Ex parte Creasy

• Citation: 148 S.W. 914,243 Mo. 679
• Parties: Ex parte H. P. CREASY, Petitioner
• Decision Date: 10 June 1912
• Court: Missouri Supreme Court

148 S.W. 914

243 Mo. 679

Ex parte H. P. CREASY, Petitioner

Supreme Court of Missouri

June 10, 1912

Petitioner discharged.

McBain & Clark for petitioner.

(1) The record in this case affirmatively shows that the petitioner was not in contempt of court and did not refuse to answer questions asked him by the foreman of the grand jury, and a court has no power or authority to punish one for something that in point of law and fact is not a contempt of court. State ex rel. v. Lazarus, 37 La. Ann. 314; In re Clark, 208 Mo. 121; In re Dell, 32 Kan. 668; In re Ayers, 123 U.S. 507; Ex parte Fisk, 113 U.S 713; Bushell's Case, 1 Vaughn, 135, 6 How. St. Tr. 999; People v. Kavanaugh, 220 Ill. 49; State ex rel v. Wear, 135 Mo. 265; 7 Am. & Eng. Ency. Law (2 Ed.) 36 2 Church on Habeas Corpus (2 Ed.) 454; Wyatt v. People, 17 Colo. 261; In re Shortridge, 34 P. 227. The true state of the facts may be shown, upon habeas corpus, though inconsistent with the recitals in the commitment, to show that in point of law and fact there was no contempt of court. In re Shull, 221 Mo. 623; In re Clark, 208 Mo. 121; Ex parte O'Brien, 127 Mo. 477; Ex parte Duncan, 62 S.W. 758; Ex parte Irvine, 74 F. 954. The judgment and commitment in this case is insufficient and void because it fails to set forth the facts constituting the alleged contempt. Sec. 3884, R. S. 1909; In re Shull, 221 Mo. 623; Ex parte Kearney, 7 Wheat. 38; Church on Habeas Corpus (2 Ed.), sec. 308; Hawes v. State, 46 Neb. 149; Bachelor v. Moore, 42 Cal. 412; Schwarz v. Court, 111 Cal. 106. (2) The punishment assessed against the petitioner -- six months' imprisonment -- is excessive and contrary to common law practice and the statutes of Missouri, and beyond the power and authority of the circuit court that imposed the punishment. R. S. 1909, secs. 5080-82 and 6372; Ward v. State, 2 Mo. 120; Ex parte Renshaw, 6 Mo.App. 474; In re Brockman, 233 Mo. 135; Ex parte Eichel, 223 Mo. 258; Ex parte Gauss, 223 Mo. 277; Bracy's Case, 5 Mod. 308; People ex rel. v. Fancher, 9 N.Y.S. 226; In re Clark, 28 L. R. A. 242. Sec. 6372, R. S. 1909, giving the court power to commit a witness to jail, until he shall answer, where the witness refuses to answer, is constitutional. Railroad v. Gildersleeve, 219 Mo. 170; Pub. Co. v. Journal, 58 N.Y.S. 708; Ex parte Wright, 65 Ind. 504; Ex parte Crenshaw, 80 Mo. 447; State ex rel. v. Bland, 189 Mo. 197; State ex rel. v. Shepherd, 177 Mo. 205; State v. Morrill, 16 Ark. 386; Coles v. Egan, 52 Conn. 219; Wyatt v. People, 17 Colo. 261; Ex parte Edwards, 11 Fla. 174; Swafford v. Berrong, 84 Ga. 65; Little v. State, 90 Ind. 338; Stewart v. State, 140 Ind. 7; In re Millington, 24 Kan. 214; Arnold v. Comm., 80 Ky. 300; State v. St. Paul, 104 La. 203; Langdon v. Judges, 76 Mich. 358; Sloman v. Judges, 95 Mich. 264; State ex rel. v. Missen, 108 N.W. 513; State ex rel v. Judges, 24 Mont. 33; In re Patterson, 99 N.C. 407; Matter of Hatfield, 45 N.Y.S. 270; Meyers v. State, 46 Ohio St. 473; McCarthy v. State, 89 Tenn. 543; Ex parte Tinsley, 37 Tex. Crim. App. 517; State v. McClaugherty, 33 W.Va. 250; In re Prince, 44 Wis. 411.

E. C. Anderson and W. H. Sapp for respondent.

(1) When a party is brought before a court on a writ of habeas corpus, and the return shows he is in custody under the commitment for contempt, the only questions to be considered are: (a) Had the court jurisdiction to commit, and (b) is the commitment in legal form charging the contempt? The primary and sole purpose of the writ of habeas corpus is to institute an inquiry for the purpose of determining whether the officer detaining the petitioner is authorized by law to so restrain him of his liberty. Its attack is directed against the paper (commitment) under which the officer is operating. For this reason it is a collateral proceeding in so far as the judgment of the court on which the commitment is based, is concerned. Naturally the questions in all such proceedings are: (a) Had the court jurisdiction to commit, and (b) is the commitment in legal form charging the contempt. Sec. 2472, R. S. 1909, makes this very plain in so far as the duty of the superior court is concerned in a habeas corpus proceeding where the records disclose a commitment for contempt. Ex parte Millet, 37 Mo.App. 76; Ex parte Goodin, 67 Mo.App. 637; Ex parte Toney, 11 Mo. 661; Ex parte McKee, 18 Mo. 600; Church on Habeas Corpus, sec. 315; 9 Cyc. 64. (2) The commitment was issued by a constitutional court proceeding, according to the course of the common law, which unquestionably had authority to commit for contempt. Constitution, art. 6, sec. 22; Sec. 3846, R. S. 1909; Railroad v. Gildersleeve, 219 Mo. 170. (3) The judgment and commitment are in legal form and clearly charge the facts constituting the contempt. The facts recited in the judgment and commitment constitute and charge the contempt. In re Waldrip, 1 Ariz. 482; R. S. 1909, sec. 3884; In re Shull, 221 Mo. 623; In re Cogshall, 100 Mo.App. 585; Ex parte Millett, 37 Mo.App. 676; Ex parte Priest, 76 Mo. 229; Ex parte McKee, 18 Mo. 599. (4) Petitioner was guilty of a direct contempt; therefore punishment was summarily inflicted without a hearing or opportunity given to petitioner to make defense which was regular. R. S. 1909, secs. 3883, 5080 and 5081; Ex parte Eichel, 223 Mo. 258; In re Clark, 208 Mo. 146; Ex parte Renshaw, 6 Mo.App. 474; Ex parte Buskett, 106 Mo. 602; Ex parte Mason, 16 Mo.App. 41; Ward v. State, 2 Mo. 120. (5) No evidence can be admitted or proof made of facts inconsistent with the recitals in the judgment and commitment to show that said recitals are false. The recitals in a judgment rendered and commitment issued, for contempt by a constitutional court possessing common law powers, are conclusive. Ex parte Millet, 37 Mo.App. 76; Ex parte Renshaw, 6 Mo.App. 474; Ex parte Hollwedell, 74 Mo. 473; Ex parte Goodin, 67 Mo. 637. The judgment of a court of record cannot be attacked collaterally although it might be possible to introduce an abundance of evidence to show that the facts on which the same was rendered were false. Ex parte Toney, 11 Mo. 661; In re Truman, 44 Mo. 195; Ex parte Page, 49 Mo. 292; Latshaw v. McKee, 50 Mo. 384; Hurd v. Sock, 81 Mo. 616; Neenan v. St. Joseph, 126 Mo. 93; Ex parte Gray, 77 Mo. 161; State ex rel. v. Riley, 219 Mo. 681. The punishment assessed against the petitioner is not excessive and is not contrary to the common law practice. Secs. 5082 and 6372, R. S. 1909, are unconstitutional and void in that the Legislature attempted thereby to abridge, limit, and impair an inherent power, viz.: Power to punish for contempt, which right is vested in all constitutional courts which have common law powers. Railroad v. Gildersleeve, 219 Mo. 170; State ex inf. v. Shepherd, 177 Mo. 209; State ex rel. v. Ryan, 182 Mo. 349. Should the court reverse the holdings of these cases, then we take it, that this court will not discharge the petitioner for a mere irregularity in the proceedings. For if the punishment assessed by the circuit court of Boone county is in excess of that permitted by law, then this court will limit the punishment to such as may be lawful. Secs. 2511 and 5316, R. S. 1909; Ex parte Crenshaw, 80 Mo. 456; In re Boquette, 14 Mo.App. 576; Ex parte Kinney, 105 Mo. 535; State v. Bockstruck, 136 Mo. 335; In re Knaup, 144 Mo. 665.

KENNISH, J. Valliant, C. J., not sitting. WOODSON, J., concurring. Kennish, J., concurs with Woodson herein.

OPINION

In Banc

Habeas Corpus.

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, C., sitting in said division and to whom the case was assigned, submitted an opinion, concurred in by Blair, C., 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, and Railroad v. Gildersleeve, 219 Mo. 170, 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 Two) 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, C., 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,...