In re January

• Decision Date: 06 December 1922
• Citation: 246 S.W. 241,295 Mo. 653
• Parties: IN THE MATTER OF M. T. JANUARY, Petitioner
• Court: Missouri Supreme Court

246 S.W. 241

295 Mo. 653

IN THE MATTER OF M. T. JANUARY, Petitioner

Supreme Court of Missouri

December 6, 1922

Petitioner discharged.

W. M Bowker for petitioner.

(1) No one can be compelled to give evidence in any sort of a proceeding that would tend to incriminate him or furnish any link in a chain of circumstances that might lead to his conviction of any criminal offense. Sec. 23, Art. 2, Mo Constitution; Ex parte Gauss, 223 Mo. 277; Ex parte Carter 166 Mo. 604. (2) A judgment finding a person guilty of contempt is not conclusive as to the facts stated therein, and upon habeas corpus the petitioner has a right to show that he was not guilty of contempt as charged by evidence aliunde the judgment and commitment. Ex parte Creecy, 243 Mo. 679; In re Howell, 273 Mo. 96. (3) If the question propounded to the witness is of such character that an answer might or might not incriminate the witness, it must rest with the witness to determine whether or not the answer to it would have such tendency, and in such case the court cannot compel him to answer. And it is further held that a witness cannot be compelled to furnish any one of the many links necessary to convict him of a crime. Ex parte Gauss, 223 Mo. 277. (4) Under the provisions of Section 6588 as amended by Laws 1921, page 414, it is made a crime for any person to either sell, possess, give away or transport intoxicating liquors within the State of Missouri. The only exception said statute provides is "possession of intoxicating liquor in the private residence of the owner thereof when such intoxicating liquor has been lawfully acquired and being lawfully used."

Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent; Ellison A. Poulton of counsel.

(1) Where the sale of intoxicating liquor is a crime under the prohibitory law, the purchaser is not a participant in the crime and he cannot excuse himself from testifying as to such purchase made by him, on the ground that his testimony would tend to incriminate him. Wakeman v. Chambers, 69 Iowa 169; State v. Teahan, 50 Conn. 92; State v. Rand, 51 N.H. 361; Ex parte Armstrong, 30 N. B. (Canada) 423; Ex parte Barker, 30 N. B. (Canada) 406; State v. Cullins, 53 Kan. 100; Wilson v. State, 130 Ark. 204; Harris v. State, 113 Miss. 457; Lott v. United States, 205 F. 28. (2) The prohibitory act does not make the purchase of intoxicating liquor a crime. R. S. 1919, sec. 6588, as amended by Laws 1921, pp. 413-414. (3) It is the province of the court to determine in the first instance under all the circumstances of the case whether any direct answer to a proposed question has a tendency to criminate a witness; and, it is the duty of the court, while it protects the witness in the due exercise of his privilege, to take care that he does not, under the pretense of defending himself, screen others from justice or withhold evidence which he may safely give. Ward v. State, 2 Mo. 120; In re Moser, 138 Mich. 302; Ex parte Irvine, 74 F. 954; Mason v. United States, 244 U.S. 366. (4) By resorting to a suit in habeas corpus, petitioner has elected to meet the presumption, which the present record does not exclude, that the trial court regularly and properly exercised whatever authority it had in the premises; and he has assumed the burden of showing that the order of commitment is void because the court was without authority to make it, in view of his claim that his answer to the question would incriminate him. Ex parte McBride, 158 Mo.App. 457; McGorray v. Sutter, 80 Ohio St. 407. (5) Since the purchase of intoxicating liquor is not a crime, and since an affirmative answer to the question propounded would show neither possession nor transportation of intoxicating liquor, an affirmative answer to this question would not tend to incriminate the witness. Ex parte Holliway, 272 Mo. 108, 115.

WOODSON, C. J. Graves, J., concurs in separate opinion, in which all concur except Elder, J. Higbee, D. E. Blair, Walker and James T. Blair, JJ., concur in the views of Graves; Higbee, J., concurring in both opinions of Woodson and Graves.

OPINION

In Banc.

Habeas Corpus.

WOODSON C. J.

This is an original proceeding instituted in this court for a writ of habeas corpus begun by the petitioner, alleging that he is illegally deprived of liberty by the Sheriff of Vernon County, Missouri. The facts of the case are undisputed, and agreed upon by the parties litigant. The petition for the writ reads as follows:

"Now comes M. T. January, and states to the court that he is illegally deprived of his liberty by the defendant, W. W. Marshall, Sheriff of Vernon County, Missouri; that he is being held in custody and restraint of his liberty by the said W. W. Marshall, Sheriff of Vernon County, Missouri, at Nevada, Missouri.

"The petition states that the facts under which he is restrained of his liberty, arose as follows:

"That he, M. T. January, at the October term, 1922, of the Circuit Court of Vernon County, Missouri, was subpoenaed as a witness before the grand jury of Vernon County, Missouri, at one of its regular sessions, held on the fifth day of October, 1922; that the question was propounded to him by the foreman of said grand jury, asking him whether or not he had purchased any intoxicating liquor within the last year; that he refused to answer said question, claiming the protection of Section 23, Article 2, of the Constitution of Missouri, that no person is required in a criminal case to give evidence against himself; and that he was taken by the foreman of said grand jury before the Hon. B. G. Thurman, Circuit Judge for said County, and was questioned by said Judge of the Court in regard to said matter; that in the presence of said court he reiterated his refusal to answer said question before the grand jury, for the same reason; that thereupon said Judge of said Court found and adjudged him guilty of contempt of court, and issued a commitment directed to the Sheriff of Vernon County, Missouri, committing him to jail until he purge himself of said contempt.

"That at the time he was asked said question by the foreman of the grand jury and declined to answer the same, he stated to the foreman of the grand jury that he refused to answer the same on the ground that an answer might tend to incriminate him, and that his declination was based upon his constitutional rights guaranteed him under the Constitution of the State of Missouri; that he stated the same to the Judge of the Circuit Court of Vernon County, Missouri, at the time he was questioned by said judge in regard to said matter.

"Petitioner states that the grand jury or the Circuit Judge of Vernon County, Missouri, had no right to require him to answer said question after he claimed the privilege guaranteed him by the Constitution of the State of Missouri.

"Wherefore, your petitioner prays the court to quash said commitment issued against him, a copy of which is hereto attached, and that the petitioner be given his liberty and be freed from said illegal restraint."

This petition was duly verified by the petitioner.

Upon the foregoing application being filed in and presented to this court, the writ in due form was issued, and directed to W. W. Marshall, Sheriff of Vernon County, and was duly served upon him. In due time the said sheriff made the following return to said writ:

"Now comes W. W. Marshall, Sheriff of Vernon County, Missouri, and for his return to the writ of habeas corpus issued and served upon him herein, states that the prisoner, M. T. January, was placed in his custody on the 5th day of October, 1922, by and under authority of a certain warrant of commitment as set forth in a certified copy of an order and judgment of the Circuit Court of Vernon County, Missouri, directing that said M. T. January stand committed to the county jail of said county for contempt of said court, as set forth in said order, and there to remain until he manifests a disposition to purge himself of said contempt, said warrant and commitment being in words and figures as follows, to-wit:"

Then follows, as a part of the return, a copy of the records of the Circuit Court of Vernon County, relating to the order adjudging the petitioner guilty of contempt:

"Circuit Court Record, Vernon County, Missouri.

"Thursday, October 5, 1922, 4th day of October Term.

"State of Missouri, Plaintiff, vs. M. T. January, Defendant.

"Now on this 5th day of October, 1922, it being the 4th day of the regular October Term, 1922, of this court, it appearing to the court that M. T. January, a witness before the grand jury of this county, refused to answer a proper question, to-wit: 'whether or not he had bought intoxicating liquor in Vernon County, Missouri, at any time during the last twelve months,' and the said M. T. January after being ordered by the court to answer the question, refused to do so.

"It is therefore ordered by the court that said M. T. January, be committed and stand committed to imprisonment in the county jail for contempt of court, for refusing to answer said question before said grand jury, and that the sheriff of this county take and place the said M. T. January in said county jail and there to remain until he manifest a disposition to purge himself of the contempt by his testifying as ordered."

In addition to the above return the sheriff, in obedience to the writ issued by this court, produced the body of the petitioner before this court to be dealt with according to law. All of which was duly verified by the sheriff.

Thereafter and on the 14th day of October, 1922, petitioner filed his answer to said return, which said answer, omitting caption, is in words and figures as follows:

"Now comes M. T. January, and, being duly sworn upon...