In re Clark

• Citation: 103 S.W. 1105,126 Mo. App. 391
• Parties: In re CLARK.
• Decision Date: 25 June 1907
• Court: Missouri Court of Appeals

103 S.W. 1105

126 Mo. App. 391

In re CLARK.

St. Louis Court of Appeals. Missouri.

June 25, 1907.

1. CONTEMPT—DIRECT CONTEMPT DEFINED.

Criminal contempts are direct when committed in the face of the court, or when committed out of the view of the court, if they tend to impede, embarrass, or obstruct the court in administering justice.

2. SAME—JUDGMENT ENTRY.

The judgment entry in a contempt proceeding against an attorney, reciting that the court was "of the opinion that said delay [in attending court] on the part of said C. was intentional," imports that some inquiry was had and the attorney adjudged guilty of contempt upon the evidence heard.

3. HABEAS CORPUS—REVIEW — MATTERS DEHORS THE RECORD.

Matters dehors the record may not be investigated on habeas corpus.

4. SAME—PRESUMPTIONS.

Where a judgment adjudging an attorney guilty of contempt showed his absence from court delayed a criminal trial, on habeas corpus, when it is shown that the delay was less than 12 hours, it must be presumed he waived the statutory right to 12 hours in which to make jury challenges in that case, since the recitals of the judgment must be accepted as absolutely true, and every reasonable inference made to uphold its validity.

5. CONTEMPT — ATTORNEY'S ABSENCE FROM COURT.

The absence of an attorney from the court in which he has business, and when he should be there to attend to it, and when his absence necessarily impedes or delays the court's business, is contempt of court.

6. SAME—JUDGMENT—SUFFICIENCY.

A judgment of conviction of contempt was not void as incorporating two distinct offenses in one judgment, where petitioner was adjudged guilty of two offenses on the same day, and each offense was separately adjudicated, and their adjudication separately stated in the judgment, and the fines assessed were separately stated; that the two judgments were recorded in one entry not making them one judgment.

7. SAME—IMPRISONMENT UNTIL PAYMENT OF FINE AND COSTS—VALIDITY OF JUDGMENT.

A judgment imprisoning one for contempt until the fines and costs are paid is valid; the clause "or until he be discharged according to law" being unnecessary to entitle the party committed to discharge on complying with the statute respecting the discharge of insolvent persons.

8. HABEAS CORPUS — REVIEW — PUNISHMENT FOR CONTEMPT.

Where the commitment for contempt is issued by a court of common-law jurisdiction and having a seal, if the court has jurisdiction of the person, its jurisdiction cannot be assailed in a habeas corpus proceeding, and review is precluded, for the court has inherent jurisdiction of the subject-matter to punish for contempt.

9. CONTEMPT—WHAT CONSTITUTES.

Rev. St. 1899, § 1616 [Ann. St. 1906, p. 1199]. does not preclude a court of record from punishing an attorney for contempt for willfully absenting himself from court because it does not specify such conduct among the contempts punishable.

Petition by Willis H. Clark for a writ of habeas corpus. Petitioner remanded to custody.

Thos. J. Rowe, for petitioner.

GOODE, J.

On Friday, May 10, 1907, the following proceedings were had in division No. 11 of the circuit court of the city of St. Louis:

"State of Missouri, Plaintiff, v. August Wilkins, Defendant; Willis H. Clark (Attorney for Defendant), Respondent. No. 44 to the April Term, 1907. Whereas, the above cause wherein the state of Missouri is plaintiff and August Wilkins is defendant, pending in division No. eleven of the circuit court of the city of St. Louis, was set for trial in said court on Monday, May the sixth (6th), 1907, the respondent, Willis H. Clark, a member of the bar of the city of St. Louis and an attorney at law practicing in said court appearing for the defendant, and thereupon said cause being called for trial the defendant, by his said attorney, announced that the defendant was not ready for trial, and thereupon the court granted said defendant and his said attorney until two o'clock p. m. of said day to prepare and present his application for a continuance under the statute in such cases made and provided; and, whereas, thereafter, at two o'clock p. m on said sixth day of May, 1907, said Willis H. Clark, as attorney for the defendant in said cause, presented his duly verified application for a continuance, which application, after due consideration by the court, was overruled, and thereupon the said Willis H. Clark, as attorney for said defendant, August Wilkins, requested the court for a short time to enable the defendant to secure the presence of certain witnesses, and in pursuance of such request the court thereupon granted the defendant until Thursday May ninth (9th), 1907, at ten (10) o'clock a. m., and thereupon the cause was laid over until said last-mentioned day; and, whereas, on Thursday, May 9, 1907, at ten o'clock a. m., said cause being called again for trial, it was made to appear to the court that said Willis H. Clark was engaged in the trial of a case in division No. twelve of said circuit court of the city of St. Louis, and thereupon the above cause of the state of Missouri v. August Wilkins was laid over until five (5) o'clock p. m. of said date, and notice thereof was given to the respondent, Willis H. Clark, of such setting; and, whereas, said Willis H. Clark appeared in this court at five (5) o'clock p. m., the court then being in session, and requested that the above cause be laid over until nine (9) o'clock a. m. Friday, May tenth (10th), 1907, and thereupon, at the request of said Willis H. Clark, the above cause was laid over until Friday, May tenth (10th), at nine (9) o'clock a. m.; and, whereas, the above court duly convened and was duly opened for business at nine (9) o'clock a. m.; and, whereas, said court was compelled to wait and did wait until nine-fifteen (9:15) a. m. because of the absence of said Willis H. Clark and because of his failure to attend court at nine (9) o'clock a. m.; and, whereas, said Willis H. Clark, by reason of his failure to be present at nine (9) o'clock a. m., on said tenth (10th) day of May, 1907, delayed the court and interfered with the proceedings of said court by his failure to be so present; and, whereas, the court was of the opinion that said delay on the part of said Willis H. Clark was intentional: It is therefore adjudged by the court that said Willis H. Clark was guilty of contempt of this court by reason of his willful failure to be present in court on the calling of said case. It is therefore ordered and adjudged by this court that said Willis H. Clark, by reason of his said conduct, was and is guilty of contempt of the authority of this court committed in its presence on this tenth day of May, 1907. And, whereas, after the jurors (to the number of thirty-four) were duly examined on their voir dire in the above-entitled cause, wherein the state of Missouri is plaintiff and August Wilkins is defendant, said defendant being represented by said Willis H. Clark, as his attorney, and while the court was in session, waiting upon counsel acting in behalf of the state and in behalf of the defendant, to make their challenges, the said Willis H. Clark asked leave of court to leave the courtroom for not to exceed ten (10) minutes, until he could get a case, in which he was counsel, then pending in the St. Louis court of criminal correction, passed or continued, and thereupon the court granted said Willis H. Clark leave to absent himself for a few minutes for the purpose of having the case pending in said St. Louis court of criminal correction passed or continued; and, whereas, the court did excuse said Willis H. Clark for the purpose aforesaid at ten-forty (10:40) o'clock a. m.; and, whereas, said Willis H. Clark did not return into this court until eleven-thirty-five (11:35) a. m., and then announced to this court that he had been engaged in trying a cause in the St. Louis court of criminal correction; and, whereas, said Willis H. Clark, delayed the trial of said cause of the state of Missouri v. August Wilkins for the space of fifty-five (55) minutes without just reason or excuse; and, whereas, this court doth find as a fact that said failure on the part of said Clark to promptly return into court and continue the trial of the above cause, which was then on trial, was willful and in utter disregard of the authority of this court; and, whereas, said Willis H. Clark was, by reason of his conduct aforesaid, guilty of contempt of this court by such misconduct in its presence: It is therefore ordered and adjudged that said Willis H. Clark, by reason of his said conduct, was and is guilty of contempt of the authority of this court, committed in its presence on this tenth (10th) day of May, 1907; and it is further ordered that said Willis H. Clark for the first offense above mentioned be fined, and he is hereby fined, the sum of ten dollars ($10); and it is further ordered that said Willis H. Clark be fined, and he is hereby fined, for the second offense or contempt above mentioned the sum of twenty dollars ($20). And it is further ordered and adjudged that the said Willis H. Clark, for his said contempts of court, as aforesaid, shall pay to the state of Missouri for the use of the city of St. Louis the fines above mentioned, aggregating the sum of thirty dollars ($30) on or before the fourteenth (14th) day of May, 1907, and in default of the payment of said sum that he be committed to the jail of the city of St. Louis until said sum shall have been paid. And it is further ordered that a certified copy of this order under the seal of the court be process and warrant for executing this order."

The fines adjudged to be paid were not paid by Mr. Clark on or before the 14th day of May, and on the 15th of the month, the clerk of said court made out and delivered to the sheriff of the city of St. Louis the following commitment:

"City of St. Louis, State of Missouri—ss.: To the Sheriff of the City of St. Louis— Greeting: Whereas, on the...