280; Little v. State, 90 Ind. 338; Langdon v. Judges of Wayne Circuit Court, 76 Mich. 358, 43 N. W. Rep. 310; Gandy v. State, 13 Neb. 445. In the famous case of United States v. Burr, Fed. Cas. No. 14,692,

it was held that a offer of a sum money to a witness to remove his objections to going without the jurisdiction of the court to testify was not necessarily an attempt to contaminate the source, and a contempt of court in which it was administered. In Beattie v. People, 33 Ill. App. 651, it was held that an attorney who knowingly procures evidence with the intention of deceiving and obstructing justice is guilty of contempt. So also, in Gibson v. Tilton, 1 Bland (Md.), 352, 17 Am. Dec. 306, it was held that though parties could not be prosecuted for a false oath taken in another state, yet, if they knowingly use testimony supported by such spurious oath, they may be punished as for contempt for practicing an imposition upon the court.

CORRESPONDENCE.

ANARCHY-A NOVEL SUGGESTION FOR ITS SUPPRESSION. To the Editor of the Central Law Journal:

I have read your editorial appearing on page 241, in regard to the assassination of President McKinley, in which you undertake to point out some remedies, and in this connection I wish to suggest that, while anarchism is, to some extent, respectable in Russia, there is no place for it or any part of it in the United States; and that there is possibly a remedy, and I am inclined to the opinion that congress, under the con. stitution, has a right to define treason. It is fully demonstrated that the death penalty has no terrors for persons who think that they can become martyrs by giving up their life for a cause, and that the death penalty is not a success as a deterrent of crime. There is a large party of respectable adherents to the last part of the above sentence. There is no punishment so severe as exile. This, I think, is not confined to human beings, but extends to the animal kingdom. Any man can determine the severity of such punishment by examining himself. I would therefore sug gest as a remedy for anarchism in this country,-deportation. Not such as Russia inflicts, because it is too severe. We have recently acquired some very habitable islands, and my suggestion is: 1st, that congress define treason by statute, and that the definition include that whoever, in any way, utters or proclaims that there should be no law or no government, shall be guilty of treason; and that 2d, whoever is guilty of treason (in addition to the penalties now prescribed) that the penalty shall be deporta tion to an island (far at sea) where no laws, rules or regulations shall be inaugurated or maintained. And further that no representative of this country shall be there further than sufficient soldiers to see that the above rule is maintained. This, I think, would result in this class of people being placed in a community such as they advocate, and it is wholly imma terial to all the decent people whether they or any of them survive or not, except that they do not starve to death. The advocate of anarchism so long as he keeps his mouth shut, or his pen from paper. is. in

preface: "In preparing an American treatise on the Law of Contracts at the beginning of the twentieth century, the author has striven to present that branch of the law in its true relation, both to the history of the past and to the probable developments of the future; for the lawyer must be both historian and prophet. Such a presentation of the law must, above all things, be accurate; but the accuracy must often be rather that of the artist who paints a landscape, than that of the mathematician who states the equation of a curve." In other words, as we would more clumsily express it,-it is a bird's eye view of the law of contract, and as such, is very accurately and very cleverly prepared. We desire also to most highly commend the mechanical execution of this work,-it is certainly the acme of the printers' and binders' arts. Nothing in the way of a law book has so de. lighted our eye than this very neat little volume, with its clear, beautiful type, its elegant paper, and its rich binding in the best quality of law sheep. Bound in one volume of 410 pages, and published by Little, Brown & Co., Boston, Mass.

HUGHES ON ADMIRALTY.

The general excellencies of the Hornbook Series of legal text books are rapidly becoming generally recognized as the standard authorities for the class room and the student. They possess the most important requisite of a student's text book-a clear synthetical arrangement of the entire subject matter free from all complicating and unnecessary details. To the practitioner, of course, the latter are not only useful, but necessary,-for his use, the treatment must be analytical. But the student of law before he attempts to look at the cases in detail must see them as a whole gathered together by a master hand under the great principles of the particular subject under treatment. This is the object of the Hornbook Series, of which the treatise on Admiralty by Robert M. Hughes, M. A., is a most excellent example. In this particular instance, however, Mr. Hughes' work is of interest to the general practitioner as well, as it is the only modern treatise on this very important subject, and is handled by one thoroughly conversant with both the theoretical and practical features of his subject. The practitioner, therefore, as well as the student, is to be congratulated on this addition to the ranks of legal literature. One volume of 510 pages, bound in sheep. Published by the West Publishing Co., St. Paul, Minn.

HUMORS OF THE LAW.

An editor in Platte county printed an item which stated that "the man who was hugging the hired girl had better stop or his name would be published." In a few days about twenty five citizens paid up their subscriptions and told the editor to "pay no attention to the foolish stories goin' around."-Freemont Tribune.