Presta v. Owsley

• Decision Date: 12 April 1961
• Docket Number: No. 23430,23430
• Citation: 345 S.W.2d 649
• Parties: In the Matter of Chester PRESTA, Petitioner, v. Arvid OWSLEY, Sheriff of Jackson County, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 649

345 S.W.2d 649

In the Matter of Chester PRESTA, Petitioner, v. Arvid OWSLEY, Sheriff of Jackson County, Missouri, Respondent.

No. 23430.

Kansas City Court of Appeals, Missouri.

April 12, 1961.

James A. Broaddus, Kansas City, for petitioner.

William Collet, Pros. Atty., Carrol C. Kennett, Asst. Pros. Atty., Kansas City, for respondent.

HUNTER, Presiding Judge.

In this original habeas corpus proceeding petitioner, Chester Presta, prays discharge from imprisonment in the county jail ordered by the Honorable Richard C. Jensen, Judge of the Criminal Division of the Circuit Court of Jackson County, Missouri, after adjudging the petitioner to be in contempt of court for refusing to answer questions propounded by a Jackson County Grand Jury before which he had been summoned. He asserts that the restraint of his liberty is unlawful and in violation of his right under Article 1, Section 19, of the Missouri Constitution 1945, V.A.M.S., to refuse to answer questions where the answers might tend to incriminate him; and that his denial of the presence of his counsel and of a public hearing at the time he was adjudicated to be in contempt invalidated the contempt order.

The setting in which the alleged contempt occurred is as follows: On March 17, 1961, Judge Jensen empaneled a Grand Jury for the March term of the Circuit Court, charging it, in addition to its statutory duty to investigate generally for evidence of commission of violations in Jackson County of state criminal laws, to pay particular attention to the organized criminal element. He advised the Grand Jury of his belief that there was a crime wave which was 'a part of a national hook-up with the notorious hoodlum element of our country known as the 'Mafia"; that there are 'a series of burglaries and robberies, and assaults occurring in this county which seem so well planned and apparently well organized as to indicate an organized group of professional criminals preying upon our community'; to investigate possible connections between certain insurance companies that provide bail bonds to arrested persons 'to determine what part they are playing in the planned program of organized crime'; and to investigate certain thefts of narcotics '* * * which were sold through the channels of organized crime'.

Petitioner, Chester Presta, brother of a well known controversial Kansas City Politician, was summoned before the Grand Jury, sworn, and asked some questions which he apparently answered. He then was asked:

'Q. When was it that you sold your drug store? A. I refuse to answer that on the grounds it may tend to incriminate me.

'Q. I think that you answered that question. A. No, I did not.

'Q. Well, did you sell it prior to the time that you went into the real estate business? A. Yes, sir.

'Q. And you have been in the real estate business how long, sir? A. I think five or six years, or seven years, something like that.

'Q. Five, six or seven? A. No definite date. I couldn't give you a definite date. I would have to take a look at my broker's license and I can tell you when I first took it out.

'Q. It has been that many years? A. Yes.

'Q. It has been more than three years? A. Yes.

'Q. And do you think it probably has been more than five years? A. Yes, sir.

'Q. All right. Now, will you give us the date that you sold that drug business? A. I refuse to answer on the grounds it may tend to incriminate me.

'Q. Who were your partners in the drug business? A. I refuse to answer on the grounds it may tend to incriminate me.

'Q. How long did you hold the drug business? A. I was discharged from the Army in 1945. I think I opened it up in '46 and '47.

'Q. And the drug business that we are discussing is located where, sir. A. 1050 East 5th St.

'Q. Did you have any interest in the real estate that was subsequently sold to the Missouri Department of Highways for the Southeast Freeway here in Kansas City? A. What did you say?

'Q. Have (you) any financial interest? A. I refuse to answer on the grounds that it may tend to incriminate me.

'Q. Do you receive rental income from any property besides the property that you previously mentioned that your tenant was a liquor store? A. I refuse to answer on the ground that it may tend to incriminate me.

'Q. Do you know Nick Civella? A. I refuse to answer on the grounds that it may tend to incriminate me.

'Q. Do you know Carl Civella? A. I refuse to answer that on the grounds it may tend to incriminate me.

'Q. Do you know Anthony Civella? A. I refuse to answer that on the grounds it may tend to incriminate me.

'Q. Do you know Joe Guastello? A. I refuse to answer that on the grounds it may tend to incriminate me.

'Q. Do you know Louis Cangelose? A. I refuse to answer that on the grounds it may tend to incriminate me.

'Q. Do you know Nick Spero? A. I refuse to answer that on the grounds it may tend to incriminate me.

'Q. Do you know Charles Cacioppo? A. I refuse to answer on the grounds it may tend to incriminate me.

'Q. Do you know Felix Ferina? A. I refuse to answer on the grounds that it may tend to incriminate me.

'Q. Do you know Anthony Cardarella? A. I refuse to answer on the grounds it may tend to incriminate me.'

After petitioner's refusal to answer the questions the record of interrogation was certified to the circuit judge, who advised the witness, Chester Prestz, 'that the questions asked were not self-incriminating and (not) a violation of his constitutional rights'. The judge ordered petitioner to return to the Grand Jury room and to answer the questions. He returned to the Grand Jury room and again refused to answer the same questions on the ground that to do so would tend to incriminate him. Thereupon the Grand Jury, its reporter, the prosecuting attorney and petitioner returned to the circuit court room, from which all other persons, including petitioner's attorney and the representatives of the press, were excluded by the court. Upon being informed that petitioner still refused to respond to the Grand Jury's questions, the court adjudged petitioner to be in contempt of court and ordered him confined in the county jail until he purged himself of contempt by answering the questions.

Article 1, Section 19, of the constitution of this state provides: 'That no person shall be compelled to testify against himself in a criminal cause, * * *.' ¹

Specifically, petitioner contends that by virtue of the quoted state constitutional provision he was not guilty of contempt of court when he claimed his constitutional right and refused to answer the Grand Jury's questions for the reason that his answers would have tended to incriminate him. Petitioner insists that the circuit court has exceeded its jurisdiction in adjudging him guilty of contempt and has deprived him of his liberty without due process of law.

This presents the clear issue--whether the answers demanded by the Grand Jury and ordered by the Court would tend to incriminate the petitioner, for it has long been settled that the constitutional privilege against self-incrimination--designed to prevent the use of legal process to force from the lips of any person the evidence necessary to convict him of a crime--is broad enough to protect the witness before any tribunal and in any proceeding, including Grand Jury investigations.

The problem presented is not new. It has several times been considered and ruled by the Supreme Court of the United States, by various federal courts and by the appellate courts of this state and other states. ² In the Burr case, decided in 1806, 25 Fed.Cas. pages 38, 40, No. 14,692e generally followed by the courts, Chief Justice Marshall said: '* * * if the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say upon his oath that his answer would criminate himself, the court can demand no other testimony of the fact. * * * It is certainly not only a possible but a probable case that a witness, by disclosing a single fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing, but all other facts without it would be insufficient. While that remains concealed within his own bosom he is safe; but draw it from thence, and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description. What testimony may be possessed, or is attainable, against any individual the court can never know. It would seem, then, that the court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws.'

In Ex parte Gauss, 223 Mo. 277, 122 S.W. 741, 742, the Supreme Court of this state approved the doctrine announced by Chief Justice Marshall in the Burr case, and held that such rule was entirely consistent with the doctrine generally held that when the court can say as a matter of law that it is impossible that the witness would incriminate himself by answering a question one way or the other, then the court can require an answer; but not otherwise. The court quoted with approval the following language from People v. Mather, 4 Wend., N.Y. 229, loc. cit. 252, 21 Am.Dec. 122: 'The witness knows that the court does not know, and what he cannot communicate without being a self-accuser, and is the judge of the effect of his answer, and if it proves a link in the chain of testimony, which is sufficient to convict him, he is protected by law from answering the question. If there be a series of questions, the answer to all of which would establish his criminality, the...