The opinion of the court was delivered by
Fort, J.The order in this case adjudging the defendant in contempt must be set aside for several reasons.
First. The subpcena itself is not good. It commands the defendant to appear at the court house in Camden, on November 13th, 1900, “to give evidence in a certain indictment therein pending, and not depart the court without leave.” The subpcena should recite in what case it is issued. The terms employed should be “between the State of New Jersey and - (naming the defendant) under indictment for - (stating the crime),” and, if a state subpcena upon which .a witness is required to appear without fee first paid, should recite that the witness is subpoenaed “to give evidence on the part of the state.”
The appellant says he thought he was not required to attend unless his witness fee was paid. Under the subpcena in this case he was not advised whether he was called to testify for the state or the defendant in the indictment. If for the former, he was not 'entitled to payment of fees with the service of the writ; if for the latter, he was.
Second. The subpoena, if it had been good, was not proven to have been properly served. There was no proof in the case • that the subpoena was shown to the wife of the appellant and read to her at the time the ticket was left with her. _ The appellant was not personally served. All he knew was what his wife told him.
Third. No affidavit was made of the manner of the service of the writ, or of the failure of the appellant to appear, before the court issued a bench warrant to bring him into court, under arrest, for failure to appear in pursuance of the command of the subpcena. There is no power in the Court of Quarter Sessions to take a witness, alleged to have failed to obey a subpcena, into custody upon a mere verbal statement in open court that he has been served and has failed to appear. *444The court has no power to issue a capias in such a case except upon proof in open court or by affidavit duly filed. Then it is questionable whether the court should do more than make a rule to show cause in the first instance. Compulsory process should be used with discretion, and never be used unless it is apparent that ordinary methods will be inefficacious.
Fourth. At the hearing, -upon which the appellant was adjudged in contempt, he was required to go upon the stand and convict himself before a particle of testimony was put in the case proving that he was in contempt. No person should be required to purge himself of contempt, except for contempts in the presence of the court and affecting its dignity, prior to the legal proof of his guilt. The defendant cannot be required to give such proof against himself.
There are other objections in the record, but these are sufficient. The observations of Chief Justice Beasley in Holt’s case aptly apply to the one before us and sustain the decision hero given. Holt’s Case, 26 Vroom 384.
The order adjudging the defendant in contempt,' and all the proceedings leading up thereto were arbitrary and illegal and the conviction is set aside, without costs.