Vokolek v. Carnes

• Decision Date: 01 August 1974
• Docket Number: No. 58562,58562
• Citation: 512 S.W.2d 112
• Parties: Ex parte John VOKOLEK, Petitioner, v. William Kenneth CARNES, Sheriff, Jackson County, and James Bergfalk, Acting Director, Department of Corrections, Jackson County, Missouri, Respondents.
• Court: Missouri Supreme Court

Page 112

512 S.W.2d 112

Ex parte John VOKOLEK, Petitioner, v. William Kenneth CARNES, Sheriff, Jackson County, and James Bergfalk, Acting Director, Department of Corrections, Jackson County, Missouri Respondents.

No. 58562.

Supreme Court of Missouri, En Banc.

Aug. 1, 1974.

Henry L. Graf, Kansas City, for appellant.

Michael J. Maloney, Popham, Popham, Conway, Sweeny & Fremont, Kansas City, for respondents.

ORIGINAL PROCEEDING IN HABEAS CORPUS

SEILER, Judge.

This is an original action in habeas corpus. Petitioner alleged he was being unlawfully restrained of his liberty by the director of Department of Corrections of Jackson County. We issued our writ, ordering respondent to make return of the time and cause of detention, and ordered petitioner admitted to bail in the meantime. For his return to the writ, the respondent exhibited the warrant of commitment issued by the circuit court committing petitioner to the county jail for a period of twenty days for indirect criminal contempt.

The warrant of commitment upon which the respondent relies, reads in its essentials, as follows: '. . . the said (petitioner) having this day been committed into your custody for two acts of indirect criminal contempt, to-wit: First, on October 31, 1973, the said John Vokolek did willfully aid and assist his wife . . . to hide . . . the minor children of (the wife and her former husband, Allen B. Kipper, from the former husband) and . . . did also aid and assist her in refusing to turn the children over to (the former husband and the deputy sheriff accompanying him) and thereby interfered with legal process . . . after (petitioner) was aware of and understood the court order of October 31, 1973, ordering that the children be turned over to Mr. Kipper for return to Jackson County for further legal proceeding . . . and, second, on or after October 31, 1973, (petitioner) willfully aided (the wife) by active participation with her to remove and transport (the children) from the State of Missouri, thereby effectively removing the children beyond the reaches of this Court, contrary to the order of October 31, 1973, ordering that the children not be removed from the State of Missouri . . .'

The court order of October 31, 1973 referred to in the commitment was one which had been entered ex parte by the circuit court at Independence, earlier in the day of October 31, 1973, directed to Mrs. Vokolek (who was formerly Mrs. Kipper and who had custody of the children most of the time under earlier custody orders) to turn the children over to Mr. Kipper, so he could have them before the court the following morning for further inquiry into the circumstances of their custodial situation. Mrs. Vokolek was specifically ordered not to remove the children from the state. These emergency measures by the court were taken at Mr. Kipper's request when he learned from a private investigator at Joplin that the Vokoleks were reported to be moving to British Honduras the next morning and that there was a large van loaded with furniture parked in front of their Joplin residence.

Petitioner filed answer to the return, conceding that he was restrained under said warrant of commitment, but contending it was void, illegal, and erroneous for various reasons, one being that the warrant of commitment was faulty and wholly insufficient in that it contained no more than the legal conclusions of the committing court and that his imprisonment thereunder was therefore illegal.

As is well known, in habeas corpus proceedings, the issues are framed by the pleadings--here the return and the answer, State ex rel. Burtrum v. Smith, 357 Mo. 134, 206 S.W.2d 558 (banc 1947)--so that the challenge to the warrant of commitment raised by the pleadings is one that must be considered at the outset. In our judgment, petitioner is correct in his contention and must therefore be discharged.

Sec. 476.140, RSMo 1969, V.A.M.S., provides that 'Whenever any person shall be committed for any contempt specified in sections 476.010 to 476.310 (which include commitment for indirect criminal contempt), the particular circumstances of his offense shall be set forth in the order or warrant of commitment.'

Sec. 532.410, RSMo 1969, V.A.M.S., dealing with habeas corpus, provides it shall be the duty of the court forthwith to remand the party, '. . . if it shall appear that he is detained in custody . . . (3) For any contempt, specially and plainly charged in the commitment, by some court . . . having authority to commit for a contempt so charged . . .'

There is a long line of cases holding that these statutes, as well as the common law, require that the commitment set forth the facts and circumstances constituting the contempt and that failure to do so leaves the commitment insufficient and requires release of the petitioner.

In the case of Ex parte Miles, 406 S.W.2d 107, 114 (Mo.App.1966), the court said: '. . . Our appellate courts have held consistently and repeatedly that, in contempt proceedings, the facts and circumstances constituting the contempt, and not mere legal conclusions, must be recited in the commitment, regardless of whether the contempt is direct . . . or, as here, is indirect . . . We must construe the commitment strictly in favor of the petitioner and no inferences, presumptions or intendments are permitted to be indulged against him in order to aid its recitals . . .'

In the Miles case the court held that the recital in the commitment that the contemnor procured one Sullivan to call a Mr. Wendleton and asked him to influence a juror Johnson who was sitting in a criminal trial then under way against the contemnor 'is the merest legal conclusion and, in view of the decisions we have cited, cannot be regarded on any legal theory as a recital of facts and circumstances constituting a contemptuous procurement of Sullivan by petitioner . . .'

In Ex parte Fuller, 330 Mo. 371, 50 S.W.2d 654, 657 (banc 1932), the proposition is put this way: 'In contempt cases, the facts and circumstances constituting the contempt should be recited in the judgment . . . In Ex parte Creasy, 243 Mo. 679, 704, 148 S.W. 914, 922 . . . we said: '. . . In contempt cases it is facts and circumstances which go to make up the contempt which must be set forth, and not the legal conclusions of the judge as to what are the facts and circumstances . . . 'The Constitution guards the liberty of the felon with the same eagle eye that it does the infant and pure girl. In each when unlawful detention is charged, the facts of that detention must be laid bare. In contempt proceedings which result in detention of one's liberty, the law says that the facts and circumstances of the contumacious acts must be spread of record in the commitment or order of commitment. Such was not done here, and petitioner's legal rights have been invaded . . ."

In Reardon v. Frace, 344 Mo. 448, 126 S.W.2d 1167, 1168--69 (banc 1939), the court discussed the requirements of Sec. 476.140, supra (it was then Sec. 1867, RSMo 1929), as follows: "A commitment is a warrant, order, or process by which a court or magistrate directs a ministerial officer to take a person to...