Ex Parte Creasy

• Decision Date: 10 June 1912
• Citation: 148 S.W. 914
• Parties: Ex parte CREASY.
• Court: Missouri Supreme Court

148 S.W. 914

Ex parte CREASY.

Supreme Court of Missouri.

June 10, 1912.

1. HABEAS CORPUS (§ 92)—SCOPE OF INQUIRY.

In a habeas corpus proceeding to determine the validity of a commitment for contempt, the judgment of commitment is not conclusive on the court issuing the writ as to the facts of the alleged contempt, especially in view of Rev. St. 1909, § 2468, providing that a person brought before a court by virtue of a writ of habeas corpus may deny the allegations of the return or allege any facts to show that his imprisonment is unlawful, or that he is entitled to his discharge.

2. HABEAS CORPUS (§ 27)—SCOPE OF INQUIRY.

In a habeas corpus proceeding, the judgment of commitment can be attacked for want of jurisdiction of the person over the subject-matter, or want of jurisdiction in the particular case owing to the facts thereof.

3. GRAND JURY (§ 36)—REFUSAL TO TESTIFY —CONTEMPT.

A witness before the grand jury was asked whether on certain occasions he purchased liquor, to which he replied: "I could not say. Possibly I did." Held that, while the witness by his answer might have subjected himself to a charge of perjury, he was not liable for contempt as for refusing to answer.

4. CONTEMPT (§ 64)—COMMITMENT.

Under Rev. St. 1909, § 3884, providing that, whenever any person shall be committed for any contempt specified in that chapter, the particular circumstances of the offense shall be set forth in the order or warrant of commitment, and section 3881 specifying as a contempt the unlawful refusal of a person when sworn as a witness to answer proper questions, a warrant of commitment stating that a witness refused to answer questions specified, without stating in what way he manifested such refusal, is insufficient; the statement that he refused to answer being a mere conclusion of the judge.

5. PLEADING (§ 8)—CONCLUSION—RETURN TO HABEAS CORPUS.

The allegation in a return to a writ of habeas corpus to inquire into the validity of a commitment for contempt that the judge from the manner of the witness' replies and his general demeanor in the presence of the court was convinced that he was intentionally and willfully withholding information while testifying as a witness is a mere conclusion.

6. CONTEMPT (§ 2)—PUNISHMENT—STATUTORY PROVISIONS.

A commitment for six months for contempt in refusing to answer questions is void on its face, under Rev. St. 1909. § 3882, providing that the punishment for contempt shall not exceed a fine of $50 or imprisonment for 10 days.

7. CONTEMPT (§ 71)—PUNISHMENT—STATUTORY PROVISIONS.

Rev. St. 1909, § 3882, providing that punishment for contempt shall not exceed a fine of $50 or imprisonment for 10 days is constitutional.

8. WITNESSES (§ 21)—PUNISHMENT—STATUTORY PROVISIONS.

A commitment for six months for contempt for refusing to testify is void under Rev. St. 1909, § 6372, providing that a person summoned as a witness refusing to give evidence may be committed to prison until he gives such evidence.

In Banc. Habeas corpus on the petition of H. P. Creasy. Petitioner discharged.

McBaine & Clark, for petitioner. E. C. Anderson and W. H. Sapp, for respondents.

KENNISH, J.

The petitioner, H. P. Creasy, presented his application for a writ of habeas corpus to a member of division No. 2 of this court, in vacation, alleging in his petition that he was unlawfully imprisoned and restrained of his liberty by the sheriff of Boone county. The writ was granted as prayed, and made returnable to said division No. 2, at the October term thereof, 1911. In due time the sheriff made return, whereupon the petitioner filed a reply which, under the agreed statement of facts, may be treated as a demurrer to the return. The case was submitted for decision upon an agreed statement of facts, which fully covers every question presented for decision. ROY, Commissioner, sitting in said division and to whom the case was assigned, submitted an opinion, concurred in by BLAIR, Commissioner, sustaining the judgment of the trial court committing the petitioner for contempt, and remanding him to the custody of the sheriff. That opinion is in accord with the cases of State ex inf. v. Shepherd, 177 Mo. 205, 76 S. W. 79, 99 Am. St. Rep. 624, and Railroad v. Gildersleeve, 219 Mo. 170, 118 S. W. 86, 16 Ann. Cas. 749, hereinafter referred to. Without adopting that opinion as the opinion of this court (there being grave questions involved, heretofore decided by a divided court in banc contrary to the views of division 2), the cause was transferred by said division to the court in banc, where it was again argued and submitted, and assigned to the writer for an opinion.

Before the case was so assigned in banc, an opinion dissenting from that prepared by ROY. Commissioner, was filed by my learned Associate, GRAVES, J. After an examination of the record and the questions of law involved, I have concluded that the opinion filed as a dissent contains such an exhaustive review of the law, and is so sound in its reasoning and conclusions, that it would be useless to attempt to add thereto. I shall therefore set out as a statement of the case the agreed statement of facts filed by the parties hereto, and adopt, as the opinion, what was thus filed by GRAVES, J., as a dissent.

Agreed Statement of Facts.

"It is agreed by and between petitioner and respondent herein, for the purpose of avoiding the necessity of taking testimony, that this cause shall be submitted to the court upon the following statement of facts, which it is agreed, if the evidence were taken, would be disclosed by the evidence; it being further agreed that any fact hereinafter set forth may be objected to for irrelevancy or immateriality in the argument and submission of this cause by either party hereto. It is further agreed that respondent waives no right to object to the consideration of the facts leading up to and surrounding the commitment of petitioner.

"1. That the grand jury called at the October term of the Boone county circuit court, 1911, before which petitioner was called as a witness, was a duly called and qualified grand jury, and that W. F. Robinson was the duly authorized and acting foreman of said grand jury.

"2. That H. P. Creasy was duly subpœnaed before the grand jury on the 4th day of October, 1911. That at the time said Creasy appeared before said grand jury, said grand jury had under consideration the investigation of the illegal sale of intoxicating liquors in Boone county by divers and sundry persons. That petitioner was then asked the following questions by the foreman of said grand jury: `Q. 1. H. P. Creasy, did you on. September 22, 1911, buy one pint of whisky for Jimmy, the tailor that works for Harrell? Q. 2. H. P. Creasy, did you on Thursday, September 21, 1911, about 6 o'clock p. m., buy one pint of whisky for Tom Newby, from the negro, Squire Bannister, at Tom Morris' drug store?' That said H. P. Creasy replied to said questions that he did not remember whether he did on September 22, 1911, buy one pint of whisky for Jimmy, the tailor that works for Harrell, and did not remember whether he did on Thursday, September 21, 1911, about 6 o'clock p. m., buy one pint of whisky from the negro Squire Bannister, at Tom Morris' drug store. That, upon being further asked and commanded to answer, he made the following reply to the aforesaid questions: Answer to question No. 1: `I could not say. Possibly I did.' Answer to question No. 2: `I could not say. Probably I did.' That the said H. P. Creasy was released and discharged from attendance upon said grand jury, but thereafter, on the afternoon of said date, to wit, October 4, 1911, he was again summoned to appear before said grand jury, and again the questions above referred to, No. 1 and No. 2, were asked him, and that on this occasion, being the second time he had appeared before said grand jury, petitioner made the same answer, to wit: Answer to question No. 1: `I could not say. Possibly I did.' Answer to question No. 2: `I could not say. Probably I did.' That thereupon the foreman of the grand jury, W. F. Robinson, wrote out said questions and answers set forth in Exhibit B, attached to petitioner's application for the writ of habeas corpus herein, which questions and answers as there referred to are as follows: `No. 1: H. P. Creasy, did you on September 22, 1911, buy one pint of whisky for Jimmy, the tailor who works for Harrell? Answer: I could not say. Possibly I did. No. 2: H. P. Creasy, did you on Thursday, September 21, 1911, about 6 o'clock p. m., buy one-half pint of whisky for Tom Newby, from the negro, Squire Bannister, at Tom Morris' drug store? Answer: I could not say. Probably I did. The above questions were asked the witness H. P. Creasy, and he made the answers above recorded, which are not satisfactory answers to the grand jury. W. F. Robinson, foreman.' These questions and answers were sent by the foreman of the grand jury as above set forth to the Hon. David H. Harris, judge of the Boone county circuit court then in session, and the court notified the grand jury that the witness was bound to answer these questions, `Yes,' or `No'; that, when the foreman of the grand jury so informed Creasy that his answers must be `Yes' or `No,' he stated that he could not answer the questions `Yes' or `No.' Said H. P. Creasy was then taken before the Hon. David H. Harris, judge of the court aforesaid, and while said court was in session, and he was asked by the court if he fully understood the questions, to which he replied that he did. To refresh his memory he was then asked by the court if he knew the persons mentioned in the questions, and if he was in Columbia on the dates named, to which he replied in the affirmative. He was then asked if he was afflicted with a defective memory, to which he replied that his memory was as good as it ever was. It was then explained to him by said court that what the grand jury wanted was an unequivocal answer to their...