The order should be reversed and the relator discharged from custody. Certiorari is a proper remedy for the review of this order. (People ex rel. Taylor v. Forbes, 143 N. Y. 219.)
The order states the grounds upon which the conviction was based substantially as follows : A grand jury was in session at that term of court and the district attorney of the county issued a subpoena for John Cox, a witness, requiring him to produce before such grand jury, as evidence, tile books, papers and writings therein described, and delivered such subpoena to tile sheriff’s office of the county for service. There was being investigated by tile grand jury a charge of felony, and the subpoena was issued in reference to that charge. Tiie subpoena was- delivered to the relator, who was undersheriff, and he served the same on the witness Cox. At the time of such service and at various times thereafter the relator told said witness that he must not produce the hooks called for by the subpoena but must hide or destroy the same. The conrt'found these facts to be true and determined that the relator’s direction to the witness to hide or destroy the books and not to obey the directions of the subpoena to produce them before the grand jury, con*34stituted a criminal contémpt and disorderly, contemptuous and insolent behavior on the part of an officer of the court, intended directly to interfere and interrupt its proceedings and those of the grand jury, and to impair the respect due to the court’s authority, and constituted willful disobedience of the lawful mandate of the court and resistance willfully offered thereto, and for this the punishment was inflicted.
We are not inclined to disagree with the trial court in its determination as to the facts. We are only interested in the question as to whether the acts committed constituted a criminal contempt and were punishable as such. Section 8 of the Code of Civil Procedure provides what acts may be so punishable,, and that no others can he. There are six subdivisions in the section, none of which are applicable to this case unless it may be the 3d and 4th.
The 1st subdivision has no application because the acts therein specified must be “ committed, during its (the court’s) sitting in its immediate view and presence,” and the acts here complained of were committed some distance away from the court and the grand jury. It is claimed, however, that the acts constituted willful disobedience to the lawful mandate of the court, and resistance willfully offered to such lawful mandate and so were a criminal contempt under subdivisions 3 and 4, above referred to. This section, though in the Code of Civil Procedure, relates to all courts of record in criminal as well as civil cases, but we must read with it section 619 of the Code of Criminal Procedure which provides that disobedience to a subpoena or a refusal to be sworn or to testify may be punished by the court or magistrate as for a criminal contempt in the manner provided in the Code of Civil Procedure. This latter provision refers to subpoenas in criminal cases and is, therefore, peculiarly applicable to this" case. Taking the two provisions together it is clear that whether a subpoena is, strictly speaking, a mandate or not disobedience to it is punishable as a criminal contempt. Resistance willfully offered to this subpoena could only be so punishable in case it was a mandate under section 8 of the Code of Civil Procedure. I do not think the subpoena is such a mandate.
Attention is called by counsel to the provisions of sections 338, 3301 and 3343 of the Code of Civil Procedure as indicating that a *35subpoena is covered by the word mandate in section 8 above referred to, but I think People ex rel. Society for Prevention of Cruelty tChildren v. Gilmore (26 Hun, 1) and Sherwin v. People (100 N. Y. 351) are authority to the contrary. They were cases under the provisions of the Devised Statutes and the Code of Civil Procedure, but the reasoning in those cases is to me quite conclusive that these provisions of section 8 were not designed to cover subpoenas and make disobedience and resistance thereto criminal contempts. It would not be well to analyze and discuss those cases and the statutes under which they were decided in tliis opinion. It would occupy too much space. They must be carefully read and considered themselves. As I have already suggested we have still left the provisions of the Code of Criminal Procedure making dis-' obedience to a criminal subpoena punishable as a criminal contempt. If this had been a proceeding to punish the witness for disobeying the subpoena or refusing to produce the books tbe conviction and punishment would have been proper, but I am. unable to see how the relator could be so dealt with. He did not disobey the subpoena. He at most advised or directed the witness to disobey it and such advice or direction was not followed.
The witness, regardless of what the relator said to him, obeyed the subpoena and produced the books before the grand jury.
I am unable to see how the advising or directing this witness to disobey the subpoena could be punished as a criminal contempt in this proceeding especially as disobedience to the subpoena did not result. It was fully obeyed.
All concurred, except McLennan, P. J., who dissented in an opinion.