In re McBride

• Decision Date: 08 June 1911
• Citation: 138 S.W. 87,158 Mo.App. 452
• Parties: In re FRANK E. McBRIDE, Petitioner
• Court: Missouri Court of Appeals

138 S.W. 87

158 Mo.App. 452

In re FRANK E. McBRIDE, Petitioner

Court of Appeals of Missouri, St. Louis

June 8, 1911

Petitioner remanded.

T. J Rowe and A. E. L. Gardner for petitioner.

Edwin W. Mills, Amandus Brockmann and James W. Settle for respondent.

NORTONI J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

Habeas Corpus.

NORTONI J.

This is an application in habeas corpus. The writ issued at the instance of petitioner, who set forth in his petition that he was unlawfully deprived of his liberty by John Grueninger, Jr., sheriff of St. Louis county, Missouri, in the jail of that county, under a commitment of Division No. 2 of the circuit court thereof, for refusing to answer questions propounded to him by the grand jury and such circuit court. The questions which were propounded to petitioner and which he declined to answer are as follows:

"(1) Have you seen persons shooting craps for money on a table in brick building on northwest corner Delmar avenue and Suburban Railway tracks in University City, within the past twelve months?

"(2) Is such table maintained in said building for shooting craps on?

"(3) Who has charge of said table?

"(4) Do you know the names of any person or persons who play there?"

The petition avers that petitioner declined and refused to answer the questions above set forth, for the reason that to answer them would incriminate him, and he invokes the provisions of section 23, article 2 of the Constitution of Missouri in that behalf. Besides producing the body of the prisoner in obedience to the writ, respondent duly made and filed his return thereto in writing, in which he states he is the sheriff of St. Louis county, Missouri, and that as such officer the petitioner was given into his custody under a competent judgment and order of Division No. 2 of the circuit court of St. Louis county, whereby the petitioner was declared guilty of contempt for his refusal to answer the questions above set forth. In his return, respondent sets forth a copy of a commitment in due form under which he held the petitioner and by the authority of which he had committed him to jail. The commitment copied in the return is in regular form and recites that the petitioner had been adjudged guilty of contempt by Division No. 2 of the circuit court of St. Louis county and of the grand jury of such county for his persistent refusal to make answer to any of the several questions above set out which are recited in the commitment. Wherefore, the court adjudged petitioner guilty of contempt and ordered his confinement in the county jail of St. Louis county, etc., as therein recited.

There is nothing whatever in the return suggesting the prisoner claimed his constitutional privilege referred to in the petition nor that to answer said questions would incriminate him. The petitioner filed no reply to this return but instead moved for his discharge thereon. The return discloses a judgment of a court of competent jurisdiction, declaring petitioner in contempt, and sets forth a commitment, regular on its face, issued in accordance with that judgment commanding the sheriff to commit him to jail because of such contempt. It is argued in support of the motion for a judgment of discharge on the sheriff's return that the petitioner alone is the judge of the matter as to whether or not the answers to the questions propounded might incriminate him, and, therefore, upon his stating and claiming his constitutional privilege under oath, the court was without authority to commit him as for contempt. But this question is not in the case on the record as made. Under the statute (sec. 2468) the petitioner may deny under oath material facts set forth in the return or allege any fact to show that his detention or imprisonment is unlawful or that he is entitled to his discharge; but he has omitted to pursue this course and instead moves for his discharge on the return. In such circumstances, the return of the sheriff, a public officer, imports absolute verity, though not sworn to, for it is made under his oath of office; and the facts therein stated will be taken as true. If matters others than those recited in the return are relied upon for the discharge, they should be put in issue by an appropriate pleading on the part of the petitioner. [Church on Habeas Corpus (2 Ed.), sec. 160; Ex parte Durbin, 102 Mo. 100, 14 S.W. 821; 9 Enc. Pl. and Pr., 1041.] As the return shows the petitioner is restrained of his liberty under the judgment of a court of competent jurisdiction and sets forth a commitment issued by such court under which the sheriff detains him, without suggesting that petitioner refused to answer the questions propounded for the reason the answers thereto might tend to incriminate him, it is entirely clear that the petitioner's discharge may not be ordered thereon, for in such circumstances, only two questions may be examined here and those are: First, Had the court jurisdiction to commit? and, Second, Is the commitment in legal form? [Church on Habeas Corpus, sec. 315; Ex parte McKee, 18 Mo. 599, 600.] There can be no doubt of the fact that the circuit court of St. Louis county and Division No. 2 thereof is a court of general jurisdiction, in which inheres the power to commit for contempt, in the circumstances revealed by the return, for a refusal to answer questions propounded by it or the grand jury. [Church on...