Osborne v. Purdome Petitioners' Brief

    IN THE

SUPREME COURT OF MISSOURI
EN BANC.

SEPTEMBER SESSION, 1951.

In Re ALFRED H. OSBORNE,
Petitioner,

vs.
J. A. PURDOME, SHERIFF OF 

JACKSON COUNTY, MISSOURI,
Respondent,

No. 42752. 
Habeas Corpus.

In Re ROBERT B. SYMPSON,
Petitioner,

vs.
J. A. PURDOME, SHERIFF OF 

JACKSON COUNTY, MISSOURI,
Respondent.

No. 42753. 
Habeas Corpus.

In Re PHIL CABBELL,
Petitioner,

vs.
J. A. PURDOME, SHERIFF OF 

JACKSON COUNTY, MISSOURI,
Respondent.

No. 42754. 
Habeas Corpus.

PETITIONERS’ BRIEF.

W m . 0. Sawyers,
Ira B. McLaughlin, 

Attorneys for Petitioner, 
Alfred H. Osborne.

Ira B. McLaughlin,
Attorney for Petitioner, 

Robert B. Sympson.
J. A rnot H ill,

Attorney for Petitioner, 
Phil Cabbell.



IN THE

SUPREME COURT OF MISSOURI
EN BANC.

SEPTEMBER SESSION, 1951.

In Re ALFRED H. OSBORNE,
Petitioner,

vs.
J. A. PURDOME, SHERIFF OF 

JACKSON COUNTY, MISSOURI,
Respondent.

No. 42752. 
Habeas Corpus.

In Re ROBERT B. SYMPSON,
Petitioner,

vs.
J. A. PURDOME, SHERIFF OF 

JACKSON COUNTY, MISSOURI,
Respondent.

No. 42753. 
Habeas Corpus.

In Re PHIL CABBELL,
Petitioner,

vs.
J. A. PURDOME, SHERIFF OF 

JACKSON COUNTY, MISSOURI,
Respondent.

No. 42754. 
Habeas Corpus.

PETITIONERS’ BRIEF.

Foreword.

1. The answers of the petitioners to the returns of the 
respondent, paragraph VIII, page 9, make reference to a 
duly certified copy of the complete record of cause num-



2

bered 551,348 in the Circuit Court of Jackson County, Mis­
souri.

2. Pursuant to the stipulation of counsel on page 10 
of said answers said record was duly filed with the clerk 
of this court in cause numbered 42,752 and may be con­
sidered as filed in causes numbered 42,753 and 42,754.

3. References in briefs of counsel to the transcript of 
the complete record refer to the machine numbers at the 
bottom of each page.

4. Informant’s Exhibit 4 received in evidence at page 
207 of said transcript consists of the complete transcript of 
the record in cause numbered 527,724 in said Circuit Court, 
styled Robert M. Burton vs. Lloyd Moulder.

5. On page 576 of said transcript counsel have stipu­
lated that the complete transcript of the record in this 
court in cause numbered 42,456, styled Robert M. Burton, 
appellant, vs. Lloyd Moulder, respondent, is a copy of the 
complete transcript of the record in said cause 527,724 in 
said Circuit Court; that the record of said cause in this 
court shall be considered as and for said Exhibit 4 and 
that the said exhibit need not otherwise be reproduced.

GROUNDS OF JURISDICTION.

1. These are Habeas Corpus actions to release peti­
tioners from illegal imprisonment. The pretext therefor 
is that they are restrained under the authority of a com­
mitment for criminal contempt of court. Jurisdiction is 
vested in this court by:

Article V, Section 4, Constitution of Missouri.



3

2. A full review of criminal contempt proceedings is 
afforded in this court by Habeas Corpus,

Ex parte Howell,
273 Mo. 96; 200 S. W. 65 

Ex parte Clark,
208 Mo. 121; 106 S. W. 990 

Ex parte Creasy,
243 Mo. 679; 148 S. W. 914 

Ex parte O’Brien,
127 Mo. 477; 30 S. W. 158 

State ex  rel Thompson vs. Rutledge,
332 Mo. 603; 59 S. W. (2d) 641

3. Such review involves the question whether, under 
the facts and the law, the judgment rendered in the case 
was warranted.

Ex parte Creasy, supra

STATEMENT.

On the 20th day of June, 1951 the above petitioners 
filed in this court their petitions for Habeas Corpus, seek­
ing to be released from allegedly illegal imprisonment by 
J. A. Purdome, Sheriff of Jackson County, Missouri. Writs 
of Habeas Corpus duly issued, service thereof and the pro­
duction of the bodies of petitioners in this court were duly 
waived, petitioners were ordered released on bail pendente 
lite and appearance bonds duly approved.

The returns of respondent revealed that petitioners 
were imprisoned by him under and by virtue of a judgment 
and commitment entered and issued on the 18th day of 
June, 1951 by Division No. 4 of the Circuit Court of Jack- 
son County, Missouri (Honorable Thomas R. Hunt, Judge), 
in  a certain cause in said court, numbered 551348 and en­
titled State of Missouri ex inf., Henry H. Fox, Jr., Prose­



4

cuting Attorney of Jackson County, Missouri, Informant 
and Complainant, vs. Alfred H. Osborne, Robert B. Symp- 
son, J. Carl James, Phil Cabbell, Matt Jones and Vernon 
Everage, Contemnors. A  copy of said judgment and com­
mitment accompanied each of said returns.

Petitioners, by duly verified answers, alleged facts 
and grounds to show that their detention and imprison­
ment was unlawful and that they were entitled to be dis­
charged. Among the grounds so alleged are the points re­
lied on and the specifications of error, infra. To said an­
swers the respondent filed his separate demurrers.

A certified transcript of the complete record of said 
Circuit Court in said contempt proceeding is by stipulation 
(Tr. 576) and by reference in said answers made a part of 
the within record. These three Habeas Corpus actions 
were consolidated by order of this court.

The transcript of the proceedings in the Circuit Court 
reveals that on the 27th day of April, 1951, an unverified 
document called a “ Complaint for Criminal Contempt” 
and entitled as aforesaid, was filed in the office of the 
Clerk of the Circuit Court of Jackson County, Missouri 
(Tr. 1-4). Thereupon the cause was by the Assignment 
Division No. 8 of said court (Honorable Paul A. Buzard, 
Judge) assigned to Division No. 4. The said order of as­
signment (Tr. 5-6) recites that Division No. 4 only had 
jurisdiction to entertain proceedings to punish the con­
tempt alleged (Tr. 6). On said date a rule to show cause 
was issued by said Division No. 4 (Tr. 6-7) and on the 25th 
day of May, 1951, these petitioners and the other accused 
appeared and the trial of said proceeding was begun.

Petitioners filed and presented petitions and affidavits 
seeking to disqualify the Honorable Thomas R. Hunt, Cir­



5

cuit Judge, and praying that another Circuit Judge be sub­
stituted in his stead (Tr. 8, 110-112; 19, 114-116; 28, 127- 
129). Said petitions were denied (Tr. 8, 19, 28, 121, 126). 
Petitioners filed and presented to said court their motions 
to dismiss the rule to show cause and therein asserted that 
said complaint was wholly insufficient (Tr. 10, 20, 29). 
These motions were overruled (Tr. 9, 19, 28, 146, 178). 
Petitioners then filed their separate answers, on oath, de­
nying all matters and things charged in said complaint as 
constituting contempt (Tr. 9, 12-15; 19, 22-24; 28, 32-33). 
Petitioners then filed their separate motions for judgment 
on the pleadings, praying to be discharged of and from the 
charge of contempt (Tr. 9, 16-18; 19, 25-27; 28, 34-36), 
which said motions were overruled (Tr. 9, 19, 28, 164, 
179).

Over the objection of petitioners (Tr. 186-188) ex­
traneous evidence was received in an effort to establish 
the truth of the allegations of the complaint and to dis­
prove and impeach the allegations of said answers.

The order appointing amici curiae (Inf. Ex. 1; Tr. 
190), the report of amici curiae (Inf. Ex. 2; Tr. 192-193) 
and the order empowering the amici curiae to assist in 
representing the State of Missouri and empowering them 
and the prosecuting attorney to “ decide whether reason­
able cause exists” for the institution of criminal contempt 
proceedings and if such reasonable cause was by them so 
found, to institute the same (Inf. Ex. 3; Tr. 194-195) were 
received in evidence. The entire transcript on appeal in 
the case of Burton vs. Moulder (Inf. Ex. 4; Tr. 207) was 
introduced in evidence (See stipulation, Tr. 576). The 
transcript on appeal in cause No. 42456 in this court is a 
duplicate of said exhibit and referred to in lieu of repro­
ducing the same in the transcript of the contempt proceed­
ing. Informant’s Exhibits 5 and 6 (Tr. 199, 200, 215, 216-



6

218) constitute a duplicate original of the carbon copy of 
the original petition, as amended by longhand interline­
ation and the original petition, respectively, filed on the 
9th day of April, 1948, in the case of Robert M. Burton 
vs. Lloyd Moulder, Circuit Court No. 527724, bearing the 
signatures of J. Carl James and Chester H. Loughbom 
only as attorneys for plaintiff. The longhand writing on 
Exhibit 5 was made by Robert B. Sympson on the 27th 
day of September, 1950, the first day of the trial of said 
Burton vs. Moulder (Tr. 200-203); see also exhibit 4, pp. 
6a-6d). The said original petition so filed by J. Carl James 
and Chester H. Loughbom, attorneys, alleged that the de­
fendant “ drove his said automobile at a high and danger­
ous rate of speed, to-wit: 60 or 70 miles an hour.” In­
formant’s Exhibit 8 (Tr. 264-265) is a listing card, listing 
the Case of Burton vs. Moulder for trial. The cause was 
listed by J. Carl James and the only attorneys listed as 
representing plaintiff at that time were J. Carl James and 
Chester Loughbom. The filing stamp on the back thereof 
is dated March 10, 1949.

The witness, Vernon Everage, (Tr. 227) was jointly 
charged with petitioners and others (Tr. 2); no disposi­
tion had been made of his case when his testimony was 
given. Prior to the same being received, the objection 
was made that, by reason of the fact that he was jointly 
charged and that the case as to him had not been disposed 
of, he was an incompetent witness. The objection was 
overruled (Tr. 227).

Everage testified that he was a witness in the trial of 
Burton vs. Moulder on Friday (Tr. 229, 231), the 29th day 
of September, 1950 (See Exhibit 4, Transcript in Cause 
No. 42456 in this court, page 193); that on the preceding 
Wednesday, about 7:00 o’clock P. M. he talked to Osborne



7

and Sympson, who were in a car parked near the front 
of his home (Tr. 270); that he did so at the request of 
Jones; that Osborne, Sympson, Jones and Cabbell were in 
the car (Tr. 236); that Osborne asked him to testify to an 
accident that happened in the Fairfax District; that he 
knew nothing about the accident; that Osborne said he 
would tell him how the accident happened and what he 
was to say (Tr. 238); that he made and kept an engage­
ment to meet Sympson in the Fairfax District, in front of 
the General Motors plant where he worked, the next day 
at 10:00 o’clock; that Sympson gave him a subpoena so 
he could leave work and testify (Tr. 240-241); that the 
next morning about 10:00 o ’clock, at the gate of the Gen­
eral Motors plant, he met Sympson (Tr. 242); that he and 
Sympson drove in Sympson’s car to the intersection where 
“ this accident happened” (Tr. 242), at Sunshine Road and 
Chrysler Road (Tr. 232), which is about a block from the 
place of his employment (Tr. 242); that there they met 
Matt Jones and Phil Cabbell (Tr. 242), who were in a Ford 
car being driven by Cabbell—he “ supposed” it was Ca­
bell’s car (Tr. 279); that he, Jones and Sympson rode in 
Sympson’s car and Sympson showed them “ about, oh, the 
speed that the Plymouth was going” (Tr. 243); that the 
Sympson car was “ supposed to be Matt’s (Jones’ ) car on 
the day of the accident” (Tr. 244); that Sympson told him 
that the “ Plymouth was supposed to pass” the car in which 
he was riding with Jones “ at a high rate of speed” (Tr. 
244, 245). His answer as to what Cabbell did upon this 
occasion was stricken (Tr. 247). His answer as to what 
Sympson said to him with reference to what Cabbell was 
doing is unintelligible (Tr. 247). He could remember no 
other conversation there with Sympson, Jones or Cabbell 
(Tr. 247-248). He testified that, after being at the scene 
of the accident for about 45 minutes (Tr. 248), he, Symp-



son and Jones went to Osborne’s office; that Cabbell did 
not accompany them (Tr. 248); that at the office J. Carl 
James wrote a statement which he (Everage) did not read, 
but which he testified was dated back (Tr. 251); that toy 
cars were there used to demonstrate how the accident 
happened (Tr. 252); that Osborne was there a part of the 
time (Tr. 249-250); that he went to the Court House 
around 2:00 or 3:00 o’clock, but remained in the witness 
room the rest of the afternoon; that Sympson and J. Carl 
James were in this witness room most of the time; that 
Osborne was in and out; that Osborne gave him $100.00 
(Tr. 255-256); that he used this money to pay a bill at the 
Palace Clothing Co. the following Saturday (Tr. 257).

A credit on the account of Vernon Everage with the 
Palace Clothing Co. on Saturday, Sept. 30, 1950, amounts 
to $10.55 (Tr. 376-377).

Mrs. Helen Everage, wife of Vernon Everage (Tr. 
383) testified that her husband told her on the day he tes­
tified that he had done something he was terribly sorry 
for; that he had made false testimony (Tr. 383).

A. W. Disselhoff testified that on March 28, 1948 he 
witnessed an accident at the intersection of Sunshine Road 
and Chrysler Road in the Fairfax District in Kansas City, 
Kansas; that he testified in the case of Burton vs. Moulder; 
that he was driving North on Chrysler Road prior to the 
accident; that he was following a Plymouth car (Tr. 403); 
that there was no car between his automobile and the 
Plymouth prior to the accident; that he stopped at the 
scene of the accident and did not see any colored people 
(Tr. 404).

F. B. Clay (Tr. 418) testified that he was riding with 
Disselhoff on March 23, 1948 and observed an accident at 
Chrysler Road and Sunshine Blvd. (Tr. 418); that they



9

followed a Plymouth car north on Chrysler for about a 
block before the accident (Tr. 419); that he did not recall 
any car passing his car and the Plymouth (Tr. 419); that he 
did not recall seeing any automobiles driving along Chry­
sler Road or Sunshine Blvd. at the time (Tr. 419); that he 
has worked at the B. O. P. (General Motors) plant all the 
time since the accident (Tr. 420) and rode to work with 
Disselhoff for one and one-half years after the accident (Tr. 
421); that he never gave any previous testimony (Tr. 421); 
that until about a month before (the contempt hearing) no 
one asked him anything about this accident (Tr. 421); that 
he “ guessed” that no one tried to get him to testify when 
the case (Burton vs. Moulder) was tried (Tr. 421); that 
probably 3,000 men went to work at the General Motors 
plant at the 8:00 o ’clock shift (Tr. 422); that there was 
“bound” to be heavy traffic on these highways at the time 
in question, but he wouldn’t want to say for sure because 
“ it’s been so long ago” (Tr. 425); that lots of negroes go to 
work on that shift (Tr. 426); that he didn’t recall anything 
that would make him say “ there were or there weren’t” 
(Tr. 427-428) any negroes there (at the scene of the acci­
dent) ; that he did not mean to say there were no negroes 
there (Tr. 426).

At the close of the evidence the petitioners filed mo­
tions for discharge which were overruled (Tr. 64, 65-66; 
67, 68-69, 70-71; they were found guilty and punishment 
was assessed (Tr. 77). Motions for new trial were filed 
and overruled (Tr. 77, 544-549; 557-562) and judgment 
was entered (Tr. 78-91).



10

POINTS AND AUTHORITIES.

I.

Due process of law, as guaranteed petitioners by 
Amendment XIV, Section 1, of the Constitution of the 
United States and Article I, Section 10, of the Constitution 
of Missouri, was denied petitioners in the trial of the cause 
resulting in the judgment upon which the within commit­
ment is based, in that, at said trial petitioners were denied 
the right to have an impartial judge; that by reason thereof 
said judgment and commitment is illegal.

1. Since the pleadings admit that the Honorable 
Thomas R. Hunt was not impartial, it follows that peti­
tioners were denied due process of law.

Amendment XIV, Sec. 1, Const, of U. S.
Article I, Section 10, Const, of Missouri 
Inland Steel Co. vs. National Labor Rel. Board,

109 Fed. (2d) 9, 20, 21 
Schmidt vs. U. S.,

115 Fed. (2d) 394, 397, 398 
Toledo Newspaper Co. vs. U. S.,

237 Fed. 986, 988 
Cornish vs. U. S.,

299 Fed. 283, 285 
Turney vs. Ohio,

273 U. S. 510; 47 S. Ct. 437, 445 
Cooke vs. U. S.,

267 U. S. 517; 45 S. Ct. 390, 396 
Jordan vs. Massachusetts,

225 U. S. 167; 32 S. Ct. 651, 652

2. The affidavits as to the prejudice of Honorable 
Thomas R. Hunt (Tr. 8, 110-112; 19, 114-116; 28, 127-129)



11

divested him of jurisdiction and required the substitution 
of another Circuit Judge.

Sec. 545.660, R. S. Mo., 1.949 
State vs. Mitts (Mo.)

29 S. W. (2d) 125, 126

3. The Circuit Court of Jackson County, Missouri is 
one court composed of ten divisions and ten regular judges.

Sec. 478.463, R. S. Mo., 1949 
State vs. Howard (Mo.)

205 S. W. (2d) 530, 532 
State ex rel Mac Nish vs. Landwehr,

332 Mo. 622; 60 S. W. (2d) 4, 7

4. The proceeding could have been transferred to 
another division or any judge of said court could have held 
court in said Division No. 4 on request of Judge Hunt.

Sec. 545.650, R. S. Mo., 1949 
Sec. 478.500, R. S. Mo., 1949

5. Any Circuit Judge in this state could, on request, 
have held court in said Division No. 4.

Article V, Section 15, Const, of Missouri 
State vs. Emerich (Mo.),

237 S. W. (2d) 169, 172 
Sections 11.01, 11.02, 11.03, 11.04 

Rules of Supreme Court

6. The substitution of another judge is not a change 
of venue.

State ex  rel McAllister vs. Slate,
278 Mo. 570; 214 S. W. 85, 87 

State ex  rel Renfro vs. Wear,
129 Mo. 619; 31 S. W. 608



12

7. Criminal contempt is a specific criminal offense 
and a judgment in a prosecution therefor is a judgment in 
a criminal case.

Ex parte Shull,
121 S. W. 10, 11; 221 Mo. 623 

Ex parte Clark,
106 S. W. 990, 997; 208 Mo. 121 

Cannon vs. State,
55 Pac. (2d) 135 (Okla.)

Brophy vs. Industrial Accident Assn.,
115 Pac. (2d) 835, 837 (Colo.)

In re Haley,
41 Fed. (2d) 379, 381 

U. S. vs. Hoffman,
161 Fed. (2d) 881

People ex rel Atty. Gen, vs. Kinsley,
74 Pac. (2d) 663 (Colo.)

8. Where, as here, the affidavits disqualifying a trial 
judge are in substantial compliance with the statute, the 
trial court has no power or authority to proceed, except to 
direct the substitution of another judge.

State vs. Irvine,
72 S, W. (2d) 96, 100; 335 Mo. 261 

State vs. Myers,
14 S, W. (2d) 447; 322 Mo. 48 

State vs. Mitts, supra 
Thompson vs. Sanders, (en banc)

70 S. W. (2d) 1051, 1055; 334 Mo. 1100



13

II.

In rendering the judgment upon which the commit­
ment is based, the Circuit Court exceeded its contempt 
power and violated Article I, Section 22 (a) of the Con­
stitution of Missouri, which provides that the right of a 
trial by jury, as heretofore enjoyed, shall remain inviolate, 
in that, the constitutional right of a trial by jury, of any 
issue of fact in a criminal prosecution, rendered the Circuit 
Court without power, without the aid of a jury, to try the 
issue of fact erroneously assumed to have been raised by the 
pleadings, in the proceeding here involved; the common law 
power of the Circuit Court required it to try the issue of 
contempt vel non on the sworn answer of the accused only.

Article XIII, Sec. 8, Const, of Mo., 1820 
Article XIII, Sec. 8, Const, of Mo., 1855 
Article I, Sec. 17, Const, of Mo., 1865 
Article II, Sec. 28, Const, of Mo., 1875 
Lindell vs. McNair,

4 Mo. 380
State ex rel Pulitzer Pub. Co. vs. Coleman,

347 Mo. 1239; 152 S. W. (2d) 640, 645

1. Constructive criminal contempt of court was a 
criminal offense at common law and is a criminal offense 
in Missouri.

Ex parte Shull,
221 Mo. 623; 121 S. W. 10, 11 

Ex parte Clark,
208 Mo. 121; 106 S. W. 990, 997

2. Constructive criminal contempt at common law was 
tried either on an indictment and to a jury or by the court 
on the sworn and incontrovertible answer of the accused.

Burke vs. State,
47 Ind. 528 

4 Bl. Com. 293



14

Bacon Abr. Attachment B 
3 Hawk. P. C. b. 2, Ch. 22, Secs. 1, 32, 33, 34 
7 Am. & Eng. Ency. of Law (2d Ed.), 71, 72 
Welch vs. People,

30 111. App. 399 
Appeal of Verden,

97 Atl. 783 (N. J.)
People vs. Doss,

46 N. E. (2d) 984, cert, denied,
64 S. Ct. 38; 320 U. S. 762 (111.)

Croft vs. Culbreath,
6 So. (2d) 638 (Fla.)

State vs. Vincent,
26 Pac. 939 (Kan.)

People vs. McLaughlin,
166 N. E. 67 (111.)

Hiner vs. State,
182 N. E. 245 (Ind.)

People vs. Seymour,
111 N. E. 1008 (111.)

People vs. Friedlander,
199 111. App. 300 

People vs. Harrison,
86 N. E. (2d) 208 (111.)

People vs. McDonald,
145 N. E. 636 (111.)

In re Walker,
82 N. C. 95

People ex  rel Chicago Bar Assn. vs. Novotny 
54 N. E. (2d) 536; Cert, denied,
65 S. Ct. 71; 323 U. S. 734 (111.)

Thomas vs. Cummins,
I Yeates 40 (Pa.)

People vs. McKinley,
II N. E. (2d) 933 (111.)

State ex rel Allison vs. Municipal Ct.,
56 N. E. (2d) 493 (Ind.)



15

State vs. Earl,
41 Ind. 464 

People vs. Whitlow,
191 N. E. 222 (111.)

People vs. Northrup,
279 111. App. 129.

Provenzales vs. Provenzales,
90 N. E. (2d) 115 (111.)

Denny vs. State,
182 N. E. 313 (Ind.)

Stewart vs. State,
39 N. E. 508 (Ind.)

Underwood’s Case,
2 Hump. 46 (Tenn.)

3. The contempt powers of the constitutionally 
created courts of Missouri are those of the law courts at 
common law.

State ex  inf Crowe vs. Shepherd,
76 S. W. 79; 177 Mo. 205.

C. B. & Q. Ry. Co. vs. Gildersleeve,
118 S. W. 86; 219 Mo. 170 

Ex parte Creasy,
148 S. W. 914; 243 Mo. 679 

State ex  rel Pulitzer Pub. Co. vs. Coleman, supra

4. This court has followed the common law procedure 
insofar as it was applicable to the cases considered.

Ex parte Clark,
106 S. W. 990, 998; 208 Mo. 121.

Glover vs. American Casualty Ins. & Sec. Co.,
32 S. W. 302, 305; 130 Mo. 173 

Ex parte Nelson,
157 S. W. 794, 802-803; 251 Mo. 63

5. The following cases from other states are based on 
facts somewhat analogous to and ruled in harmony with



16

the pronouncements of this court in Ex parte Nelson, 
supra.

State vs. New Mexican Ptg. Co.,
177 Pac. 751 (N. M.)

Baumgartner vs. Jouglin,
141 So. 185 (Fla.)

People vs. Gilbert,
118 N. E. 196 (111.)

People vs. Sherwin,
166 N. E. 513 (111.)

Dossett vs. State,
78 N. E. (2d) 435 (Ind.)

Freeman vs. State,
69 S. W. (2d) 267 (Ark.)

In re Chadwick,
67 N. W. 1071 (Mich.)

III.

The complaint for criminal contempt (Tr. 2-4) is in­
sufficient to vest jurisdiction in the Circuit Court, charge 
constructive criminal contempt of court, or upon which 
to predicate a valid judgment; in that, it is vague, indefinite 
and uncertain; it fails to state the particular circumstances 
of the offense attempted to be charged and is not verified.

Section 476.140, R. S. Mo., 1949
Article XIV, Section 1, Const, of the United States
Article I, Section 10, Const, of Missouri
Article I, Section 18 (a), Const, of Missouri
Reardon vs. Frace, infra
17 C. J. S., Section 72

1. Where a charge is vague, indefinite and uncer­
tain, it is tantamount to no charge at all and a conviction 
thereon violates due process of law.

Thornhill vs. Alabama,
310 U. S. 88; 60 S. Ct. 736, 741



17

De Jcmge vs. Oregon,
299 U. S. 353, 362; 57 S. Ct. 255, 259

Stromberg vs. California,
283 U. S. 359, 367, 368; 51 S. Ct. 532, 535

2. In failing to state the particular circumstances of 
the offense, the charge is fatally defective.

Frowley vs. Superior Court,
110 Pac. 817 (Cal.)

State ex rel vs. Dist. Court,
236 Pac. 553 (Mont.)

Cornish vs. U. S.,
299 Fed. 283

Rucker vs. State,
85 N. E. 356 (Ind.)

Dreher vs. Superior Court,
12 Pac. (2d) 671 (Cal.)

Wyatt vs. People,
28 Pac. 961 (Colo.)

Phillips vs. Superior Court,
137 Pac. (2d) 838 (Cal.)

Ex parte Lyon,
81 Pac. (2d) 190 (Cal.)

Grace vs. State,
67 So. 212 (Miss.)

State vs. Henthom,
26 Pac. 937 (Kan.)

Carlino vs. Downs,
279 N. Y. S. 510

Ex parte Collins,
45 N. W. (2d) 31 (Mich.)

Simmons vs. Simmons,
278 N. W. 537 (S. D.)

Haynes vs. Haynes,
212 Pac. (2d) 312 (Kan.)

Ex parte Donovan,
216 Pac. (2d) 123 (Cal.) '



18

Rutherford vs. Holmes,
66 N. Y. 368

Brunton vs. Superior Court,
116 Pac. (2d) 643 (Cal.)

People vs. Friedlander,
199 111. App. 300 

Michigan Gas & Elec. vs. City,
262 N. W. 762 (Mich.)

See also authorities Point IV, infra.

3. Perjury alone does not constitute such an obstruc­
tion to the performance of judicial duty as to constitute 
contempt.

In re Michael,
326 U. S. 224; 66 S. Ct. 78 

Ex parte Creasy, supra, (Mo. en banc)
U. S', vs. Goldstein,

158 Fed. (2d) 916, 920 
In re Gottman,

118 Fed. (2d) 425 
U. S. vs. Arbuckle,

48 Fed. Supp. 537, 538 
In re Eskay,

122 Fed. (2d) 819, 823-824

4. The failure to verify the complaint rendered the 
same insufficient to vest the Circuit Court with jurisdic­
tion.

Sec. 545.240, R. S. Mo., 1949 
State vs. Lawhorn,

250 Mo. 293; 157 S, W: 344 
State vs. Sykes,

285 Mo. 25; 225 S. W. 904 
State vs. Weyland,

126 Mo. App. 723; 105 S. W. 660 
State vs. Trout,

274 S. W. 1098 (Mo. App.)



19

State vs. Gutke,
188 Mo. 424; 87 S. W. 503 

State vs. Kelly,
188 Mo. 450; 87 S. W. 451

5. All the authorities seem to agree that a charge of 
constructive contempt must be verified by the oath of a 
party having personal knowledge of the facts or by the 
oath of a public officer, if the proceeding be instituted by 
him.

People vs. Harrison, supra 
Denny vs. State, supra 
Cushman vs. Mackesy,

200 Atl. 505 (Me.)
Craddock vs. Oliver,

123 So. 87 (Ala.)
Ex parte Scott,

123 S. W. (2d) 306 (Tex.)
Ex parte Diggers,

95 So. 763 (Fla.)
Stewart vs. State,

39 N. E. 508 (Ind.)

IV.

The commitment, under and by virtue of which peti­
tioners are imprisoned is void, not only because of the 
insufficiency of the complaint, as heretofore asserted, but 
because the judgment and commitment dees not set forth 
the particular circumstances of the offense of which they 
were convicted.

Sec. 476.140, R. S. Mo., 1949 
Reardon vs. Frace, (en banc)

344 Mo. 448; 126 S, W. (2d) 1167, 1169 
Ex parte Fuller, ( en banc)

50 S. W. (2d) 654; 330 Mo. 371 
Ex parte Shull, supra



20

Ex parte Creasy, supra 
Ward vs. Lamb,

177 S. W. 365 (Mo.)
Ex parte Stone,

183 S. W. 1058 (Mo.)
People ex rel Butwill vs. Butwill,

38 N. E. (2d) 377 (111.)
Waldman vs. Churchill,

186 N. E. 690 (N. Y.)
Ex parte Lake,

224 P. 126 (Cal.)

V.

If extraneous evidence was permissible to controvert 
the sworn answer of the accused, which we deny, there 
was not sufficient competent evidence to sustain a judg­
ment of constructive criminal contempt.

1. The witness, Vernon Everage, was an incompetent 
witness because he was jointly charged with these peti­
tioners (Tr. 2-4) and the case was not disposed of as to 
him when he was permitted, over objection (Tr. 227) to 
testify.

Sec. 546.280, R. S, Mo., 1949 
State vs. Chyo Chiagk,

92 Mo. 395; 4 S. W. 704 
State vs. Weaver,

165 Mo. 1; 65 S. W. 308 
State vs. McGray,

309 Mo. 59; 273 S. W. 1055 
State vs. Falger,

154 Mo. App. 1; 133 S. W. 85 
Ex parte Dickinson,

132 S. W. (2d) 243 (Mo. App.)

2. Even if the evidence of Everage is considered the 
most that can be claimed for it is that it established per­



21

jury only; and while petitioners deny its sufficiency for 
that purpose, it is clear that perjury alone is insufficient 
to establish criminal contempt of court.

See authorities Point III (3).

3. As to Phil Cabbell: Mere presence, even plus ac­
quiescence or mental approval, which is the most that can 
be said of the evidence as to Cabbell, is not sufficient to es­
tablish participation in an offense in any degree.

State vs. Bresse,
326 Mo. 885; 33 S. W. (2d) 919 

State vs. Odbur,
317 Mo. 372; 295 S. W. 734 

State vs. Simon,
57 S. W. (2d) 1062 (Mo.)

State vs. Mathis,
129 S. W. (2d) 20 (Mo. App.)

j. ARGUMENT.

I.

Due process of law, as guaranteed petitioners by 
Amendment XIV, Section 1, of the Constitution of the 
United States and Article I, Section 10, of the Constitution 
of Missouri, was denied petitioners in the trial of the 
cause resulting in the judgment upon which the within 
commitment is based, in that, at said trial petitioners were 
denied the right to have an impartial judge; that by reason 
thereof said judgment and commitment is illegal.

Specifically: The Honorable Thomas R. Hunt, Judge,
who presided at said trial, violated Amendment XIV, Sec­
tion 1, of the Constitution of the United States, which 
provides that no State shall deprive any person of liberty 
or property without due process of law, and violated Arti­
cle I, Section 10, of the Constitution of Missouri, which



22

provides that no person shall be deprived of liberty or 
property without due process of law.

Said violations consisted in this: That at said trial the 
said Honorable Thomas R. Hunt deprived these petitioners 
of the right to have an impartial judge; that at and by 
said trial the liberty and property of these petitioners were 
jeopardized; that said judgment, if upheld, will deprive 
petitioners of their liberty and property.

(1) Admittedly the said Honorable Thomas R. Hunt 
was not impartial. In the answers to the return, each pe­
titioner alleges [par. 1(1)] that Judge Hunt “ was, in fact, 
prejudiced against this petitioner and in said cause and was 
not wholly unprejudiced.” This allegation is admitted by 
respondent’s demurrers to said answers.

(2) Each petitioner timely made, filed in said cause 
and presented to said Honorable Thomas R. Hunt (Tr. 8, 
110-112; 19, 114-116; 28, 127-129) his affidavit, supported 
by the affidavits of two reputable persons, not of kin to or 
counsel for said petitioner, that Judge Hunt, the judge of 
said court in which said cause was pending, would not af­
ford him a fair trial, was prejudiced against him and that, 
by reason of said prejudice, petitioner could not have a 
fair trial of said cause before said judge; that petitioner 
prayed that a change of venue be awarded or that another 
circuit judge be notified and requested to try said cause.

Of these sub-points in their order:

1. Due process of law, under the conditions here of 
record, clearly requires that the accused be accorded the 
right to an impartial judge.

Inland Steel Co. vs. National Labor Rel. Board, 
109 Fed. (2d) 9, 20, 21 

Schmidt vs. U. S.,
115 Fed. (2d) 394, 397, 398



23

Toledo Newspaper Co. vs. U. S.,
237 Fed. 986, 988 

Cornish vs. 17. S.,
299 Fed. 283, 285 

Turney vs. Ohio,
273 U. S. 510; 47 S. Ct. 437, 445 

Cooke vs. U. S'.,
267 U. S. 517; 45 S. Ct. 390, 396 

Jordan vs. Massachusetts,
225 U. S. 167; 32 S. Ct. 651, 652

In the Inland Steel Co. case, supra, the court said:

“That a trial by a biased judge is not in conform­
ity with due process is sustained by the authorities. 
In Turney vs. Ohio, 273 U. S. 510, 535; 47 S. Ct. 437, 
445; 71 L. Ed. 749; 50 A. L. R. 1243, the court said: 
* * * ‘No matter what the evidence was against him, 
he had the right to have an impartial judge. * * *’ 

The court, in Jordan vs. Massachusetts, 225 U. S., 
167, 176; 32 S, Ct. 651, 652; 56 L. Ed. 1038 said: ‘Due 
process implies a tribunal both impartial and men­
tally competent to afford a hearing. * * *’ ”

The Cooke case, supra, involved indirect criminal con­
tempt. It was reversed and remanded by the United 
States Supreme Court. There the court said:

“We think, therefore, that when this case again 
reaches the District Court, to which it must be re­
manded, the judge who imposed the sentence herein 
should invite the senior Circuit Judge of the Circuit 
to assign another judge to sit in the second hearing of 
the charge against petitioner.”

In the Toledo Newspaper Co. case, supra, the subject 
of trying constructive contempt cases before judges sit­
ting in the place and stead of those before whom the al­
leged contempts were committed, is considered. There 
the court said:



24

“ * * * but it is of the greatest importance that 
contempt proceedings be put, as far as possible, be­
yond the reach of even unjust adverse criticism, and in 
such a situation as has been recited, the judges of this 
court upon whom the duty may fall will always be 
ready to assign a judge from another district.”

In the Cornish case, supra, the court repeated much of 
what was said in the Toledo Newspaper Co. case, with the 
following additional observation:

“ * * * where there is more than one judge in the 
district, there is less degree of need for special desig­
nation. * * *”

The Schmidt case, supra, was one for constructive 
criminal contempt against two lawyers. It was charged 
that said lawyers had advised their clients that it was 
proper to interrogate grand jurors concerning the evidence 
upon which indictments were based. The clients filed af­
fidavits of bias and prejudice as to the trial judge (28 
U. S. C. A. 144) and the accused lawyers appended thereto 
their certificates of good faith. In that case the court said:

“ The judge should not have been required to try 
the contempt cases while he was confronted with the 
affidavits of bias and prejudice, to which appellants 
had appended their certificates of good faith. This is 
no reflection upon the judge, nor upon any judge so 
confronted. Even a judge may not put aside the pro­
pensity of human nature as easily as he does his robe.”

2. The affidavits as to the prejudice of the Honorable 
Thomas R. Hunt, filed and presented to him by petitioners, 
were authorized by Section 545.660, R. S. Mo., 1949. While 
commonly designated applications for change of venue, 
such designation is a misnomer (State vs. Mitts, (M o.), 29 
S. W. (2d) 125, 126). Strictly, the applications were for 
the substitution of another judge.



25

The Circuit Court of Jackson County (16th Judicial 
Circuit) is one court, consisting of ten divisions, with one 
regular circuit judge for each division (Sec. 478.463, R. S. 
Mo., 1949; State vs. Howard, (Mo.), 205 S. W. (2d) 530, 
532; State ex rel Mac Nish vs. Landwehr, 332 Mo. 622, 60 
S. W. (2d) 4, 7). The cause could have been transferred 
to another division of the same court presided over by a 
different judge (Sec. 545.650, R. S. Mo., 1949). Another 
judge of the same court could have held court in said Di­
vision 4, at the request of Judge Hunt and tried said cause 
(Sec. 478.500, R. S. Mo., 1949). Any circuit judge in the 
state, at the request of Judge Hunt, could have held court 
in said Division No. 4 (Art. V, Sec. 15, Const, of Mo.; State 
vs. Emerich, (Mo.), 237 S. W. (2d) 169, 172).

A simple and convenient means of affording petitioners 
jtheir constitutional right to a trial by an impartial judge 
was, therefore, readily available. The situation was 
analogous to, but even more convenient than, the federal 
system where there is more than one judge of a district 
court.

Another circuit judge could have been substituted in 
the place and stead of the Honorable Thomas R. Hunt with­
out changing the venue of the proceeding.

State ex rel McAllister vs. Slate,
278 Mo. 570; 214 S. W. 85, 87

In the Slate case the prejudice of the judge was es­
tablished by evidence in a prohibition proceeding. In the 
case at bar such prejudice is admitted by the pleadings. In 
the Slate case the court said:

“ If in fact bias exists, to an extent which will pre­
clude a fair, unprejudiced, and unbiased weighing of 
the law and the facts on the state’s side upon a trial of 
the case of State v. Scott, then prejudice is present to 
a degree forbidden to a judge by both the common law



26

(Massie v. Com., 93 Ky. 588, 20 S. W. 704) and the
statute * * *.”

In the Slate case this court followed State ex rel Renfro 
vs. Wear, 129 Mo. 619; 31 S. W. 608. In the Wear case the 
■prosecuting attorney relied upon Sec. 4174, R. S. Mo., 1889 
and this court ruled that Judge Wear was disqualified. 
Sec. 4174, R. S. Mo., 1889, is now Sec. 545.660, R. S., 1949. 
In the Wear case sub-division one of said statute was suc­
cessfully invoked. In the case at bar petitioners unsuc­
cessfully attempted to invoke sub-division four of this same 
statute. The statute specifically applies to a “ criminal 
prosecution” * * * pending in any circuit court.

Criminal contempt is a “ specific criminal offense” and 
a judgment in a prosecution therefor is a “ judgment in a 
criminal case.”

Ex parte Shull,
121 S. W. 10, 11; 221 Mo. 623 

Ex parte Clark,
106 S. W. 990, 997; 208 Mo. 121 

Cannon vs. State,
55 Pac. (2d) 135 (Okla.)

Brophy vs. Industrial Accident Assn.,
115 Pac. (2d) 835, 837 (Colo.)

In re Haley,
41 Fed. (2d) 379, 381 

U. S. vs. Hoffman,
161 Fed. (2d) 881

People ex rel. Atty. Gen. vs. Kinsley,
74 Pac. (2d) 663 (Colo.)

Where, as here, the affidavits disqualifying a trial 
judge are in substantial compliance with the statute, the 
trial court has no power or authority to proceed, except to 
direct the substitution of another judge.

State vs. Irvine,
72 S. W. (2d) 96, 100; 335 Mo. 261



27

State vs. Myers,
14 S. W. (2d) 447; 322 Mo. 48

State vs. Mitts, supra

Where, as here, the affidavits are duly made, filed, pre­
sented and denied, the trial judge loses jurisdiction to pro­
ceed, a subsequent judgment rendered by him is void and 
is subject even to collateral attack on habeas corpus.

Thompson vs. Sanders,
70 S. W. (2d) 1051, 1055; 334 Mo. 1100 (en banc)

When the complaint in the cause here considered was 
originally filed in the Circuit Court the judge of the then 
Assignment Division, No. 8, thereof (the Honorable Paul A. 
Buzard) assigned said proceeding to Division No. 4 of said 
Court (Tr. 5-6). The entry of the order of transfer was 
doubtless furnished (Tr. 6) by opposite counsel herein, 
whose names are signed to the complaint (Tr. 4). The 
reason assigned for such transfer was that

“ * * * the law is well settled that the Court alone 
in which a contempt is committed, or whose authority 
is defied, has power and jurisdiction to punish it or 
to entertain proceedings to that end, and because no 
other court has any jurisdiction or power in such cases 
* * *. (Entry furnished).”

In this connection, it is noteworthy that Rules of Crimi­
nal Procedure for the Courts of Missouri are in the course 
of preparation for final adoption; that said rules will be 
adopted pursuant to Article V, Section 5 of the Constitution, 
which expressly provides “ that the same shall not change 
substantive rights” . Referring to the report of the drafting 
committee for such rules, dated March 28, 1951, and pro­
posed Rule XV, as set forth in said report, the same pro­
vides that “ If the contempt charged involves disrespect to 
or criticism of a judge, that judge is disqualified from pro­



28

ceeding at the trial or hearing, except with the defendant’s 
consent” (pp. 100-101). It seems this proposed rule is 
based upon Federal Rule 42 and Advisory Rule 29.61. The 
Honorable Paul A. Buzard is a member of this drafting 
committee (p. 37). It follows, therefore, that Judge Buzard 
and his fellow committeemen either did not believe, when 
this committee report was compiled, that the court alone 
in which a contempt is committed has jurisdiction to punish 
the same, or they did not believe that the substitution of 
another judge in the place and stead of the regular judge 
of such court would deprive the same of jurisdiction to try 
such proceeding.

II.

In rendering the judgment upon which the commit­
ment is based, the Circuit Court exceeded its contempt 
power and violated Article I, Section 22 (a), of the Con­
stitution of Missouri, which provides that the right of a 
trial by jury, as heretofore enjoyed shall remain invio­
late, by reason of which said judgment is void.

Said violation and excess of jurisdiction consisted in 
this: The petitioners, by their sworn answers (Tr. 9, 12-
15; 19, 22-24; 28, 32-33), specifically and categorically 
denied all matters and things charged as constituting the 
contempt; thereafter they filed separate motions for dis­
charge (Tr. 9, 16-18; 19, 25-27; 28, 34-36), which said mo­
tions were, by the court, denied; whereupon, the court, un­
aided by a jury, received and heard extraneous evidence 
as to the truth or falsity of the allegations of said answers 
and, based on said evidence, rendered said judgment.

(1) Our Circuit Courts, in indirect criminal contempt 
proceedings, must keep within their common law authority, 
thereby exercising their contempt power within the frame 
work of our Constitutional inhibitions.



29

The provision of Article I, Section 22 (a), of the Con­
stitution of Missouri, insofar as it provides that the right 
to a trial by jury, as heretofore enjoyed, shall remain in­
violate, has been in every constitution of this state. 

Article XIII, Sec. 8, Const, of Mo., 1820 
Article XIII, Sec. 8, Const, of Mo., 1855 
Article I, Sec. 17, Const, of Mo., 1865 
Article II, Sec. 28, Const, of Mo., 1875

The Act of Congress, approved June 4, 1812 (1 Mo. Ter­
ritorial Laws 8) provided:

“No man shall be deprived of his life, liberty or
property but by judgment of his peers and the law of
the land.”

This was translated from the Magna Charta (State ex  
rel Pulitzer Pub. Co. vs. Coleman, 347 Mo. 1239; 152 S. W. 
(2d) 640, 645).

Manifestly, the first Constitution of our state adopted, 
and our subsequent Constitutions have preserved, the right 
to a trial by jury as that right was secured by the Magna 
Charta.

In 1816 the Missouri Territorial Assembly adopted the 
common law of England in substantially the same word­
ing as is now Sec. 1.010, R. S. Mo., 1949 (Lindell vs. McNair, 
4 Mo. 380).

Indirect or constructive criminal contempt of court 
was a criminal offense at common law and is a criminal of­
fense in Missouri.

Ex parte Shull,
221 Mo. 623; 121 S. W. 10, 11 

Ex parte Clark,
208 Mo. 121; 106 S. W. 990, 997



30

The Magna Charta forbade that any person should be 
tried for a criminal offense, except upon an indictment 
of the grand inquest and to a jury. In the face of this 
prohibition, there could be no trial by the court, unaided 
by a jury, of an issue of fact in an indirect criminal con­
tempt proceeding.

At common law, such charges were tried, either on an 
indictment and to a jury, or by the court, on the sworn, 
incontrovertible answer of the accused. Where the trial 
was to the court, without a jury, the common law pro­
cedure was:

(a) The issue of contempt vel non was tried solely 
on the sworn answer of the accused.

(b) The sworn answer, denying the facts charged as 
constituting contempt, was conclusive and entitled the 
accused to his discharge.

(c) If the sworn answer was insufficient, i. e., was 
evasive, or admitted facts which established the alleged 
contempt, punishment at once could be imposed.

An able review of the common law authorities is to 
be found in the case of Burke vs. State, 47 Ind. 528. See 
also:

4 Bl. Com. 293
Bacon Abr. Attachment B
3 Hawk. P. C. b. 2, Ch. 22, Secs. 1, 32, 33, 34
7 Am. & Eng. Ency. of Law (2d Ed.), 71, 72

In Welch vs. People, 30 111. App. 399, the court said:

“ Upon the question of what the common law of 
England is upon any subject upon which they write, 
the concurring testimony of Blackstone and Hawkins, 
the first in his Commentaries, and the last in his Pleas 
of the Crown, is conclusive. * * *



31

The plaintiff in error, in answer to the rule to 
show cause why he should not be attached for con­
tempt in attempting to influence a juror, by his affi­
davit explicitly, without evasion, denied the whole 
charge in detail. * * * the denial should have ended 
the inquiry; * * *

The court had jurisdiction of the subject matter 
and of the person of plaintiff in error, but it had no 
jurisdiction of the mode of proceeding. This distinc­
tion is not easily defined (Lange vs. Benedict, 73 N. Y. 
12), but it is easily illustrated. The Criminal Court, 
having before it a defendant indicted for an offense, 
however trivial, has no authority, without his con­
sent, to try the issue of fact. If he pleads guilty, the 
court may fix the punishment. If he denies the charge 
against him, the court, unaided, can go no further. 
The sturdy principles of the common law exempt him 
from submitting an issue of fact to any other tribunal 
than a jury of his peers, with the right of challenge. 
People vs. Hanchett, 16 Legal News 320 is as instruc­
tive and almost persuasive, as authority, as if the em­
inent judge who decided it had sat where he did when 
he delivered the opinion in People vs. Whitson, 74
111. 20.

All the further proceedings, by examining wit­
nesses, were without warrant of law. * * *” (Em­
phasis ours).

In Appeal of Verden, 97 Atl. 783 (N. J.) the court 
said:

“ What the common law of England was at the 
time at which we derived it from the parent country 
is thus stated by Blackstone, who wrote at about that 
period:

* * If the party can clear himself upon oath, he 
is discharged; but, if perjured, may be prosecuted for 
the perjury.’ * * *

“ * * * That this immemorial usage underwent no 
change in its transplanting to the American states is



32

shown by a decision of the Supreme Court of New 
York, while Kent was still chief justice. The court 
said:

‘The attachment, by virtue of which he had been 
arrested, was nothing more than a process to bring him 
into court, to answer the interrogatories which * * * 
were to be exhibited against him. This is necessary to 
be done in every case, before a party can be convicted 
of a contempt. If the answers to the interrogatories 
show that no contempt has been committed, the party 
is entitled * * * to his discharge; but if the contempt 
is admitted, the court proceeds to pronounce such judg­
ment as the circumstances of the case may require. 
Jackson vs. Smith, 5 Johns (N. Y.) 117.’

To the same effect is the decision of all courts that 
proceed according to the course of the common law.
«i» H* H*

Contempt was a criminal offense, and Magna 
Charta expressly forbade that any person should be 
tried for a criminal offense unless upon the indict­
ment of the grand inquest. In the face of this pro­
hibition there could be no trial by the court. * * * The 
net result of these fundamental restrictions was that 
in the summary proceeding for contempt there could 
be no trial, and hence no witnesses, from which it 
followed that if the defendant was to be convicted 
in such summary proceeding, it must be upon facts ad­
mitted by his own oath, * * * For the present pur­
poses the significant feature of this common law pro­
cedure is that it excluded the idea of a trial of the 
accused, either by witnesses against him or by the 
contradiction of his oath by that of others. As well 
stated by a recent writer:

‘The common law mode of proceeding in cases of 
contempt presents no question of fact to be tried by a 
jury. The defendant determines by his own answer, 
under oath, whether he is guilty of that which is 
charged against him as a contempt, and if he fails



33

thereby to purge himself, the court may at once im­
pose the punishment’ 5 R. C. L. p. 523.

This procedure was obviously not a mere rule of 
convenience which the judges might follow or not, 
as they saw fit; on the contrary, it was a solemn and 
substantial necessity, and hence a matter of substan­
tive law.

^   ̂  ̂ $

Except it keep within its common law authority, 
no court of law in this state can summarily convict 
and punish for a criminal contempt any more than 
it could convict and punish for any other criminal of­
fense without indictment and trial by a petit jury. 

?

In the case of People vs. Doss, 46 N. E. (2d) 984, cert, 
denied, 64 S. Ct. 38; 320 U. S. 762 (111.), the court said:

“ In a case, as here, where a contempt proceeding 
is instituted to maintain the court’s authority and to 
uphold the administration of justice, and where the 
acts charged were not committed in the presence of 
the court, a sworn answer denying the alleged wrong­
ful acts is conclusive, extraneous evidence may not he 
received to impeach it, and the defendant is entitled to 
his discharge. * * *

If the answer is false, the remedy is by indict­
ment for perjury. * * * On the other hand, if the an­
swer admits the material facts charged to be true and 
the facts constitute a contempt of court, punishment 
is imposed. * * *

In either event, the offender is tried solely upon 
his answer. It follows, necessarily, that the defendant 
is not entitled to a trial by jury because no issue of 
fact is or can be formed for a jury to try. * * *” (Em­
phasis ours).



34

The weight of judicial authority sustains our position.

Croft vs. Culbreath,
6 So. (2d) 638 (Fla.)

State vs. Vincent,
26 Pac. 939 (Kan.)

People vs. McLaughlin,
166 N. E. 67 (111.)

Hiner vs. State,
182 N. E. 245 (Ind.)

People vs. Seymour,
111 N. E. 1008 (111.)

People vs. Friedlander,
199 111. App. 300 

People vs. Harrison,
86 N. E. (2d) 208 (111.)

People vs. McDonald,
145 N. E. 636 (111.)

In Re Walker,
82 N. C. 95

People ex rel. Chicago Bar Assn. vs. Novotny, 
54 N. E. (2d) 536; cert, denied,
65 S. Ct. 71; 323 U. S. 734 (111.)

Thomas vs. Cummins,
I Yeates 40 (Pa.)

People vs. McKinley,
II N. E. (2d) 933 (111.)

State ex rel Allison vs. Municipal Ct.,
56 N. E. (2d) 493 (Ind.)

State vs. Earl,
41 Ind. 464 

People vs. Whitlow,
191 N. E. 222 (111.)

People vs. Northrup,
279 111. App. 129 

Provenzales vs. Provenzales,
90 N. E. (2d) 115 (111.)



35

Denny vs. State,
182 N. E. 313 (Ind.)

Stewart vs. State,
39 N. E. 508 (Ind.)

Underwood’s Case,
2 Hump. 46 (Tenn.)

(2) The contempt powers of the constitutionally 
created courts of Missouri are those of the law courts at 
common law—not those of the canon law courts of the 
Star Chamber or the Chancery Courts in equity.

The judicial power of the State is, by Article V, Sec­
tion 1, of the Constitution of Missouri, 1945, vested in the 
courts therein named, including our Circuit Courts. Sim­
ilar provisions are found in all the constitutions of Mis­
souri, beginning with our first Constitution of 1820.

As we understand the Missouri authorities, this con­
stitutional provision vested in such constitutional courts 
the inherent powers of the law courts of the common law. 

State ex inf Crowe vs. Shepherd,
76 S. W. 79; 177 Mo. 205 

C. B. & Q. Ry. Co. vs. Gildersleeve,
118 S. W. 86; 219 Mo. 170 

Ex parte Creasy,
148 S. W. 914; 243 Mo. 679 

State ex rel Pulitzer Pub. Co. vs. Coleman,
152 S. W. (2d) 640; 347 Mo. 1239

The Shepherd case was modified by the Creasy case 
to the extent indicated in the dissenting opinion in the 
Gildersleeve case; that is to say, the legislature may not 
alter this power, but may enact statutes reasonably reg­
ulating the same. In the Pulitzer Pub. Co. case (S. W. 1. c. 
647) the Supreme Court adhered “ to what was said in 
the Shepherd case, as modified by Ex parte Creasy.”



36

This court has followed this common law procedure 
insofar as it was applicable to the cases considered.

In Ex parte Clark, 106 S. W. 990, 998; 208 Mo. 121, 
this court said:

“ Drawing from the undefiled well of the common 
law, we find it said by Blackstone (4 Bl. *286); * *
This process of attachment is merely intended to bring 
the party into court, and, when there, he must either 
stand committed, or put in bail, in order to answer 
upon oath to such interrogatories as shall be admin­
istered to him for the better information of the court 
with respect to the circumstances of the contempt. 
These interrogatories are in the nature of a charge or 
accusation, and must by the course of the court be 
exhibited within the first four days,’ etc.”

Here we complete the quotation from 4 Blackstone 
*286, which we believe is pertinent to the case at bar.

“ and if any of the interrogatories are improper, the 
defendant may refuse to answer it, and move the 
court to have it struck out. If the party can clear 
himself upon oath, he is discharged; but if perjured, 
may be prosecuted for the perjury.” (Emphasis ours).

In Glover vs. American Casualty Ins. & Sec. Co., 32 
S. W. 302, 305; 130 Mo. 173, this court said:

“ When the defendant came with the affidavits of 
its president and general counsel, and showed that the 
contract had in fact been destroyed a year prior to 
the commencement of plaintiff’s action, and had not 
been destroyed to evade inspection, surely it purged 
itself of the supposed contempt; and this has always 
been allowed ‘by its oath’ says Blackstone.”  (Emphasis 
ours).

In Ex parte Nelson, 157 S. W. 794, 802-803; 251 Mo. 63, 
the issue of contempt vel non was ruled on the sworn an­



37

swer of the accused. There the answer admitted the pub­
lication of a contemptuous publication that was not am­
biguous; it merely denied a contemptuous intent. Such 
answer was ruled insufficient, but the rule was recog­
nized that, had the publication been ambiguous, the an­
swer would have been conclusive.

The following cases from other states are based on 
facts somewhat analogous to and ruled in harmony with 
the pronouncements of this court in Ex parte Nelson, 
supra.

State vs. New Mexican Ptg. Co.,
177 Pac. 751 (N. M.)

Baumgartner vs. Jouglin,
141 So. 185 (Fla.)

People vs. Gilbert,
118 N. E. 196 (111.)

People vs. Sherwin,
166 N. E. 513 (111.)

Dossett vs. State,
i 78 N. E. (2d) 435 (Ind.)

Freeman vs. State,
69 S. W. (2d) 267 (Ark.)

In re Chadwick,
67 N. W. 1071 (Mich.)

In State ex rel Pulitzer Pub. Co. vs. Coleman, 152 S. 
W. (2d) 640, 644, 647-648; 347 Mo. 1239, the case was ruled 
on a motion “ for judgment on the pleadings” (152 S. W. 
(2d) 1. c. 644). Although the information charged that the 
publication scandalized the court with reference to a pend­
ing case, the answer, denying such reference to a pending 
case, was sustained as a matter of law and this court ruled 
that even scandalous criticism of a court relative to a closed 
case did not constitute contempt because such criticism was 
not contempt at common law.



38

III.

The unverified complaint for criminal contempt (Tr. 
2-4) is insufficient to vest jurisdiction in the Circuit Court, 
charge constructive criminal contempt of court, or upon 
which to predicate a valid judgment.

The complaint fails to state particular circumstances 
or facts, sufficient to charge an offense and particularly to 
charge the offense of constructive criminal contempt of 
court attempted to be charged. The prosecution of these 
petitioners upon said complaint and the enforcement of the 
judgment based thereon in the instant proceeding in the 
Circuit Court violated Amendment XIV, Section 1, of the 
Constitution of the United States, which provides that no 
state shall deprive any person of liberty or property with­
out due process of law; it violated Article I, Section 10, of 
the Constitution of Missouri, which provides that no person 
shall be deprived of liberty or property without due process 
of law and it violated Article I, Section 18 (a) of the Con­
stitution of Missouri, which provides that in criminal prose­
cutions the accused shall have the right to demand the 
nature and cause of the accusation.

Said violations consisted in this, to-wit: that in said 
proceeding the liberty and property of these petitioners 
were jeopardized; that if said judgment and commitment 
are adjudged valid petitioners will be deprived of liberty 
and property thereby; that said complaint for criminal con­
tempt so insufficiently states particular circumstances and 
facts and is so vague, indefinite and uncertain as to not 
charge the offense of constructive criminal contempt of 
court, which was attempted to be charged and of which of­
fense said judgment purports to convict petitioners, to not 
enable these'petitioners to know and be informed of the 
nature and cause of the accusation and to not enable them 
to prepare their respective defenses thereto.



39

A  commitment for constructive criminal contempt must 
set forth the “ particular circumstances” of the offense 
(Sec. 476.140, R. S. Mo., 1949). The statute is merely 
declaratory of the common law (Reardon vs. Frace, infra).

The complaint, therefore, must sufficiently particular­
ize circumstances and facts to enable a valid judgment to be 
rendered and a valid commitment to be issued thereon, 
which is within the scope of the charge or complaint (17 
C. J. S., Sec. 72).

The complaint in the instant case is not only vague, 
indefinite and uncertain, but is replete with conclusions 
and fatal omissions.

The complaint charges:

“ That in the course of preparing for and during 
the trial of the case of Burton v. Moulder, * * * (all 
of the accused) did confederate and did unlawfully act 
to impede and obstruct the administration of justice 
by * * * undertaking to present to whatever jury that 
might be drawn for the actual trial of the case, and by 
actually presenting, the testimony of two alleged wit­
nesses who in truth and fact had never actually wit­
nessed any of the occurrences out of which the law 
suit of Burton v. Moulder arose. * * *” (Tr. 3)

The particular circumstances or facts relative to the 
acts, words or conduct of petitioners in allegedly undertak­
ing to present and in presenting said testimony are not 
charged. It is not necessarily improper to produce wit­
nesses who “ never actually witnessed any of the occur­
rences out of which” a law suit arose. The said two wit­
nesses are not named, or otherwise designated. For aught 
that appears from the facts charged, the two witnesses 
mentioned may have been experts, physicians, mechanics, 
or persons who observed the appearance of plaintiff with



40

reference to health or disability before or after the casualty. 
A more groundless, indefinite and uncertain charge is rarely 
found.

The particular circumstances or facts relative to the 
case of Burton vs. Moulder are not alleged; no facts are 
charged as to the nature of said cause or the issues thereof. 
The testimony so allegedly presented is not set forth. No 
facts are alleged from which this court can determine 
whether the alleged testimony was material or pertinent 
to any issues or whether the Circuit Court had jurisdiction 
of the subject matter. Not even the conclusion that the 
alleged testimony was material or pertinent to any issue in 
the cause or that the court had jurisdiction of the subject 
matter thereof is alleged.

The complaint further charges:

“ The contemnors Osborne and Sympson * * * 
Cabbell, located contemnors Jones and Everage and 
arranged to have (them) * * * take the witness stand 
on behalf of the plaintiff and to falsely and fraudu­
lently testify to facts that were not within their per­
sonal knowledge.

“ The contemnor Osborne promised * * * Jones 
and Everage * * * the sum of $100.00 each for them to 
testify falsely as aforesaid. The contemnors Jones and 
Everage did so testify and were actually paid the sum 
of $100.00 each by * * * Osborne for such false testi­
mony.

“That contemnor James assisted * * * Os­
borne, Sympson and Cabbell in their acts and actions 
in coaching * * * Jones and Everage as to what false 
testimony the latter should give * * *” (Tr. 3).

These allegations are replete with conclusions. That 
the accused located Jones and Everage; that they arranged 
for them to falsely testify; that Jones and Everage did



41

falsely testify and that the accused coached Jones and 
Everage as to what false testimony they should give, all 
are conclusions—not particular circumstances or facts.

The particular circumstances or facts relative to what 
facts the accused coached or arranged for Jones and Ever­
age to testify to, are not charged; if Jones or Everage 
gave the testimony so arranged for or upon which they were 
so allegedly coached, it is not so pleaded. No reference 
whatever is made to the materiality of the testimony of 
Jones or Everage to any issue in the cause. What facts, 
if any, in the testimony of Jones or Everage were false 
is not alleged. That Jones or Everage knew at the time 
of the giving of such testimony that any part thereof was 
untrue, is not charged. It is not even charged that Jones 
or Everage were sworn or affirmed; or, if they were, by 
whom or in what cause, matter or proceeding, and before 
what court, body, tribunal or officer.

The complaint charges:

“ Each of the named contemnors had full knowl­
edge of the aforesaid plan and the individual 
conduct of each, standing alone, constituted action 
which was designed to and which actually did impede 
and obstruct the administration of justice.” (Tr. 3)

Elsewhere in paragraph 5 it is alleged that the ac­
cused “ * * * did * * * act to impede and obstruct the ad­
ministration of justice * * In paragraph 9, the com­
plaint charges:

“ * * * the conduct * * * (of the accused) 
tended to interfere and did in fact impede * * * the 
administration of justice * * * in this court.” (Tr. 3, 4)

The indispensable element of an obstruction to the per­
formance of judicial duty is the basic theory of the com­
plaint, but sufficient particular circumstances are not al­



42

leged therein to reveal what, if any, judicial function or 
duty was allegedly impeded or obstructed.

Indulging in intendment (which cannot be done), 
the most that could be said is that the pleader intended to 
base the charge upon perjury and its tendency to defeat 
the ultimate purpose of a trial, since it may produce a 
judgment not resting on truth.

However, even by such unwarranted intendment, con­
tempt of court is not charged, since perjury alone does not 
constitute an obstruction which justifies the exertion of 
the contempt power. To rule otherwise “ would permit too 
great inroads on the procedural safeguards of the Bill of 
Rights.” (In re Michael, Infra).

The weight of judicial authority, we believe, sustains 
our contention that the complaint is wholly insufficient to 
sustain the judgment.

1. Where a charge is vague, indefinite and uncertain, 
it is tantamount to no charge at all and a conviction 
thereon violates due process of law.

In Thornhill vs. Alabama, 310 U. S. 88; 60 S. Ct.. 736, 
741, the court said:

“ In these circumstances, there is no occasion to go 
behind the face of the statute or of the complaint for 
the purpose of determining whether the evidence, to­
gether with the permissible inferences to be drawn 
from it could ever support a conviction founded upon 
different and more precise charges. ‘Conviction upon 
a charge not made would be sheer denial of due proc­
ess.’ DeJonge vs. Oregon, 299 U. S. 353, 362; 57 S. Ct. 
255, 259; 81 L. Ed. 278; Stromberg v. California, 283 
U. S. 359, 367, 368; 51 S. Ct. 532, 535; 75 L. Ed. 1117; 
73 A. L. R. 1484.” (Emphasis ours)



43

In the De Jonge case, cited, supra (57 S. Ct. 255, 259) 
the court said:

“ Conviction upon a charge not made would be 
sheer denial of due process.”

In the Stromberg case, cited, supra (51 S. Ct. 532, 536) 
the court said:

“A statute which, upon its face, and as authorita­
tively construed, is so vague and indefinite as to per­
mit the punishment of the fair use of this opportunity 
is repugnant to the guaranty of liberty contained in 
the Fourteenth Amendment. The first clause of the 
statute being invalid upon its face, the conviction of 
the appellant, which so far as the record discloses may 
have rested upon that clause exclusively, must be set 
aside.” (Emphasis ours)

2. In failing to state the particular circumstances of 
the offense, the charge is fatally defective.

In the case of Frowley vs. Superior Court, 110 Pac. 
817 (Cal.) the court said:

“ It is familiar law that in proceedings for con­
structive contempt of court * * * the affidavit which 
is made the basis for the proceeding should show 
upon its face the acts which constitute the contempt. 
The affidavit constitutes the complaint, and, unless 
it contains a statement of facts which show that a con­
tempt has been committed, the court is without juris­
diction to proceed in the matter, and any judgment of 
contempt based thereon is void, and will be so de­
clared upon certiorari. * * *

Proceedings in contempt are of a criminal nature, 
and no intendments or presumptions are to be in­
dulged in in aid of the sufficiency of a complaint. 
The affidavit (complaint) must set forth acts show­
ing in themselves the fact that a contempt has been 
committed by the party charged, and, failing to do



44

so, the court is absolutely without jurisdiction in the 
matter” (Emphasis ours).

In the case of State ex rel vs. Dist. Court, 236 Pac. 553 
(Mont.) the court held that a complaint which did not 
disclose that the plaintiff in the civil action in which the 
contempt was alleged to have been committed, had a good 
cause of action, or any interest in the subject matter, or 
that witnesses knew information pertinent to matters in 
issue, did not state facts sufficient to constitute contempt. 
In this case the court said:

“ * * * Although the entire proceeding is before 
us, we do not know, and cannot know, whether Mr. 
Sacket’s action is one for the recovery of damages for 
personal injuries or a suit to foreclose a mortgage; 
whether the subject matter of the litigation is an 
alleged libel, a conversion of personal property, a 
trespass upon realty or ultra vires acts of the officers 
of a corporation, * *

In Cornish vs. U. S., 299 Fed. 283, the court said:

“ * * * in such a case the pleading, whether peti­
tion or information or journal entry, by which the 
prosecution is initiated, should state the necessary 
facts, and not stop with conclusions. Under this test, 
we think the petition herein is insufficient. It does 
not state the facts from which it draws the inference 
that the publication would obstruct the administra­
tion of justice, nor does it make clear that the publi­
cation, in its effect, went beyond reference to an order 
already made.”

In Rucker vs. State, 85 N. E. 356 (Ind.) the court said:

“ * * * in all cases the person charged shall be 
entitled, before answering or punishment, to have 
served upon him a rule or order of court clearly and 
distinctly setting forth the facts which are claimed as 
constituting the contempt and which specifies the



45

time and place of such facts with such certainty as 
will inform the defendant of the nature and circum­
stances of the charge against him, and no such rule 
shall issue until the facts alleged therein shall have 
been brought to the knowledge of the court by an in­
formation duly verified by the oath of some respec­
table person.”  (Emphasis ours)

In the case of Dreher vs. Superior Court, 12 Pac. (2d) 
671 (Cal.) the court said:

“ Nor can it be maintained that this defect was 
cured by the evidentiary showing made to the court 
upon the hearing or specified and found by the court 
in its decree adjudging petitioner guilty of contempt. 
The affidavits constitute the complaint in proceed­
ings that are distinctly criminal in their nature, and 
must charge upon their face facts that clearly and 
unmistakably constitute contempt. * * *” (Emphasis 
ours)

To the same effect are the following cases:

Wyatt vs. People,
28 Pac. 961 (Colo.)

Phillips vs. Superior Court,
137 Pac. (2d) 838 (Cal.)

Ex parte Lyon,
81 Pac. (2d) 190 (Cal.)

Grace vs. State,
67 So. 212 (Miss.)

State vs. Henthom,
26 Pac. 937 (Kan.)

Carlino vs. Downs,
279 N. Y. S. 510

Ex parte Collins,
45 N. W. (2d) 31 (Mich.)

Simmons vs. Simmons,
278 N. W. 537 (S. D.)

Haynes vs. Haynes,
212 Pac. (2d) 312 (Kan.)



46

Ex parte Donovan,
216 Pac. (2d) 123 (Cal.)

Rutherford vs. Holmes,
66 N. Y. 368

Brunton vs. Superior Court,
116 Pac. (2d) 643 (Cal.)

People vs. Friedlander,
199 111. App. 300 

Michigan Gas & Elec. vs. City,
262 N. W. 762 (Mich.)

Authorities Point IV, infra

3. Subornation of perjury is the misconduct attempted 
to be charged in the complaint in the case at bar. Perjury 
does not constitute such an obstruction to the performance 
of judicial duty as to constitute contempt.

In re Michael,
326 U. S. 224; 66 S. Ct. 78 

Ex parte Creasy, (en banc)
243 Mo. 679; 148 S. W. 914, 921, 924 

V. S. vs. Goldstein,
158 Fed. (2d) 916, 920 

In re Gottman,
118 Fed. (2d) 425 

U. S. vs. Arbuckle,
48 Fed. Supp. 537, 538 

In re Eskay,
122 Fed. (2d) 819, 823-824

In Ex parte Creasy, supra (S. W. 1. c. 921, 924), this 
court said:

“ The ipse dixit of no court can make contempt of 
that which does not rise to the level of contempt. If 
this man has been guilty of perjury, the courts are 
open, but the summary process for contempt does not 
lie in such a case.

*  *  *  ❖  *



47

That brings us to the consideration of the char­
acter of the answers given by the Petitioner to the in­
terrogatories propounded to him by the court and coun­
sel. If they were false, then he was guilty of the crime 
of perjury; and, if true, then he was neither guilty 
of contempt of court nor of the crime of perjury, but 
was innocent. Consequently the truthfulness or fals­
ity of his testimony was one of fact, and, being a 
felony, punishable by imprisonment in the peniten­
tiary, he was clearly entitled to a trial by jury under 
the guaranty of the section of the Constitution before 
mentioned. If that is true, and I am unable to see 
why it is not, then a jury, and not the court, should 
have passed upon his guilt or innocence; and, as that 
was not done, the petitioner should be discharged.” 
(Emphasis ours)

4. The failure to verify the complaint rendered the 
same insufficient to vest the circuit court with jurisdic­
tion.

While the charging paper in the proceeding here con­
sidered is called a complaint for criminal contempt, the 
proceeding is initiated on the information of the prose­
cuting attorney. The Statute (Sec. 545.240, R. S. Mo., 
1949) requires that all informations by the prosecuting 
attorney shall be verified by oath and, the absence of 
proper verification is fatal.

State vs. Lawhorn,
250 Mo. 293; 157 S. W. 344 

State vs. Sykes,
285 Mo. 25; 225 S, W. 904 

State vs. Weyland,
126 Mo. App. 723; 105 S. W. 660 

State vs. Trout,
274 S. W. 1098 (Mo. App.)

State vs. Gutke,
188 Mo. 424; 87 S. W. 503 

State vs. Kelly, i
188 Mo. 450; 87 S. W. 451



48

All the authorities seem to agree that a charge of 
constructive contempt must be verified by the oath of a 
party having personal knowledge of the facts or by the 
oath of a public officer, if the proceeding be instituted by 
him.

People vs. Harrison,
86 N. E. (2d) 207 (111.)

Denny vs. State,
182 N. E. 313 (Ind.)

Cushman vs. Mackesy,
200 Atl. 505 (Me.)

Craddock vs. Oliver,
123 So. 87 (Ala.)

Ex parte Scott,
123 S. W. (2d) 306 (Tex.)

Ex parte Diggers,
95 So. 763 (Fla.)

Stewart vs. State,
39 N. E. 508 (Ind.)

Not one of the three members of the bar who signed 
the complaint as amici curiae caused the contents to be 
verified by oath. Neither did they have or pretend to have 
any official status. Even their status as amici curiae is 
questionable. They were appointed in the case of Robert 
M. Burton vs. Lloyd Moulder, No. 527,724 in and by said 
Circuit Court (Tr. 190); this cause had been transferred 
to this court (Sec. 512.130, R. S. Mo., 1949) on the 5th 
day of April, 1951. On that date the transcript on appeal 
therein was filed in Cause numbered 42456 and this Su­
preme Court became vested with the jurisdiction thereof 
and no jurisdiction therein (except as to its records there­
of) remained in said Circuit Court.

The order appointing amici curiae is dated the 12th 
day of April, 1951; the report of amici curiae (Inf. Ex. 2; 
Tr. 192-193) is dated the 23rd day of April, 1951; the Cir­



49

cuit Court then attempted to delegate its judicial author­
ity to determine whether there was probable cause for a 
rule to show cause in constructive criminal contempt to 
said three members of the bar and the prosecuting attor­
ney (Ex. 3; Tr. 194-195); said attorneys were appointed 
to “ assist in the representation of the State of Missouri” 
in “ all proceedings of criminal contempt that might be 
instituted and maintained” relative to the matter men­
tioned in the order so delegating judicial power and they 
and the prosecuting attorney were expressly empowered 
to determine whether “ reasonable cause exists” for the 
institution of such proceedings (Tr. 195).

We find no precedent for such procedure. We believe 
said attempted appointment and attempted delegation of 
judicial power is void. We respectfully challenge op­
posite counsel to cite authority sustaining such delegation 
and exercise of judicial power.

IV.

The commitment, under and by virtue of which peti­
tioners are imprisoned is void, not only because of the 
insufficiency of the complaint, as heretofore asserted, but 
because the judgment and commitment does not set forth 
the particular circumstances of the offense of which they 
were convicted.

The imprisonment of petitioners, under and by virtue 
of said complaint, violates Amendment XIV, Section 1 of 
the Constitution of the United States, which provides that 
no state shall deprive any person of liberty or property 
without due process of law; and violates Article I, Section 
10 of the Constitution of Missouri, which provides that no 
person shall be deprived of liberty or property without due 
process of law.



50

Said violations consist in this, to-wit: the law of Mis­
souri provides that whenever any person shall be com­
mitted for contempt, the particular circumstances of the 
offense shall be set forth in the order or warrant of com­
mitment. The order and warrant of commitment in the 
case at bar is the judgment, which constitutes the com­
mitment. The particular circumstances determined by and 
set forth in said judgment do not constitute contempt of 
court. Petitioners are, therefore, imprisoned for matters 
for which due process of the Missouri law does not provide 
the penalty of imprisonment.

A  certified copy of the judgment constitutes the com­
mitment (Tr. 91); hence, the judgment, to be valid, must 
set forth “ the particular circumstances” of the offense 
(Sec. 476.140, R. S. Mo., 1949). This requirement of the 
statute is declaratory of the common law and is jurisdic­
tional.

Reardon vs. Frace, (en banc)
344 Mo. 448; 126 S. W. (2d) 1167, 1169

Considering the judgment, we quote portions thereof 
wherein tne court attempts to set forth the “particular 
circumstances” of the offense of which it determined peti­
tioners to be guilty:

“ * * * each contemnor assisted in presenting 
to whatever jury that might be drawn in the case of 
Burton vs. Moulder two alleged witnesses who in truth 
and fact had never actually witnessed any of the oc­
currences out of which the lawsuit of Burton vs. Moul­
der arose;” (Tr. 88)

This does not set forth the “particular circumstances” 
or facts constituting the offense—it recites conclusions 
only.

It fails to state the words, acts or conduct of each ac­
cused that constituted the alleged assistance rendered in



51

presenting the two alleged witnesses and it fails to identify 
the two alleged witnesses, by name or otherwise.

It fails to state that the two alleged witnesses so pre­
sented testified, or, if they did, the facts to which they gave 
testimony. If such two alleged witnesses so presented 
testified to any facts that were false, such particular cir­
cumstances are not set forth; it is not even stated that said 
two alleged witnesses gave testimony to facts that were 
material to any issue.

It fails to set forth the particular circumstances of the 
case of Burton vs. Moulder, revealing the style of the ac­
tion, the nature of the cause, the issues to be determined, 
or whether a jury was duly impanelled and sworn in said 
cause. Since it fails to allege that said two alleged wit­
nesses gave any testimony, either true or false, the find­
ing that they “ in truth and fact never actually witnessed 
any of the occurrences out of which the law suit of Burton 
vs. Moulder arose” is wholly inconsequential, as is pointed 
out with reference to similar language in the complaint.

The judgment further finds:

“ That contemnors Cabbell and Jones aided con- 
temnors Osborne and Sympson in locating contemnor 
Everage; and

“ Cabbell assisted Osborne and Sympson in procur­
ing said Jones and Everage to become false witnesses;

“ * * * contemnors Sympson and Cabbell re-en­
acted the accident in the Fairfax District to help pre­
pare the contemnors Jones and Everage to become 
false witnesses; * * *

“ contemnors Osborne and Sympson told contem­
nors Jones and Everage that to which the latter were 
to falsely testify; * * *

“ contemnors Jones and Everage actually gave 
false testimony for which they were paid one hundred 
dollars each by contemnor Osborne;” * * * (Tr. 88)



52

Here again the judgment and commitment states mere 
conclusions—not “ particular circumstances” and facts.

It fails to state what acts, words or conduct consti­
tuted the aid rendered by Cabbell to Osborne and Symp- 
son in locating Everage and in procuring Everage and 
Jones to become false witnesses. If this finding means 
that Osborne and Sympson located Everage and procured 
Jones and Everage to become false witnesses, it is insuffi­
cient because (a) the language used can be so interpreted 
only by supplying the intent of the scrivener and, in 
this proceeding, nothing can be taken by intendment; (b) 
the “ particular circumstances” , i. e., the acts or conduct 
of Osborne and Sympson in so locating and procuring, are 
not set forth; the finding of “ false witnesses” is a conclu­
sion; the particular circumstances by reason of which such 
witnesses were false are not set forth.

It fails to state the “ particular circumstances” of “ the 
accident in the Fairfax District.” No facts are alleged 
relative to the nature of said accident, the parties involved 
or the relation, if any, between that accident and the case 
of Burton vs. Moulder; even the acts, words or conduct of 
the accused who allegedly re-enacted said accident are 
omitted. The particular circumstances as to Jones and 
Everage becoming false witnesses are not stated. When 
and in what tribunal they were to become false witnesses 
is not set forth. To what facts Osborne and Sympson told 
Jones and Everage they were to falsely testify, and 
whether Jones and Everage testified to the facts so told 
them by Osborne and Sympson, is not set forth.

The particular circumstances of the false testimony 
allegedly given by Jones and Everage are not set forth. 
If Jones and Everage were sworn, it is not so stated; nor 
does the judgment set forth in what tribunal the alleged



53

false testimony was given. To what facts Jones and Ev- 
erage testified; what facts so testified to by them were 
false; whether said witnesses knew such testimony was 
false at the time it was given; the materiality, if any, of 
such testimony; are not set forth.

A valid commitment for contempt must set forth the 
“ particular circumstances” of the offense.

Reardon vs. Frace,
126 S. W. (2d) 1167; 344 Mo. 448 (en banc) 

Ex parte Fuller,
50 S. W. (2d) 654; 330 Mo. 371 (en banc) 

Ex parte Shull,
121 S. W. 10; 221 Mo. 623 

Ex parte Creasy,
148 S. W. 914; 243 Mo. 679 (en banc)

Ward vs. Lamb,
177 S. W. 365 (Mo.)

Ex parte Stone,
183 S. W. 1058 (Mo.)

People ex rel Butwill vs. Butwill,
38 N. E. (2d) 377 (111.)

Waldmon vs. Churchill,
186 N. E. 690 (N. Y.)

Ex parte Lake,
224 P. 126 (Cal.)

In Reardon vs. Frace, supra, the court said:

“ Thus it appears that the provision in Sec. 1867, 
which requires a statement of the particular circum­
stances in the warrant of commitment, is declaratory 
of the common law. In other words, the warrant of 
commitment in the instant case is void both under the 
common law and Sec. 1867.”

In Ex parte Fuller, supra, the court said:

“ In contempt cases, the facts and circumstances 
constituting the contempt should be recited in the



54

judgment. This court En Banc has spoken on that 
subject. In Ex parte Creasy, 243 Mo., 679, 704; 148 
S. W. 914, 922, 41 L. R. A. (N. S.) 478, we said:

‘This fact and circumstance should have been 
stated in the order of commitment and judgment. 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.’

Again at page 707 of 243 Mo., 148 S. W. 914, 923, 
this same case says:

‘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 con­
tempt 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. * * *’

$  ^  ^  ^

It may be that petitioner willfully and unlaw­
fully converted the money in question to his own use, 
but willful and unlawful conversion of money is not 
necessarily contempt of court. Because of the court’s 
failure to find any fact or facts to support its conclu­
sion that petitioner’s appropriation of the money to 
his own use was in contempt of the court’s order, the 
judgment is wholly insufficient to support a commit­
ment for contempt.”

In the Shull case, supra, the court said:

“ * * * when we come to the adjudication of the 
contempt itself, it is not then put upon the ground of 
the refusal to answer questions; but the finding and 
the only finding is that petitioner had treated the



55

court disrespectfully. In what manner or how the 
petitioner treated the court disrespectfully the court 
did not adjudge and state in its judgment.

If it should be said it can be inferred by the mat­
ter of inducement set out in the record, the answer 
of all the courts is that, as this is a criminal proceed­
ing by which the citizen is deprived of his liberty, 
presumptions and intendments will not be indulged 
in order to sustain a conviction for contempt of court.”

V.

If extraneous evidence was permissible to controvert 
the sworn answer of the accused, which we deny, there 
was not sufficient competent evidence to sustain a judg­
ment of constructive criminal contempt.

1. The witness, Vernon Everage, was an incompetent 
witness because he was jointly charged with these peti­
tioners (Tr. 2-4) and the case was not disposed of as to 
him when he was permitted, over objection (Tr. 227) to 
testify.

Sec. 546.280, E. S. Mo., 1949 
State vs. Chyo Chiagk,

92 Mo. 395; 4 S. W. 704 
State vs. Weaver,

165 Mo. 1; 65 S. W. 308 
State vs. McGray,

309 Mo. 59; 273 S. W. 1055 
State vs. Falger,

154 Mo. App. 1; 133 S. W. 85 
Ex parte Dickinson,

132 S. W. (2d) 243 (Mo. App.)

In the case of State vs. Chyo Chiagk, supra, the court 
said:

“ * * * the section may be deemed declaratory of 
what was thought to be the correct rule at common



56

law. So that, whether we follow the rule as announced 
at common law by eminent authors and judges, as al­
ready seen, or whether we pursue the statutory rule, 
the result will be to announce that Cong Seng, in the 
circumstances mentioned, was inadmissible as a wit­
ness against his co-defendant.”

Vernon Everage was the only witness who testified 
against these petitioners. Absent his testimony, it is man­
ifest that there is no evidence whatever of subornation of 
perjury, not to mention the additional element of obstruc­
tion that is necessary to constitute contempt.

2. Even if the evidence of Everage is considered, the 
most that can be claimed for it is that it established per­
jury only; and, while petitioners deny its sufficiency for 
that purpose, it is clear that perjury alone is insufficient 
to establish criminal contempt of court.

See authorities Point III (3).

3. As to Cabbell: Everage is the only witness who
even mentioned Cabbell. The only evidence of any con­
nection with the subject matter on the part of Cabbell is:

(a) He was in the car parked near the Everage home 
on Wednesday night when Everage talked with Osborne 
and Sympson (Tr. 236, 238, 270), but he did absolutely 
nothing and said nothing; he was merely present.

(b) He drove a car to the scene of the accident in 
the Fairfax District Thursday morning (Tr. 242, 247, 248, 
279). The conclusion of the witness as to what Cabbell 
was doing (Tr. 245) was stricken (Tr. 247). Again there 
was only evidence of his mere presence. The witness 
could not even remember of any conversation, if any 
there was, on the part of Cabbell (Tr. 247-248).



57

This was clearly insufficient to fix criminal respon­
sibility upon Cabbell for any offense.

State vs. Bresse,
326 Mo. 885; 333 S. W. (2d) 919

State vs. Odbur,
317 Mo. 372; 295 S, W. 734

State vs. Simon,
57 S. W. (2d) 1062 (Mo.)

State vs. Mathis,
129 S. W. (2d) 20 (Mo. App.)

In the case of State vs. Bresse, supra, the court said:

“ One may be present, even for the purpose and 
with the intent of aiding, but if he is not actually aid­
ing, or had not encouraged the principal, he is not a 
participant in the offense.”

In the case of State vs. Odbur, supra, the court said:

“ The mere presence of one at the commission of 
a crime, although he may favor its commission, is not 
sufficient to constitute aiding and abetting.”

In State vs. Mathis, supra, the court said:

“ A mere presence, or presence combined with a 
refusal to interfere or with concealing the fact, or a 
mere knowledge that a crime is about to be commit­
ted, or a mental approbation of what is done while 
the will contributes nothing to the doing, will not cre­
ate guilt.”



58

IN CONCLUSION, it is respectfully submitted that 
petitioners and each of them should be discharged.

Respectfully submitted,

Wm . O. Sawyers,
Ira B. McLaughlin, 

Attorneys for Petitioner, 
Alfred H. Osborne.

Ira B. M cLaughlin,
Attorney for Petitioner, 

Robert B. Sympson.
J. A rnot H ill,

Attorney for Petitioner, 
Phil C abb ell.