Ex Parte January

• Citation: 246 S.W. 241,295 Mo. 653
• Decision Date: 03 December 1922
• Docket Number: No. 24108.,24108.
• Parties: Ex parte JANUARY
• Court: United States State Supreme Court of Missouri

246 S.W. 241

295 Mo. 653

Ex parte JANUARY

No. 24108.

Supreme Court of Missouri, in Banc.

December 3, 1922.

Original application by M. T. January for a writ of habeas corpus directed against W. W. Marshall, as Sheriff of Vernon County. Writ granted, and prisoner discharged.

This is an original proceeding instituted in this court for a writ of habeas corpus begun by the petitioner alleging that he is illegally deprived of liberty by the sheriff of Vernon county, Mo. The facts of the case are undisputed, and agreed upon by the parties litigant.

The petition for the writ reads as follows:

"Now comes M. T. January, and states to the court that he is illegally deprived of his liberty by the defendant, W. W. Marshall, sheriff of Vernon county, Mo.; that he is being held in custody and restraint of his liberty by the said W. W. Marshall, sheriff of Vernon county, Mo., at Nevada, Mo.

"The petitioner states that the facts under which he is restrained of his liberty arose as follows:

"That he, M. T. January, at the October term, 1922, of the circuit court of Vernon county, Mo., was subpoenaed as a witness before the grand jury of Vernon county, Mo., at one of its regular sessions, held on the 5th day of October, 1922; that the question was propounded to him by the foreman of said grand jury, asking him whether or not he had purchased any intoxicating liquor within the last year; that he refused to answer said question, claiming the protection of section 23, article 2, of the Constitution of Missouri, that no person is required in a criminal case to give evidence against himself; and that he was taken by the foreman of said grand jury before Hon. B. G. Thurman, circuit judge for said county, and was questioned by said judge of the court in regard to said matter, that in the presence of said court he reiterated his refusal to answer said question before the grand jury, for the same reason; that thereupon said judge of said court found and adjudged him guilty of contempt of court, and issued a commitment directed to the sheriff of Vernon county, Mo.. committing him to jail until he purge himself of said contempt.

"That at the time he was asked said question by the foreman of the grand jury and declined to answer the same, he stated to the foreman of the grand jury that he refused to answer the same on the ground that an answer might tend to incriminate him, and that his declination was based upon his constitutional rights guaranteed him under the Constitution of the state of Missouri; that he stated the same to the judge of the circuit court of Vernon county, Mo., at the time he was questioned by said judge in regard to said matter.

"Petitioner states that the grand jury nor the circuit judge of Vernon county, Mo., had no right to require him to answer said question after he claimed the privilege guaranteed him by the Constitution of the state of Missouri.

"Wherefore, your petitioner prays the court to quash said commitment issued against him, a copy of which is hereto attached, and that the petitioner he given his liberty and be freed from said illegal restraint."

This petition was duly verified by the petitioner.

Upon the foregoing application being filed in and presented to this court, the writ in due form was issued and directed to the sheriff, W. W. Marshall, sheriff of Vernon county,

and was duly served upon him. In due time the said sheriff made the following return to said writ:

"Now comes W. W. Marshall, sheriff of Vernon county, Mo., and for his return to the writ of habeas corpus issued and served upon him herein, states that the prisoner, M. T. January, was placed in his custody on the 5th day of October, 1922, by and under authority of a certain warrant of commitment as set forth in a certified copy of an order and judgment of the circuit court of Vernon county, Mo., directing that said M. T. January stand committed to the county jail of said county for contempt of said court, as set forth in said order, and there to remain until he manifests a disposition to purge himself of said contempt; said warrant and commitment. being in words and figures as follows, to wit: * * *"

Then follows as a part of the return, a copy of the records of the circuit court of Vernon county, relating to the order adjudging the petitioner guilty of contempt:

"Circuit Court Record, Vernon County, Missouri. Thursday, October 5, 1922. Fourth Day of October Term. State of Missouri, Plaintiff, v. M. T. January, Defendant.

"Now on this 5th day of October, 1922, it being the fourth day of the regular October term, 1922, of this court, it appearing to the court that M. T. January, a witness before the grand jury of this county, refused to answer a proper question, to wit, `whether or not he had bought intoxicating liquor in Vernon county, Mo., at any time during the last 12 months,' and the said M. T. January after being ordered by the court to answer the question, refused to do so.

"It is therefore ordered by the court that said M. T. January be committed and stand committed to imprisonment in the county jail for contempt of court, for refusing to answer said question before said grand jury, and that the sheriff of this county take and place the said M. T. January in said county jail and there to remain until he manifest a disposition to purge himself of the contempt by his testifying as ordered."

In addition to the above return, the sheriff, in obedience to the writ issued by this court, produced the body of the petitioner before this court to be dealt with according to law; all of which was duly verified by the sheriff.

Thereafter and on the 14th day of October, 1922, petitioner filed his answer to said return, which said answer, omitting caption, is in words and figures as follows:

Answer.

"Now comes M. T. January, and, being duly sworn upon his oath, for answer: to the return of W. W. Marshall, sheriff of Vernon county, Mo., states that petitioner denies that he was guilty of a contempt of the circuit court of Vernon county, Mo., as set out in said return; and further alleges the facts to be as follows:

"It is true that on the 5th day of October, 1922, he was a witness before the grand jury of Vernon county, Mo., and that the question was asked him whether or not he had bought intoxicating liquor in Vernon county, Mo., at any time during the last 12 months, and that he refused to answer said question, and so stated to the grand jury at the time, on the ground that an answer to the same might incriminate him, and that he claimed his right to refuse to answer under and by virtue of the provisions of section 23 of article 2 of the Constitution of the state of Missouri.

"Petitioner further states that when he was taken before the circuit judge of Vernon county, Mo., by the foreman of the grand jury, he again claimed his exemptions and right to refuse to answer said question upon the same grounds, to wit, that the answer might incriminate him, and that he had a right to refuse to answer said question under the provisions of said section 23 of article 2 of the Constitution of the state of Missouri, and that the petitioner made such claim to the said Hon. B. G. Thurman, judge of said circuit court at the time.

"Petitioner states that he was entitled to refuse to answer said question, and that the said judge of the said circuit court of Vernon county, Mo., had no right to adjudge him guilty of contempt for refusal to do so, and that, for said reasons, said judgment and commitment are null and void.

"Wherefore your petitioner prays the court to quash said commitment and discharge him...