Ex Parte Brownfield v. Bash

• Decision Date: 24 March 1937
• Docket Number: No. 35333.,35333.
• Parties: Ex PARTE WADE BROWNFIELD, Petitioner, v. THOMAS B. BASH, Sheriff of Jackson County.
• Court: Missouri Supreme Court

102 S.W.2d 880

Ex PARTE WADE BROWNFIELD, Petitioner, v. THOMAS B. BASH, Sheriff of Jackson County.

No. 35333.

Supreme Court of Missouri.

Court en Banc, March 24, 1937.

Habeas Corpus.

PETITIONER DISCHARGED.

Harry L. Donnelly, Edwin S. Carroll and Reginald A. Smith for petitioner Wade Brownfield.

(1) This is an original proceeding in this court by writ of habeas corpus to have this petitioner discharged from a commitment to the county jail of Jackson County, Missouri, for alleged criminal, constructive contempt, upon which petitioner was attempted to be cited forthwith for an alleged willful disobedience to orders and process of the circuit court, petitioner could not appeal from the judgment and conviction and writ of habeas corpus was the only remedy by which a review could be had. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 55 L. Ed. 797; State ex rel. Bland, 189 Mo. 197; Bender v. Young, 252 S.W. 692; In re Clark, 208 Mo. 121; Ex parte Creasy, 243 Mo. 700; In re Howell and Ewing, 273 Mo. 114; Carder v. Carder, 61 S.W. (2d) 390. (2) The judgment and commitment in this case are void. The court did not have jurisdiction to issue the commitment, the court did not have jurisdiction over the subject matter nor over the person of the petitioner, and the court did not have jurisdiction over the facts attempted to be set forth in said judgment and commitment. The commitment did not set forth the particular circumstances of the offense but merely recited conclusions, and petitioner is entitled to his discharge. Ex parte Creasy, 243 Mo. 679, 148 S.W. 914; Ex parte Harris, 286 S.W. 401; Ex parte Cloud, 18 S.W. (2d) 562; In re Shull, 221 Mo. 623; Ex parte Stone, 183 S.W. 1058; In re Clark, 208 Mo. 121; Ex parte O'Brien, 127 Mo. 477. (3) The circuit court did not have jurisdiction to issue a forthwith citation in this cause, requiring the petitioner, an acting judge of a general election, to forthwith appear before the circuit court when the citation was issued without a complaint, warrant or information, and an acting judge at election was immune from an arrest or a forthwith citation, and petitioner was not required to answer the citation forthwith, said citation being void.

Roy McKittrick, Attorney General, Franklin E. Reagan, Assistant Attorney General, W.W. Graves, Jr., and Michael W. O'Hern for respondent.

(1) Proceedings should be dismissed because offense constitutes a civil contempt, a judgment of conviction from which an appeal will lie. State ex rel. Railroad v. Bland, 189 Mo. 197; Threlkel v. Miles, 320 Mo. 1140. (2) All the law requires is notice to the party charged with the contempt, a reasonable opportunity to prepare for the hearing and a fair hearing on the merits. Cook v. United States, 267 U.S. 517, 60 L. Ed. 767; Secs. 1866, 1867, 1868, R.S. 1929, In re Clark, 208 Mo. 121; Ex parte Nelson, 251 Mo. 63. (3) The transcript of the testimony taken before the trial court shows petitioner guilty of contempt. Railway Assn. v. United States, 45 Sup. Ct. 5, 266 U.S. 17; Kansas v. Pittsburg, 80 Kan. 710; In re Sowels 41 Fed. 752; 6 R.C.L. 503, sec. 15.

FRANK, J.

Habeas Corpus: Petitioner seeks discharge from custody of the sheriff of Jackson County, who is detaining him by virtue of a commitment for alleged contempt of the Circuit Court of Jackson County at Independence.

Petitioner, Wade Brownfield, was judge of election in a certain voting precinct in Jackson County, outside of Kansas City, at the general election held on November 3, 1936. Chapter 61, Article 15, Revised Statutes 1929, providing for registration of voters was applicable to Jackson County, outside of Kansas City at the times in question. Section 10523 of above Chapter 61 provides that, "If any voter has been wrongfully stricken from the registration books or wrongfully prevented from registering by the judges he shall have the right to appeal to the circuit court in the same manner as provided in Section 10597, Article 17, R.S. 1929, and it shall be the duty of the board of election commissioners to enter the voter's name on the registration books on the order of the circuit court aforesaid."

On October 26, one James R. Phelps did appeal to the circuit court at Independence, in the manner provided in said Section 10597, praying for an order of said court directing that his name be placed on the proper registry of voters. The court heard such application and made the following order:

"In the Jackson County Circuit Court at Independence.

"To the Board of Election Commissioners of Jackson County, Missouri:

"This is to certify that the application of James R. Phelps, address Blue Springs, Missouri, to be placed on the appropriate register as a qualified voter in the 4th precinct of Sni-A-Bar township, Jackson County, Missouri, has been duly granted by the court this 26th day of October, 1936."

This court order was brought to the attention of the Board of Election Commissioners, and pursuant to its mandate and in obedience thereto said board placed the name of said James R. Phelps on the proper register of voters. Thereafter, on November 3, 1936, said Phelps presented himself at the polling place in aforesaid precinct for the purpose of voting at the general election then and there being held, whereupon petitioner, Wade Brownfield, one of the judges of said election, challenged his right to vote. On said November 3, 1936, Marion D. Waltner, judge of the circuit court, who made aforesaid order directing that Phelps' name be placed on the register of voters, cited petiti...