Opinion
No. 28945.
October 30, 1953.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, DIVISION TWELVE, WILLIAM H. KILLOREN, J.
Cecil Block, St. Louis, for petitioner.
Samuel H. Liberman, City Counselor, and Charles B. Kaiser, Jr., Associate City Counselor for City of St. Louis, St. Louis, for respondent.
This is a proceeding in habeas corpus brought at the instance of Andrew Novak, the petitioner, to determine whether he is unlawfully deprived of his liberty at the hands of respondent, Warden of the City Workhouse of the City of St. Louis, pursuant to an order of commitment for contempt of court issued by the Honorable William H. Killoren, Judge of the Circuit Court of the City of St. Louis, Division Twelve, following the refusal of the petitioner to answer certain questions propounded to him in the course of a trial in progress in said court at said time. Upon the filing of the return, petitioner moved for judgment on the pleadings.
From the pleadings, it appears that petitioner is held under the following order or warrant of commitment:
"Be it Remembered, That on this the 16th day of September, 1952, at the regular September Term of the Circuit Court of the City of St. Louis, Division No. 12 thereof, begun and held at the Court House in the City of St. Louis and State aforesaid, before the Honorable W. H. Killoren, Judge of the Eighth Judicial Circuit of the State of Missouri and Judge of this Court, the following, among other proceedings, were had, to wit:
"The State of Missouri, Plaintiff, Criminal Action, No. 20-A vs. Sentence and Judgment. Andrew Novak, Defendant.
defendant is informed by the "State of Missouri, Court that he is of Contempt of ss. Court, that the said defendant, City of St. Louis. Andrew Novak, be confined in the Workhouse of the State of Missouri "I James H. McAteer, Clerk of for the period of One year, the Circuit Court for Criminal sentence imposed to follow Causes, in and for said City, consecutively sentence of two hereby certify the foregoing to years in State Pen imposed in be a full, true and complete copy cause #20-A and that the Sheriff of the original judgment and of this City shall, without delay, sentence of the Court in the remove and safely convey the said cause therein named, as the same defendant to the said Workhouse appears of record in my office. there to be kept, confined and treated in the manner directed, by "Witness my hand as Clerk, law, and the Warden of said and the seal of said Court. Workhouse is required to receive and safely keep him, the said "Done at office in the City of defendant, in the Workhouse St. Louis, this 6th day of aforesaid, until the judgment and October, A.D. 1953. sentence of the Court herein be complied with, or until the said "(Signed) James H. McAteer defendant shall be otherwise "Clerk, Circuit Court of the discharged by due course of law. City of St. Louis, for Criminal Causes." "It is further considered, ordered and adjudged by the Court, that the State have and recover of said defendant the costs in this suits expended, and that hereof execution issue therefor.
The court, in proceeding against petitioner, acted under the authority of Section 476.110 RSMo 1949, V.A.M.S., which provides as follows:
"Every court of record shall have power to punish as for criminal contempt persons guilty of
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"(5) The contumacious and unlawful refusal of any person to be sworn as a witness, or, when so sworn, to refuse to answer any legal and proper interrogatory."
The punishment assessed was authorized under Section 476.120 RSMo 1949, V.A.M.S., which provides:
"Punishment for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting, or both, in the discretion of the court."
It is urged by petitioner in support of his motion that he is illegally deprived of his liberty for the reason that the order or warrant of commitment does not set forth the particular circumstances of the offense of which he was charged and convicted.
Section 476.140 RSMo 1949, V.A.M.S., provides:
"Whenever any person shall be committed for any contempt specified in this chapter, the particular circumstances of his offense shall be set forth in the order or warrant of commitment."
Our Supreme Court in construing the foregoing statutes has held that an order or warrant of commitment in a contempt proceeding, based upon a refusal of a witness to answer questions propounded to him in a legal proceeding, must, in order to be valid, set forth the questions asked and the answers or statements in response thereto. Ward v. Lamb, Mo., 177 S.W. 365; Ex parte Shull, 221 Mo. 623, 121 S.W. 10; Ex parte Creasy, 243 Mo. 679, 148 S.W. 914, 41 L.R.A., N.S., 478; Ex parte Fuller, 330 Mo. 371, 50 S.W.2d 654.
In the case at bar the judgment and order of commitment fail to set forth the particular circumstances of the offense of which the petitioner was charged and held. Therefore, under Section 476.140, supra, as construed by the above cited cases, said judgment ordering the petitioner held in contempt is invalid and petitioner is entitled to his discharge. It is so ordered.
BENNICK, P. J., and RUDDY, J., concur.