State, ex Informatione Kimbrell v. Clark
| Decision Date | 07 December 1908 |
| Citation | 114 S.W. 536,134 Mo.App. 55 |
| Parties | STATE OF MISSOURI ex informatione ISAAC B. KIMBRELL, Prosecuting Attorney, etc., Respondent, v. CHARLES CLARK, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
Reversed and defendant discharged.
John H Lucas for appellant.
(1) The information wholly fails to charge any offense against the appellant, and the judgment thereon is a nullity. R. S. 1899 sec. 1617; R. S. 1899, sec. 2045; Stuart v. People, 4 Ill. 395; In re Reese, 107 F. 942. (2) The evidence wholly fails to sustain any charge of criminal contempt and the judgment is unsustained by any evidence. State v. Davis, 112 N.H. 349; Feacey v Railroad, 162 Mo. 107; Kennedy v. Holliday, 105 Mo. 36.
I. B. Kimbrell and W. H. Carmody for respondent.
(1) The court has the inherent power and jurisdiction to punish for contempts summarily under the common law, regardless of sections 1616 and 1617, Revised Statutes 1899. State ex inf. v. Shepherd, 177 Mo. 224.
The defendant was charged with contempt of a court; that is to say, the circuit court of Jackson county, sitting at Independence, the county seat. He was convicted and sentenced to a punishment of three days in the county jail. He thereupon appealed. After an examination of the record presented here, we have concluded that his conviction was altogether unwarranted by the facts and circumstances developed in the investigation.
The contempt is alleged to have been committed in the course of the trial of Benjamin v. The Metropolitan Street Railway Company, and is charged to have consisted in the defendant eating lunch at the hotel in Independence at the same table with three of the twelve jurors sitting in the case--of afterwards, on the next day, playing games of pool with them and treating them to cigars--and of being engaged in conversation with them in the courthouse.
The witnesses examined in the investigation were the defendant, the three jurors, the attorneys engaged on either side of the cause, and the statement of the judge before whom the investigation was being held. It appears that the trial in that case lasted as many as three days; that the parties were represented by their respective attorneys, the defendant here being an assistant to the defendant's attorney, sitting and advising with him during the trial and looking after the evidence and the witness. That, perhaps on the first day, at the noon adjournment, the judge, jurors, lawyers and witnesses went across the street to the hotel for lunch. The record does not state that all of the jurors and witnesses went there, but that is of no consequence. The dining room was pretty well crowded and was made up of several small tables. The judge sat at one of these and looking down towards the doorway he saw the defendant and the three jurors who figure in this controversy, at another. He got up from his seat and went to the table where the attorney for the defendant in the case on trial was seated and called his attention to his assistant being at the same table with three jurors and stated it was improper. At about the close of the meal the attorney spoke to the defendant, telling him of the judge's criticism, when the defendant stated that there was nothing wrong--that the dining room was filled and that the jurors had merely taken a seat at the table at which he was already seated.
The next day, at the noon adjournment, and after lunch, these jurors, thinking they had the time before court convened to play pool at a nearby place, started out of the hotel and got about twenty feet away when one of them on looking back saw defendant standing in front of the hotel and called to him to go along and play. He accepted and they played four games, the losers (the jurors) paying ten cents each to the proprietor for the games lost. Defendant did not lose, and it being the custom for the winner to pay for the cigars, he, on their way out of the pool hall, bought four five-cent cigars, one for each juror and one for himself. The jurors, fearing they would be late, hurried back to the courtroom.
Perhaps the next day, at least during the trial, these jurors and defendant, with a number of others, were seen in the courthouse in conversation. On another day, while the case was still pending, one of these jurors in passing defendant invited him to go along and take a drink. The defendant refused.
Putting aside for the moment defendant's playing pool with the jurors and buying the cigars after the game, the case made out was not sufficient to justly cause even a suspicion against him. In the incident of his being at the same table with them, he was entirely blameless and so were the jurors. The dining room was crowded and the defendant, with a witness for the defense in that case, was already seated. He had no part in their sitting at that table. It was an innocent act of theirs without invitation from him. The judge, on observing them at the same table, seemed at once to have concluded it was a wrongful act on the part of the defendant. Whether it was wrongful on the part of either the defendant or the jurors entirely depended on how it came about. If it be true (and it is not disputed) that the jurors, not seeing a convenient place where they might be seated at a table except where defendant was sitting, took a seat at that table, without his invitation, design or foreknowledge, it is not easy to understand why any one should think either was guilty of an impropriety. When the attorney for the defense in that case told this defendant of the court's criticism, he explained the matter truthfully so far as this record shows. The attorney for the plaintiff in that case was offered by the court a continuance of the case, but he considered the matter as not justifying such a course and did not accept the offer.
The fact of defendant being seen in conversation with these jurors in the court house, when explained by the uncontradicted evidence, is equally trivial and was wholly harmless in intention and fact. To see an attorney or his...
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