Opinion
No. 21811.
December 8, 1952.
J. K. Owens and I. I. Ozar, Kansas City, for petitioner.
Carl E. Enggas, James A. Moure and David M. Proctor, Kansas City, for respondents.
This is a proceeding in habeas corpus. On January 28, 1952, the prosecuting attorney of Jackson County, Missouri, filed in the Circuit Court of said county, a "Complaint for criminal contempt." In said complaint it was alleged that the case of Ernest Smith v. Kansas City Public Service Company was tried before a jury in the Circuit Court of Jackson County, at Kansas City, commencing on March 21, 1949, and terminating on March 24, 1949, when the jury was discharged.
The complaint further alleged that certain named persons testified for plaintiff Smith at the trial of said cause, as pretended witnesses to the collision between the street car and the motor-cycle out of which said cause arose; that none of said persons had any personal knowledge of such collision, nor was any of said pretended tended witnesses, in truth and in fact, an actual eye witness thereto; that petitioner Ponick and Alfred H. Osborne, who were then licensed attorneys, acted as attorneys for plaintiff Smith in said damage suit; that said Ponick and Osborne, with full knowledge that the named persons had no personal knowledge of the collision, induced and hired them to testify in the Smith case; and supplied to them versions of said collision, and coached and rehearsed said pretended witnesses in such versions.
Following a hearing the Circuit Court adjudged petitioner guilty of contempt and sentenced him to six months in jail and to pay a fine of $500.
Petitioner makes but one point. He contends that the complaint for contempt was barred by Section 541.210 RSMo 1949, V.A.M.S. As stated the contempt occurred two years and ten months prior to the date of the filing of the complaint by the prosecuting attorney. Said section 541.210 is as follows:
"No person shall be prosecuted, tried or punished for any offense, other than felony, or for any fine or forfeiture, unless the indictment be found or prosecution be instituted within one year after the commission of the offense, or incurring the fine or forfeiture."
It is conceded that the exact question presented to us has not heretofore been decided in Missouri.
Arkansas has a statute identical with our Section 541.210. In the case of Pate v. Toler, Judge, 190 Ark. 465, 79 S.W.2d 444, Pate sought prohibition against Toler, judge of the circuit court, in a matter wherein Pate was charged with contempt of that court. The basis of the charge was that at the trial of a cause in the circuit court on November 27, 1933, Pate advised two witnesses to leave the court room. Having done that, he then joined his cocounsel in asking for a continuance of the case on account of the absence of said two witnesses. The opinion, 79 S.W.2d loc. cit. 446, says:
"The petitioner relies upon section 2887, Crawford Moses' Dig., as reason why he should not now be tried upon this contempt charge. This section is as follows: `Misdemeanors. No person shall be tried, prosecuted and punished for any offense less than felony, or any fine or forfeiture, unless the indictment be found or a prosecution instituted within one year after the commission of the offense or incurring the fine or forfeiture.'
"The above section is somewhat more than a statute of limitations, as regards to time. Ordinarily the statute of limitations in proceedings is a matter of defense, which may be pleaded or be waived. The above section, however, is a limitation upon the power of courts to try one for any offense less than a felony, unless the charge shall have been instituted within the year after the offense charged was committed. The state must prove that the offense was committed within the year prior to the filing or making the charge. Stelle v. State, 77 Ark. 441, 92 S.W. 530; State v. Reed, 45 Ark. 333.
Numerous other authorities could be cited. Here there has been no eviction of service by absconding or otherwise.
This petition and citation for content, as above set out, shows it was filed December 10, 1934, and on the same date the citation was issued. On the same date Pate filed his motion to dismiss and the motion suggested the lack of jurisdiction on the part of the come to try him. While this motion does not call attention to the fact that the alleged offense had been committed more than a year before, it was not necessary that it should. The court does not and records were present. The written charge or information showed it. The court was without power to proceed, but meant to do so. Prohibition was proper. See Roberts v. Talm 171 Ark. 148, 283 S.W. 45.
"It follows that writ of prohibition should be granted."
There is a well considered opinion on the question by the Illinois Appellate Court. (Beattie v. People, 33 Ill.App. 651.) In that case appellant Beattie, an attorney, had been adjudged guilty of contempt in the presentation of testimony in a divorce case which he knew to be false. The divorce case was tried in May, 1887, but the motion charging contempt was not filed until February 1889. At the hearing on the motion appellant Beattie moved to dismiss the prosecution on the ground that the same was barred by the statute of limitations of one year and six months. The appellate court held that Beattie's contention was well taken. This Beattie opinion is discussed at length and with approval by the Kentucky Court of Appeals in Gordon v. Commonwealth, 141 Ky. 461, 133 S.W. 206. And the Supreme Court of Washington reached the same conclusion in the case of State v. Phipps, 174 Wash 443, 24 P.2d 1073.
In the case of Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368, petitioners Pendergast, O'Malley and McCormack, by fraud and deceit induced the Federal District Court to issue decrees effectuating a corrupt settlement of insurance litigation in Missouri. The information charging petitioners with contempt of court was not filed until July 13, 1940. The court, 39 F.Supp. 189, found that the contempt was committed not later than February 1, 1936, when the lower court ordered distribution of the impounded insurance funds. At page 417 of 317 U.S., at page 270 of 63 S.Ct. of the Supreme Court's opinion this language appears:
"Petitioners press several objections to the judgment below. The chief of these are that the offense was not a contempt under § 268 of the Judicial Code, 28 U.S.C. § 385, 28 U.S.C.A. § 385, as construed by Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, and that even though it was, the prosecution of it was barred by the three year statute of limitations contained in § 1044 of the Revised Statutes, 18 U.S.C. § 582, 18 U.S.C.A. § 582. We do not reach the first of these questions and need not express an opinion on it. For although we assume argued that the Circuit Court of Appeals was correct in holding [O'Malley v. U.S., 8 Cir.,] (128 F.2d [676] at page 683) that the conduct of petitioners was `misbehavior' in the `presence' of the court within the meaning of § 268 of the Judicial Code and therefore punishable as a contempt, we are of the opinion that this prosecution was barred by § 1044 of the Revised Statutes.
"That section provides: `No person shall be prosecuted, tried, or punished for any offense, not capital * * * unless the indictment is found, or the information is instituted, within three years next after such offense shall have been committed. * * *' It would seem that the statute fits this case like a glove. If the conduct in question was a contempt, there can be no doubt that it was a criminal contempt as defined by our decisions. See Nye v. United States, supra, 313 U.S. at pages 41-43, 61 S.Ct. at pages 812, 813, 85 L.Ed. 1172, and cases cited. As such it was an `offense' against the United States within the meaning of § 1044. It was held in Gompers v. United States, 233 U.S. 604, 34 S.Ct. 693, 58 L.Ed. 1115, that a wilful violation of an injunction, likewise punishable as a contempt under § 268 of the Judicial code, was such an `offense'. And see United States v. Goldman, 277 U.S. 229, 48 S.Ct. 486, 72 L.Ed. 862. Cf. Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed. 527, 38 A.L.R. 131."
It is to be noted that our statute, Section 541.210, uses the word "offense." Thus the question presents itself — whether criminal contempt is an "offense"? The inquiry has arisen in the manner disclosed by the two following decisions.
In re Opinion of the Justices, 301 Mass. 615, 17 N.E.2d 906, two persons, Dolan and Quinn, had been found guilty of criminal contempt of court. The contempts of which they were adjudged guilty consisted of unlawfully influencing jurors. They applied to the Governor for pardons. Under the constitution of Massachusetts the power to a pardon extends only to "offenses." The Governor asked the Justices of the Supreme Court to determine whether the contempts of which said Dolan and Quinn were adjudged guilty constituted "offenses" within the meaning of the constitutional provision. Reviewing many decisions the Justices answered the question in the affirmative.
In Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed. 527, petitioner had been found guilty of criminal contempt and later pardoned by the President. The only question presented to the Supreme Court was that of the power of the President to grant the pardon. In an exhaustive opinion delivered by Mr. Chief Justice Taft the Court held that criminal contempt is an "offense" within the provision of the constitution empowering the President to grant reprieves and pardons against the United States.
Respondent lays great stress upon some of the language contained in the recent holding of our Supreme Court in the case of Osborne v. Purdome, 244 S.W.2d 1005. In that case the court held that criminal contempt is not a criminal case, and thus one charged therewith is not entitled to a trial by jury. Nothing said in that opinion conflicts in any way with our present holding. The decisions of the United States Supreme Court which the Osborne opinion cites point out that while criminal contempts have been regarded as sui generis and not criminal prosecutions, yet the term "offense" is used in the Constitution in a more comprehensive sense than are the terms "crimes" and "criminal prosecutions." See Ex parte Grossman, supra.
It seems to us that the language of section 541.210 is plain and unambiguous. It says: "No person shall be prosecuted, tried or punished for any offense, other than felony, * * * unless the * * * prosecution be instituted within one year after the commission of the offense, * *." We are bound by this statute. Statutes of limitation instead of being frowned upon by the courts are viewed with favor.
We are of the opinion that the petitioner is entitled to his discharge under the writ. It is so ordered. All concur.