In re Clark

• Citation: 106 S.W. 990,208 Mo. 121
• Parties: In re WILLIS H. CLARK, Ex Parte
• Decision Date: 24 December 1907
• Court: Missouri Supreme Court

106 S.W. 990

208 Mo. 121

In re WILLIS H. CLARK, Ex Parte

Supreme Court of Missouri

December 24, 1907

Petitioner discharged.

T. J Rowe and Hiram N. Moore for petitioner.

(1) It appears from the petition and return that petitioner was convicted without a hearing. The petition alleges that petitioner was denied a hearing, and the judgment fails to recite a hearing. Every valid judgment recites a hearing, and the validity of the commitment depends entirely upon the judgment. There can be no commitment without a valid judgment. Ex parte Arnold, 128 Mo. 256; Ex parte O'Brian 127 Mo. 477; People ex rel. v. Baker, 89 N.Y. 460. (2) Section 1616, Revised Statutes 1899, provides that the court has power to punish, as for a criminal contempt persons guilty of disorderly, contemptuous or insolent behavior in its immediate view, and presence; and section 1618 provides that such contempt and no other can be punished summarily. Absence from the court is neither disorderly behavior, nor contemptuous behavior, nor insolent behavior in the immediate view and presence of the court. The judgment fails entirely to show that petitioner's deportment, carriage, bearing, demeanor or manner was either disorderly, insolent or contemptuous. (3) Petitioner should be discharged for reasons following: First: The judgment is void, because it covers two distinct offenses, and if he desired to pay one fine which he considered legal, and refused to pay the other which was illegal, he could not purge himself of the contempt by paying the legal fine and would be forced to pay the illegal one to save himself from imprisonment. Second: Petitioner had twelve hours to make peremptory challenges, and it so appears on the face of the judgment, and therefore the facts as recited were not contumacious. Secs. 2619, 2621, and 2623, R. S. 1899. Third: He was convicted without a hearing. Fourth: The matters recited in the judgment do not warrant a conviction. In support of the foregoing propositions we cite the following authorities: Ingle v. Hale, 8 Blackf. 574. Contempt is in nature of a criminal proceeding. Railroad v. City of Wheeling, 13 Gratt. 40; Ruhl v. Ruhl, 24 W.Va. 279; Ficher v. Hayes, 6 F. 63; Brown on Jur. (2 Ed.), 404, 400, 115; In re Dill, 49 Am. Rep. 505; Elerbe case, 13 F. 530; U. S. v. Berry, 24 F. 783; Whitmann v. State, 36 Ind. 216; Leach's case, 51 Va. 630.

Arthur N. Sager and Grant Gillespie for respondent.

(1) Relator sued out a writ of habeas corpus in the St. Louis Court of Appeals, which was decided June 25, 1907, and the prisoner remanded to the custody of the sheriff. Special attention is invited to this opinion as it was based upon the same facts as is this case. (2) A court of record has authority to punish summarily for contempts committed within its presence. Green Co. v. Rose, 38 Mo. 390; State ex inf. v. Shepherd, 177 Mo. 205. (3) Section 1616, Revised Statutes 1899, has been declared unconstitutional, therefore, the common law prevails. State ex inf. v. Shepherd, 177 Mo. 205. (4) Under the common law a court of general jurisdiction was the sole judge of what constituted a contempt. Crawford in re, 13 Q. B. 613; Fernandez in re, 6 W. & N. 717; McAleece in re, 7 I. R. C. L. 146; Cobbett in re, 7 Q. B. 187; State ex inf. v. Shepherd, 177 Mo. 205. (5) The power of a court in habeas corpus to inquire into the legality of the commitment of one committed for contempt, is limited by the statute to the face of the commitment alone. Sec. 3576 and sec. 3579, R. S. 1899. (6) It was never intended to use the writ of habeas corpus as an appellate process, or to authorize a review of the action of the circuit court, which is a court of general jurisdiction, to determine whether petitioner was rightly or erroneously adjudged guilty of contempt. Ex parte Millett, 37 Mo.App. 82; In re Coppenhaver, 118 Mo. 377; Ex parte Gfeller, 178 Mo. 248; Ex parte Kneger, 7 Mo.App. 368; Ex parte Crenshaw, 80 Mo. 477; Ex parte Mason, 16 Mo.App. 41; State ex inf. Walker v. Dobson, 135 Mo. 1; Ex parte Goodin, 67 Mo. 637. The cases of Ex parte Arnold, 128 Mo. 256, and Ex parte O'Brian, 127 Mo. 477, are not applicable to the case at bar. There is a vast difference between courts of limited and courts of general jurisdiction. (7) As to what constitutes a sufficient commitment, see: Ex parte Haley, 37 Mo.App. 562; Ex parte Haley, 99 Mo. 150. The commitment in this case recites that the offense was committed in the presence of the court, that the court found as a fact that the action of the relator in delaying the court was wilful and an utter disregard of the authority of said court and further adjudged the said relator guilty of contempt and sets out the punishment which is within the limits prescribed by law and it is to this commitment alone that the appellate court is confined under the statutes cited, in determining the legality or illegality of the imprisonment of relator Clark. (8) It has been argued by counsel for relator that if a contempt was committed, it was not in the presence of the court. We are unable to agree with them on this proposition under the circumstances in this case. Mr. Clark appears in court and a trial is begun. The court sees him leave the court room. The court sees and knows of its own knowledge he is absent without its authority and sees and knows the proceedings of the court are stopped on account of his absence, and then the court sees him return and the proceedings begin on his return. It is not what Clark, the relator, did while absent from the court room, but the fact of his delaying the proceedings of the court by his wilful conduct in absenting himself during the progress of the trial. (9) The Supreme Court in the Shepherd case (177 Mo. 234), having declared section 1616, Revised Statutes 1899, unconstitutional, and having announced that the law is well settled that the Legislature has no power to take away, abridge, impair, limit, or regulate the power of courts of record to punish for contempts, and that the common law power still exists, then the proviso contained in section 3579, Revised Statutes 1899, which reads: "but nothing in this section contained, nor any other part of this chapter, shall be so construed as to prevent any prisoner from being discharged when the matter alleged in the order of commitment shall not, in point of law, amount to a contempt," would also be unconstitutional for the reason that at common law each court of general jurisdiction was the sole judge of what constituted a contempt, and being the sole judge of what constituted a contempt, and being the sole judge passing on the facts, the Legislature could not require the facts set out in a commitment in order that it might be ascertained whether or not such facts constituted a contempt, in point of law, because at common law it was not necsary to set out in the commitment the facts constituting the contempt.

OPINION

In Banc.

Habeas Corpus.

LAMM J.

-- Willis H. Clark, a member of the St. Louis bar, was fined for two separate contempts by the judge presiding in division 11 of the circuit court of that city. His person being seized under one mittimus issued on an omnibus judgment covering both fines, he sued out a writ of habeas corpus from this court. Such writ went, directed to Louis Nolte, sheriff of the city of St. Louis, commanding him to produce the body of said Clark before this Court In Banc at a date named.

STATEMENT OF THE CASE.

Attached to the petition and return of the sheriff are certified copies of the commitment on which petitioner is held ("Exhibit A") and of the judgment on which it issued ("Exhibit B"). As will hereafter appear, the cause is taken as submitted on the pleadings. This being so, it will be well to set forth the judgment, the petition and the return in full, giving the pith of the commitment and the reply to the return to round out the statement of the case.

The commitment follows closely the recitals and narrations of the judgment. If it vary at all, it is by way of condensation. Therefore, it need not be set forth. The curious may find it in full in In re Clark, 126 Mo.App. 391, 103 S.W. 1105.

The judgment, on which the commitment issued as an execution, follows:

"EXHIBIT B."

"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, 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 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, 1907, at ten o'clock a. m.; and thereupon the cause was laid over until said last-mentioned...