Ex Parte Clark

• Decision Date: 24 December 1907
• Citation: 208 Mo. 121,106 S.W. 990
• Parties: Ex parte CLARK.
• Court: Missouri Supreme Court

106 S.W. 990

208 Mo. 121

Ex parte CLARK.

Supreme Court of Missouri.

December 24, 1907.

1. HABEAS CORPUS — PROCEEDINGS — WAIVER OF TAKING OF TESTIMONY — SCOPE OF INQUIRY.

In habeas corpus, where petitioner waives the appointment of a commissioner to take testimony on controverted facts, the case is submitted on the narrations of the judgment and commitment, and the truth of the recitals therein cannot be controverted, nor can facts dehors the record be considered.

2. COURTS — JURISDICTION — DIVISION OF CIRCUIT COURT.

The mere fact that a division of the circuit court is assigned criminal cases, which occupy its whole time, does not change its character as a constitutional court, under Const. art. 6, § 1 [Ann. St. 1906, p. 212], nor its jurisdiction as a circuit court proceeding according to the common law as prescribed by section 22 et seq. [page 234].

3. HABEAS CORPUS — DETERMINATION — REMAND — OPERATION AND EFFECT.

Though the plea of res judicata is good on the same facts where a prisoner has been discharged on habeas corpus it does not apply where he has been remanded; hence the discretion of one judge in remanding a prisoner does not bar the discretion of another in discharging him, except that under the express provisions of Rev. St. 1899, § 3546 [Ann. St. 1906, p. 2017], the petition must show that application has not been made to or refused by any court, officer, etc., superior to the one to whom the petition is presented.

4. CONTEMPT — "CRIMINAL CONTEMPT."

Criminal contempts embrace all acts committed against the majesty of the law, and the primary purpose of their punishment is the vindication of public authority.

5. SAME — "CIVIL CONTEMPT."

A person who fails or refuses to do something which he has been ordered to do, or does something that he has been ordered not to do, for the benefit of the opposite party to a cause, is guilty of a civil contempt, and the object of the punishment is to coerce the performance of an act remedial in its nature.

6. SAME — "DIRECT CONTEMPT."

A direct contempt is a contempt committed in the face of the court, and may consist of noisy or tumultuous conduct in the presence of the court, or so near thereto as to interrupt its proceedings, or an open defiance of its just powers or authority, or in disrespectful behavior or language to the presiding judge, or any improper conduct tending to defeat or impair the administration of justice.

7. SAME — "INDIRECT" OR "CONSTRUCTIVE CONTEMPT."

An indirect or constructive contempt is one offered elsewhere than in the presence of the court, and which tends to degrade or weaken its authority, or in some manner to impede the due administration of justice.

8. SAME — ACTS CONSTITUTING CRIMINAL CONTEMPT.

An attorney is guilty of criminal contempt if he willfully and intentionally delays the proceedings of the court by failing to appear at the time set for the trial of a case which he has had laid over, and by obtaining permission of court to leave the courtroom for a few minutes during the trial of the case, to have an action pending in another court passed or continued, and absenting himself for nearly an hour without valid excuse.

9. SAME — CRIMINAL CONTEMPT — PROCEEDINGS TO PUNISH—REVIEW.

The adjudged punishment of a criminal contempt is a judgment in a criminal case from which no appeal or writ of error will lie, but the proceedings may be reviewed on certiorari or habeas corpus.

10. SAME — PROCEEDINGS TO PUNISH — DIRECT AND INDIRECT CONTEMPT.

Under the express provisions of Rev. St. 1899, § 1618 [Ann. St. 1906, p. 1200], as well as at common law, direct contempts may be punished summarily without notice or hearing, while in proceedings to punish for an indirect or constructive contempt the contemner is entitled to notice, reasonable time, and a hearing.

11. SAME — CONTEMPT IN ABSENCE OF COURT.

The absence from the courtroom of an attorney, to the delay and embarrassment of a trial, if it amounts to a contempt is an indirect and not a direct contempt.

12. SAME — INDIRECT CONTEMPT — PROCEEDINGS TO PUNISH — NOTICE.

The fact that a contemner was in court, and had actual notice of what was going on, when he was adjudged guilty of an indirect contempt, does not give him the notice expressly required by Rev. St. 1899, § 1618 [Ann. St. 1906, p. 1200], relating to the procedure in punishing contempts, nor that required at common law,

since notice in contemplation of law means a reasonable notice sufficient to prepare and make a defense.

13. SAME — JUDGMENT ENTRY.

The judgment entry in a contempt proceeding against an attorney, reciting that the court "was of the opinion that said delay [in attending court] on the part of said C. was intentional," and that the court "doth find as a fact that said failure * * * was willful," etc., does not sufficiently show service of notice and a hearing of evidence, especially where the finding of the court was based upon the erroneous theory that the contempt was committed in his presence, thereby excluding the necessity of citation and evidence.

14. WORDS AND PHRASES — "OPINIONS."

While the word "opinion," in a close and strict sense, means a court's decision upon pleadings and the facts duly presented in a cause, yet in a broader sense it means one's "notion," "idea," "view," or even one's "sentiments."

In Banc. Original application, under the habeas corpus act, in the Supreme Court, by Willis H. Clark against Louis Nolte, sheriff of St. Louis. Petitioner discharged.

T. J. Rowe and Hiram N. Moore, for petitioner. Arthur N. Sager and Grant Gillespie, for respondent.

LAMM, J.

Willis H. Clark, a member of the St. Louis bar, was fined for two separate contempts by the judge presiding in division 11 of the circuit court of that city. His person being seized under one mittimus issued on an omnibus judgment covering both fines, he sued out a writ of habeas corpus from this court. Such writ went, directed to Louis Nolte, sheriff of the city of St. Louis, commanding him to produce the body of said Clark before this court in banc at a date named.

Statement of the Case.

Attached to the petition and return of the sheriff are certified copies of the commitment on which petitioner is held (Exhibit A), and of the judgment on which it issued (Exhibit B). As will hereafter appear, the cause is taken as submitted on the pleadings. This being so, it will be well to set forth the judgment, the petition, and the return in full, giving the pith of the commitment and the reply to the return to round out the statement of the case.

The commitment follows closely the recitals and narrations of the judgment. If it vary at all, it is by way of condensation. Therefore, it need not be set forth. The curious may find it in full in Re Clark, 103 S. W. 1105.

The judgment, on which the commitment issued as an execution, follows:

"Exhibit B.

"State of Missouri, Plaintiff, vs. August Wilkins, Defendant. Willis H. Clark (Attorney for Defendant), Respondent. No. 44 to the April Term, 1907. Whereas, the above cause wherein the state of Missouri is plaintiff and August Wilkins is defendant, pending in division No. 11 of the circuit court of the city of St. Louis, was set for trial in said court on Monday, May 6, 1907, the respondent, Willis H. Clark, a member of the bar of the city of St. Louis, and an attorney at law practicing in said court, appearing for the defendant, and thereupon, said cause being called for trial, the defendant, by his said attorney, announced that the defendant was not ready for trial, and thereupon the court granted said defendant and his said attorney until 2 o'clock p, m. of day to prepare and present his application for a continuance under the statute in such cases made and provided; and whereas, thereafter, at 2 o'clock p. m. on said 6th day of May, 1907, said Willis H. Clark, as attorney for the defendant in said cause, presented his duly verified application for a continuance, which application, after due consideration by the court, was overruled, and thereupon the said Willis H. Clark, as attorney for said defendant, August Wilkins, requested the court for a short time to enable the defendant to secure the presence of certain witnesses, and in pursuance of such request the court thereupon granted the defendant until Thursday, May 9, 1907, at ten (10) o'clock a. m., and thereupon the cause was laid over until said last-mentioned day; and whereas, on Thursday, May 9, 1907, at ten (10) o'clock a. m., said cause being called again for trial, it was made to appear to the court that said Willis H. Clark was engaged in the trial of a case in division No. 12 of said circuit court of the city of St. Louis, and thereupon the above cause of the State of Missouri v. August Wilkins was laid over until five (5) o'clock p. m. of said date, and notice thereof was given to the respondent, Willis H. Clark, of such setting; and whereas, said Willis H. Clark appeared in this court at five (5) o'clock p. m., the court then being in session, and requested that the above cause be laid over until nine (9) o'clock a. m., Friday, May 10, 1907; and thereupon, at the request of said Willis H. Clark, the above cause was laid over until Friday, May 10, at nine (9) o'clock a. m.; and whereas, the above court duly convened and was duly opened for business at nine (9) o'clock a. m.; and whereas, said court was compelled to wait and did wait until nine-fifteen (9:15) a. m. because of the absence of said Willis H. Clark, and because of his failure to attend court at nine (9) o'clock a. m.; and whereas, said Willis H. Clark, by reason of his failure to be present at nine (9) o'clock a. m. on said tenth (10th) day of May, 1907, delayed the court and interfered with the proceedings of said court by his failure to be so present; and whereas, the court was of the opinion that said delay on the part of said Willis H. Clark was intentional: It is therefore adjudged by the court that said Willis H. Clark was and...