Osborne v. Purdome Petitioners' Reply Brief

    IN THE

SUPREME COURT OF MISSOURI
EN BANC.

SEPTEMBER SESSION, 1951.

In re ALFRED H. OSBORNE,
Petitioner,

vs. No. 42752.
J. A. PURDOME, SHERIFF OF Habeas Corpus.

JACKSON COUNTY, MISSOURI,
Respondent.

In re ROBERT B. SYMPSON,
Petitioner,

vs. No. 42753.
J. A. PURDOME, SHERIFF OF ' Habeas Corpus.

JACKSON COUNTY, MISSOURI,
Respondent.

In re PHIL CABBELL,
Petitioner,

vs. No. 42754.

J. A. PURDOME, SHERIFF OF 
JACKSON COUNTY, MISSOURI,

Respondent.

' Habeas Corpus.

PETITIONERS’ REPLY BRIEF.

Wm . O. 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.



PETITIONERS’ REPLY BRIEF.

Foreword.

Respondent did not, in harmony with Rule 1.08 (c), 
endeavor to “ correct any errors” in petitioners’ statement 
of facts. Respondent made an independent statement of 
facts, which, we believe, erroneously shades the picture. 
We will refer to the pages of the record, in the course of 
our reply, where we believe the facts of record correct the 
more important of these errors. Otherwise, we reply in 
the order of the points involved.

I.

The allegations in the answers of petitioners that 
Judge Hunt “was, in fact, prejudiced against this peti­
tioner and in said cause was not wholly unprejudiced” 
are not mere legal conclusions; they are allegations of 
ultimate fact and admitted by the demurrers.

Even opposite counsel concede, and the authorities 
they cite (Br. 22) sustain, the principle that the demurrers 
admit the facts that are well pleaded. Counsel assert, 
however, that the above quoted portion of the within an­
swers are mere “ argumentative conclusions of law.”

(1) In the case of State vs. Creighton, 52 S. W. (2d) 
556, 5.63; 330 Mo. 1176, this court considered the sufficiency 
of supporting affidavits made under what is our present 
Section 545.660, R. S. Mo., 1949. The challenged portion 
thereof read:

“ * * * ‘will not afford defendant * * * a fair and 
impartial trial in said cause for the reason alleged in 
said petition, to-wit that * * * (the judge) will not 
afford the defendant a fair and impartial trial on 
account of his bias and prejudice against the de­
fendant.’ ”

It was claimed that this allegation was insufficient in 
that it stated “ only conclusions and not facts” , but this 
court held:



2

“The distinction between ultimate facts and con­
clusions is sometimes difficult to draw; * * * we hold 
the second application was sufficient; * * *”

Allegations analogous to the one here considered have 
many times by this court been ruled sufficient in con­
nection with affidavits disqualifying a trial judge.

In the Irvine case, infra, many such cases are cited 
and it was held that the sufficiency of the allegation in 
question is “ too well settled to justify further discussion.” 
State vs. Irvine, 72 S. W. (2d) 96, 99; 335 Mo. 261.

(2) In the case of State ex  rel McAllister vs. Slate, 
214 S. W. 86; 278 Mo. 570, the files in this court reveal that 
the petition for prohibition alleged that “ a petition for 
change of venue” was filed in the Circuit Court alleging:

“ * * * that the Honorable John G. Slate, judge of 
this court is prejudiced in this cause against the State 
and that by reason of such prejudice the said judge, 
by the terms of Section 5198, R. S. 1909, is disquali­
fied from sitting as judge of this court upon the trial 
of this cause * * *”

Attached to said petition is a certified copy of the so- 
called petition for change of venue. It charges the judge 
of the Circuit Court with prejudice in the same language 
as above set forth.

In the said petition for prohibition in the files of this 
court there is also the following allegation:

“ * * * The petitioner further states and avers that 
the said John G. Slate, judge as aforesaid, in truth 
and in fact was and is now prejudiced against the
State in the case of State vs. John W. Scott, No. 1879 * *

The opinion in the Slate case (214 S. W. 1. c. 86) reads:
“ Our preliminary rule was, as above stated, is­

sued, and for return thereto respondent admits all 'of 
the allegations of said petition except the fact of his 
prejudice in any degree in favor of said Scott or



3

against the State of Missouri, which fact of prejudice 
he categorically denied. * * * The denial by respondent 
of the alleged fact of his prejudice raised an issue of 
fact in the case.”

In the Slate case a commissioner was appointed, tes­
timony adduced, his report made and sustained, and judg­
ment was entered making absolute the preliminary rule 
in prohibition.

In the case at bar the allegations of petitioners in 
their petitions and affidavits filed in the Circuit Court with 
reference to the prejudice of Honorable Thomas R. Hunt 
(Tr. 110-112; 114-116; 127-129) are singularly analogous 
to those in the Scott case made as to the prejudice of Hon­
orable John G. Slate. In the case at bar the allegations 
in the answers of petitioners to the returns of respondent 
as to the prejudice in fact of Honorable Thomas R. Hunt 
are singularly analogous to the allegations of prejudice in 
fact of Honorable John G. Slate made in said petition for 
prohibition.

In the Slate case the petition for prohibition was filed 
by the chief law officer of our state, the attorney general. 
In the Slate case the denial “ of the alleged fact of his 
prejudice,” made by respondent, “ raised an issue of fact.” 
In the case at bar the demurrers of respondent to the an­
swers of petitioners admit the ultimate fact of prejudice 
in fact alleged as to the Honorable Thomas R. Hunt.

In the Slate case the state relied upon Section 5198, R. 
S. 1909. In the case at bar petitioners relied upon the same 
statute, now Section 545.660, R. S. Mo., 1949. In the Slate 
case the state moved that respondent, circuit judge, pro­
ceed in accordance with the provisions of Section 5201, 
R. S. 1909 (214 S. W., lc 86). In the case at bar peti­
tioners (accused) moved that the Honorable Thomas R. 
Hunt, circuit judge, proceed in accordance with the pro­
visions of the same statute, now Section 545.690, R. S. Mo., 
1949.

(3) The federal cases cited by respondent as to the 
requirements of an affidavit of prejudice of a judge of the 
United States District Court are not in point. There is 
no analogy whatever between the state and the federal



4

procedure in this respect. Section 144 of 28 USCA ex­
pressly requires the “ affidavit shall state the facts and 
the reasons for the belief that bias or prejudice exists 
* * There is no provision comparable to this in the 
Missouri practice.

(4) Opposite counsel take the position that the Mis­
souri rule is that the change of venue statutes and change 
of judge statutes do not apply to contempt cases; yet, they 
do not cite one Missouri case in which that point was 
ruled.

The desperate effort of opposite counsel to avoid the 
provisions of Section 545.660, R. S. Mo., 1949, which clearly 
applies to all criminal prosecutions, is as obvious as it is 
futile. They take the groundless position that a prosecu­
tion for constructive criminal contempt of court is not 
a “prosecution for a criminal offense.” They invoke the 
provisions of Section 476.120, R. S. Mo., 1949, prescribing 
the penalty of fine and imprisonment, but ignore Section 
556.010, R. S. Mo., 1949, defining a criminal offense. Said 
section reads:

“ The term ‘crime’, ‘offense’, and ‘criminal of­
fense’, when used in this or any other statute, shall 
be construed to mean any offense, as well misde­
meanor as felony, for which any punishment by im­
prisonment or fine, or both, may by law be inflicted.” 
(Emphasis ours).

Opposite counsel argue (Br. 16, 20, 24) that “ it was 
settled in Missouri that contempt cases are sui generis and 
that neither the provisions of the codes of civil procedure 
or criminal procedure can be said to be applicable as a 
matter of course” unless “ expressly included, eo nomine 
in the written law” (Br. 26). They quote the following 
dictum (Br. 16) from the opinion in the case of State ex  
rel C. B. & Q. R. Co. vs. Bland, 88 S. W. 28, 31; 189 Mo. 
197:

“ It is settled law that contempt cases are sui 
generis that one court may not try a case of contempt 
against another, that contempt proceedings are sum­



5

mary; that there is no constitutional right to trial by 
jury, and that no change of venue will lie.”

The Bland case is the only Missouri authority cited in 
support of the sui generis argument advanced. The Bland 
case, however, did not involve the question of whether one 
court may try a case of contempt allegedly committed 
against another; it did not involve the question of whether 
contempt cases are summary, whether, in such cases 
there is a constitutional right to a jury trial or whether, 
in such cases, changes of venue will lie. The Bland case 
involved and decided one question only, i. e., whether, in 
the contempt there considered, an appeal would lie. There 
the court ruled that the contempt was a civil action and 
that the Missouri statutory procedure relative to appeals in 
civil cases was applicable. The Missouri statute relative 
to appeals in civil cases did not expressly include, eo 
nomine, civil contempt proceedings, but the court in the 
Bland case, nevertheless, ruled that a final judgment in a 
civil contempt proceeding was appealable. If opposite 
counsel read the closing paragraph of the Bland case we 
can imagine their great consternation.

The case of State ex rel Osborne vs. Southern, 241 
S. W. (2d) 94, expressly ruled that Section 510.120, R. S. 
Mo., 1949, providing for (legislative) continuances “ in all 
civil cases or in criminal cases” , applied to contempt cases. 
Opposite counsel concede (Br. 20) that “ it is entirely 
conceivable that the Legislature did intend that it (Sec­
tion 510.120) apply to contempt cases” , notwithstanding 
the fact that said statute did not expressly include eo 
nomine contempt proceedings.

In the case of Gompers vs. United States, 233 U. S. 
604; 34 S. Ct. 693, 695, the court considered the applica­
bility of the statute of limitations, which concluded:

“ * * * unless the indictment is found or the in­
formation is instituted within three years.”

Criminal contempt proceedings were not included, eo 
nomine, in this written law, but it was held to apply to 
a criminal contempt proceeding. The opinion, in part, 
states:



6

“ But the provisions of the Constitution are not 
mathematical formulas having their essence in their 
form; they are organic, living institutions transplanted 
from English soil. Their significance is vital, not 
formal; it is to be gathered not simply by taking the 
words and a dictionary, but by considering their origin 
and the line of their growth. Robertson v. Baldwin, 
165 U. S. 275, 281, 282; 41 L. ed. 715, 717, 718; 17 Sup. 
Ct. Rep. 326. It does not follow that contempts of 
the class under consideration are not crimes, or rather, 
in the language of the statute, offenses, because trial 
by jury as it has been gradually worked out and 
fought out has been thought not to extend to them as 
a matter of constitutional right. These contempts are 
infractions of the law, visited with punishment as 
such. If such acts are not criminal, we are in error 
as to the most fundamental characteristic of crimes 
as that word has been understood in English speech. 
So truly are they crimes that it seems to be proved 
that in the early law they were punished only by the 
usual criminal procedure, (3 Transactions of the Royal 
Historical Society, N. S. p. 147 1885) , and that, at least 
in England, it seems that they still may be and pref­
erably are tried in that way.”

In Ex parte Grossman, 267 U. S. 87; 45 S. Ct. 332, 333, 
335, cited by opposite counsel, the issue was whether the 
President had power to pardon a criminal contempt. The 
Constitution empowered the President to “ grant * * par­
dons for offenses against the United States.” Criminal 
contempts were not included, eo nomine, in this written 
organic law. In ruling that the President had such power 
the court, in part, said:

“ The king of England before our Revolution, in 
the exercise of his prerogative, had always exercised 
the power to pardon contempts of court, just as he 
did ordinary crimes and misdemeanors and as he has 
done to the present day. In the mind of a common- 
law lawyer of the eighteenth century the word 
‘pardon’ included within its scope the ending by the 
king’s grace of the punishment of such derelictions,



7

whether it was imposed by the court without a jury 
or upon indictment, for both forms of trial for con­
tempts were had. Thomos of Chartham v. Benet of 
Stamford (1313) 24 Selden Society, 185; Fulwood v. 
Fid wood . (1585) Toothill, 46; Rex v. Buckenham 
(1665) 1 Keble, 751, 787, 852; Anonymous (1674) 
Cases in Chancery, 238; King and Codrington v. Rod- 
man (1630) Cro. Car. 198; Bartram v. Dannett (1676) 
Finch, 253; Phipps v. Earl of Anqelsea (1721) 1 Peere 
Williams, 696.

sj: :jc *  *  *

Nothing in the ordinary meaning of the words ‘of­
fenses against the United States’ excludes criminal 
contempts.”

Opposite counsel also cite and quote from (Br. 27) 
the case of State ex rel Crowe vs. Shepherd, 76 S. W. 78, 
89; 177 Mo. 205, on the question of petitioners’ right to an 
impartial judge or a change of judges. The Shepherd 
case neither considered nor decided such point. The case 
involved contempt of the Supreme Court. There is only 
one such court in Missouri. Defendant did not ask to 
have the case tried by another court, but he did demand 
a jury. In support of his demand for a jury, defendant 
(in the Shepherd case) “ incidentally” argued that “ it is 
not seemingly fair that he should be tried for contempt 
by judges of the court that he has scandalized” and it 
was in answer to the demand for a jury that the Supreme 
Court used the language quoted by respondent on page 27 
of his brief. The second quotation from this case per­
tained to the point relative to the power of the Legislature 
to abridge the contempt power of this court and not to 
the question of whether a change of venue or a change 
of judges would lie.

(5) The Shipp and Patterson cases, cited by re­
spondent, involve contempts of the Supreme Court of the 
United States and Supreme Court of Colorado, respectively. 
In each of the respective jurisdictions mentioned there 
was only one such court. A justice of such appellate 
court is occasionally disqualified and does not participate 
in the decision, but in the cases mentioned, no attempt



8

was made to disqualify any of the judges of these courts 
and no ruling was made on the point here involved. The 
point was made as to whether the alleged contempt was 
properly tried in the court in which it allegedly occurred, 
but with that point we are not here concerned.

The substitution of another judge in the stead of 
Judge Hunt would not have constituted a change of venue. 
There is no provision in the Missouri law for a change of 
venue on behalf of the state in a criminal prosecution and 
it is doubtful if a statute providing therefor would be 
constitutional. Nevertheless, the state is entitled to an 
unprejudiced judge. Formerly it was held that each 
division of the Circuit Court of Jackson County was a 
separate court. Now, under our constitution and statutory 
provisions it is held to be one court, composed of ten 
divisions, and said constitution and statutory provisions, 
as well as the rules of this court, provide convenient 
facilities for the substitution of judicial personnel.

The reference in our original brief to the proposed 
Rules of Criminal Procedure relative to criminal con­
tempt would appear to have been misunderstood by coun­
sel. We do not contend that Judge Buzard erred in as­
signing this proceeding to Division No. 4 of said Circuit 
Court. He, doubtless, entered the order (Tr. 5-6) re­
quested by prosecuting counsel. The entry was furnished 
(Tr. 6) and the language used that is pertinent here is 
taken verbatum from dictum found in the Shepherd case, 
cited by respondent. We suspect that he properly gave 
but little, if any, consideration to said order. As judge of 
the Assignment Division of said Circuit Court he had the 
right to assign said cause to any division thereof that 
might suit the convenience of the judges.

Our reference (Br. 27) to Rule XV of the Proposed 
Rules of Criminal Procedure is to make the point that re­
spondent’s claim that “ one court may not try a case of 
contempt against another” is clearly erroneous as re­
spondent seeks to apply it here. Judge Buzard and his 
fellow committeemen on the Drafting Committee, ap­
pointed by this court in connection with said proposed 
rules certainly could not have believed in harmony with 
the within contention of respondent. This committee



9

certainly would not intentionally recommend that this 
court adopt an unconstitutional rule. A constitutional 
right certainly is a “ substantive right” . No such rule 
may constitutionally change a “ substantive right” and 
the right to be tried before a judge who has jurisdiction 
to preside over a trial is certainly a “ substantive right” . 
The contention that the change of judges prayed by peti­
tioners, nisi, was a request to be tried by a judge who had 
no jurisdiction to try the cause leads to absurdity.

It is not our contention that due process of law is 
contravened where a charge of criminal contempt is tried 
in the court in which the alleged contempt was committed. 
It is our contention that, to deprive these accused of the 
right to a qualified and impartial judge is not only a con­
travention of the due process provisions of the respective 
constitutions mentioned, but is a violation of the statutory 
and common law of Missouri.

Our request was not that the cause be tried in another 
court; it was that it be tried by another judge of the same 
court, but one who was not disqualified because of prej­
udice.

Even the case of State ex rel Short vs. Owens, 256 
Pac. 704, 711 (Okla.), cited by opposite counsel, does not 
sustain their contention. It does rule that the Oklahoma 
statute relative to changes of venue had no application. 
There, however, the court contemned was the Supreme 
Court. The opinion did refer to a statutory procedure of 
that state, relative to disqualifing judges, that might ap­
ply, but which was not invoked.

A significant feature of the Owens case is the quota­
tion from Corpus Juris (256 Pac. lc 711) to the effect that 
where a court is composed of several divisions, one divi­
sion may punish a contempt committed against another 
division of the same court. On the same point 17 C. J. S. 
p. 65, Sec. 51 reads:

“ However, a court may punish contempts com­
mitted against a court or judge constituting one of its 
parts or agencies, as in case of a court composed of 
several co-ordinate branches or divisions * * 

(Emphasis ours).



10

To the same effect is 12 Am. Jur., Sec. 48 on the sub­
ject of Contempt.

The application of statutes relative to a change of 
judges, seems to depend on the wording of the particular 
statute considered. Where, as in Missouri, the judge sit­
ting in the stead of the regular judge may exercise the 
full power and jurisdiction of the court, such statute is 
clearly applicable.

We believe that the following authorities are anal­
ogous and persuasive:

State ex rel Russell vs. Superior Court,
138 Pac. 291 (Wash.)

State ex rel Seigjried vs. Superior Court,
138 Pac. 293 (Wash.)

State ex rel Cody vs. Superior Court,
192 Pac. 935 (Wash.)

State ex rel Lindsley vs. Superior Court,
199 Pac. 980 (Wash.)

State ex rel Simpson vs. Armijo,
31 Pac. (2d) 703 (N. M.)

In the Armijo case, the court said:
“ The apparent purpose of Section 1 is to provide 

a method or procedure to be followed in disqualifying 
a trial judge before whom ‘any action or proceeding, 
civil or criminal’ is ‘to be tried or heard’ when it is 
the belief of a litigant that such judge cannot proceed 
with impartiality. * * *

If the enactment of this law is the declaration of 
a policy that our courts must be free from suspicion 
or unfairness and is grounded upon the truism ‘that 
every citizen is entitled to a fair and impartial trial, 
and this right is sacred and constitutional, * * * such 
right is as sacred to a litigant in a special proceed­
ing or one tried for contempt as to a litigant in a tort 
or contract action.” (Emphasis ours).



11

II.

The common law contempt power of the Circuit Court.

Respondent, on this point, relies (1) on Federal Court 
decisions and (2) on the Curtis article in 41 Harvard Law 
Review 51, principally relative to “The History of Con­
tempt of Court” by Sir John C. Fox (1927).

(1) Our reference to constitutional courts means 
courts created by the constitution. Excepting the Supreme 
Court of the United States, there are no federal consti­
tutional courts. The judicial power of the United States 
is vested in one Supreme Court and “ in such inferior 
courts as the Congress may * * * ordain and establish.” 
(Art. Ill, Sec. 1, Constitution of the United States). All 
inferior federal courts being created by the Congress, their 
powers and jurisdiction are fixed and limited by the Con­
gress. The Act of March 2, 1831, limiting the contempt 
power of inferior federal courts, which was enacted fol­
lowing the impeachment trial of Judge James H. Peck, 
was held constitutional (Ex parte Robinson, 86 U. S. (19 
Wall.) 505; 22 S. Ct. 205; see also Chapt. IX, The History 
of Contempt of Court, by Sir John C. Fox).

The circuit courts of Missouri are among the courts of 
this state that are created by our constitution (Art. V, 
Section 1, Constitution of Missouri). A similar provision, 
creating such courts, was in every constitution of this 
state.

When the constitution of 1820 was adopted there was, 
and since June 4, 1812 there had been, the provision in 
our Territorial Laws (1 Mo. Territorial Laws 8) relative to 
a trial by jury, which we quoted in our original brief (Br. 
29). This provision was more inclusive than the Magna 
Charta, in this: Whereas, the Magna Charta provided 
“ * * * judgment of his peers or the law of the land * * *” 
(c. 29, Magna Charta, Bouvier’s Law Dictionary, Rawle’s 
3rd Rev., Vol. II, p. 2062), the Missouri Territorial Laws 
provided “ * * * judgment of his peers and the law of the 
land * * *” . Manifestly, the respective constitutions of 
this state have “ preserved inviolate” the right to a trial by 
jury as provided in our Territorial Laws.



12

Our federal constitution has no such yard stick or 
comparable provision. The provisions of the Constitution 
of the United States relative to jury trials in civil and 
criminal cases are interpreted in the light of the meaning 
of the terms used therein by the common law lawyers of 
the era in which said constitution was adopted, but no 
specific right to a jury trial as was enjoyed previous to 
the adoption of the constitution is specifically therein pre­
served.

Respondent cites U. S, v. Shipp, 203 U. S. 563; 27 S. 
Ct. 165 and Clark v. U. S., 289 U. S. 1; 53 S, Ct. 465. These 
cases are not controlling and we do not believe they 
should be considered persuasive because:

(a) The difference between the federal and state 
constitutions above mentioned.

(b) The Constitution of the United States does not 
define or limit the judicial power of our state courts and 
the Congress cannot regulate or control the modes of pro­
cedure in Missouri.

Ex parte Gounis,
263 S. W. 988; 304 Mo. 428 

Randolph vs. Fricke,
35 S. W. (2d) 912; 327 Mo. 130; cert, denied, 
283 U. S. 833; 51 S. Ct. 365

(c) There is no federal common law; no powers are 
vested in such courts by the common law and no pro­
cedure therein is governed by the common law.

(d) The conclusion reached by the United States 
Supreme Court in the above cases as to the states that 
have rejected the rule is not supported by the authorities 
there cited. In many of these cases the facts did not 
render applicable the rule for which we contend and in 
many of the states mentioned the rule has not been re­
jected. Illustrating:

In re Singer, 105 N. J. Eq. 220; 147 Atl. 328, was in 
equity; the rule did not obtain in Chancery at common 
law; New Jersey has not rejected the rule (Appeal of 
Verden, 97 A. 783). Indiana has not rejected the rule



13

(Dossett vs. State, 78 N. E. (2d) 435). State vs. District 
Court (Mont.) is a case of direct contempt, where the rule 
does not apply. State vs. Keller (N. M.) and Boorde vs. 
Com. (Va.) are cases in which the rule was not invoked, 
rejected or even discussed. State vs. Harpers Ferry Bridge 
Co. (W. Va.), like the Singer case, supra,, was in Chan­
cery.

(2) The Curtis article in 41 Harvard Law Review 51 
is based principally on “ The History of Contempt of 
Court” by Sir John C. Fox (1927).

The right to a jury trial, founded in the Magna Charta 
and enlarged and preserved “ inviolate” in all the constitu­
tions that have been adopted in Missouri, deprives our cir­
cuit courts of the power to try an issue of fact in con­
structive criminal contempt cases and the issue of contempt 
vel non is and must be tried on the uncontrovertible sworn 
answer of the accused. This same constitutional limita­
tion deprives our circuit courts of the power to direct a 
verdict of guilty in criminal prosecutions.

The procedure to which we refer is that of the law 
courts of the common law—not the Chancery courts or the 
court of the Star Chamber. On the point we make in our 
original brief, pp. 30-35, Sir John C. Fox, in his History 
of Contempt seems to agree with Blackstone. He says (p. 
72):

“ In the common law courts, if the defendant in 
his examination denied the contempt, he was ac­
quitted, but he was liable to be prosecuted for per­
jury. In the Court of Chancery witnesses might be 
called to contradict the defendant’s evidence.”

See also page 93.

Amercements, at common law, seem akin to the mod­
ern assessments of costs or penalties against the losing 
party to a cause; akin to penalties that are assessed for 
vexatious appeals and probably, at common law, they in­
cluded penalties for direct {in facie) contempt. At page 
118 Fox says:

“ In cases to which a capiatur did not apply, the 
unsuccessful party was declared to be ‘in the King’s



14

mercy’ or ‘in mercy’, that is, he was liable to amerce­
ment; if plaintiff, he was amerced for false claim; if 
defendant, he was amerced for his wilful delay of jus­
tice in not immediately obeying the King’s writ by 
rendering the plaintiff his due. In either case con­
tempt had been committed. The payment of an amer­
cement was enforceable by distress but not by im­
prisonment. The amounts fixed upon afferrment were 
usually small, and amercement of parties to actions 
had become a matter of mere form in the superior 
Courts by the year 1478, when this was so declared, 
in effect, by all the Justices of the King’s Bench.”

Amercements, it seems, were assessed against sheriffs 
for attaching “ these people without warrant” (Fox 135); 
against a sheriff for making “ a false return” (Fox 136); 
they were assessed for “ withdrawing from the Justices 
without license” (Fox 124); for “ default in an appeal” 
(Fox 124); “ 1 mark of another for a false oath” (Fox 
124); “ for suing in a wrong name” (Fox 134); for “ dis­
obedience to a rule of court” (Fox 163) and against an 
attorney for apparently erring in procedure, i. e., for suing 
“a writ” without a “ bill” (Fox 161). Amercements were 
even paid to obtain “ speedy justice” (Fox 145).

We have carefully read “The History of Contempt of 
Court” by Sir John C. Fox and we do not believe that it 
sustains the contention of opposite counsel. Primarily 
the book seems to be an effort to establish that a libel of 
court at common law was triable to a jury.

There were 32 confirmations of the Magna Charta be­
tween 1215 and 1416 (Bouvier’s Law Dictionary, Rawle’s 
3rd Rev., Vol. II, p. 2061) and, doubtless, its mandates 
were often contravened. The history by Fox, however, 
we respectfully submit does not justify the statement in 
Respondent’s Brief, pp. 33-34 that Fox “ never had any 
doubt that the Magna Charta did not extend the right of 
trial by jury to officers of the court who committed con­
tempts * * * out of the presence of the court * *

The History of Contempt of Court by Sir John C. 
Fox pp. 227-242 correlates 82 “ Instances * * of contempt 
committed * * * tried by a jury, or by confession.”



15

Instance No. 13, on page 229 is as follows:
“ (13) A. D. 1293 

(21 Edward I.) Rot. Pari., i, 94b.
Placita coram ipso domino rege et consilio suo ad 

Parliamentum suum. The complainant alleges that the 
Sheriff of Devon has not executed a writ, in contempt, 
etc. The Sheriff pleads that he never received the 
writ and puts himself upon the country, and the plain­
tiff does the like. To be tried by a jury of twenty- 
four.

Note. If an officer of justice could claim a trial 
by jury, a fortiori, a stranger.”

Instance No. 75 on page 241 is as follows:
“ (75) A. D. 1607

(5 James I.) Fuller’s Case, 12 Reports, 41.
Resolved by all the Judges that if a Counsellor 

at law in his argument shall scandal the King or his 
government, this is a misdemeanor and contempt to 
the Court; for this he is to be indicted, fined, and im­
prisoned.” (Emphasis ours)

Fuller’s case can be found in the library of this court 
(77 Eng. Rep. 1322). The date thereof is the year of the 
founding of King James’ Colony.

We are doubtful of the effect, if any, of the Missouri 
statute adopting the common law, on the contempt powers 
of our circuit courts. (Petitioners’ Brief p. 35). We are 
confident, however, that the provisions of our constitu­
tion, preserving “ inviolate” the right of trial by jury, as 
theretofore enjoyed, render our circuit courts without 
power to try issues of fact without a jury in criminal prose­
cutions. We are also confident that both history and 
authority sustains the proposition that the law courts of 
the common law tried constructive criminal contempts 
to a jury until the practice was ordained to try such con­
tempts on the uncontrovertible sworn answer of the ac­
cused, where such answer was made.



16

In Dickey vs. Volker, 11 S. W. (2d) 278, 285; 321 Mo. 
235, this court said:

“ * * * the courts of this country, in order to as­
certain the principles and rules of the common law,
may look to the decisions of other states of the Union 
* *

The case of Hawkinson vs. Johnson, (Mo.), 122 Fed. 
(2d) 724, announces a similar doctrine.

This we have sought to do and we respectfully submit 
that the authorities cited in our original brief, pp. 28-37 
sustain the contention we there make. Somehow we are 
not convinced that either Curtis or Sir John C. Fox are 
more authentic or more reliable than 3 Translations of the 
Royal Historical Society, cited by the Supreme Court of 
the United States in Gompers vs. U. S., supra. If we had 
the facilities and the time to make an exhaustive historical 
research, we doubt if we have the ability to improve on 
the written opinions of the learned judges that are to be 
found in the many cases we have cited in support of this 
point.

III.

Perjury alone does not constitute contempt of court.

We make this point here because the attempt was to 
charge perjury, to prove perjury and to find perjury. 
While these attempts were not successful, even if they 
had been, contempt of court would not have been estab­
lished.

All of the accused named in paragraph 5 of the com­
plaint (Tr. 3) are alleged suborners of the perjury which, 
by inference, is charged to have been committed by the 
“ two alleged witnesses” mentioned. True, it is not charged 
that Jones and Everage, who are mentioned in paragraph 
6 of the complaint, are the “ two alleged witnesses” men­
tioned in paragraph 5 of the complaint. However, it is 
not pretended that the attempt was other than to charge 
petitioners with subornation of perjury. Opposite coun­
sel concede (Br. 45, 50) that



17

“ the basis of the charge against petitioners is 
that they confederated to act and did individually act 
to locate, arrange for, coach and present to the trial 
court and jury two witnesses who testified to ‘the oc­
currences out of which the law suit of Burton vs. 
Moulder arose’ , when in fact neither witness saw 
these occurrences and petitioners knew they did not. 
Petitioners are not charged with perjury or false 
swearing. None of them testified as witnesses.”

Perjury, as defined by statute (Sec. 557.010, R. S. 
Mo., 1949), has all the elements of perjury at common 
law. An accessory before the fact of perjury is one who 
“ procures, counsels or commands another to commit the 
crime.”

Blackstone’s Commentaries (Chitty’s Blackstone), 
Book 4, Chapt. Ill, Star pp. 34, 36 

Wharton’s Criminal Law (11th Ed.),
Vol. I, p. 335, Sec. 263 

Bishop on Criminal Law (9th Ed.),
Vol. I, p. 486, Sec. 673

Such accessory before the fact is a statutory prin­
cipal (Sec. 556.170, R. S. Mo., 1949). One who procures 
another to commit perjury is guilty of subornation of 
perjury (Sec. 557.040, R. S. Mo., 1949).

Thus, under our statute and at common law a sub­
orner of perjury is nothing more or less than an accessory 
before the fact of perjury. Subornation of perjury is an 
accessorial crime.

70 C. J. S., pp. 548, 549, Sec. 79 (b)
Hammer vs. United States,

271 U. S. 620; 46 S. Ct. 603

Opposite counsel have evolved a novel and amazing 
theory, i. e., that a perjurer is not guilty of contempt, but 
one who procures the commission of perjury is guilty. 
They say (Br. 55):

“While it is probably true that sheer false testi­
mony by a witness is not criminal contempt (In re 
Michael, 326 U. S. 224, 66 S. Ct. 78; Ex parte Creasy,



18

(Mo.) 148 S. W. 914), it is likewise true that con­
duct which also may constitute the crime of suborna­
tion of perjury can be and is criminal contempt.”

A succinct statement of what opposite counsel claim 
constituted the obstruction (Br. 50) follows:

“ If the acts of locating, arranging for, coaching 
and presenting false testimony tend to degrade or 
make impotent the authority of the trial court or ob­
struct or impede the administration of justice, the 
complaint charges criminal contempt.”

Thus, it is conceded that the obstructive tendency of 
perjury “ to produce a judgment not resting on truth” is 
the sole and only obstruction that is the “ basis or founda­
tion” of the within charge. This does not constitute 
contempt. Such use of the contempt power, to paraphrase 
the opinion in the Michael case, is to “ permit too great in­
roads on the procedural safeguards of the Bill of Rights.” 
We consider the case of Ex parte Creasy, 243 Mo. 679; 
148 S. W. 914, 921, 924 controling and the case of In re 
Michael, 326 U. S. 224; 66 S, Ct. 78, 80 highly persuasive. 
The element of obstruction in the federal statute (28 
USCA 401) is in harmony with the Missouri statute (Sec. 
476.110, R. S. Mo., 1949) and the common law.

In the Michael case, supra, (66 S. Ct. lc 80) the Su­
preme Court said:

“All perjured relevant testimony is at war with 
justice, since it may produce a judgment not resting 
on truth. Therefore it cannot be denied that it tends 
to defeat the sole ultimate objective of a trial. It need 
not necessarily, however, obstruct or halt the judicial 
process. For the function of trial is to sift the truth 
from a mass of contradictory evidence, and to do so 
the fact finding tribunal must hear both truthful and 
false witnesses. It is in this sense, doubtless, that this 
Court spoke when it decided that perjury alone does 
not constitute an ‘obstruction’ which justifies exertion 
of the contempt power and that there ‘must be added 
to the essential elements of perjury under the general



19

law the further element of obstruction to the Court in 
the performance of its duty.’ Ex parte Hudgings, 
supra, 249 U. S. 382, 383, 384, 39 S. Ct. 339, 340, 63 L. 
Ed. 656, 11 A. L. R. 333. And the Court added ‘the 
presence of that element (obstruction) must clearly 
be shown in every case where the power to punish for 
contempt is exerted.’

*  *  *  ^  *  *  *

Only after determining from their testimony that 
petitioner had wilfully sworn falsely, did the Court 
conclude that petitioner ‘was blocking the inquiry just 
as effectively by giving a false answer as refusing to 
give any at all.’ This was the equivalent of saying 
that for perjury alone a witness may be punished for 
contempt. See. 268 is not an attempt to grant such 
power”  (Emphasis ours).

In U. S. vs. Goldstein, (1947) 158 Fed. (2d) 916, 920 (7 
Cir.) the court said:

“ The question as to whether the allegations of the 
petition are sufficient to show an obstruction of justice 
divides itself into two categories, legal and factual. As 
to the legal phase of the situation, the law appears to 
have been definitely established by four recent de­
cisions of the Supreme Court. In re Michael, 326 U. S. 
224, 66 S. Ct. 78; Nye v. United States, 313 U. S. 33, 61 
S. Ct. 810, 85 L. Ed. 1172; Clark v. United States, 289 
U. S. 1, 53 S. Ct. 465, 77 L. Ed. 993, and Ex Parte 
Hudgings, 249 U. S. 378, 39 S. Ct. 337, 63 L. Ed. 656, 
11 A. L. R. 333. We have read and reread these cases, 
and notwithstanding counsel’s valiant effort to dis­
tinguish them, we are of the view that they point un­
erringly to the conclusion as a matter of law that 
Goldstein’s perjury did not amount to an obstruction 
to the administration of justice in this court. * * *

In the instant situation, there appears to be no 
escape from the idea that any interference with the 
judicial power of this court was only that ‘inherent in 
the wrong of testifying falsely.’ In other words, the 
perjury alleged is not merely one of the aggravations



20

of the contempt charged hut is the basis or foundation 
therefor”  (Emphasis ours).

In the case of U. S. vs. Arbuckle, 48 F. Supp. 537, 538, 
the court quotes Ex Parte Hudgings, supra, and said:

“ What, then, is perjury having the ‘obstructive 
effect’ to which the Supreme Court referred? A study 
of the decided cases which bear on this point seems to 
establish that it is ‘perjury which blocks the inquiry.’ 
This is the definition given by Hand, J., in United 
States v. Appel, D. C., 211 F. 495, a case referred to 
by the Supreme Court, in its Hudgings’ decision, as 
illustrating its view. If false testimony given in a 
case results in defiance of the Court or in frustration 
of its right to obtain testimony, then the witness in 
legal effect is contumacious, he is a contemnor, as well 
as a perjurer, and may be punished for contempt. But 
if the witness fully gives testimony, and in so doing 
testifies falsely, not in order to prevent the inquiry, 
but only in order to deceive, there is no contumacity, 
no blocking of the inquiry, and the remedy is solely 
by indictment for perjury and trial by jury.”

We are at a loss to understand the position of re­
spondent on this point. On the one hand we are told 
that “ * * * it is probably true that sheer false testimony 
by a witness is not criminal contempt” and the Creasey 
and Michael cases are cited (Br. 55). On the other hand 
opposite counsel assert “ Other cases have also uniformly 
labeled as contemptuous the act of procuring and present­
ing false testimony because necessarily the solicitation 
and presentation of perjured testimony robs the parties 
of a fair trial” (Br. 53). Such diametrically opposite con­
tentions simply neutralize each other.

Again, they say “ false testimony” is the obstruction 
or impediment to the administration of justice upon which 
the charge is based (Br. 50). On the other hand the 
arranging for false testimony is asserted to be contemp­
tuous, even had the testimony so arranged for, never been 
given (Br. 56). Never has a preparation for the commis­



21

sion of a crime rendered one guilty of the crime. Never 
has an accessary before the fact been convicted unless it 
was found that the crime had been committed by the 
principal.

Perjury which “ blocks the inquiry” , which prevents 
a court from obtaining testimony, can constitute contempt, 
but such is not this case. With reference thereto, in 12 
Am. Jur., Sec. 17, on the subject of Contempt, it is stated

“ * * * In order that perjury may constitute con­
tempt of court, however, it must appear that (1) the 
alleged false answers had an obstructive effect; (2) 
that there existed judicial knowledge of the falsity of 
the testimony; and (3) the question was pertinent to 
the issue.”

See also:
Favick Airflex Co. vs. United Elec. R. & M. Wkrs., 

92 N. E. (2d) 436 (Ohio)
People vs. Bullock,

82 N. E. (2d) 817 (111.)
People vs. Hille,

192 111. App. 139 
Riley vs. Wallace,

222 S. W. 1085 (Ky.)
People vs. Anderson,

272 111. App. 93 
Mclnnis vs. State,

32 So. (2d) 444 (Miss.)
Wilder vs. Sampson,

129 S. W. (2d) 1022 (Ky.)

IV.

The insufficient complaint, judgment and commit­
ment.

As pointed out by petitioners (Br. 39), the “ particu­
lar circumstances” of the offense must be set forth in the 
commitment (judgment) and, since the judgment must 
be within the scope of the charging paper, the “ par­



22

ticular circumstances” of the offense must be set forth 
in the complaint, else the judgment is not supported by 
the charge and the court is without jurisdiction.

Respondent argues that the recitation of the testimony 
given by Everage is a part of the judgment. Petitioners 
assert that such recitation is no more a part of the judg­
ment than the other preliminary recitations which give a 
history of the proceedings—see definition of judgment 
(Sec. 511.020, R. S. Mo., 1940).

However, even if the recitals in the order as to the 
testimony of Everage are so erroneously considered, the 
judgment will not be supported by the allegations of the 
complaint, since no comparable allegations are there to 
be found, and few, if any, of the many insufficiencies 
pointed out by petitioners, both in the complaint and in 
the judgment (Br. 39, 40, 41, 42, 51, 52, 53) will be sup­
plied (by unwarranted inference or otherwise).

A comparison of Paragraph III (d) of Respondent’s 
Brief, p. 49, with Paragraph 5 of the complaint (Tr. 3) re­
veals:

It is not charged that the named accused “ presented 
the testimony of Jones and Everage as to the ‘occurrences 
out of which the law suit * * * arose.’ ” The charge is 
that said named accused and Jones and Everage presented 
two unnamed witnesses, who never actually witnessed 
the “ occurrences * * * etc.”

Paragraph 6 of the complaint (Tr. 3) alleges that the 
named accused arranged to have Jones and Everage falsely 
and fraudulently testify and Paragraph 7 of the complaint 
(Tr. 3) alleges that they did so testify, but it is not charged 
that the two unnamed witnesses mentioned in said Para­
graph 5 were Jones and Everage.

Respondent says (Br. 58) that petitioners were charged 
with presenting false testimony on liability. The com­
plaint does not mention liability and the judgment makes 
no mention of liability. In fact, at no place, either in the 
complaint, the recitation of the testimony of Everage or 
the findings of the court in the judgment and commit­
ment, is there any fact mentioned relative to the nature 
of the case of Burton v. Moulder, the issues therein, the



23

facts to which Jones and Ever age testified at the trial 
thereof, or the materiality, if any of their testimony.

We have here illustrated a few of the many inac­
curacies in respondent’s statement of the facts. At the 
above mentioned pages of our brief, petitioners specif­
ically referred to the many insufficiencies in both the 
complaint and the judgment. These will not here be re­
argued [Rule 1.08 (d) ], but we confidently assert that the 
record will sustain our contention.

The California law is similar to the Missouri law we 
mentioned on page 39 of our original brief with refer­
ence to the necessity of alleging the “ particular circum­
stances” of the offense in the charging paper and of set­
ting them forth in the judgment or commitment.

In the case of Ex parte Battelle, 277 Pac. 725 (Cal.), 
the court said:

“ Bearing in mind this fundamental principle of 
procedure in contempt cases of this character, when 
we refer to the order and adjudication of contempt 
which the senate purported to adopt and enforce in 
the instant case, we find it to be entirely lacking in 
that precision of statement which the law requires.

It is true that the order in question contains the 
recital that ‘in pursuance of said subpoena duly and 
regularly issued and served said persons appeared be­
fore said committee and refused and declined to an­
swer certain questions material to the issues, and re­
fused to produce proper books, papers, documents and 
records required of them, such being in their posses­
sion or under their control, and material to said is­
sue, all as more particularly appears from the report 
of said committee presented to and filed with this 
Senate on March 8th, 1929, and from the supplemental 
report of said committee filed with this Senate on 
March 11th, 1929, said questions being also set forth 
in the ‘Excerpts from the transcript of testimony’ sub­
mitted to the Senate March 8th, 1929, to which refer­
ence is hereby made.’ We are of the opinion, how­
ever, that the mere ‘reference’ which is thus made to



24

the report of the committee and to said ‘questions be­
ing also set forth in the ‘Excerpts from the transcript 
of testimony’ are and each of them is insufficient to 
so far embody the content of such report or the ‘Ex­
cerpt from the transcript of testimony’ therein con­
tained in the order of commitment so as to satisfy the 
precise requirement of the Code of Civil Procedure 
with respect to what the ‘recitals’ in said order must 
contain.”
See also Ex parte Wells, 173 Pac. (2d) 811 (Cal.).

In Ex parte McLain, 221 Pac. (2d) 323 (Cal.), the 
court said:

“ In cases of constructive contempt, as is this, not 
only the order hut also the affidavit upon which it 
is based must sufficiently charge the alleged facts con­
stituting the offense. In re Davis, 31 Cal. (2d) 451; 
189 P. (2d) 283.

Applying this test to the order, and the affidavit, 
it becomes immediately apparent that each order is 
lacking in the essential allegations of materiality and 
pertinency of the records, and that the Superior Court 
was without jurisdiction to hear the case, or to adjudge 
contempt. The affidavit states conclusions; and the 
only statement of materiality in the order is by refer­
ence to the affidavit. * * *

This case turns upon elementary principles of due 
process of law. Before any man may be imprisoned he 
is to know in the affidavit charging him with construc­
tive contempt in what respect records which he is 
ordered to produce are material to the investigation. 
* * *” (Emphasis ours).

In the case of Leonis vs. Superior Court, 223 Pac. (2d) 
657 (Cal.), the court said:

“Unless the affidavit initiating the proceeding 
‘contain a statement of facts which show on its face 
that a contempt has been committed, the court is 
without jurisdiction to proceed in the matter and any 
judgment of contempt thereon is void. Nothing can



25

be proved that is not charged, and if the affidavit is 
materially defective, the judgment found upon it must 
necessarily be equally defective.’

#  *  *  S}5 *

* * * Undoubtedly the power to punish for con­
tempt is a necessary adjunct to procedure. Its appli­
cation, however, must be hedged about with adequate 
protection for the person accused; otherwise, the basic 
constitutional requirements concerning due process 
and other fundamental rights are without meaning.” 
(Emphasis ours).

V.

Insufficient evidence.

The response of Everage (Tr. 56, 57) was not a plea 
of guilty. No disposition of the cause as to Everage and 
no finding of his guilt was made until the close of the trial 
(Tr. 77). Even the evidence of Helen Everage, wife of 
Vernon Everage, was received in evidence and limited in 
its application to establishing the guilt of her husband, 
Vernon Everage (Tr. 387). This was done on the theory, 
as stated by the court, that, if counsel for informant 
“ wants to offer further evidence against him (Everage), 
I will hold it against him. He could be on the theory that 
the court might not believe Everage’s story direct” (Tr. 
388).

Everage was jointly charged with these petitioners 
when he testified; the cause had not been disposed of as 
to him when he testified. Everage was, therefore, an in­
competent witness against these petitioners, under the au­
thorities cited (Br. 55, 56).

As to Cabbell: The facts recited in Respondent’s 
Brief (Br. 76-77) are not supported by the record:

(1) What Sympson told Everage relative to Cabbell 
(Tr. 247) is not only unintelligible, but is not binding on 
Cabbell.

(2) The conclusion that “ * * * Cabbell’s car was to 
have been the Ford, etc.” (Tr. 246), was objected to and* 
on motion, stricken (Tr. 246-257).



26

Therefore, the evidence as to Cabbell was that he was 
merely present and the proof was wholly insufficient, as 
pointed out by petitioners (Br. 56-57).

Respectfully submitted,

W:m . O. 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.