This cause was heard upon the transcript of the record, briefs, and arguments of counsel. On consideration whereof, the court is of the opinion that the filing in the Clerk’s office by appellant of the affidavits obtained under the circumstances set forth in the evidence was not upon the authority of Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, in the presence of the court or so near thereto as to obstruct the administration of justice, since it does not appear that the court was in session at the time.

And it further appearing that to bring the acts of appellant as an attorney within the inhibition of “misbehavior of any of the officers of said courts in their official transactions” requires a construction of the statute providing for punishment by fine and imprisonment, which under well settled rules of construction of penal statutes we are not permitted to make, it is ordered and adjudged that the judgment appealed from be and is set aside, and that the rule to show cause why appellant Schmidt should not be held in contempt of court be and the same is hereby dismissed.