In re Howell

• Decision Date: 05 January 1918
• Citation: In re Howell, 273 Mo. 96, 200 S.W. 65 (Mo. 1918)
• Parties: In re SHRADER P. HOWELL and LEE B. EWING,
• Court: Missouri Supreme Court

200 S.W. 65

273 Mo. 96

In re SHRADER P. HOWELL and LEE B. EWING,

Supreme Court of Missouri, Second Division

January 5, 1918

Petitioners discharged.

Frank W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General, for petitioners; W. T. Rutherford of counsel.

(1) In habeas corpus, when the petitioners seek release from punishment for an alleged criminal contempt, this court will go behind the return, commitment and judgment, and ascertain the facts, and determine whether or not the facts warrant the judgment. Ex parte Creasy, 243 Mo. 679; Ex parte O'Brien 127 Mo. 477. (2) Direct criminal contempt of court is defined to be "disorderly or insolent behavior committed during the session and in the immediate view and presence of the court, directly tending to interrupt its proceedings or impair respect due its authority . . . or wilful disobedience of any process or order lawfully issued or made;" or "wilful disregard of the authority of the court rightfully exercised;" or "wilful disregard of the authority of courts." R. S. 1909, sec. 3881; Powell v. State, 48 Ala. 156; Black's Law Dictionary (2 Ed.), p. 257; Anderson's Law Dictionary, p. 242; 2 Words & Phrases, p. 1489; Bouvier's Law Dictionary. (a) That which is done by permission of the court cannot be done in defiance of the court or in contempt of the court. That which is done respectfully, cannot be done insolently or contumaciously. "He is not to be heard, who alleges things contradictory of each other." Broom's Legal Maxims, 135. (b) There can be no criminal contempt of court where the act is done in good faith, and in the honest belief that it is authorized by the facts and the law. Therefore petitioners cannot be guilty of contempt, if they filed the affidavit in question in good faith, believing that the judge was prejudiced and that the law authorized the procedure. This is true, notwithstanding petitioners might have been mistaken, both as to the law and the facts. Broom, Leg. Max 256; Rapalje, Contempt, sec. 121; Oswald, Contempt, 56, 57, 51, 52; Willis v. Comm., 21 Gratt. (Va.) 500; In re Wooley, 74 Ky. 95; Ex parte Biggs, 64 N.C. 202; People v. LaFetra, 171 App.Div. (N.Y.) 275; Clair v. State, 40 Neb. 534; Hawes v. State, 46 Neb. 149; State v. Jasper, 88 S.E. (W. Va.) 1096; Thomas v. People, 14 Colo. 257; Ex parte Curtis, 3 Minn. 274; Mullins v. People, 15 Colo. 441. (c) If, after filing the affidavit of prejudice against the judge, petitioners refused to proceed because they in good faith believed the judge was without any further jurisdiction, to try the cause, then petitioners were not guilty of any contempt. Authorities above. (3) In filing the affidavit, charging Judge Slate with prejudice, and in refusing to further proceed with the cause, and asking leave to apply to the Supreme Court for a writ of prohibition, did the petitioners act in good faith? Upon the uncontroverted facts, this question must be answered in the affirmative. (a) Because petitioners asked and obtained leave to file the application and affidavit before it was filed. (b) Because the petitioners were respectful and courteous in manner and conduct, when filing the affidavit and while refusing to proceed and asking to be allowed time to apply for a writ of prohibition. (c) Because the judge had stated that he expected to rule in the case then about to be tried (State v. John W. Scott), as he had ruled in the former Scott case. In the latter case the paramount issue was the intent with which the act was done, and the State had offered testimony of like transactions by the accused for the purpose of showing intent. This testimony was excluded. This ruling was wrong and very prejudicial to the State. The statement of Judge Slate that he would adhere to this rule in the cause pending, which was the same character of a case, the same charge, larceny and embezzlement, the same prosecuting party, and many witnesses the same, clearly showed prejudice, to-wit, prejudgment. Such character of testimony was clearly admissible. State v. Patterson, 196 S.W. 3; State v. Schnettler, 181 Mo. 189, 190; State v. Williams, 136 Mo. 294, 297, 308; State v. Myers, 82 Mo. 558; Kelley's Crim. Law and Practice, 247; Wharton's Crim. Evidence (10 Ed.), 1665. (d) Because Judge Slate had said that he did not see how the regular panel of jurors that had tried the former case of State v. Scott, would be disqualified to try the pending case of State v. Scott. The charges in the indictment in each case were alike, to-wit, larceny and embazzlement of coal belonging to the State; the prosecuting party was the same, the defendant was the same, many of the witnesses were the same, and of necessity much of the testimony would have been the same. The State and the defendant were alike entitled to a jury that was free from any opinion or bias as to any of the facts in the case. R. S. 1909, secs. 5219, 5220; Stephens v. State, 53 N.J.L. 245; Curtis v. State, 118 Ala. 125; Baker v. Harris, 60 N.C. 271. (e) Because the rulings of the judge and his statements and acts were ample to justify the belief in his prejudice by petitioners. Mullins v. People, 15 Colo. 441. (f) Because the sworn statements of petitioners are that they were acting in good faith, and they so stated at the very time of the alleged contempt. (g) Because, under the law the State has the right to file an affidavit against a judge who is prejudiced, charging that fact, and thereby secure a trial before a fair-minded and unprejudiced judge. See authorities under next point. (4) When a judge is prejudiced against it, and in favor of the defendant, the State, in a criminal cause, has the right to present an affidavit charging that fact and thereby obtain a trial before an unprejudiced judge. Art. 6, sec. 29, Mo. Constitution; Sec. 5198, R. S. 1909; Sec. 2594, R. S. 1899; Laws 1895, p. 162, 164; Sec. 4174, R. S. 1889; Sec. 1877, R. S. 1879; Laws 1877, p. 357; Vol. 2, chap. 111, art. 5, sec. 15, Wag. Stat.; Chap. 212, sec. 15, G. S. 1865; Chap. 127, art. 5, sec. 16, R. S. 1855; Chap. 138, art. 5, sec. 16, R. S. 1845; Sec. 16, p. 486, R. S. 1835; Vol. 1, p. 276, sec. 23, R. S. 1825; Laws 1804 to 1824, p. 117, sec. 32 (Ty. Laws 1807); Laws 1804 to 1824, p. 617, sec. 5 (Ty. Laws 1818); Laws 1804 to 1824, p. 687, sec. 20 (Ty. Laws 1820); Sec. 3867, R. S. 1909; Sec. 1602, R. S. 1899; Sec. 3247, R. S. 1889; Sec. 1041, R. S. 1879; Sec. 21, p. 539, G. S. 1865; Sec. 41, p. 539, R. S. 1855; Secs. 39 and 40, p. 335, R. S. 1845; Secs. 38 and 39, p. 159, R. S. 1835; Sec. 23, p. 276, vol. 1, R. S. 1825; Broom's Legal Max., 125; Jim v. State, 3 Mo. 147; State ex rel. v. Wofford, 111 Mo. 526; State ex rel. v. Wear, 129 Mo. 619; People v. Connor, 142 N.Y. 130; Coal Co. v. Doolittle, 54 W.Va. 227; Commonwealth v. Davidson, 91 Ky. 162. (a) Notwithstanding that at the common law and under the Constitution of this and many other States the accused is entitled to a trial by an impartial jury of the vicinage, or county, yet, if an impartial jury cannot be obtained, the venue may be changed on the application of the State. Com. v. Davidson, 91 Ky. 162; Chitty's Crim. Law & Prac. (Ed. 1847), p. 201; Rex v. Cowle, 2 Burr, 859-860; Rex. v. Harris, 3 Burr, 1333; State ex rel. v. Durflinger, 73 Ohio St. 154; Hewitt v. State 43 Fla. 194; Barry v. Truax, 13 N.D. 131; People v. Baker, 3 Park Cr. (N.Y.) 181; 1 Bishop's Crim. Proc., sec. 73, 113; State v. Gates, 20 Mo. 404. (b) Upon the filing of the affidavit charging prejudice against Judge Slate, he had no power to try the question of his own prejudice, and was wholly without jurisdiction to compel any further steps in the cause. Broom's Leg. Max., p. 94; State v. Spivey, 191 Mo. 99-105; State v. O'Rourke, 55 Mo. 440; Sec. 5198, R. S. 1909; Sec. 19, p. 845, G. S. 1865; Sec. 1927, R. S. 1909; Sec. 1930, R. S. 1909; Guy v. Railroad, 197 Mo. 180; 2 Bailey on Habeas Corpus, p. 1393. (c) If the court was without jurisdiction, any order it made was void, and there could be no contempt for failure to obey the same. Railway Co. v. Wear, 135 Mo. 265. (5) The judgment and commitment in this cause, after striking therefrom the alleged statement of the petitioner Ewing that "if it is necessary for some one to go to jail in order that the State may obtain justice in this case, I will go," is void upon its face, because it fails to set forth the facts constituting the alleged contempt. The statement of petitioner Ewing was not made until after the judgment and commitment was rendered, and constituted no part of the alleged contempt. Sec. 3884, R. S. 1909; Ex parte Creasy, 243 Mo. 702-8; Ex parte Stone, 183 S.W. 1058; People v. LaFetra, 171 App.Div. (N.Y.) 272. (6) A judgment for contempt cannot be upheld if it falsely recites the facts, or is imposed for some personal motive, or to gratify some personal resentment of the judge. If the judge refuses to permit the official stenographer to take down and record the proceedings, stating in effect, that it is only a matter between him and petitioners, the judgment should not be permitted to stand, and petitioners should be discharged. Ex parte Creasy, 243 Mo. 696; Ex parte O'Brien, 127 Mo. 489. A contempt of court is a public wrong, and not an injury to the person or functionary to whom it is offered. Van Orden v. Sauvinet, 24 La. Ann. 1191; Ex parte Hickey, 12 Miss. 783; Ex parte Nelson, 251 Mo. 97.

Irwin & Haley and A. T. Dumm for respondent.

WALKER, P. J. Faris, J., concurs; Williams, J. concurs in paragraphs 1, 2, 3 and the result, but expresses no opinion as to matter discussed in paragraph 4.

OPINION

Habeas Corpus.

WALKER P. J.

Relief by habeas corpus is invoked by petitioners in this court to effect their discharge from an alleged unauthorized judgment of commitment for contempt rendered against them...