State v. Clark

Decision Date07 December 1908
Citation134 Mo. App. 55,114 S.W. 536
PartiesSTATE, on Inf. of KIMBRELL, v. CLARK.
CourtMissouri Court of Appeals

Counsel, on the invitation of certain jurors shown to be men of wealth, prominence, and good repute, joined them in several games of pool, which the jurors paid for, being the losers, as was the custom. It being customary for the winner to pay for the cigars, he bought four five-cent cigars, one for each juror and one for himself. At no time were they together alone nor did they talk of the case on trial. Held that, though the conduct constituted an impropriety, counsel was not guilty of contempt of court.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Charles Clark was convicted of contempt of court, and he appeals. Reversed, and defendant discharged.

John H. Lucas, for appellant. I. B. Kimbrell and W. H. Carmody, for respondent.

ELLISON, J.

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. 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 witnesses; that, perhaps an 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 20 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 10 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...

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6 cases
  • Scrivner v. American Car and Foundry Co.
    • United States
    • Missouri Supreme Court
    • May 24, 1932
    ... ... defendant, had any knowledge whatever of the contract claimed to have existed, was that of Wilford Scrivner, who claimed to have heard Fogelman state to the company's general manager, Mr. Carry, that the furnaces which he pointed out were Scrivner patent furnaces which defendant had under lease ... App. 198; 3 Wigmore on Evidence, sec. 2105; McDowell v. Irwin, 32 Ga. 50; Perry v. Burton, 111 Ill. 138; Pate v. Mullen, 209 S.W. 293; Clark v. Haughton, 12 Gray (Mass.) 38; 2 Ency. of Evidence 386. (a) It was the province of the trial court to determine the sufficiency of the evidence of ... ...
  • Brewer v. State
    • United States
    • Mississippi Supreme Court
    • November 9, 1936
    ... ... Kemper, 86 Tex. Cr. Rep. 251, 216 S.W. 172; In re ... Ellison, 256 Mo. 378, 165 S.W. 987; Gandy v ... State, 13 Neb. 445, 14 N.W. 143; Ex parte Wright, 64 ... Tex. Cr. Rep. 171; 141 S.W. 971; 9 Cyc. 16, par. 2; ... Haskett v. State, 51 Ind. 176; State, on inf. of ... Kimbrell v. Clark, 114 S.W. 536; U. S. v ... Rittinger, 24 Fed. Cas. 1149; Poindexter v. Arkansas, 46 ... L. R. A. (N. S.) 517 ... Delay ... in beginning proceedings indicates no contempt ... The ... mere fact that the district attorney permitted this matter to ... rest for more than ... ...
  • Kelly v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 6, 1918
    ... ... find no exception to the rule that, when the charges are made ... on the complaint or information of the state's attorney ... or the Attorney General, the facts may be alleged upon ... information and belief. Poindexter v. State, 109 ... Ark. 179, 159 S.W ... be but impropriety, and not ground for a new trial, or for a ... judgment of contempt. State v. Clark, 134 Mo.App ... 55, 114 S.W. 536; Feary v. Metropolitan Street Ry ... Co., 162 Mo. 75, 62 S.W. 452. But the weight of ... authority is ... ...
  • Hawkins v. United States, 6301.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • July 23, 1951
    ...167 Iowa 75, 148 N.W. 985. See Kelly v. United States, 9 Cir., 250 F. 947; Annotation, 63 A.L.R. 1269, 1277. Cf. State ex inf. Kimbrell v. Clark, 134 Mo.App. 55, 114 S.W. 536. ...
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