Houston v. Hennessey, 36657

• Citation: 534 S.W.2d 52
• Decision Date: 10 November 1975
• Docket Number: No. 36657,36657
• Parties: Ex parte William Clyde HOUSTON, Jr., Petitioner, v. Wm. J. HENNESSEY, Jr., Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 52

534 S.W.2d 52

Ex parte William Clyde HOUSTON, Jr., Petitioner, v. Wm. J. HENNESSEY, Jr., Respondent.

No. 36657.

Missouri Court of Appeals, St. Louis District, Division Two.

Nov. 10, 1975.

Arthur M. Schwartz, Denver, Colo., Tierney, Mushkin & McGuire, Thomas W. Tierney, Kansas City, for petitioner.

Andrew J. Minardi, Assoc. Cuunty Counselor, Frank J. Kaveney, Clayton, for respondent.

STEWART, Judge.

This is a proceeding in habeas corpus. Petitioner was found guilty of criminal contempt of the Circuit Court of St. Louis County by violating a temporary injunction of that court. The court sentenced petitioner to confinement in the county jail for one year and fined him $2500. For the reasons hereafter set out our writ heretofore issued is quashed.

A proceeding entitled Gene McNary v. William Clyde Houston, Dar's Inc. d/b/a Spanish Lake Cinema et al., was commenced in the Circuit Court of St. Louis County. The petition in that action alleged that petitioners and others were displaying a movie entitled 'Deep Throat' which was obscene and in violation of § 563.280 ¹ and prayed injunctive relief in accordance with § 563.285.

After an adversary hearing the court found the film to be obscene and in violation of § 563.280 and issued a temporary injunction enjoining petitioner and others 'from . . . exhibiting . . . showing or displaying to the public . . . the film 'Deep Throat', as viewed by the court, and any and all copies and duplicate originals thereof, and any and all other films entitled, 'Deep Throat', that publish and display substantially the same characters, scenes and dialogue contained in the film 'Deep Throat', as viewed by the court in this cause, and that lie within the . . . definition of obscenity as set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), . . .'

Neither petitioner nor the other persons enjoined sought relief from the temporary injunction. They filed no motion to dissolve the injunction and did not seek to have it modified or clarified.

On November 8, 1974, some 50 days after the temporary injunction had been issued, a motion picture entitled 'Deep Throat' was exhibited at the Spanish Lake Cinema under the management of petitioner. The following day contempt proceedings were initiated by the plaintiff in the injunction proceeding. An attachment and citation for contempt was issued ordering petitioner and others to show cause why they should not be adjudged in contempt for violation of the temporary injunction.

An evidentiary hearing on the show cause order was had which included a viewing of the film. At the conclusion of the hearing the court found beyond a reasonable doubt that petitioner had knowingly displayed a film entitled 'Deep Throat' which contained substantially the same characters, scenes and dialogues contained in the film 'Deep Throat' which was the subject of the temporary injunction. The court adjudged petitioner guilty of criminal contempt and placed him in the custody of respondent under a commitment order.

Upon application, this court issued a Writ of Habeas Corpus and admitted petitioner to bail. Respondent made a verified return to the writ in which the alleged that he held petitioner pursuant to the Commitment Order which followed the Judgment and Order entered by the court. Copies of the latter two documents were incorporated into the return. Petitioner's answer to the return was not under the oath of the petitioner as required by Rule 91.28, thus the allegations of the return must be taken as true. Gugenhine v. Gerk, 326 Mo. 333, 31 S.W.2d 1, 2 (banc 1930). We must accept as true the fact that the film 'Deep Throat' which is the subject of this action is obscene within the definition of Miller v. California, supra. The recent opinion of the Supreme Court in McNary v. Carlton, et al., 527 S.W.2d 343 (Mo.1975), is not apposite here.

Petitioner's only direct attack upon the Judgment and Order of the court finding him guilty of contempt is that the court erred in overruling petitioner's motion to disqualify the judge. The other contentions of petitioner are directed only at the temporary injunction. With respect to these contentions his 'Points Relied On' do not fully comply with Rule 84.04(d). From his argument it seems that he assails that part of the injunction which enjoins the display of all other films which are 'substantially the same' as the 'film Deep Throat as viewed by the court', as 'unconstitutionally vague', 'overbroad on its face' and 'an unconstitutional prior restraint of protected speech'. Petitioner focuses primarily upon the term 'substantially the same'. The factual issue of whether the film shown on November 8 was substantially the same as that which was first viewed by the court is not before us for determination. That the two films were substantially the same is conceded by the pleading in this proceeding.

I

We shall first discuss petitioner's contention that the court should have sustained petitioner's Motion to Disqualify Judge. The motion sought a change of judge pursuant to Civil Rule 51.05 and Criminal Rule 30.12. Constitutional courts of common-law jurisdiction have inherent power to punish for contempt. The proceeding is sui generis. One court may not try a contempt against another court. Although contempts are labeled civil and criminal they are not civil actions nor prosecutions for offenses in the ordinary meaning of those terms. It has been said that no change of venue will lie. Osborne v. Purdome, 244 S.W.2d 1005 (Mo. banc 1951). A reading of the authorities indicates that in contempt proceedings, the term 'change of venue' has not been used in the technical sense but also includes the term 'disqualification of the judge'. ² It is apparent that neither Rule 51.05 which provides for change of judge in civil cases, nor 30.12 providing for change of judge in criminal cases, is applicable here. Rule 35.01 which governs proceedings in criminal contempt provides for disqualification of judges only in those instances where the contempt involves disrespect to or criticism of a judge. In such instances the judge may not preside except with the consent of the defendant. This proceeding does not involve disrespect to or criticism of the judge.

The right to a change of venue, including objections to the judge, is a statutory privilege . . .' Erhart v. Todd, 325 S.W.2d 750, 752(1) (Mo.1959). Absent a specific rule or statute, litigants in a contempt proceeding have no right to disqualify a judge. Petitioner cites no rule or statute granting him the privilege.

There is language in some of the cases to the effect that where by the nature or facts of the case the judge cannot give the accused an impartial trial, that judge should not sit but should call for another judge. ³ Dictum in those cases states that failure to grant a change would deprive the accused of due process. The authority given for the dictum is State ex rel. McAllister v. Slate, 278 Mo. 570, 214 S.W. 85 (Mo. banc 1919). The question in McAllister was the right of the State to disqualify a judge in a criminal case. It was not a contempt proceeding. This case is governed by the general rule that, absent a special rule or statute, a petitioner in a contempt proceeding has no right to disqualify the judge.

We feel that judges are to be accorded the same presumption granted all public officers that they will faithfully carry out the duties of their offices. State ex rel. Heimburger v. Wells, 210 Mo. 601, 109 S.W. 758, 761 (1908). We are confident that judges will not undertake to preside in matters in which they will have a personal interest or where they can not be impartial.

Neither the nature of this case nor the facts distinguish it from any other case when the contemnor has violated an order of the court so as to indicate that the court could not give the accused an impartial trial. The accused on the day before the proceedings began assured the court he would be ready for trial. ⁴ The motion seeking to disqualify the court came...