In re Green

103 S.W. 503, 126 Mo. App. 309, 1907 Mo. App. LEXIS 408

• Court: Missouri Court of Appeals
• Decided: June 11, 1907
• Status: Published

Opinions

BLAND, P. J.

The petitioner stands committed to jail for contempt, by virtue of a commitment issued by a commissioner appointed by the. circuit court of the city of St. Louis to take depositions in a cause pending in said circuit court. The contempt is alleged to have been committed by the petitioner refusing to answer any questions that might be put to him as a witness before the commissioner. The commissioner’s journal shows the following facts: That the taking of the depositions had been in progress for a number of days and the petitioner’s deposition had been taken; that the plaintiff in the case, at whose instance and on whose notice the depositions were being taken, on M'ay 8,1907, notified the opposite party that he had examined all the witnesses he desired to examine, with the exception of a Mrs. Green, on whom he had failed to get service, and asked that the taking of the depositions be continued to the following day for the purpose of affording him an opportunity to make another effort to secure the attendance of Mrs. Green. The continuance was agreed to and the taking of depositions was continued to the following day. Mrs. Green was not served with the subpoena issued for her, and on May 9, in the absence of defendant or his counsel, the taking’ of the depositions was adjourned to the following day. The minutes of the commissioner show there were no witnesses present on the ninth and he adjourned the taking of testimony to Friday, May 10. On May 10 the journal shows counsel for plaintiff being present, no counsel appearing for defendant, witness John G. Joyce, who was subpoenaed by plaintiff, not knowing anything about the facts in the case, was excused, and no other witnesses being present,- the taking of depositions was adjourned to Saturday, May 11, after which time the taking of depositions progressed to May 14, when the petitioner was brought in by the sheriff under an attachment issued by the commissioner, and the following took place:

“Witness: I came up to see what you wanted with me; on the last day, I understood you were through with me.

“Counsel for plaintiff: Have you communicated with Mr. Kline or Mr. Kinealy, that you were sum- ' moned here this morning?

“Witness: Yes.

“The Commissioner: They know that you are to be here this morning?

“Witness: Yes.

“Counsel for plaintiff: Of course, if you desire to notify your attorneys and want them here, we will wait until you do so. If you don’t want to, we will go on. If you don’t we won’t keep you very long. You can do just as you please about that.

“Witness: Well, Mr. Commissioner, I have been advised that these depositions were closed; so that being the case, I will have to decline to answer any further questions.

“The Commissioner: You were advised by your attorneys?

“Witness: Yes.

“The Commissioner: Mr. Kinealy?

“Witness: Well, by my attorneys.

“The Commissioner: When you were present here the other day, .you were ashed certain questions, and it appeared at that time that the counsel for plaintiff was not through with you, but stated in the presence of all present —

“Counsel for plaintiff (Judge Dillon) : I think, in fairness to the witness, I think we stated at that time that we were through with the witness, but the depositions were not closed. It was distinctly understood that the depositions were laid over until another day. But afterwards, we found certain questions we wanted to ask the witness. There seems to be no question but what we have a right to resummon him. I think we did say at that time to Mr. Green that we were through with him — that is my impression of it; but the further taking of depositions was laid over, and in looking over the testimony, there are a few other questions we want to ask the witness, and we concluded to have him re-summoned, and question Mm further, and that is the situation this morning.

“Counsel for plaintiff (Mr. Sprinkle) : Would you like to call up your counsel —

“Counsel for plaintiff (Mr. Dillon): No; he has been advised by his attorneys, I suppose, not to answer.

“The Commissioner: Do you wish to call up Mr. Kinealy or Judge Klein, to ask them if they want to be here?

.“Counsel for plaintiff (Judge Dillon): I think not; the witness said he has come here after consultation with them; and he don’t intend to answer any more questions. We have been going over that testimony, Mr. Sprinkle and myself, and find some questions that we would like to have him answer; that is the situation.

“The Commissioner: You stated that your counsel wouldn’t be here?

“Witness: Well, I simply said that I am advised that the depositions have been closed.

“The' Commissioner: Have you been advised not to answer any further questions?

“Witness: I decline to answer any further questions.

“The Commissioner: Have you been advised to that effect?

“The Witness: Yes, sir.

“Counsel for plaintiff (Judge Dillon) : That being so, what is the reason for asking any questions at all. The witness says he declines to answer any questions to be put to him. I submit that that being so, the witness be committed for refusal to submit to further questions.

“The Commissioner: Wait a moment Mr. Green; I say just wait a moment. Do you want to put any questions to him?

“Counsel for plaintiff (Judge Dillon): I think it is useless to put any questions. When the witness states he is under advice of counsel not to answer, and is under the impression that the taking of these depositions is closed, by advice of counsel, he has come here determined to answer no questions that may be put to him.

“The Commissioner: That is your position Mr. Green?

“The Witness: Yes, sir.

“The Commissioner: You won’t submit to any examination at all?

“The witness: No, sir; I understand the depositions are closed.

“The Commissioner: Well, I think that you have been laboring under a misapprehension, and that being the case, I think under the law, you ought to be compelled to answer the questions; they are all proper questions, and if you decline to do it. we will have to let the law take its course.

“Counsel for plaintiff (Mr. Sprinkle): Now, he has declined to answer any questions. Just sit down Mr. Green. We are not going to put you to any unnecessary delay. Now in order to make the record clear, wouldn’t it be best for us to put one question Judge, and if he refuses —

“Counsel for plaintiff (Judge Dillon, interrupting) : I think when the witness says he won’t submit to any examination at all, that-that follows, and we ask that the witness—

“The Commissioner: I think that that is all the law requires.

“Counsel for plaintiff (Judge Dillon, continuing): And I ask for the commitment of the witness, for refusal to further answer any .of the questions that may be put to him.”

Thereupon the commissioner sustained the motion of counsel for plaintiff for a commitment and adjudged the witness stand committed for contempt in refusing to answer any further questions that might be put to him.

The petitioner contends that the commitment and his imprisonment thereunder is illegal for two reasons: First, because the adjournment of the taking of depositions from May 9 to May 10 and from the tenth to the eleventh were without any cause, were unauthorized; and that the authority of the commissioner to take depositions terminated on May 9, and he was therefore without jurisdiction to commit the petitioner for contempt; and second, .that as no question was propounded to the petitioner as a witness, he was not guilty of contempt in refusing to answer a proper question.

In Ex parte Krieger, 7 Mo. App. 367, it is said, “There is no such thing known to the law as contempt of a notary public;” that the Legislature has clothed a notary with authority, in the exercise of the function to take depositions, to commit a witness who refuses to give evidence which, may be lawfully required of him; and held: “In a proceeding under the Habeas Corpus • Act to bring up a prisoner charged with contempt in refusing to answer interrogatories propounded before a notary public taking depositions, there is no presumption of jurisdiction in favor of the notary, and no adjudication as to the jurisdictional fact which the court is bound to respect; and it is the duty of the court to examine whether the commitment is within the intent of the Legislature, and within the meaning and spirit as well as the letter of the law.”

In Bracken v. March, 4 Mo. 74, “Notice was given to take depositions on July 14 — to be continued if necessary from day to day until completed. The depositions of two witnesses were taken, commenced on the fourteenth and continued from day to day until July 16, when they were completed. Held, that as the depositions for anything appearing on their face might have been taken in an hour — something must also appear to justify the delay — and unless something did so appear they ought to be suppressed — what was done each day should appear on the record.” At page 77, the court said: “The officer in our opinion should have kept a journal so as to show what was done on each day. If it should happen that there was more writing required than could be conveniently done in one 'day that would be a good cause for continuing the examination till the next day. If on the other hand a witness in attendance became sick and unable to attend till the next day, or if one duly summoned had failed to attend, either might be a good reason for an adjournment till the next day, and the statement of such facts on the .journal would perhaps be very good evidence of the necessity. But in the present case we have nothing to show us why the reducing of the testimony of these two witnesses to writing was protracted for so long a time. We are therefore led to the conclusion that they were not taken in conformity with, the notice, and that the circuit court erred in permitting them to be read to the jury, and for this reason its judgment is reversed —the cause will be remanded.”

In Owens v. Peyton, 70 Mo. App. 50, it was ruled: “Where the other party does not appear to the taking of depositions, proceedings should begin on the day named in the notice; and, if adjournments occur, entries should be made each day of the proceedings of that day together with the adjournment.”

Notice to take depositions must state the place, the day and between what hours of the day depositions will be taken, and that if not completed on that day, the' taking will continue at the same place and between the same hours from day to day until completed; and to authorize the reading of the depositions, it must appear from the return of the officer taking them that they were taken in pursuance of the notice. If for any reason tbe taking is adjourned to the’following day, the cause for the adjournment should be noted by the officer taking the deposition. The authority of the commissioner to take the depositions can only be exercised in pursuance of the notice served by the plaintiff upon the defendant of the time and place of their taking, and it seems to me that any unauthorized adjournment would be a departure from the terms of the notice, and have the effect of ousting the jurisdiction of the commissioner to proceed further in the taking of depositions and that his authority to take them could only be restored by the service of a new notice. But waiving the question of the jurisdiction of the commissioner to take depositions on the fourteenth of May, I think the petitioner is entitled to his discharge, on the ground that it affirmatively appears from the journal of the commissioner that the petitioner was not guilty of contempt in refusing to answer any question that was propounded to him as a witness. His declaration that he would not answer any question was nothing more than an expression of a declared purpose to commit a criminal contempt rather than submit to a further examination as a witness before the commissioner. It is not the law that a citizen may be imprisoned as for the commission of a crime on his naked declaration that he will commit it rather than submit to the authority of an officer. Communicated intent to commit a crime is not a crime. Bishop says, to constitute a criminal offense, “some act must have followed the unlawful thought;” and adds by way of illustration, “It is no offense at the common law to have in one’s possession counterfeit coin, or forged paper, . . . with the intent to pass them as good, . . . because the bare possession is not an act.” [1 Bishop on Criminal Law, sec. 204.] The declaration by the petitioner of his intent not to answer any questions that might be propounded to him as a witness before the commissioner, - was not an act, was not a refusal to answer a proper question, and hence was not a contempt for which the commissioner had any authority to commit him, and I think the petitioner is entitled to his discharge.

Goode, J., dissents, Nqrtoni, J., concurs.