Ex Parte Welborn

• Decision Date: 14 November 1911
• Citation: Ex Parte Welborn, 141 S.W. 31, 237 Mo. 297 (Mo. 1911)
• Parties: Ex parte WELBORN. Ex parte MANSELL.
• Court: Missouri Supreme Court

141 S.W. 31

237 Mo. 297, 309

Ex parte WELBORN.

Ex parte MANSELL.

Supreme Court of Missouri, Division No. 2.

November 14, 1911.

1. DEPOSITIONS (§ 32)—CRIMINAL PROCEEDINGS—STATUTORY PROVISIONS.

Under Rev. St. 1909, § 5173, providing that a defendantin a criminal case may have witnesses examined conditionally as in civil cases, and Rev. St. 1909, § 6384, providing that a party in a civil suit may obtain the deposition of any witness to be used in such suit conditionally, there being no requirement of petitions and affidavits preliminary to the issuance of a commission, a commission to take depositions will issue on demand of a defendantin a criminal case as a matter of right without a preliminary showing, and is sufficient where the only application therefor was oral.

2. DEPOSITIONS (§ 17)—CRIMINAL PROCEEDINGS—STATUTORY PROVISIONS.

The method of taking depositions provided for by Rev. St. 1909, §§ 5171, 5172, which authorize the taking after the joining of an issue of fact in a criminal case, where a material witness is unable to attend, is not applicable to proceedings by a defendant under Rev. St. 1909, § 5173, to take the deposition of a witness who has testified before the grand jury which returned the pending indictment.

3. DEPOSITIONS (§ 39)—REQUISITES OF COMMISSION.

That a commission to take depositions was not directed to the notary who took such deposition by name will not render it invalid.

4. DEPOSITIONS (§ 17) — STATUTORY PROVISIONS—RIGHT TO CALL WITNESS.

That a person who has testified before the grand jury which indicted the defendant in a criminal case was subpœnaed by the state, and advised by the prosecuting attorney that he knew no facts which would benefit the defendant, will not prevent such defendant from examining him under Rev. St. 1909, § 5173, providing that a defendant in a criminal cause may have witnesses "conditionally" examined "on his behalf," as the determination whether a person is a witness in plaintiff's behalf, and whether he had knowledge of facts which would benefit the defendant in the trial, is for the defendant and his counsel, and is conclusively made by the citing of such a witness to give his testimony thereunder.

5. DEPOSITIONS (§ 71) — PROCEEDINGS FOR TAKING DEPOSITIONS — REFUSAL TO BE SWORN—ADVICE OF COUNSEL.

While the fact that a person committed for a contempt punishable by a fine or fixed term of imprisonment acted on the advice of counsel might mitigate the punishment, it cannot avail to discharge a contemnor committed for the purpose of coercing his compliance with a lawful order made by lawful authority, so that it would not excuse a person committed for a refusal to recognize the authority of a notary before whom he was subpœnaed to give his deposition under a statute providing for a conditional deposition in criminal cases.

6. STATUTES (§ 222)—COMMON LAW—DIFFERENCE IN POLICY.

The policy of the law is to be gathered from the statutes, and, as the purpose of a statute whose policy differs from that of the common law was to supplant the common-law policy with another, no considerations of policy derived from the common law can be relied upon to overturn statutes.

7. GRAND JURY (§ 41)—SECRECY.

Rev. St. 1909, §§ 5026, 5027, 5056, 5057, 5097, indicate that the policy of the law is to permit the greatest freedom in allowing the defendant in a criminal case knowledge of who the state's witnesses are and in examining them. Held, that a common-law rule requiring the keeping secret of proceedings of a grand jury will not prevent such defendant from taking under Rev. St. 1909, § 5173, the deposition of a witness, who has appeared before the grand jury and whose name is indorsed on the indictment, to determine whether he is in possession of facts which would benefit the defendant on the trial.

8. GRAND JURY (§ 41)—SECRECY—TESTIMONY BEFORE GRAND JURY.

The taking of a person's deposition is equivalent to his being required to testify, and a person who has testified before a grand jury and who has taken the oath which is required by Rev. St. 1909, § 5070, binding him not to disclose any fact concerning which he "shall here testify, unless lawfully required to testify in relation thereto," will not preclude him from giving his deposition in a proceeding under Rev. St. 1909, § 5173, to take a deposition conditionally by defendant in a criminal action.

9. WORDS AND PHRASES—"TESTIFY."

To "testify" is to make a solemn declaration, verbal or written, to establish some fact.

10. HABEAS CORPUS (§ 85)—EVIDENCE.

In habeas corpus for the discharge of a person committed for contempt in refusing to be sworn or answer questions in proceedings to take depositions before a notary, evidence held to show no bad faith in taking such depositions which would excuse the person committed.

11. DEPOSITIONS (§ 71)—CONTEMPT.

Where, on the refusal of a person to be sworn and to testify on a commission for a deposition, the notary before whom the proceedings were taken committed such, person for contempt, and the record of the notary sets forth all the facts constituting the contempt, and shows an order and "judgment" that the person be committed for the doing of the things which constituted it, the fact that the word "contempt" is not used is no such irregularity as will render the commitment void.

12. DEPOSITIONS (§ 64)—PROCEEDINGS FOR— EXTENT OF EXAMINATION.

Under Rev. St. 1909, § 5173, which authorizes the taking in civil cases of the deposition of any witness by defendant in a criminal case, the extent to which the examination may go is the same as in the taking of depositions in civil cases.

13. CONSTITUTIONAL LAW (§ 70)—JUDICIAL FUNCTIONS—INTERFERENCE WITH LEGISLATURE—WISDOM OF STATUTES—POLICY—POWER OF COURTS.

The courts have nothing to do with the policy of a statute.

Original applications for writs of habeas corpus by A. N. Welborn and by one Mansell to obtain release from a commitment for contempt. Petitioners remanded.

Walter L. Chaney, for petitioners.Jas. W. Suddath and N. M. Bradley, for respondent.

BLAIR, C.

An indictment was returned in the circuit court of Johnson county against Benjamin M. Wilkinson, one count of which charged him with obtaining money from petitioner under false pretenses, and the other charged him with stealing the same money.Petitioner was a witness before the grand jury, and his name was indorsed upon the indictment.Wilkinson was arrested, arraigned, and entered his plea of not guilty.

Thereafter, on the oral application of Wilkinson's attorney, the clerk of the court in which the indictment was pending issued a commission in the usual form to take depositions, notice was given the prosecuting attorney as required by the statute, and petitioner was duly subpœnaed to give his deposition in the case of State v. Wilkinson before Charles W. Fulkerson, a notary public.Petitioner ignored the subpœna, and was brought in by attachment, whereupon he filed a written statement of his reasons for refusing to recognize the notary's authority, refused to be sworn, and refused to answer questions put to him by Wilkinson's counsel.Efforts to induce petitioner to reconsider were unavailing, and he was committed for contempt.He brings this proceeding to obtain his release by writ of habeas corpus.The statute(section 2472, R. S. 1909) plainly marks the boundaries of the discussion in this case, viz.: "It shall be the duty of the court or magistrate forthwith to remand the party, if it shall appear that he is detained in custody * * * for any contempt, specially and plainly charged in the commitment, by some court, officer or body, having authority to commit for a contempt so charged."The power of a notary engaged in taking depositions to commit a witness for contempt is not questioned, but it is contended that there was no lawful occasion for the exercise of that power in this instance.

The principal contentions are that the notary had no authority to commit petitioner because (1) the commission was void; (2)he was a witness for the state and consequently could not be a witness in defendant's "behalf"; (3)petitioner having been before the grand jury, his name being indorsed on the indictment, and he having been subpœnaed as a witness for the state on the trial, his testimony is a "state secret"; (4) to give his deposition would be violative of his oath before the grand jury; and (5) that the taking of the deposition was not in good faith.

1.The commission was not invalid because issued on an oral, instead of written and verified, application.The right to take depositions in criminal cases is statutory, and the statute required no affidavit or written application.Since the defendant may have witnesses examined conditionally in his behalf exactly as in civil cases(section 5173, R. S. 1909), save that a commission must issue, and since in civil casesa party to a pending suit "may obtain the deposition of any witness, to be used in such suit, conditionally"(section 6384, R. S. 1909), the commission under section 5173 issues on demand as a matter of right without any preliminary showing.The deposition of any, consequently every, witness may be taken, and the sole prerequisite to the issuance of a commission under section 5173 is that defendant desires one, and asks for it.An affidavit or written application setting forth such desire could serve no useful purpose.The Legislature saw no reason for it, and neither do we.When it deemed them necessary, that body expressly required petitions and affidavits preliminary to the issuance of commissions (sections 6398,6420), and the omission to make such requirement in section 5173 was clearly deliberate.Decisions in cases arising in...