Ex Parte O'Brien

• Decision Date: 18 March 1895
• Parties: Ex Parte O'Brien. [*]
• Court: Missouri Supreme Court

30 S.W. 158

127 Mo. 477

Ex Parte O'Brien. ^[*]

Supreme Court of Missouri, Second Division

March 18, 1895

Petitioner discharged.

Thos B. Harvey for petitioners.

(1) No appeal or writ of error would lie. Habeas corpus is the only remedy and the proper one. R. S. 1889, secs. 3263, 5378. The process (commitment) was issued under circumstances not allowed by law; for where the alleged contemptuous conduct occurs beyond the immediate view and presence of the court the law requires (sec. 3263, supra) citation before commitment. And, second, the jurisdiction of the court was "exceeded as to person," because the court could have no jurisdiction of the person without bringing the individual before it by citation. Hurd on Habeas Corpus [2 Ed.] p. 360. Contempt of court is a specific criminal offense. Church on Habeas Corpus [2 Ed.] 308. "It is necessary in this, as in all other judicial proceedings affecting persons, that the court should have jurisdiction of the offense and of the person. The omission to serve him with notice renders the proceeding void." Hurd on Habeas Corpus [2 Ed.] p. 460. "If the record recites the facts which are facts which are preliminary, or conditions precedent to the right to hear and determine the merits of the cause, it is prima facie evidence only of their existence, and may be disproved by extrinsic evidence." Ib. p. 367. "In assailing a judgment for contempt made by a court of limited jurisdiction, upon habeas corpus, it must be observed that no intendment will be made in support of the jurisdiction of the court as in the case of a commitment by a court of general jurisdiction." Church on Habeas Corpus, 318. And jurisdiction is not obtained by the mere assertion of it. Ibid, 323; People v. Cassels, 5 Hill (N. Y.) 164; Holman v. Mayor, 34 Tex. 668; People ex rel. v. Liscomb, 60 N.Y. 559; People v. Devine, 5 Park. 62. Where contempts are committed in the immediate presence of the court, it is that presence which confers jurisdiction over the person; and when the contempt occurs elsewhere, our statute directs that the offender shall have notice otherwise. The fact of the service or notice required to give jurisdiction is one always open to proof in attacking a judgment. Biddle v. Wilkins, 1 Pet. 686. (2) The record must show affirmatively that petitioner was present in court when tried and convicted. Biddle v. Wilkins, 1 Pet. 686; In re Pollard, L R. 2 P. C. 106; Capel v. Childs, 2 Cr. & Jer. 558; King v. University, 8 Mod. 148; Stockham v. French, 1 Bing. 365; Ex parte Whitchurch, 1 Atk. 55; Hollingsworth v. Duane, Wall. C. C. 77; Cooley's Con. Lim. [3 Ed.] p. 403, n. 2; Ex parte Terry, 128 U.S. 289.

Martin, Bass & Carr for respondent.

The St. Louis court of criminal correction is a court of record, and possesses all the powers and can perform the duties, and is subject to the restrictions of, a court of record according to the laws of this state. 2 R. S. 1889, p. 2152, secs. 1, 2. As a court of record it can punish as for criminal contempt. R. S. 1889, sec. 3261. Contempt of court is a specific criminal offense and the fine imposed or the order of commitment is a judgment in a criminal case. Church on Habeas Corpus, sec. 309, and cases cited; 4 Crim. Law Mag., 802. The following facts, among others, authorize a court of record to punish as for criminal contempt: First. Disorderly, contemptuous or insolent behavior committed during its sitting in immediate view and presence, and directly tending to interrupt its proceedings or impair the respect due its authority. Second. Any breach of the peace, noise or other disturbance directly tending to interrupt its proceedings. R. S. 1889, sec. 3261. The statute points out no mode of procedure in contempt cases, except that "contempt committed in the immediate view and presence of the court may be punished summarily;" in other cases the party shall be notified, etc. R. S. 1889, sec. 3263. The record shows that the petitioners were adjudged guilty of contempt, and that the court found the acts to have been committed in the immediate view and presence of the court, and so adjudged it. The judgment is a judgment in a criminal case, and the adjudication is a conviction. Church on Habeas Corpus, sec. 308; 4 Crim. Law Mag., 802. An attack on a judgment of conviction by habeas corpus is a collateral one and subject to the rules restricting collateral attacks. Freeman on Judgments, sec. 619. The courts will not, in collateral proceedings, question the correctness of a judgment of a court of record. As the record stands it warrants the commitment. If error, it is of fact. Courts will not revise the judgment. If error dehors, the record court will not interfere by habeas corpus. Ex parte Toney, 11 Mo. 661; Ex parte Kaufman, 73 Mo. 588; Ex parte Stoner, 4 Mo. 616; Ex parte Hollwedell, 74 Mo. 394; Ex parte Page, 49 Mo. 291. In the case of a court of general jurisdiction every presumption is in its favor and it must be assumed that such court has passed upon the jurisdictional facts, and thus its judgment can not be affected by matters dehors the record in a collateral proceeding like habeas corpus. 11 Mo. 661; People ex rel. v. Secomb, 60 N.Y. 573. The existence and the validity of the process are the only facts upon which issue can be taken. These alone are material. Not whether process was founded upon sufficient evidence, or any evidence. 3 Hill, 659, and cases cited; People ex rel. v. Protectory, 106 N.Y. 604. The record of a court of general jurisdiction, containing recital of the jurisdictional facts in a commitment for contempt, imports absolute verity. The record can not be contradicted. Church on Habeas Corpus, secs. 316, 317, and notes. The irregularity must be patent of record. Can not be shown, by matters dehors the record, that two of the plaintiffs were dead at the commencement of the action. Phillips v. Evans et al., 64 Mo. 22; Holt Co. v. Harmon, 59 Mo. 165. Sentence must be absolutely void, otherwise can not be attacked on habeas corpus. 74 Mo. 403; 44 Mo. 181; 47 Mo. 164; 11 Mo. 661. The judgment herein is not void. Failure to give notice is a mere irregularity. See article on "Void Sentences," 4 Crim. Law Mag., 797; Hurd on Habeas Corpus, p. 327; 9 Am. & Eng. Encyclopedia of Law, 220. Under the act regulating habeas corpus the petitioner must be remanded. R. S. 1889, secs. 5376, 5379. If the petitioner has been committed by a court having absolutely no jurisdiction, the validity of commitment may be determined on habeas corpus. Ex parte Snyder, 64 Mo. 58. Writ of error will lie in proceedings like one at bar. In re Greene Co. v. Kindred Rose, 38 Mo. 390. Where no appeal lies or other available mode of review, certiorari proper. State ex rel. v. Edwards, 104 Mo. 125. For instances of direct contempt or contempts committed in the presence and hearing of the court, see Rapalje on Contempt, sec. 23. The court when in session is present in every part of the place set apart for its use, and the use of its officers, and misbehavior anywhere about such premises is misbehavior in the presence of the court. When it then and there disturbs the orderly procedure of business and interrupts the business of the court, it is then and there in the immediate view and presence of the court. Rapalje on Contempts, sec. 23; Church on Habeas Corpus, sec. 225; Ex parte Terry, 128 U.S. 289. The physical presence of petitioner was not necessary at the rendition of the judgment against him. The instant the first blow was struck, the contempt was complete. Jurisdiction immediately attached, and, the court having once had jurisdiction, it could not be lost by the petitioners not being present at the rendition of judgment. Middlebrock v. State, 43 Conn. 257; Ex parte Terry, 128 U.S. 298; In the matter of Daniel S. Baker, 11 Howard, 418.

OPINION

Habeas Corpus.

Sherwood J.

The petitioner herein has sued out a writ of habeas corpus, and questions thereby the validity of certain proceedings had in the St. Louis court of criminal correction on the twenty-first of December, 1894. Those proceedings had their origin in an attempt made by one Thomas Murphy, a policeman, on the complaint of Henry Roetter, to arrest one [SEE ILLUSTRATION IN ORIGINAL] William Wright, a negro, on a charge of carrying a revolver and disturbing the peace.

On attempting the arrest, the negro shot Murphy with the revolver, once through the shoulder and once through the side, and so dangerously that for some days his life was despaired of. The shooting occurred on November 19, 1894. Wright fled for it, but was captured the next night in Illinois and brought back to this state. When it became evident that his victim would not die, a charge of assault with intent to kill, was preferred against Wright and when Murphy, weak from his wounds that had so well nigh proved fatal, was able to attend the preliminary hearing of Wright, that hearing was set for December 19, 1894, in the court of criminal correction. Of the result attending that hearing, it is perhaps not improper to say that the ready facility with which Wright was discharged, is in striking contrast with the action of the grand jury in indicting Wright on the same day for the same felonious assault on Murphy, from which charge Wright had just been discharged by the court of criminal correction.

On the discharge of Wright he walked out of the court room, and when outside of the swinging doors of the court room, was arrested by relator on the old charge on which Murphy had previously attempted his arrest when Wright shot him. Assisted by his brother, officer Sullivan, petitioner managed to take Wright down stairs to prison.

This arrest and other incidents happening in immediate connection therewith, were made the occasion of a great deal of noise and...