Ex Parte Howell

• Decision Date: 05 January 1918
• Docket Number: No. 20659.,20659.
• Citation: 273 Mo. 96,200 S.W. 65
• Parties: Ex parte HOWELL et al.
• Court: Missouri Supreme Court

200 S.W. 65

273 Mo. 96

Ex parte HOWELL et al.

No. 20659.

Supreme Court of Missouri, Division No. 2.

January 5, 1918.

Original proceeding by habeas corpus, petitioned for by Shrader P. Howell and another.

Judgment against petitioners set aside, and petitioners discharged.

Frank W. McAllister, Atty. Gen., and John T. Gose, Asst. Atty. Gen. (W. T. Rutherford, of St. Louis, of counsel), for petitioners. Irwin & Haley and A. T. Dumm, all of Jefferson City, for respondent.

WALKER, P. J.

Relief by habeas corpus is invoked by petitioners in this court to effect their discharge from an alleged unauthorized judgment of commitment for contempt, rendered against them by the judge of the circuit court of Cole county. The writ was granted as prayed and made returnable on a day certain. The sheriff of Cole county, who held petitioners in custody, made return to the writ, to which petitioners filed their reply. The facts as set out in the judgment of commitment with which the return is in accord, having been put in issue by the reply of petitioners, the court appointed Virgil V. Huff, Esq., as a special commissioner to take testimony concerning the disputed facts, and report his findings of fact and conclusions of law in relation thereto. The commissioner, having heard the testimony, filed herein a transcript of same, together with his findings and conclusions, in conformity with the order of his appointment. To this report the sheriff filed his formal exceptions. The issue has been presented in extenso. Counsel for the respective parties have argued the matter orally and have filed printed briefs and arguments herein. The facts out of which this proceeding arose are as follows:

In November, 1917, there was pending in the circuit court of Cole county, in which Hon. John G. Slate presides as judge, a criminal case entitled State v. John W. Scott, in which the defendant was charged with the larceny and embezzlement of coal belonging to the state. The Attorney General had been directed by the Governor to appear and assist the prosecuting attorney in the trial of this case. Petitioners, representing the Attorney General and at his behest, appeared in the circuit court and tendered their services to assist the prosecuting attorney. The latter refused to participate in the prosecution, whereupon the court announced that the case would be conducted for the state by the petitioners. The latter, having secured a formal entry permitting the indorsement of the names of certain witnesses on the indictment, announced ready for trial, but requested, in addition, that the state be not restricted in the selection of triers of the fact to the regular panel of jurors, for the reason that during that term of court, and a few days prior thereto, a trial panel had been chosen from these jurors, the members of which had sat in the trial, and had rendered a verdict of acquittal in a criminal case charging a like offense, similar in all of its material features to the one then before the court, and against this same defendant. The court overruled petitioners' suggestion, announcing that the jury was not disqualified for the reason stated by petitioners. Furthermore, the court announced, in response to an inquiry of petitioners, that the ruling made during the trial of the former case of like character to that before the court, and also against said Scott, in regard to testimony of similar transactions by him at or near the time of the act charged in the pending indictment, would be adhered to in the trial of this case, and that testimony of this character would not be admitted to show intent or for any other purpose. Petitioners then withdrew their announcement of ready for trial, and stated that they desired time to file an application for a change of venue on account of the prejudice of the judge against the state. Upon the petitioners having signed and made oath to said application before the clerk of the court, the judge ordered it not to be filed until he had read it. After reading it, the court granted petitioners leave to file same. This was done, and at once overruled by the court. Counsel for defendant then announced ready for trial. Mr. Ewing, one of the petitioners, then asked for time within which to apply to the Supreme Court for a writ of prohibition against the judge, on the ground of a lack of jurisdiction after the filing of the application for a change of venue. The court refused to grant time for that purpose, his language being: "That will be refused. You must proceed with this case." To which Mr. Ewing replied: "I decline to proceed on account of the attitude of the judge." To which the latter replied: "I permitted you to file this application for a change of venue, although I thought it was a frivolous proceeding. If, however, the representatives of the Attorney General's office want to parade their ignorance before this court and the attorneys present, I guess I can stand it; but I want to warn you that I am getting tired of your frivolity and that you won't tamper any longer with the court" — adding: "Proceed with the trial of this case. Either continue, dismiss, or go on with the trial. The witnesses are present, the jurors are on hand, and the defendant has answered ready, and he is entitled to a trial at this time. I want to know what you are going to do?" To which Mr. Ewing said: "You are evidently about to fine us for contempt, but before you do so I want to say that we never filed a pleading with greater earnestness than when we filed this application for a change of venue." The judge, after again ordering them to proceed, said: "In view of the fact that you have filed in this court a motion which, to say the least, is frivolous, and because you refuse as representatives of the Attorney General's office to proceed with this case, I will adjudge you guilty of contempt and fine you $50 each, and I want satisfactory proof that these fines are paid out of your own pockets, and not out of the Attorney General's contingent fund." "We decline to pay the fines," said Mr. Ewing. "In that event," said the judge, "you are ordered committed to jail until the fines are paid or you are discharged by due course of law." Addressing the sheriff, the judge said: "Mr. Richter, take charge of these attorneys." Mr. Ewing then said to the court: "If it is necessary for somebody to go to jail in order that the state may get justice in this case, I am ready to go." "Be careful," said the judge, "or I will fine you again." From time to time during this scene petitioners asked that the court require the official stenographer to make a note of the proceedings in the order of their occurrence. The stenographer took a position in front of the court's bench preparatory to taking notes of the proceeding, when the court interrupted him, saying: "Never mind about that. This is a matter between the attorneys and the court." The stenographer, thus admonished, did not take the notes.

The variance between the facts, as disclosed in the testimony and as they appear in the findings of the trial court's judgment, renders a full transcript of the latter necessary to a correct understanding of the case. Omitting the caption, the certificate of the clerk as to the correctness of the transcript of the judgment, and incorporating only the body of the application for a change of venue, the judgment and order of commitment are as follows:

"Whereas, Lee B. Ewing and S. P. Howell, duly licensed and practicing attorneys at law, were adjudged guilty of contempt of court, and each of them, by the circuit court of Cole county, Missouri, for contempt committed in the immediate view, presence, and hearing of the court, by its judgment then and there pronounced, and entered of record among proceedings of said court on the 27th day of November, 1917, which said judgment is in words and figures as follows:

"`It is ordered and adjudged by the court that Lee B. Ewing and S. P. Howell, attorneys practicing in this court, and each of them, be fined $50 for contempt of court committed in the immediate view, presence, and hearing of the court, on the 27th day of November, 1917, while the circuit court of Cole county, state of Missouri, was in regular session, and during the sitting of said court for the transaction of business that might lawfully be brought before it for consideration, in this: That the said Lee B. Ewing and S. P. Howell, and each of them, did willfully, knowingly, and contemptuously file in this court, for and upon behalf of the state of Missouri, in a certain cause lawfully pending in said court, what purported to be an application for a change of venue in said cause, which application for a change of venue is in writing and in words and figures as follows: "Comes now the state of Missouri, plaintiff in the above-entitled cause, and files its application herein, and says that the Hon. John G. Slate, judge of this court, is prejudiced in this cause against the state, and that by reason of such prejudice the said judge, by the terms of section 5198, R. S. 1909, is disqualified and prohibited from sitting as judge of this court upon the trial of this cause. Wherefore the state says this court is disqualified to proceed further in this cause than in accordance to the provisions of section 5201 of R. S. 1909, and therefore prays that he make an order accordingly granting the state a change of venue herein." Which said foregoing motion and application for a change of venue was by the court overruled and denied. That thereafter and thereupon, and while the case of the State of Missouri v. John Scott was then and there pending before the court, wherein the said John Scott is charged with the crime of embezzlement and grand larceny, and while said Scott was present in person in court and by counsel, and demanding a trial, within his constitutional rights, upon said charge, and the said Lee B. Ewing was present in court as special counsel for the state of...