Osborne v. Purdome

Decision Date10 December 1951
Docket NumberNos. 42752-42754,s. 42752-42754
Citation244 S.W.2d 1005,29 A.L.R.2d 1141
PartiesOSBORNE v. PURDOME, Sheriff. SYMPSON v. PURDOME, Sheriff. CABBELL v. PURDOME, Sheriff.
CourtMissouri Supreme Court

Wm. O. Sawyers, St. Joseph, Ira B. McLaughlin, Kansas City, for petitioner, Alfred H. Osborne.

Ira B. McLaughlin, Kansas City, for petitioner, Robert B. Sympson.

J. Arnot Hill, Kansas City, for petitioner, Phil Cabbell.

John W. Oliver, Horace F. Blackwell, Jr., and Albert Thomson, all of Kansas City, Henry H. Fox, Jr., Pros. Atty., of Jackson County, Kansas City, of counsel, amici curiae, for respondent.

HOLLINGSWORTH, Judge.

Habeas corpus. The petitioners are Alfred H. Osborne, Robert B. Sympson and Phil Cabbell. They, with J. Carl James, Matt Jones and Vernon Everage, were jointly charged with and adjudged guilty of criminal contempt in the Circuit Court of Jackson County. James and Everage accepted the sentence imposed upon them. Jones died before being sentenced.

Petitioners Osborne, Sympson and Cabbell were each sentenced to imprisonment in the county jail for a term of eight months, and in addition thereto a fine of $1000 was imposed upon Osborne and Sympson. Upon separate petition of each, writs of habeas corpus were issued to the respondent, Sheriff of Jackson County. His returns recited that petitioners were imprisoned by him under and by virtue of the judgment herein above referred to, a copy of which judgment was attached to each return. Each petitioner thereupon filed his verified answer alleging that his imprisonment was unlawful for the reasons hereinafter discussed, to each of which answers respondent demurred. Pursuant to stipulation, the three cases were consolidated. By consent of the parties the matter is before us for full review upon the record and transcript of the evidence heard in the trial of the contempt proceeding in Division 4 of the Jackson County Circuit Court, Honorable Thomas R. Hunt presiding.

The proceeding, designated a 'complaint for criminal contempt', was filed by the Prosecuting Attorney of Jackson County, as informant and complainant, against the six named accused persons as 'contemnors'. It was also signed by John W. Oliver, Horace F. Blackwell, Jr., and Albert W. Thomson, members of the Jackson County Bar, who had been appointed by the court as amici curiae to assist the prosecuting attorney in determining whether probable cause existed for the institution of the action and, in their respective official capacities, to join with the prosecuting attorney in instituting and prosecuting the action should they determine that probable cause existed. The complaint, in substance, charged the alleged contemnors with confederating and acting, individually and collectively, to impede and obstruct the administration of justice by knowingly undertaking to present and presenting false testimony in a certain action for damages for personal injuries arising out of an automobile collision pending in the Circuit Court of Jackson County, entitled Burton v. Moulder, No. 527,724.

Following the filing of the complaint, an order to show cause was issued to each of the accused. James and Everage filed separate written responses to the order, in which each admitted his part in the aforesaid plan. Petitioners Osborne, Sympson and Cabbell each filed motions for change of venue and to dismiss, both of which motions were overruled. They then filed separate verified answers, followed by motions for judgment on the pleadings, which motions were overruled. Matt Jones filed similar motions, all of which were overruled.

The accused Vernon Everage testified in behalf of the complainant in the contempt proceedings. None of the other accused testified and no evidence was introduced in behalf of any of them.

Osborne and Sympson are lawyers and were the record and trial counsel for plaintiff in the Burton-Moulder case. James, also a lawyer, was one of the attorneys for plaintiff and participated in assembling the testimony presented in the case, but was not entered as counsel of record. Cabbell and Everage are laymen, as was Jones.

The petition in the case of Burton v. Moulder alleged that plaintiff sustained personal injuries in a collision of his automobile with that of defendant Moulder on March 23, 1948, at the intersection of White Eagle Road and Chrysler Road in the Fairfax District of Kansas City, Kansas; that plaintiff Burton was traveling east in a Ford automobile on White Eagle Road, and defendant Moulder was traveling north in a Plymouth automobile on Chrysler Road; and that the collision occurred in the intersection.

The transcript of the testimony in that case shows that the accused Everage and Jones were offered, sworn and testified as witnesses for Burton. They testified: they witnessed the collision, it occurred east of the center line of the intersection, they were riding in Jones' car north on Chrysler, they saw Burton's car stop at the stopsign, they were going fifty miles per hour, and Moulder's car, proceeding northward at seventy to seventy-five miles per hour, passed them about four hundred feet south of the intersection, and the Moulder car did not slow down before the collision.

In the contempt proceeding, the accused Vernon Everage testified: For several years he had been employed as a janitor at the General Motors Plant in the Fairfax District in Kansas City, Kansas. About two days before he testified as a witness in the Burton-Moulder case on Friday, September 29, 1950, Jones came to his home about seven o'clock at night and, in the presence of his wife, asked him to come out to the car and talk to some fellows about the accident in that case, and said they would give him one hundred dollars. Everage went to the car with Jones and there met Osborne, Sympson and Cabbell. He knew Cabbell and was introduced to Osborne and Sympson. All of them sat in the car; Osborne and Sympson in front and Cabbell, Jones and Everage in the back. Osborne asked him if he would testify in the case. He told Osborne he had not seen the accident and did not know anything about it. Osborne replied that he did not have to know anything about it, that he (Osborne) would tell him how it happened and what he was to say. Osborne promised him one hundred dollars. Sympson gave him a subpoena to give to his foreman so he could leave his work, and Sympson was to pick him up outside the General Motors Plant the next morning to show him where the accident happened. He gave the subpoena to his foreman and Sympson met him the next morning, and they rode to the scene of the accident, one block south of the plant. There they met Jones and Cabbell. Jones got in the Sympson car with them and they went south down Chrysler Road, turned around and drove back up Chrysler Road along the route the Moulder car was supposed to have traveled immediately prior to the collision. Sympson showed him and Jones that Sympson's car was supposed to be Matt Jones' car, and that Jones was supposed to be taking him to work, and that the reason for Jones being in the vicinity was to make an application for a job, and that the Plymouth (Moulder) car was supposed to have passed them going at a high rate of speed. Sympson, in the presence of Cabbell, told him that Cabbell 'was acting out the part of the Ford that got hit.' The Plymouth was supposed to have hit it just as it got across the street. Sympson told Everage that Cabbell was doing with his car what Burton's car was supposed to have been doing when it pulled out at the time the Plymouth passed 'us going at a high rate of speed before the accident occurred.' After forty-five minutes of this, Everage, Jones and Sympson went to Osborne's office in the Columbia Bank Building where they met James and Osborne, at which time Everage was introduced to James. Osborne told Everage to keep going over the story as to how the accident happened. James wrote out a statement in the presence of Sympson of what Everage allegedly had told him shortly after the accident as to how it had happened, and Everage signed it. The statement was dated back to about the time the accident occurred for the reason that, as stated by James, Everage was supposed to have seen the accident and had talked to him about the accident right after it happened. James put the statement on the floor and twisted it around. During the meeting Osborne used three toy cars to show how the Burton car was crossing the street and how the cars were coming down the street when the Moulder car was supposed to have passed the Jones car at a high rate of speed.

That afternoon Sympson, James, Jones and Everage went to a witness room in the courthouse, where they stayed until after five o'clock. Present there were Jones, Sympson, James and Osborne. Sympson and James were there most of the time, but Osborne was in and out. They just kept going over the accident. That afternoon in the witness room at the courthouse, in the presence of Sympson, Osborne gave Everage one hundred dollars in currency. He did not testify that afternoon. The following morning he and Jones returned to Osborne's office, where James and Sympson again went over the accident. Everage then went to the courthouse where he was sworn and testified for the plaintiff. Even though he had not seen the accident, he testified as though he was an actual eye witness to the accident. On the day after he testified, Everage paid a bill at Palace Clothing Company with part of the hundred dollars given him by Osborne.

As against Sympson only, the trial court admitted testimony of Everage that on April 5, 1951, Sympson asked him to come to his office, saying something urgent had come up, and he, Sympson, wanted to talk with him. Sympson asked Everage if he knew about a meeting at the Victoria Hotel, which Everage did not, and said everything would be all right if Matt (Jones) did not say anything about the thing, nothing would ever come of it.

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