State ex rel. Browning v. Jarrell, 13208

• Decision Date: 14 November 1972
• Docket Number: No. 13208,13208
• Citation: 156 W.Va. 256,192 S.E.2d 493
• Parties: , 61 A.L.R.3d 493 STATE of West Virginia ex rel. Tweel BROWNING v. Donald E. JARRELL, Judge, etc., et al.
• Court: West Virginia Supreme Court

Page 493

192 S.E.2d 493

156 W.Va. 256, 61 A.L.R.3d 493

STATE of West Virginia ex rel. Tweel BROWNING v. Donald E. JARRELL, Judge, etc., et al.

No. 13208.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 20, 1972.

Decided Nov. 14, 1972.

Syllabus by the Court

1. Section 8 of Rule II, of the Rules of this Court, permits exhibits, in the form of affidavits, to be filed with and made a part of the pleadings in any original proceeding in habeas corpus for the purpose of showing probable cause that a person is being detained without lawful authority in order to make a prima facie case for the issuance of the writ by this Court. However, upon the consideration of the case upon its merits, Section 2 of Rule IX of the Rules of this Court requires that, except in ex parte hearings, 'affidavits will not be considered by the court unless reasonable notice be given to the opposing party or his counsel of the time and place of the taking of the same, with the right of cross-examination.'

2. 'In the provision of Code, 1931, 61--5--26, that courts and the judges thereof may issue attachments for contempt and punish them summarily in case of misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice, the phrase 'so near thereto' refers to physical distance or proximity rather than merely to a casual relationship between the misbehavior and a consequent obstruction or interruption of the administration of justice.' Point 3 Syllabus, State ex rel. Arnold v. Conley, 151 W.Va. 584, 153 S.E.2d 681.

3. 'A trial for criminal contempt is a quasi criminal proceeding, and the rules of evidence in criminal trials apply thereto. In such trial the guilt of the accused must be a proved beyond a reasonable doubt.' Point 2 Syllabus, State ex rel. Continental Coal Company v. Bittner, 102 W.Va. 677, 136 S.E. 202.

John V. Esposito, Logan, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Willard A. Sullivan, R. A. Woodall, Asst. Attys. Gen., Charleston, for respondents.

KESSEL, Judge:

This is an original proceeding in habeas corpus instituted in this Court by Tweel Browning, as the relator, against Donald E. Jarrell, Judge of the Circuit Court of Boone County, Ed Cooke, Sheriff of Boone County, and Mat D. Bouldin, Prosecuting Attorney of Boone County, as the respondents. The relator seeks a release from the Boone County jail, where he was confined in the custody of the respondent, Sheriff Cooke, and prays that this Court declare void the judgment of the Circuit Court of Boone County, which sentenced him to jail.

On May 1, 1972, this Court issued a writ of habeas corpus, returnable on May 16, 1972, and ordered that the relator be released from custody, upon the giving of a bond in the amount of $1,000 with good surety before the Clerk of the Circuit Court of Boone County. The case was continued from time to time until September 19, 1972, when it was submitted for decision upon the petition, the answer of the respondents, the replication of the relator, a supplementary and amended answer and return, a replication to the supplementary answer and return, various motions of the relator, affidavits filed as exhibits by the petitioner and the respondents, and upon briefs and oral argument of counsel.

The relator alleges in his petition that, on April 26, 1972, while he was in the office of the Clerk of the Circuit Court of Boone County on business, he encountered Jerry W. Cook, an attorney at law and a member of the Boone County bar, who also was in the circuit clerk's office at that time; that they 'became engaged in a heated exchange of words involving absentee voting procedures and other matters pertaining to the election', and, in the heat of the argument, he struck Mr. Cook.

The relator further alleges that the altercation immediately ceased; that he left the circuit clerk's office and went outside the courthouse, where he was immediately taken into custody by a Boone County deputy sheriff who said he was acting upon the verbal orders of the respondent Circuit Judge, Donald E. Jarrell; that he was then taken before Circuit Judge, Donald E. Jarrell, who immediately held what the judge termed 'a contempt hearing', at the conclusion of which hearing, the court adjudged the relator in 'contempt of court', and sentenced him to serve one year in the Boone County jail.

The relator further alleges that he had no notice in writing of the charges against him and no notice of any kind whatsoever, other than the informal advice of the arresting officer that he was acting upon the orders of the respondent judge; that no rule to show cause was served upon him; and that during the proceedings he 'was denied the services of an Attorney'.

The relator further alleges that the office of the Clerk of the Circuit Court of Boone County is separate and apart from the chambers of the judge and the courtroom used by the Circuit Court of Boone County; and that none of the acts complained of took place in the presence of the respondent judge.

The relator further alleges that at the time of the altercation Attorney Jerry W. Cook 'was not in any way acting as an officer of the Court'; was not carrying out any instructions of the court; and that the administration of justice in the courtroom or otherwise was not interrupted or obstructed.

Both the relator and the respondents agree that the proceedings held by the circuit judge are controlled by Section 26, Article 5, Chapter 61 of the Code, 1931, which is as follows:

'The courts and the judges thereof may issue attachment for contempt and punish them summarily only in the following cases: (a) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice; (b) violence or threats of violence to a judge or officer of the court, or to a juror, witness, or party going to, attending or returning from the court, for or in respect of any act or proceeding had, or to be had, in such court; (c) misbehavior of an officer of the court, in his official character; (d) disobedience to or resistance of any officer of the court, juror, witness, or other person, to any lawful process, judgment, decree or order of the said court. No court shall, without a jury, for any such contempt as is mentioned in subdivision (a) of this section, impose a fine exceeding fifty dollars, or imprison more than ten days. But in any such case the court may impanel a jury (without an indictment or any formal pleading) to ascertain the fine or imprisonment proper to be inflicted, and may give judgment according to the verdict. No court shall impose a fine for contempt, unless the defendant be present in court, or shall have been served with a rule of the court to show cause, on some certain day, and shall have failed to appear and show cause.'

The respondents filed an answer to the petition and a supplementary and amended answer. The relator filed a replication to the answer of the respondents' answer and a replication to respondents' supplementary and amended answer. The respondents filed with their supplementary and amended answer a demurrer in the following words: 'The respondents demur saying that the petition fails to state a claim for relief'. We hold that it does state a claim for relief and therefore overrule the demurrer. However, the accepted mode of determining the sufficiency of a writ of habeas corpus is a motion to quash the writ, rather than a demurrer. Ex parte Settle, 114 Va. 715, 77 S.E. 496, 39 C.J.S. Habeas Corpus § 86, page 648.

The respondents also file with their supplemental and amended answer seven exhibits, denominated from A to G, inclusive. Exhibit A is an affidavit signed by Jerry W. Cook. Exhibit B is an affidavit signed by Conald E. Jarrell, Judge of the Twenty-fifth Judicial Circuit. Exhibit C is an affidavit signed by Franklin D. Jarrell, a member of the police force of the city of Madison. Exhibit D is an affidavit signed by Charles H. Gardner, an ambulance driver. Exhibit E is an affidavit signed by David E. Wallace, a medical doctor. The relator moved this Court to strike the affidavits as exhibits for the reason that the relator was not given notice of the time and place of the taking of them and was not provided with the opportunity to...