Ex parte Miles

• Decision Date: 11 August 1966
• Docket Number: No. 24585,24585
• Parties: Ex parte John Sherman MILES.
• Court: Missouri Court of Appeals

Page 107

406 S.W.2d 107

Ex parte John Sherman MILES.

No. 24585.

Kansas City Court of Appeals, Missouri.

Aug. 11, 1966.

Lewis E. Pierce, Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for petitioner.

Lawrence F. Gepford, Jackson County Pros., R. Bruce Sears, Asst. Pros. Atty., Kansas City, for respondent.

ORIGINAL PROCEEDING IN HABEAS CORPUS

BLAIR, Judge.

This is an original proceeding in habeas corpus by which the petitioner, John Sherman Miles, seeks to be discharged from the custody of Arvid Owsley, Sheriff of Jackson County, who restrains him of his liberty by virtue of a commitment for contempt entered against him by the Circuit Court of Jackson County on a charge and judgment that Miles attempted to tamper with a juror and thereby to interfere with the administration of justice. The circuit court sentenced him to confinement in the county jail for 12 months and to pay a fine of $1,000.00. Sufficient it is to say that appropriate pleadings have put this proceeding properly at issue and that it has been submitted to us on these pleadings, the transcript of testimony on which the trial court based its commitment, the commitment itself, and the oral arguments and written briefs in this court.

Our view of this controversy requires that we set out the commitment in full to enable easy comparison of its recitals with the observations and rulings we make in deciding this proceeding. Its recitals follow:

'Now on this 30th day of March, 1966, the Court having heretofore on March 23, 1966, heard the evidence in this matter and taken the same under advisement, now on this day being fully advised, finds beyond a reasonable doubt as follows:

'1. That on January 31, 1966, John Sherman Miles, contemnor herein, made two telephone calls to one Cecil L. Wendleton, a person acquainted with one Fred L. Johnson, who was on that date serving as a juror in criminal cause C--34186 entitled State of Missouri vs. John Sherman Miles, which cause was then being tried in Division No. 11 of this court before the Honorable J. Donald Murphy; that in said telephone conversations, contemnor herein, requested and solicited the said Wendleton to attempt to bribe and tamper with said juror Johnson by offering to pay two hundred dollars each to said Wendleton and Johnson, is said joror Johnson by his conduct could in some manner obtain a mistrial in the criminal case then being tried, and contemnor requested said Wendleton to contact said juror Johnson and inform him of the proposed bribe.

'2. That on the same date said Cecil L. Wendleton was also contacted on the telephone by one Al Sullivan, a person with whom contemnor was acquainted, and that said Wendleton was asked by Sullivan to contact juror Johnson on behalf of the contemnor herein who was the defendant in the criminal cause then on trial.

'3. That the said Cecil L. Wendleton did contact juror Johnson pursuant to Sullivan's request and talked to him about the case in which Johnson was then sitting as a juror, and attempted to influence said Johnson's judgment as a juror by telling him that he, Wendleton, was personally acquainted with John Sherman Miles, and that he would appreciate it if Johnson would stand up and say a good word for Miles.

'4. That in addition to the two telephone calls made directly by contemnor to Wendleton, contemnor Miles procured the said Sullivan to call Wendleton and ask Wendleton to contact juror Johnson with the intention of affecting said juror Johnson's judgment in the case in which he was then sitting as a juror.

'5. That by reason of the foregoing facts, contemnor is guilty of an attempt to tamper with the said juror Fred L. Johnson, and such conduct on the part of contemnor constitutes a criminal contempt on this court and an interference with the administration of justice.'

The petitioner and the respondent are in agreement that the commitment is for indirect criminal contempt and they are correct. Ex parte Clark, 208 Mo. 121, 106 S.W. 990, 996--998, 15 L.R.A.,N.S., 389; Curtis v. Tozer, Mo.App., 374 S.W.2d 557, 568. The petitioner contends that a review by us of the evidence before the committing court will establish that it was insufficient to support the commitment and therefore that he is entitled to be discharged. Although the petitioner and the respondent are in disagreement concerning the extent of the review we must make of the evidence, an unvarying line of decisions firmly establishes the rule that the commitment is not conclusive on us and that it is our duty to go behind its recitals and to analyze all of the evidence on which they are based and to determine whether they are supported by the evidence. Ex parte Creasy, 243 Mo. 679, 148 S.W. 914, 41 L.R.A.,N.S., 478; Osborne v. Purdome, Mo., 250 S.W.2d 159; Curtis v. Tozer, supra, 374 S.W.2d l.c. 570. Furthermore, if we find that the recitals of the commitment are supported by the evidence, we must further find that such evidence establishes petitioner's guilt of indirect criminal contempt beyond a reasonable doubt. In Curtis v. Tozer, supra, l.c. 581, the St. Louis Court of Appeals, dealing with a habeas corpus proceeding brought by a number of petitioners committed for indirect criminal contempt, said: 'Those jurisdictions in which contempt proceedings are regarded as quasi-criminal in nature require a standard of proof greater than a mere preponderance of the evidence but less than beyond a reasonable doubt. 12 Am.Jur., Contempt, Sec. 75. We are spared the difficulties attendant upon putting into words a degree of proof that would be between those poles. In Missouri, although we deny that such proceedings are criminal in nature, Osborne v. Purdome, Mo., 244 S.W.2d 1005, l.c. (8, 9) p. 1012, 29 A.L.R.2d 1141, we require that guilt be proved beyond a reasonable doubt. Osborne v. Purdome, Mo., 250 S.W.2d l.c. (11) p. 163.' Following this declaration of the law, the court examined the testimony for and against each petitioner and determined as to each whether he was guilty beyond a reasonable doubt. The petitioners not shown to be guilty beyond a reasonable doubt were discharged.

The relevant evidence was must review was as follows: Fred L. Johnson testified that on January 31, 1966, he was serving as a juror in the Circuit Court of Jackson County in a criminal case entitled 'State of Missouri v. John Sherman Miles', the petitioner. The trial commenced on that day and was recessed at 4:30 P.M. until the next day. Johnson went home and shortly received a telephone call from Cecil Wendleton who worked with him as a meat cutter at Topper's Food Market in Kansas City. Asked what the nature of the call was, he testified 'Well, he asked me what I was doing, how the trial was proceeding, and I proceeded to ask him what trial he meant. Kind of caught me off guard wondering how he knew I was on a trial, being as i was just going down for jury duty. So I proceeded to ask him. He said the trial you are on. I said 'What trial do you mean?' He said 'John Sherman's trial'. I said 'How do you know that?' He said, 'I just know it.' I says, Well, Cecil you will have to tell me because this could have some bearing on my thought as far as this man's trial. I am supposed to be able to have a clear conscience on the man's trial. * * * I just told him that I had to know because it could have a bearing on the trial, and I wanted to give a fair decision to this man, as fair as I could, and I was told when the trial started that if I knew anybody that knew anybody on the trial that I shouldn't be on the jury.' According to the record, this is the extent of the conversation Johnson said he had with Wendleton that day. However, Johnson testified that the conversation 'worried' him and the next morning he called Wendleton 'and told him exactly that I needed to know what I asked him the day before, and I said, I just asked him if anybody had wanted me to do anything and he said no, that he was just wondering how the trial was going.' When he went to court that morning he informed the judge of these conversations and a mistrial was declared.

Cecil Wendleton testified that on January 31, 1966, 'about 5:15' P.M. one Al Sullivan telephoned him. The testimony of what Sullivan said to Wendleton during this call is woefully sketchy, obscure and unsatisfactory. The most that was elicited from Wendleton regarding the subject to Sullivan's call resulted from an effort finally made by the court: 'The Court: Did Sullivan say anything to you about the Miles case? The Witness: Yes. The Court: Until you got the call from Sullivan, did you know that your friend, Johnson, was on the Miles case? The Witness: No, sir.' He testified that Sullivan requested him to call Johnson as a personal favor to him. A study of this record from end to end fails to disclose exactly what Sullivan wanted Wendleton to say to juror Johnson, unless it is to be inferred from what Wendleton did say to him when he called him at Sullivan's request about five minutes after Sullivan's call. He testified: 'I said, Hello, Fred, how are you,' and he said, 'Hello Cec', he calls me instead of Cecil, and I said, 'How is your jury duty doing,' something like that and I think he said, 'All right' and I asked him, I said, 'What is it, the John Miles case?' and he said 'Yes'--he didn't say yes, he said 'How do you know that?' I told him I had heard it and--I am trying to remember. He kept asking me how I knew it, and I told him I had just heard it and that I had known him (petitioner) a long time. If he (Johnson) would stand up and say a good word, or something like that. * * *.' He also testified that he told Johnson that Miles was his friend and that he was 'a good boy, or something like that.' He admitted that juror Johnson did call him the next morning but his version of the conversation differs from that of Johnson. 'Q. What was the nature of that conversation? A. He told me what he had to do. Said he had talked with the deputy...