delivered the following dissenting opinion :
This case brings before this court certain proceedings in a matter of contempt had in the criminal *82court of Shelby county, Judge James M. Greer, presiding.
I find two records before us, and a proceeding on habeas corpus before Judge Pierce of the circuit court of Shelby county, in which he refused to discharge defendant, Warner, from' imprisonment under the judgment of Judge Greer. This is brought before us, under a certiorari issued under a. fiat of one of the judges of this court.
We take it to be too well settled that the action • of a judge or court on a writ of habeas corpus cannot be reviewed by this court under any form of procedure, to demand any discussion or investigation: State ex rel., etc., v. Malone et al., 3 Sneed, 416-17; State v. Galloway & Rhea, 5 Cold., 335, et seq. This record need not be further noticed.
The case is this, as shown by the record: On March 12, 1884, the minutes of the court show that C. B. Bryan, foreman of the grand jury, then in session, “ came into open court, accompanied by B. R. G. Warner, and also the attorney-general. Whereupon the foreman stated to the court that said Warner had been examined before the grand jury as a witness, and had refused to answer the following questions, to-wit: “ As to whether said witness knew of any unlawful gaming for money in the Gayoso Club Booms over his saloon; that the witness had refused to answer this and other questions of a similar character touching his knowledge of unlawful gaming in the last six months. The foreman stated that he had informed witness that he would be required to answer said questions, or the-*83foreman would be compelled lo bring him before the court. The witness still refused to answer, and he had him before the court. Whereupon the court inquired of the witness, upon Avhat ground he based his refusal. Witness replied that he was president of said Gayoso Club; that there was some sixty members of said club, and he did not desire to speak of any thing pertaining to the club. He also said that his answer might criminate himself, and therefore he had refused to answer. Whereupon the court instructed the witness that a person was not liable to prosecution for any information given before the grand jury touching any misdemeanor in which he might have taken part, hence he could not criminate himself even if he had answered that he had been engaged in said gaming, and that he could not be prosecuted. Whereupon the witness said he still felt compelled to refuse.
The court then informed him that it would be the duty of the court to commit him to jail for contempt until he would answer; that he hoped the witness would think better of his refusal, and not impose-upon the court this disagreeable duty. Witness replied he would still refuse. Whereupon the court adjudged that said B. R. G. Warner be held in contempt of this court, and committed to the body of the county jail of Shelby county until he shall have purged himself of said contempt by answering said questions, or else delivered therefrom by due process of law. That-'he pay the costs of this proceeding, and execution issue for the same. Thus the proceeding ended by a final judgment.
*84On the next clay the defendant in person and by attorney — the attorney-general being present — moved the •court to vacate the judgment heretofore entered on the minutes of this court, holding the defendant in contempt, and committing him to jail, which motion was overruled by the court.
Whereupon the defendant prays an appeal in the nature of a writ of error to the next term of the Supreme Court, which said appeal is refused, and the defendant was remanded to jail in accordance with the judgment heretofore rendered.
It was settled by this court in the case of Hirsch v. The State, 8 Bax., 89, after much discussion of the question, that a witness summoned before the grand jury under subpoena could not .refuse to give evidence as to violations of our laws against gaming, on the ground that he might criminate himself. Section 5089 was held to exempt the witness in such cases.
We have no doubt of the correctness of this case, and do not deem it necessary to re-examine that question. The answer, however, to the argument of the majority opinion is not by the simple fact that he cannot affect himself legally, when the State has said he shall not be prosecuted in such a case. This meets the whole point in it, unless we hold that whether it can legally affect himself or not, he is still protected. In fact, as I understand it, this is the theory of the opinion. If so, I venture to say that the conclusion is not sustained by any authority to be found in our law — whether text-book or decision.
Up to this point there can be no question the *85judgment of the criminal court is correct. The witness had persistently refused to answer the questions-which had been put to him. They were proper questions in investigating the fact whether gaming in violation of law had occurred within the knowledge of the witness. The court had acted most considerately to the witness, and explained to him that he could not involve himself by his answer, and even urged him to reconsider his refusal. He still persisted in his refusal. This, in connection with the reasons given by the witness for his refusal, admits of but one conclusion, that is, that the witness had determined not to inform on his friends, the members of his-club; for the only reasons given for refusal were that he was - president of the club, and did not wish to speak of any thing pertaining to the club, and also that his answer might criminate himself. This-last objection was removed by the explanation given by the court, and that this was not a controlling reason for his refusal is seen by the fact that no doubt is expressed by the witness as to the correctness of the explanation of the law as given by his Honor on this point. That no sufficient or even plausible, legal justification for the witness’ refusal to answer the-questions propounded before the rendition of his Honor’s judgment, the statement we have given makes certain. Upon the case as it stood before his Honor when the judgment was rendered, we have only a contumacious witness, who, on an assumed point of honor, had determined to brave the court, defy its authority, and take the consequences, thus putting himself in the *86way as an obstruction to the enforcement of the criminal law of the land. It will be seen that afterwards the effect of counsel was to shield him from the consequences; and give him’a triumph over the court by matter presented ex post facto, which had never been thought of in the inception of the case, nor until after a final judgment had been rendered.
On this statement of the case it clearly appears this is not a case that appeals to this court for any liberality of construction in order to shield the defendant, or to favor the application of mere technicalities, that he may elude the grasp of the law. We should be slow to find mere technical error that would give this defendant immunity and an apparent triumph over a court acting under an evident sense of duty to enforce the law of the land, and maintain the dignity of the judiciary.
It appears from a statement signed by the judge, and “filed,” as the record says, “by the defendant,” but not ordered to be so filed, or made part of the record in this case by the court; that on this motion to vacate the judgment already entered on the 13th of March, the motion being on 14th, the subpoena under which Warner had been summoned to appear and testify before the grand jury was read. This commanded the sheriff to summon him to appear before the criminal court, then in session, “then and there to be sworn, to testify and give evidence before the grand jury sitting, in behalf of the State concerning his knowledge relative to a bill of indictment to be preferred against divers persons for the offense *87of gaming committed within the. county of Shelby.” The subpoena is endorsed on back of it: “ State of Tennessee v. General Information. Grand jury subpoena. Issued March 14, 1884, and executed same day by the sheriff’s deputy.”
It is then stated that it was admitted by the at.torney-general that the subpoena was issued by his instructions and not at the instance of the grand jury, and said Warner was not sent before the grand jury ■on any indictment against any individual. It is further said, that the members of the grand jury, as well as :the attorney-general, interrogated the defendant when he appeared under the subpoena. A copy of the constitution and by-laws of the Gayoso Club is also added to the statement.
This is the entire case as it stands in the record.
Treating this statement so signed by the judge for the present as a bill of exceptions, the first question for consideration is, has this court any revisory jurisdiction over the case. If not, then the contest •would properly end at this point, and we need not ••discuss or decide the other questions that may be raised on the facts stated.
The case presented by the 'facts before the court, and on which his original judgment was rendered, make a case of contempt in the presence of the court, in the face of its authority, a direct personal contest between the court and the defendant in open court. This, we take it, cannot be doubted. It is this or nothing. The question then is will an appeal, writ of error, or any other revisory proceeding lie in this court in such *88a case? The judgment, it is proper to say, is valid* on its face beyond question, reciting the facts clearly showing the contempt, with no recital affecting its validity in any way.
In the case of Andrew L. Martin, ex parte, 5 Yer., 456, it was held that “ an appeal in the nature of a writ of error does not lie from the order or judgment of a court punishing a party for contempt.” This case was decided in 1830, and was based, as Judge Catron says, on Shumate’s case at Nashville in 1823 or 1824, of which case he says: “Much pains was taken with that opinion, where the authorities were cited.” He adds: “It is most obvious, that if a "wr.it of error did lie from a judgment for contempt, courts of justice, as such, could not exist to any useful purpose in times of excitement and turbulence, because they could not protect themselves from assaults that would prevent their sittings.” One illustration given by the learned judge in support of the conclusion of the court, is • analogous to the one now before us. “Suppose a criminal cause on trial before a jury, and a witness refused to give evidence in contempt of the court, and he was ordered to be imprisoned, to coerce him to depose on-behalf of the defendant or State, he prayed an appeal or writ of error and continued at large. How would it be possible to coerce him to depose? To the same ■ end as imprisonment may a fine be imposed by the • court, not exceeding fifty dollars.”
The foregoing, he concludes, are given “as instances why consistently with the existence of courts of justice,., writs of ferror dare not be allowed to revise judg*89ments for contempt. Hot that the case before the court presents the least enormity. The facts as set forth in the bill of exceptions, show very slight misbehavior by a member of the bar, still were the writ of error-entertained in this case, it would equally lie in any other case, the most enormous and aggravated.”
The remedy always open to the party if unlawfully imprisoned, is by habeas corpus, and as Judge Catron says, “no doubt* relief could be afforded by this constitutional writ.” The above is the language of the court.
This question came again in review in a case that created as much interest at the time, probably, as any ever occurring in our courts, State v. M. C. Galloway and W. H. Rhea, 5 Cold., 327. It was argued most zealously and with great ability by some of the ablest counsel in West Tennessee — the authorities examined thoroughly. The opinion by the late Judge Henry G. Smith, is one of marked ability, in which the precisely same result - is reached as in the Martin case. The only modification made' in the general law on the subject is, that the judgment is required by that opinion to state upon its face the cause of contempt alleged, as the ground of the jurisdiction on which the judgment is rendered, otherwise it would be invalid. This furnished the safe basis for relief at all times under a habeas corpus, and is as far as public policy demands, as held by these cases, as well as the general current of authority.
Again, in the case of Brooks v. Fleming, the question of contempt and revisory power of this court came *90under review. This was a case of a motion to attach Fleming for violation of an injunction. The •■chancellor convicted in that case, and appeal was pros-ecuted to this court. The case of violation of an injunction, or like process, not being in the presence of the court, and to be brought, in the language of the judge delivering that opinion, “to its knowledge ■on the testimony of others,” and upon issues made, was held to be an exception to the “general rule, and •the appeal allowed.
But in the opinion in that case by Judge Turney, the doctrine of Judge Catron in the case of Martin as to contempts in the face of the court is emphati- • cally approved. He says: “ On principle the right of appeal to the party charged is clear when the •contempt is not in the face of the court. That it will not lie in such case is for the strong reasons -instanced by Judge Catron in the case of Andrew L. Martin ex parte, 5 Yer., 546, as well as others, which -he proceeds to give,” beyond question.
I had the misfortune to differ with my brethren •of the* Bench on that question, but|they are agreed, ■ and I stood alone — was compelled to acquiesce, and feel bound to do so now, as a question too well ■ settled to be disturbed or reopened. Unless we shall 'Overrule all that has been decided, and so long approved ■ in these decisions, this case ends here, and •this court has no jurisdiction over the question.
I but add for myself, using the illustration given ■by Judge Catron in the 5th Yerger case, that it would ■ scarcely be held a valid answer to a refusal by a *91■witness in a case on trial, when he refused to obey' the order of a court to testify, that he should make the objection that, he had not been regularly sum■moned,. or even had been summoned under a subpoena that called for and authorized the summoning of an•other and different man, or it had been issued at the instance of a man not authorized to demand the issuance at all.
The consequences of allowing an appeal or writ of error in such cases reach too far, and are too vital, as said by Judge Catron, to the very existence of courts. Suppose the case of half-dozen roughs or gamblers, who have been guilty of violations of law, and wish to prevent a term of court being holden, in order to get the benefit of the statute of limitations. They go into the court-room, and by noise and turbulence stop the public business. The court adjudges them guilty of contempt, and they appeal, free to repeat their offense. : It is seen the only protection of the court is not his power by law as a court, but in his personal ability to contest his right ■to hold his court.
Again, in gaming eases, the witness has but to refuse to testify, however regularly summoned. The court can but render a judgment of contempt from which he appeals, and before the appeal can be •-disposed of in this court six months have expired, and if he is sent back, he may answer willingly, and purge his contempt — his friends are saved, but the criminal law has been trampled in the dust. In fact such a practice would serve practically to give *92parties violating the gaming laws immunity from all' punishment in the future. These laws had as well be repealed as to the largest class of such offenders.
• It may be said the party will be imprisoned for-contempt on reversal in this court. But we take it this would not be done if he answered or gave testimony, which he could well, do, as no one could be-injured by it.
The case put by Judge Catron of a witness refusing to testify on a criminal or even civil trial serves-also to illustrate the necessity of the rule. The court adjudges him guilty of contempt, but he appeals, defies the court, goes free till his case is heard by this court. In the meantime the case must stop, a mistrial be had at cost of the State or the parties, and the case be delayed till his appeal be heard in-this court. In this way it is seen that the wheels of justice may be stopped by a recalcitrant witness whenever he chooses. Such consequences show the wisdom and necessity of the rule as held by this court from 1824 down to the present time. Nothing is seen in this case demanding its change — on -the-contrary, as we think, every 'thing that does appear-demands its enforcement, and an emphasis that shall be felt, and thus close the question forever.
In all the cases cited by Judge Turney the question of right of appeal was not made or decided, or-were not cases of contempt in the face of the court as this is. The case cited from 5th Heiskell, Hundhausen v. Marine Insurance Co., opinion by myself, was a coutempt for violation of an injunction out of *93court — the precise case of Fleming; against Brooks — in "which Judge Turney emphatically distinguished between the two class of cases, giving appeal in one case, re.fusing it in the other. I sought in the Brooks’ case to carry the right to cases of contempt even in the face of the court, but was overruled by my brethren, Judge Turney delivering the opinion. This view has never been overruled till now. That case is in perfect accord with my present position, while Judge Turney is inconsistent with his opinion in'? the Brooks’ ■case.
Blit entertaining the jurisdiction of this court, and treating the statement signed by the judge as a bill •of exceptions, as I do not think it is, showing that on the motion made to vacate the judgment, it did appear that the subpoena in this case was issued by instructions of the attorney-genera), and not at the instance of the grand jury, and that Warner was not sent before the grand jury on any indictment against any individual, what would be the result?
This, in the first place, presents the question whether a party can in a case like this, on ■ motion for a new trial, or it may be conceded even on the •original trial, interpose the objection that the summons on which he appeared was improperly issued, or issued at the instance of a party who was not authorized 'to issue it, and thereby successfully sustain a refusal to answer questions put- to him as a witness.
After careful reflection I conclude the defense cannot be made.
The subpoena is regularly issued by a”court of com-*94petént jurisdiction, is on its face complete, and for a-lawful purpose, that is that the witness “may be sworn-to testify and give evidence before the grand jury then in session in behalf of the State concerning his-knowledge relative to indictments to be preferred against divers persons for unlawful gaining within the county.” The party regularly appeared in answer to the summons, and the grand' jury by their foreman adopted the subpoena as shown, and regularly propounded the proper questions to him, 'under their inquisitorial power-in such cases. If the foreman had gone and demanded-a subpoena, he would have got a precise counterpart of this one. He has the party under this one before the body, and no reason furnished by any public policy,, law, dr tending to aid in the administration of public-justice is seen, why the form should be gone through-of getting another? Suppose the foreman had applied! for a subpoena for Warner, and been told by the clerk that one had already been issued, and he had said that is sufficient, and gone on to act under it, as in this case, could we so far stick in the bark in favor of technical routine; as to say the witness could refuse to answer when before the grand jury, because-the attorney-gen eral and not the foreman had applied for the subpoena? There is no difference in principle in the two cases. In the one the foreman adopts the subpoena already issued, but before the party comes before the grand jury, and the other does so after-wards, by using the witness and treating him as regularly summoned. This is shown by the fact that the foreman puts the question, and on his refusal to-*95answer takes bim before the court, reporting his refusal. It is said, however, the grand jury alone' has-inquisitorial power, that is the language of section 5087. “The grand jury shall send for witnesses whenever they or any of them suspect a violation of the laws against gaming.” Conceded. But that body sends through the agency of a subpoena, or summons issued by authority of the court, and when a witness is before them by such summons, and they treat him as a witness .for the purpose thus authorized by law, I know of no -rule of law, nor principle of sound public policy, which requires courts to go behind all this, and see if the proper person requested the subpoena to be issued originally, or that a witness may be protected in not answering a question pertinent to an inquiry that body is authorized to make.
Suppose the witness should have answered and given information of gaming, and that he had been engaged in it himself in The particular cases, would there have been practically the slightest danger that he would have been [indicted on the information thus given?' Assuredly not. If he had been, however, then is there any legal danger of his being injured ?
He would simply have filed a plea stating the fact, that he had been summoned before the grand jury to give evidence as to gaming, and had given information in the particular case, and 'this had been the basis of the indictment found against him, and on proof of this he would most assuredly have been directed to be acquitted by the court, as held by Judge Greer in. his exposition of the law in this case. Suppose, how*96ever, the attorney-general had replied, admitting the subpoena, but that in fact he'had applied for the subpoena, and not the grand jury. Would such a replication have been held good? Might not the defendant say, I know nothing of that, the grand jury had me before them under authority of the court, and put the questions. I know by law that body had the power to inquire into and discover violations of the gaming laws, and so I did not choose to contest their authority. Would there have been any answer in fairness or justice to this defense? But the case of the State v. Hatfield, 3 Head, 231, is thought to maintain a different view. I do not think so. The whole point in the decision, and all that was ruled by the court is given correctly in the syllabus as follows: “The provision of the Code, sec. 5089, exempting a witness from prosecution for any offense in relation to which he has testified before the grand jury, does not extend to and embrace a grand juror, who communicates to his fellow-jurors his knowledge of a •crime having been committed, and in doing so, voluntarily implicates himself.”
In distinguishing this case from the case provided for by the section of the Code, Judge McKinney simply said: “The term ‘witness’ in the statute must be understood in the legal sense, and it is obvious from the context, can only be applied to a person brought before the grand jury, by compulsion, to testify against others. Neither the letter nor spirit of this particular exemption applies to the case of a grand juror who voluntarily criminates himself.” He simply puts *97the case of a witness summoned as the one protected; and the one who is not, but voluntarily gives information as not. That is all in this case. He certainly did not hold, nor would that court Nave done so, we take it, that if compelled in fact by a subpoena to appear, and he does so appear, and give testimony, that he would not be exempt if the State could show an irregularity in the issuance of the subpoena. Ou-tlie contrary, his language fairly implies, if any thing,, the contrary.
I hold, that the subpoena being on its face from proper authority, and complete as a process from such a court, the witness is bound to obey it — it is compulsory on him. The consequences of the opposite doctrine would- be in every case where a witness is-subpoenaed, he would be compelled, before he answered in cases that might affect himself, to go and at his peril ascertain that the process was issued at request of the proper authority. If he failed to get information correctly on this point, he would answer at his-peril. He could seldom know any thing on the subject, and so before he answers must ’ be subjected to-the trouble of making the inquiry, and then take the-responsibility of making a mistake. This is to impose a burden on the witness not in accord with justice- or the analogies of our law. In all other cases, as an officer serving process, he has only to look at the face of the paper and see that it is not-void on its-face, and he may go on to obey it without fear. He is not compelled to look behind the process itself.
Why should a witness have a different rule applied *98to him? Why should a contumacious witness, as in this case, who seeks to shield his friends who have violated the law, be permitted to invoke for himself a rule that should impose such burdens on others, or why should courts listen to such an appeal? I confess I see no reason consistent with law or sound policy that demands it — on 1 the contrary, much that forbids it.
Since writing the above, I find in a note to the case of Dougan v. District of Lake Co., Am. L. Reg., vol. 22, page 530, the decisions, both English and American, collected. The rule resulting from them is thus given by the Supreme Court of Colorado: “The power of punishing for contempt is inherent in all courts. It is absolutely necessary they should possess it, whether expressly given or not by statute, and when the court has jurisdiction of the class of cases to which the action belongs, unless a want of jurisdiction in the particular case affirmatively appears on the jace of the proceeding, no error on ruling, no irregularities in the proceeding will divest it of its power.” That the court has, through its grand jury, jurisdiction of the class of cases now under investigation is beyond ■doubt. This conceded, irregularities in the form of proceeding go for nothing in a proceeding for contempt.
Again, it is held the refusal of a witness to answer before the grand jury is a contempt of court of the United States, in a case before the District Court: Am. L. Reg., vol. 20, 98. And where a contempt is committed in the presence of the court, the court has *99immediate jurisdiction of the person of the offender and may punish at once: Middlebrook v. State, 43 Conn., 257; 3 Clarke, Iowa R., 69.
In the face of all this uniform authority, we are unable to see any thing in this case that demands it should be disregarded, or on the first point of right of appeal — our own cases overruled — that this defendant shall escape punishment, or be enabled to shield his friends from prosecution by defying the authority of the court having jurisdiction to enquire and punish, if guilt be proven..
It is argued with great earnestness, however, that there is danger to the citizen if the attorney-rgeneral shall thus be allowed to send for witnesses. I am unable to see the imminence of this assumed danger. If the grand jury have not exercised in fact their inquisitorial power, then the parties indicted have but to plead and prove the fact, and the. plea will be sustained and the indictment quashed. Is not this sufficient in such cases? Here in fact is where the error, if any, may fairly be urged as a defense, and be legitimately heard, but not by the witness in support of his refusal to answer.
It is not improper to say here, that the writer of this opinion has never been able to sympathize with the very common prejudice against the inquisitorial power of grand juries. It is the body under our law for the purpose of ascertaining violations qf law, and bringing men to punishment' who have been guilty. As said to me lately by an experienced circuit judge, he had seldom known a man indicted by a grand jury *100who was not in fact guilty. Every offense must first be reported upon by this body before the party can be tried. On what principle .there should be trammels placed upon the free action of such a body in. obtaining witnesses by whom violations of law can be shown and brought to punishment, I have never been able to see. I would give them this power in all cases where they had reason to suspect crime, and fix upon this body the duty to investigate. The opposite view must rest on the idea that for some cause it is important in many cases that crime shall have as much shelter as possible, and only be punished when private vengeance shall prompt a prosecutor to-undertake to represent public justice, and the few other cases provided for by our law. In a government organized on the theory that law is to be supreme; and give protection to the community; and this protection given by -enforcement of its penalties, it seems-to me all the agencies of that law should be given all power that will increase their capacity to attain the end for which such agencies exist. To inquire through sworn witnesses is an agency efficient for this purpose, and the Legislature have seen this, and applied it in cases that otherwise had grown difficult of detection, as gaming for instance. Why not in all cases where law is violated. I confess I am unable-to see a reason for a contrary view.
But the radical error that underlies all this question is, that it is assumed the citizen is to be protected in this case from unauthorized prosecutions, as I have shown he has ample protection, if in fact the grand *101jury exercise unauthorized power. The question is not whether the citizen shall be indicted improperly under the inquisitorial power of the grand jury, but whether a witness shall be permitted to defy the authority of the court, and refuse to answer questions propounded, ■on the plea that the subpoena under which he was summoned was not regularly issued, the process being regular on its face, representing the authority of the ■court, and to him a complete protection for his action under it. In a word, the question is whether the witness shall be permitted to shield his friends from criminal prosecution by interposing as an after thought a mere technicality as to the regularity of the summons by which he was commanded to appear. I hold that the subpoena had served its purpose when he was brought before the grand jury in obedience to it, and had been sworn. The only question is, was that body in the exercise of its proper authority ? Had it the right to inquire of violations of the gaming laws? If so, the party was bound to answer, and it was no matter of concern to him whether the subpoena commanding him to appear was irregularly issued or not. He had passed the point where such an objection could be made, and by being sworn had submitted himself to the jurisdiction, and was bound to obey the orders of the court as a witness.
This is common sense, and the practical view of the question — can do no one any wrong who is innocent, and the guilty deserve to be punished — the opposite view shields the offender from discovery, gives protection and immunity to crime, and lowers the dig*102nity of the judiciary. So that it can be defied by any one who chooses, and escape punishment on a mere technicality, as I think, and unsustained either on principle or a sound public policy.
The result of holding that an appeal will lie in such a case practically renders the inquisitorial power of the grand jury in gaming cases entirely powerless. A witness has only to . refuse to answer the questions, and appeal to this court. His friends who are involved will generally pay the expenses of the appeal. By the time the case is decided here in the larger proportion of eases, the statute of limitations will have run, and the violators of law be free from danger, and so escape — criminals will be shielded, but the courts go down in the dust under this ruling. I add, the only true principle on the question of the right of the witness to object to the regularity of the subpoena is, that when he has responded to it, and been sworn, it is equivalent to entering his appearance, and submitting to the jurisdiction of the court. He must then answer all legal questions put to him. This is in accord with all the analogies of our law, and the only practical rule in such cases. For these reasons we dissent most earnestly from the conclusions of the majority in this case.
Cooper, J., concurs.