Ex Parte Shull

• Decision Date: 29 June 1909
• Citation: 221 Mo. 623,121 S.W. 10
• Parties: Ex parte SHULL.
• Court: Missouri Supreme Court

121 S.W. 10

221 Mo. 623

Ex parte SHULL.

Supreme Court of Missouri, Division No. 2.

June 29, 1909.

1. HABEAS CORPUS (§ 85) — PUNISHMENT FOR CONTEMPT — NATURE OF PROCEEDINGS — PRESUMPTIONS.

Commitment for contempt for alleged disrespect to the court is a criminal proceeding by which the citizen is deprived of his liberty, and hence presumptions and intendments will not be indulged to sustain a conviction.

2. CONTEMPT (§ 64) — COMMITMENT — DESCRIPTION OF OFFENSE — STATUTES.

Rev. St. 1899, § 3576 (Ann. St. 1906, p. 2023), provides that it shall be the duty of the court or magistrate to forthwith remand the party appearing on habeas corpus if it appears that he is detained in custody for any contempt plainly charged in the commitment by some court, officer, or body having authority to commit for the contempt charged. Held, that a commitment for contempt for treating the court disrespectfully in refusing to answer questions as a witness, failing to state in what respect the disrespect consisted, or to find that the questions were material and pertinent, was fatally defective.

Petition for habeas corpus on relation of Samuel S. Shull. Writ allowed. Relator discharged.

Warren C. Rogers, for relator.

GANTT, P. J.

By this proceeding we are asked to review a commitment of petitioner by the circuit court of Buchanan county for an alleged contempt. It appears that on May 7, 1909, the petitioner appeared in division No. 1 of the circuit court of Buchanan county, in obedience to a subpœna duces tecum, requiring his presence in said court to testify in a certain cause wherein Mrs. William F. Keller was plaintiff and Eva R. Roth and the Bank of North St. Joseph were defendants, and to bring with him certain tax bills mentioned in the petition in said cause, which the plaintiff therein sought to have canceled. It appears that when said cause was called for trial by Hon. C. A. Mosman, the judge of said court, the plaintiff announced ready for trial provided the tax bills called for in the subpœna were in court. Petitioner was then called to the witness stand and was asked if he had said tax bills, and he answered that he did not have them when the subpoena was served and had not had them since that in his possession or under his control. He declined and refused to answer when he last had them or how shortly before the service of the subpœna duces tecum upon him. Petitioner at all times objected to being interrogated because there was no case on trial. He insisted he was there to obey the subpœna duces, and it would be time enough, when the plaintiff and defendants had announced ready and the trial begun, to ask him for said tax bills, and had no right to subject him to said examination in this manner before announcing ready in the cause and proceeding to trial. After a lengthy parley between the opposing counsel, the court, and the witness, the court finally directed him to answer whether he had said tax bills in his possession when a notice to produce them had been served upon him prior to the service of the subpœna duces, and petitioner refused on the ground that no foundation had been laid for such an order, that section 738, Rev. St. 1899 (Ann. St. 1906, p. 728), provided how plaintiff should proceed, but in any event he had stated he did not have the tax bills when the subpœna duces was served on him, nor had he possession of them since that time. They were not in the possession of any agent of his or subject to his control, and such a proceeding would be futile and unavailing, and he therefore requested the court not to require him to answer further under the circumstances; but the court required him to do so, and upon his refusal the court ruled it would commit petitioner for contempt.

Thereupon the following commitment was entered of record and was issued by the court: "In the Circuit Court of Buchanan County, Missouri, Division No. 1. Mrs. William F. Keller, Plaintiff, v. Eva Roth et al., Defendants. No. 18,858. State of Missouri, Plaintiff, v. Samuel S. Shull, Defendant. Now at this time Samuel S. Shull being in contempt of court, having treated the court disrespectfully in refusing to answer proper and legal questions propounded to him in this case while a witness on the witness stand in the case of Keller, Plaintiff, v. Roth et al., Defendants, No. 18,838, after it had been repeatedly ruled by the court that he should answer them, and after being admonished by the court that in the judgment of the court the questions were legal and proper, and declining and refusing to answer them or any of them, saying to the court that he did not think the questions were proper and legal and that he would not answer them, and that he willfully and intentionally refused to answer such questions as were propounded to him after it had been decided by the court that the questions were legal and proper and should be answered by him as a witness. It is hereby ordered and adjudged that the said Samuel S. Shull is guilty of contempt of court in treating the court disrespectfully, and he is hereby committed to the jail of Buchanan county, and the sheriff of said county is hereby commanded to take charge of the body of the said Samuel S. Shull and commit him to jail and there safely keep him for a period of five days unless he shall in the meantime before the expiration of said five days come into court and make answers in court to the questions propounded to him. A true copy. Attest. Ambrose Patton, Clerk, By J. H. Farris, D. C. [Seal.]" By virtue of this commitment the sheriff took petitioner into his custody and committed him to jail, and thereupon petitioner sued out this writ of habeas corpus, and the sheriff has made his return, and both parties have submitted the case to this court upon briefs.

Two grounds are advanced by the petitioner for his discharge, to wit: First, the...