author: WALKER, P. J.

text:
    In re SHRADER P. HOWELL and LEE B. EWING,
    Division Two,
    January 5, 1918.
    1. CONTEMPT: Judgment: Statement of Facts: Collateral Attack. There being no appeal or writ of error from a judgment for direct or criminal contempt, the findings stated in the judgment may, upon writ of habeas corpus, be shown to be untrue.
    2. -: -: ■— -■: -: Jurisdiction: Sec. 2475. Notwithstanding the rule that the judgment of a court of general jurisdiction imports verity, and despite Sec. 2475, R. S. 1909, prohibiting an inquiry into the legality or justice of a judgment for contempt rendered by any such court, jurisdiction cannot be obtained by the mere assertion in the judgment of facts necessary to sustain it, and such assertion may, upon habeas corpus, be shown by evidence to be false.
    3. -: -: Mere Recital of Prior Adjudication and Execution. With the announcement of the punishment for contempt committed in the presence of the court the judgment becomes final except for its formal entry upon the record, which when so entered resembles an ordinary judgment only in form, since the court’s adjudication is a conviction, and its consequent commitment an execution.
    4. -: -: Forms Yield to Facts. The rights of the individual being paramount to all others, form, ceremony and blind adherence to precedent are not dominating influences in judicial action; the wise and wholesome administration of justice requires that the facts of a given case be fully known.
    5. -: Grounds: Extra-Statutory. The manifestations of contempt being as varied as human actions, the power of the court to punish for contempts is not limited by Section 3881, Revised Statutes 1909, defining a direct contempt to be any disorderly, contemptuous or insolent behavior committed during the session of the court in its immediate view and presence and directly tending to interrupt its proceedings or to impair the respect due to its authority, comprehensive as those terms are; but the power, being inherent, is, in the absence of constitutional inhibition, free from definitive action by the Legislature.
    6. -: Attorneys. The course pursued by counsel in the conduct of a case, if deferential, cannot constitute direct contempt.
    7. -: -: Filing Pleading or Motion. The respectful filing of a pleading or motion which may reasonably be termed pertinent and not in its terms offensive, is not contemptuous.
    8. -; -: -; Suggesting Disqualification of Judge. The repeated filing of motions suggesting the disqualification of- the judge, if done in a respectful manner, although deemed by him to be for vexation and delay, does not constitute contempt. •
    9. -: -: Judicial Tyranny. If the power of courts to limit counsel in the courteous presentation of what they may deem errors in a case be conceded, a condition of judicial tyranny will be rendered possible, which sooner or later will defeat the purposes for which courts were created, namely, the impartial adjudication of controversies.
    10. -: -: Application for Change of Venue: Prejudice of Judge: Refusal to Proceed With Trial. A filing of an application for a change of venue by special counsel for the State and the Assistant Attorney-General on the ground of the prejudice of the judge, and, upon its being overruled, a declining to proceed with the trial, though ordered so to do, and a stating in connection therewith, that the court is without jurisdiction, unaccompanied by any manifestation of disrespect, do not constitute direct contempt, whether or not the statute permits the State to disqualify ' the judge.
    11. -: Attorney-General: Refusal to Proceed With State Case. The duty of the Attorney-General and his representatives, acting under the direction of the Governor, is to assist the prosecuting attorney in the trial of a criminal case; and where the latter officer, without valid reason, has refused to participate in the prosecution, and the court therefore can direct him to conduct the trial to a conclusion, the conduct of the former officers, after their application for a change of venue has been denied, in declining to proceed with the trial, is not such an interruption of the proceedings of the court and the administration, of justice as amounts to contempt.
    12. -: -: Duty of Prosecuting Attorney. In the absence of any fact disqualifying the prosecuting attorney, his sworn duty requires him to participate in the trial of a criminal case, in which the Attorney-General or his representatives have been directed by the Governor to assist him. The statute (Sec. 1007, R. S. 1909) defining his duty is mandatory.
    13. -: Disqualifying Judge: Prejudice: Statute. The acts of the petitioners being contemptuous neither in themselves nor on account of the manner in which they were performed, it is not necessary to determine whether a motion on the part of the State in a criminal case which constituted a challenge of the judge’s qualification was authorized under that subdivision of Section 5198, Revised Statutes 1909, which provides that a judge shall be incompetent to hear and try a case wthen in anywise interested or prejudiced.
    14. -; Disqualification of Judge: Suggested by State’s Attorney: Voluntary Retirement. A condition of the public mind may exist in a locality which would impel a public prosecutor, in an honest effort to discharge his duty, to call the regular judge’s attention to circumstances indicating that he had, without corrupt intent, prejudged the case; and as this would involve no question of personal integrity, upon the suggestion of prejudice under Section 5198, Revised Statutes 1909, the judge, prompted by that sense of delicacy and duty which renders him averse to judicial action upon an intimation of his interest in the matter at issue, will retire and call in another to try the case, and that course is authorized by Section 5201.
    Habeas Corpus.
    Petitioners discharged.

      Frank W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General, for petitioners; W. T. Rutherford of counsel.
    (1) In habeas corpus, when the petitioners seek release from punishment for an alleged criminal contempt, this court will go behind the return, commitment and judgment, and ascertain the facts, and determine whether or not the facts warrant the judgment.' Ex parte Creasy, 243 Mo. 679; Ex parte O’Brien, 127 Mo. 477. (2) Direct criminal contempt of court is defined to be “disorderly or insolent behavior committed during the session and in the immediate view and presence of the'Court, directly tending to interrupt its proceedings or impair respect due its authority . . . or wilful disobedience of any process or order lawfully-issued or made;” or “wilful disregard of the authority of the court rightfully exercised;” or “wilful disregard of the authority of courts.” R. S. 1909, sec. 3881; Powell v. State, 48 Ala. 156; Black’s Law Dictionary (2 Ed.), p. 257; Anderson’s Law Dictionary, p, 242; 2 .Words & Phrases, p. 1489; Bouvier’s Law Dictionary, (a) That which is done by permission of the court cannot he done in defiance of the court or in contempt of the court. That which is done respectfully, cannot he done insolently or contumaciously. “He is not to be heard, who alleges things contradictory of each other.” Broom’s Legal Maxims, 135. (b) There can be no criminal contempt of court where the act is done in good faith, and in the honest belief that it is authorized by the facts and the law. Therefore, petitioners cannot be guilty of contempt, if they filed the affidavit in question in good faith, believing that the judge was prejudiced and that the law authorized the procedure. This is true, notwithstanding petitioners might have been mistaken, both as to the law and the facts. Broom, Leg. Max. 256; Rapalje, Contempt, sec. 121; Oswald, Contempt, 56, 57, 51, 52; Willis v. Comm., 21 G-ratt. (Ya.) 500; In re Wooley, 74 Ky. 95; Ex parte Biggs, 64 N. C. 202; People v. LaFetra, 171 App. Div. (N. Y.) 275; Clair v. State, 40 Neb. 534; Hawes v. State, 46 Neb. 149; State v. Jasper, 88 S. E. (W. Va.) 1096; Thomas v.People, 14 Colo. 257; Ex parte Curtis, 3 Minn. 274; Mullins v. People, 15 Colo. 441. (c) If, after filing the affidavit of prejudice against the judge, petitioners refused to proceed because they in good faith believed the judge was without' any further jurisdiction, to try the cause, then petitioners were not guilty of any contempt. Authorities above. (3) In filing the affidavit, charging Judge Slate with prejudice, and in refusing to further proceed with the cause, and asking leave to apply to the Supreme Court for a writ of prohibition, did the petitioners act in good faith? Upon the nncontroverted facts, this question must be answered in the affirmative. . (a) Because petitioners asked and obtained leave to file the application and affidavit before it was filed. ’ (b) Because the petitioners were respectful and courteous in manner and conduct, when filing the affidavit and while refusing to proceed and asking to be allowed time to apply for a writ of prohibition, (c) Because the judge had stated that he expected to rule in the case then about to be tried (State v. John W.. Scott), as he had ruled in the former Scott case. In the latter case the paramount issue was the intent with which the act was done, and the State had offered testimony of like transactions by the accused for the purpose of showing intent. This testimony was excluded. This ruling was wrong and very prejudicial to the State. The statement of Judge Slate that he would adhere to this rule in the cause pending, which' was the same character of a case, the same charge, larceny and embezzlement, the same prosecuting party, and many witnesses the same, clearly showed prejudice, to-wit, prejudgment. Such character of testimony was clearly admissible. State v. Patterson, 196 S. W. (Mo.) 3; State v. Schnettler, 181 Mo.. 189, 190; State v. Williams, 136 Mo. 294, 297, 308; State v. Myers, 82 Mo. 558; .Kelley’s Crim. Law and Practice, 247; Wharton’s Crim. Evidence (10 Ed.), 1665. (d) Because Judge Slate had said that he did not see how the regular panel of jurors that had tried the former case of State v. Scott, would be disqualified to try the pending case of State v. Scott. The charges in the indictment in each case were alike, to-wit, larceny and embazzlement of coal belonging to the State; the prosecuting party was the same, the defendant was the same, many of the witnesses were the same, and of necessity much of the testimony would have been the same. The State and the defendant were alike entitled to a jury that was free from any opinion or bias as to any of the facts in the case. R. S. 1909, secs. 5219, 5220; Stephens y. State, 53 N. J.'L. 245; Curtis v. State, 118 Ala. .125; Baker v. Harris, 60 N. C. 271. (e) Because the rulings of the judge and his statements and acts were ample to justify the belief in his prejudice by petitioners. Mullins v. People, 15 Colo. 441. (f) Because the sworn statements of petitioners are that they were acting in good faith, and they so stated at the very time of the alleged contempt, (g) Because, under the law the State has the right to file an affidavit against a judge who is prejudiced, charging that fact, and thereby secure a trial before a fair-minded and unprejudiced judge. See authorities under next point. (4) When a judge is prejudiced against it, and in favor of the defendant, the State, in a criminal cause, has the right to present an affidavit charging that fact and thereby obtain a trial before an unprejudiced judge. Art. 6, sec. 29, Mo. Constitution; Sec. 5198, R. S. 1909; Sec. 2594, R. S. 1899; Laws 1895, p. 162, 164; Sec. 4174, R. S. 1889; Sec. 1877, R. S. 1879; Laws 1877, p. 357; Yol. 2, chap. Ill, art. 5, sec. 15, Wag. Stat.; Chap. 212, sec. 15, G. S. 1865; Chap. 127, art. 5, sec. 16, R. S. 1855; Chap. 138, art. 5, sec. 16, R. S. 1845; Sec. 16, p. 486, R. S. 1835; Yol. 1, p. 276, sec. 23, R. S. 1825; Laws 1804 to 1824, p. 117, sec. 32 (Ty. Laws 1807); Laws 1804 to 1824, p. 617, sec. 5 (Ty. Laws 1818); Laws 1804 to 1824, p. 687, sec. 20 (Ty. Laws 1820); Sec. 3867, R. S. 1909; Sec. 1602, R. S. 1899-; Sec. 3247, R. S. 1889; Sec. 1041, R. S. 1879; Sec. 21, p. 539, G. S. 1865; Sec. 41, p. 539, R. S. 1855; Secs. 39 and 40, p. 335, R. S. 1845; Secs. 38 and 39, p. 159, R. S. 1835; Sec. 23, p. 276, vol. 1, R. S. 1825; Broom’s Legal Max., 125; Jim v. State, 3 Mo. 147; State ex rel. v. YGriford, 111 Mo. 526; State ex rel.'v. Wear, 129 Mo. 619; People v. Connor, 142 N. Y. 130; Coal Co. v. Doolittle, 54 W. Va. 227; Commonwealth v. Davidson, 91 Ky. 162. (a) Notwithstanding that at the common law and under the Constitution of this apd many other States the accused is entitled to a trial by an impartial jury of the vicinage, or county, yet, if an impartial jury cannot be obtained, the venue may be changed on the application of the State. Com. v. Davidson, 91 Ky. 162; Chitty’s Crim. Law & Prac. (Ed. 1847), p. 201; Rex v. Cowle, 2 Burr, 859-860; Rex. v. Harris, 3 Burr, 1333; State ex rel. v. Durfiinger, 73 Ohio St. 154; Hewitt v. State 43 Fla. 194; Barry v. Truax, 13 N. D. 131; People v. Baker, 3 Park Cr. (N. Y.) 181; 1 Bishop’s Crim. Proc., sec. 73, 113; State v. Gates, 20 Mo. 404. (b) Upon the filing of the affidavit charging prejudice against Judge Slate, he had no power to try the question of his own prejudice, and was wholly without jurisdiction to compel any further steps in the cause. Broom’s Leg. Max., p. 94; State v. Spivey, 191 Mo. 99-105; State v. O’Rourke, 55 Mo. 440; Sec. 5198, R. S. 1909; Sec. 19, p. 845, G. S. 1865; Sec. 1927, R. S. 1909; Sec. 1930, R. S. 1909; Guy v. Railroad, 197 Mo. 180; 2 Bailey on Habeas Corpus, p. 1393. (c) If the court was without jurisdiction, any order it made was void, and there could be no contempt for failure to obey the same. Railway Co. v. Wear, 135 Mo. 265. (5) The judgment and commitment in this cause, after striking therefrom the alleged statement of the petitioner Ewing that “if it is necessary for some one to go to jail in order that the State may obtain justice in this case, I will go,” is void upon its face, because it fails to set forth the facts constituting the alleged contempt. The statement of petitioner Ewing was not made until after the judgment and commitment was rendered, and constituted no part of the alleged contempt. See. 3884, R. S. 1909; Ex parte Creasy, 243 Mo. 702-8; Ex parte Stone, 183 S. W. (Mo.) 1058; People v. LaFetra, .171 App. Div. (N. Y.) 272. (6) A judgment for contempt cannot be upheld if it falsely recites the facts, or is imposed for some personal motive, or to gratify some personal resentment of the judge. If the judge refuses to permit the official stenographer to take down and record the proceedings, stating in effect, that it is only a matter between him and petitioners, the judgment should not be permitted to stand, and petitioners should be discharged. Ex parte Creasy, 243 Mo. 696; Ex parte O’Brien, 127 Mo. 489. A contempt of court is a public wrong, and not an injury to the person or functionary to whom it is offered. Van Orden v. Sauvinet, 24 La. Ann. 1191; Ex parte Hickey, 12 Miss. 783; Ex parte Nelson,- 251 Mo. 97.

      Irwin & Haley and A. T. Dumm for respondent.
   WALKER, P. J.

Relief by habeas corpus is invoked by petitioners in this court to effect their discharge from an alleged unauthorized judgment of commitment for contempt rendered against them by the judge of the circuit court of Cole County.

The writ was granted as prayed and made returnable on a day certain. The sheriff of Cole County, who held petitioners in custody, made return to the writ, to which petitioners filed their reply. The facts as set out in the judgment of commitment with which the return is in accord, having been put in issue by the reply of petitioners, the court appointed Yirgil Y. Huff, Esq., as a special commissioner, to take testimony concerning the disputed facts and report his findings of fact and conclusions of law in relation thereto. The commissioner having heard the testimony, filed herein a transcript of same, together with his .findings and conclusions in conformity with the order of his appointment. To this report the sheriff filed his formal exceptions. The issue has, been presented in extenso. Counsel for the respective parties have argued the matter orally and have filed printed briefs and arguments herein.

The facts out of which this proceeding arose are as follows:

In November, 1917, there was pending in the circuit court of Cole County, in which Hon. John G. Slate presides as judge, a criminal case entitled the State v. John W. Scott, in which the defendant was charged with the larceny and embezzlement of coal belonging to the State. The Attorney-General had been directed by the Governor to appear and assist the prosecuting attorney in the trial of this ease. Petitioners, representing the Attorney-General and at his behest, appeared in the circuit court and tendered their service to assist the prosecuting attorney. The latter, refused to par-, ticipate in the prosecution, whereupon the court announced that the case would be conducted for the-State by the petitioners. The latter having secured a formal entry permitting the endorsement of the names of certain witnesses on the indictment, announced ready for trial, but requested, in addition, that the State be not restricted in the selection of triers of the fact to the regular panel of jurors, for the reason that during that term of court and a few days prior thereto, a trial panel had been chosen from these jurors, the members of which had sat in the trial and had rendered a verdict of acquittal in a criminal .case charging a like offense, similar in all of its material features to the one then before the court, and against this same defendant. The court overruled petitioners’ suggestion, announcing that the jury was not disqualified for the reason stated by petitioners. Furthermore, the court announced in response to an inquiry of petitioners, that the ruling made during the trial of the former case of like character to that before the court and alsoi against said Scott, in regard to testimony of similar transactions by him at or near the time of the -act charged in the pending indictment, would be adhered to in the trial of this case; and that testimony of this character would not be admitted to show intent or for any other purpose. Petitioners then withdrew their announcement of ready for trial and stated that they desired time to file an application for a change of venue on account of the prejudice of the judge against the State. Upon the petitioners having signed and made oath to said application before the clerk of the court, the judge ordereá it not to be filed until he had read it. After reading it the court granted petitioners leave to file same. This was done and at once overruled by the court. Counsel for defendant then announced ready' for trial. Mr. Ewing, one of the petitioners, then asked for time within which to apply to the Supreme Court for a writ of prohibition against the judge, on the ground of a lack of jurisdiction after the filing of the application for a charge of, venue. The court refused to grant time for that purpose, his language being, “That will be refused. You must proceed with this case.” To which Mr. Ewing replied: “I decline to proceed on account of the attitude of the judge. ” ■ To which the latter replied: “I permitted you to file this application for a change of venue although I thought it was a frivolous proceeding. If, however, the representatives of the Attorney-General’s office want to parade their ignorance before this court and the attorneys present, I guess , I can stand it, but I want to warn you that I am getting tired of your frivolity and that you won’t tamper any longer with the court,adding: “Proceed with the trial of this case. Either continue, dismiss or go on with the trial. The witnesses are present, the jurors are on hand and the defendant has answered ready and he is entitled to a trial at this time. I want to know what you are going to do?” To which Mr. Ewing said: “You are evidently about to fine us for contempt, but before you do so 1 want to say that we never filed a pleading with greater earnestness than when we filed this application for a change of venue.” The judge, after again ordering them to proceed, said: “In view of the fact that you have filed in this court a motion which, to say the least, is frivolous, and because you refuse as representatives of the Attorney-General’s office to proceed with this case, I will adjudge you guilty of contempt and fine you fifty dollars each, and I want satisfactory proof that these fines are paid out of your own pockets and not .out of the Attorney-General’s contingent fund.” “We decline to jpay the fines,” said Mr. Ewing. “In that event,” said the judge, “you are ordered committed to jail until the fines are paid or you are discharged by due course of law.” Addressing the sheriff, the judge said: “Mr. Richter, take charge of these attorneys.” Mr. Ewing then said to the court: “If it is necessary for somebody to go to jail in order that the State may get justice in this case, I am ready to go.” “Be careful,” said the judge, “or I will fine you again.” Prom time to time during this scene petitioners askecl that the court require the official stenographer to make a note of the proceedings in the order of their occurrence. The stenographer took a position in front of the court’s bench preparatory to taking notes of the proceeding when the court interrupted him saying: “Never mind about that. This is a matter between the attorneys and the court.” The stenographer thus admonished did not take the notes.

The variance between the facts, as disclosed in the testimony and as they appear in the findings of the trial court’s judgment, renders a full transcript of the latter necessary to a correct understanding of the case. Omitting the caption, certificate of the clerk as to the correctness of the transcript of the judgment, and incorporating only the body of the application for a change of venue, the judgment and order of commitment are as follows:

“Whereas, Lee B. Ewing and S. P. Howell, duly licensed and practicing attorneys-at-law, were adjudged guilty of contempt of court, and each of them, by the 'circuit court of Cole County, Missouri, for contempt committed in the immediate view, presence and hearing of the court, by its judgment then and there pronounced, ana entered of record among proceedings of said court on the 27th day of November, 1917, which said judgment was in words and figures as follows:
“It is ordered and adjudged by the court that Lee B. Ewing and S. P. Howell, attorneys, practicing in this court, and each of them, be fined $50 for contempt of court committed in the immediate view, presence and hearing of the court, on the 27th day of November, 1917, while the circuit court of ■ Cole County, State of Missouri, was in regular session and during the sitting of said court for the transaction of business that might lawfully be brought before it for consideration, in this: That the said Lee B. Ewing and S. P. Howell, and each of them, did wilfully, knowingly and contemptuously file in this court, for and upon behalf of the State of Missouri in a certain cause lawfully pending in said court, what purported to be an application for a change of venue in said cause, which application for a change of venue is in writing and in words and figures as follows:
“ ‘Comes now the State of Missouri, plaintiff in the above entitled canse, and files its application herein, and says that the Hon. 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, Revised Statutes 1909, is disqualified and prohibited from sitting as judge of this court upon the trial of this cause.
“ ‘Wherefore, the State says this court is disqualified to proceed further in this cause,- than in accordance to the provisions of Section 5201, Revised Statutes 1909, and therefore prays that he make an order accordingly granting the State a change of venue herein.’
“Which said foregoing motion and application for a charge of venue was by the court overruled and denied.
“That thereafter and thereupon, and while the case of the State of Missouri v. John Scott was then and there pending before the court, wherein the said John Scott is charged with the crime of embezzlement and grand larceny, and while said Scott was present in person in court, and by counsel, and demanding a trial, within his constitutional rights, upon said charge, and the said Lee B. Ewing was present in court as special counsel for the State of Missouri, and the said S. P. Howell was present in court as Assistant Attorney-General, both of whom were in charge of said cause and prosecuting for and upon behalf of the State of Missouri, and appearing for and in the place and stead of the prosecuting attorney of Cole County, Missouri, in said cause; and the court having then and there inquired of them as to whether or not the State of Missouri was ready for trial in said cause, and that thereupon -the said Lee B. Ewing and the said S. P. Howell In the immediate view, presence and hearing of the court, and the regular panel of the petit jury then and there assembled, wilfully and contemptuously refused to make answer, although often requested so to do by the court, and the said Lee B. Ewing and the said S. P. Howell did then and there state to the court that the State of Missouri could not have a fair and impartial trial before the court then sitting in said cause, and that said court was without jurisdiction to hear and determine said cause, which said statement was made in the immediate view, presence and hearing of the court and the said jurors - then assembled for the trial of said-cause, and the said Lee B. Ewing and the said S. P. Howell then and there refused to proceed further, or to «take any further action in said cause; that thereupon the said Lee B. Ewing and S. P. Howell were admonished by the court that they must either answer ready for trial, or ask for a continuance, or take some other proper action in said cause; whereupon the said Lee B. Ewing and S. P. Howell in the immediate view, presence and hearing of the court and jnry, stated that they refused to do either — answer ready for trial, ask for a continuance, or take any further action in the said cause — and after being fully and duly warned by the court that their refusal to take any action whatsoever in said cause would be treated as wilful contempt by them, and each of them, of the court; the said Ewing and Howell again stated in the immediate view, presence and hearing of the court and the jnry, wilfully, knowing-ly and contemptuously, that they were willing to be adjudged in contempt of the court and go to jail in order to get justice in said cause, thereby wilfully, knowingly and contemptuously accusing the court, in the immediate view, presence and hearing of the court, the jury, and a large number of persons there assembled, of being partial towards the defendant, and unduly prejudiced against the State of Missouri in said cause; and that thereafter the said Ewing and Howell refused to further answer, but wilfully and contemptuously stood mute and refused to take* any action whatever in said cause; that the said Lee B. Ewing and the said S. P. Howell did then and there, in the immediate view, presence and hearing of the court, by their words, act and gestures, offer and commit wilful contempt in the immediate view, presence and hearing of the court.
“Wherefore, the court doth, by reason of the premises aforesaid, adjudge the said Lee B. Ewing and S. P. Howell, and each of them, in wilful contempt of the court and doth assess the ‘punishment of the said Lee B. Ewing and the said S. P. Howell, and each of them, at a fine of $50 and that the said Lee B. Ew'ing and the said S. P. Howell, and each of them, stand committed to the common jail of Cole County, Missouri, until said fines of each of them shall be paid, or until they shall be discharged by due course of law; and whereas the said Lee B. Ewing and the said S. P. Howell, and each of them, doth refuse to pay said fines so assessed against them, it is therefore ordered and adjudged that the said Ewing and the said Howell, and each of them stand committed to the common jail of Cole County, Missouri, until said fines of each of them shall be paid, or until they shall be otherwise discharged by due course of law.
“These are, Therefore, to command you, the said sheriff of Cole County, Missouri, forthwith to convey and deliver into the custody of the keeper of the county jail of said county the body of the said Lee B. Ewing and S. P. Howell, and each of them, so as aforesaid found guilty of contempt and adudged by the said circuit court to be imprisoned therefor in the county jail until further order of this court, or until they be otherwise discharged by due process of law; and you, the said keeper of the said jail, are hereby required to receive the said Lee B. Ewing and S. P. Howell, and each of them, into your custody and them confine in the jail of said county until the further order of this court, or until they be otherwise legally discharged by due process of law; and for so doing this shall be your warrant. ’ ’

I. The judgment herein from which petitioners seek relief relies for its potential force upon a finding of direct contempt alleged to have been committed in the face of the court. It is urged preclusively rather than affirmatively, that the findings of this judgment are conclusive, and that no ulterior inquiry can be made into the facts, the effect of which may be to question its validity; the contention being in brief, as is the general rule, that the judgment imports absolute verity — its face constituting not only a certificate of the legitimacy of its origin but of its present good character. "While the older authorities in other jurisdictions, from which the textwriters deduce statements of principles, unqualifiedly apply the general rule of immunity from collateral attack to judgments of the character here in question, we hold otherwise. Here one convicted of direct contempt in seeking relief through habeas corpus is not limited to an inquiry as to the convicting court’s jurisdiction, but, if the truth of the findings upon which the judgment is based is denied in the petitioner’s reply to the return, inquiry may be made in regard thereto. To this extent we have, as has been done elsewhere (Counselman v. Hitchcock, 142 U. S. 547; Ex parte Fisk, 113 U. S. 715; Ex parte Irvine, 74 Fed. l. c. 959), brushed aside the hard-and-fast rule which theretofore hedged about judgments for direct or criminal contempt rendering them immune from attack; and have authorized an inquiry to test the truth of their findings. [Ex parte Creasy, 243 Mo. l. c. 688, 694.] The wisdom and wholesomeness of this modification of the general rule is supported by reason and justice. There is no appeal or right to a writ of error from a judgment for direct or criminal contempt; no provision having been made therefor by statute, the right does not exist. [In re Clark, 208 Mo. l. c. 146.] Absent the right of appeal no opportunity for a full.review of the proceedings is afforded except by habeas corpus. Resort to the writ of certiorari sometimes employed in other jurisdictions will not afford relief, because, as is not infrequently the case, the proceedings concurrent with and provocative of the judgment for contempt, are not preserved in the record and hence cannot be brought up for review. By invoking the aid. of habeas corpus, however, which is always construed in favor of the liberty of the citizen, an opportunity is afforded in a case of the character here under consideration, to look beyond the commitment and its recitals into the evidence and circumstances upon which the court below acted, and determine therefrom, although jurisdiction of the person' and subject-matter be conceded, whether the court had authority to render the judgment; or generally whether the third essential to the court’s right of action existed. This manner of exercise of the right of supervision and control of inferior tribunals whether it rests in the Constitution or arises out of the common law, as one of the attributes of a .court of superior jurisdiction, is held to be authorized notwithstanding the provisions of the Statute (Sec. 2475, R. S. 1909) prohibiting an inquiry into the legality or justice of any process, judgment, decree or order of any court legally constituted or the justice or propriety of any commitment for contempt made by any court, body or officer and plainly charged in such commitment. It being held that although such commitment may recite the existence of the necessary jurisdictional facts to sustain it, the authority of a court or officer cannot be acquired merely by asserting it or by falsely alleging its existence, and hence the evidence may be inquired into to determine the truth. [Ex parte Creasy, 243 Mo. l. c. 695; Ex parte O’Brien, 127 Mo. l. c. 489.] Elsewhere similar statutes have received a like construction (People ex rel. v. Liscomb, 60 N. Y. 559; People v. Cassels, 5 Hill, 164; Ex parte Duncan, 62 S. W. (Tex.) 758; Ex parte Juneman, 28 Tex. App. l. c. 488.] Yiewed from every vantage the reasons for the exemption of judgments for direct contempt from the ordinary rule of immunity from collateral attack, become more apparent. In other proceedings the judge stands indifferent between the parties; the procedure is along a beaten pathway found from experience most promotive of justice; and the judgments resulting therefrom are not only entered under the supervision of the court, but are subject, before becoming conclusive, to the scrutiny and criticism of opposing counsel. Thus rendered, the possibility of their findings incorrectly stating the facts cn which they are based are remote if not impossible. Under such circumstances it is not difficult to account for the origin and permanence in our jurisprudence of the rule ordinarily applicable that the findings of a judgment shall import verity and that its conclusion shall be 'inviolable. The characteristics of such a judgment are entirely different from those which distinguish a judgment for direct contempt. The latter is summary and in a sense ex parte in that the court is the only active factor in its rendition. Whatever part the contemner may have contributed to it was completed before the action of he court commenced. With the announcement of the punishment inflicted the judgment became final except for its formal entry upon the record. When so entered its only resemblance to an ordinary judgment is in its form. The court’s adjudication is a conviction and its commitment in consequence an execution. [Ex parte Kearney, 7 Wheat (U. S.), l. c. 43.] The judicial poise, therefore, which enables the upright judge to hold the balance of justice evenly and fairly in an ordinary case is difficult to maintain in a proceeding for' direct contempt. This is due more perhaps to the limitations of nature than purpose on the part of the judge. Being human, his impulses and passions are subject to the same influences which actuate other men; and while a contempt of court is, as its words clearly indicate, a manifestation of disrespect towards a tribunal in which justice is administered, the judge in whose presence and hearing the offense is committed maintains indeed the true judicial attitude, if in passing judgment on the offender, he assesses the punishment free from any feeling of personal affront. The danger of this not being done constitutes an all-sufficient reason why a court of review should in a case of this character carefully .consider all of the facts leading up to the judgment to determine if justice has been fairly administered and not content itself with the conclusiveness of the face of same as in ordinary cases. A contrary ruling involves, not only in its essence but in its application, the absurd conclusion that the judge, although his fiat determines a question of personal liberty, is incapable of acting intemperately or unwisely, even where he may regard himself, through a mistaken idea of what contempt consists, as personally concerned; or that the courts are surrounded by a sacred aura which precludes inquiry into their actions lest their dignity be lowered, their efficacy lessened or their existence endangered. Fortunately, however, for the rights of the individual — paramount to all else in a free country— form, ceremony and a blind adherence to precedent are no longer, if they ever were, dominating influences in judicial action. Year by year the rulings of courts of last resort exemplify this fact. Techflicalities are being swept away; and precedents are followed if reason supports their application, but not otherwise. What the courts require and, demand in the wise and wholesome administration of justice is that the facts in any given case may be fully known. Justice, it is true, is typified as being blind, but only as indicative of her impartiality. Deafness has never been designated as one of her attributes. Deprived of this sense, the suitors at her shrine would receive but haphazard consideration. For these reasons, therefore, and others not necessary, in a proper conservation of time and space, to be added, we give our unqualified approval to the rule announced in the Creasy (243 Mo. 679) and O’Brien (127 Mo. 477) cases and impliedly endorsed in the Clark case (208 Mo. 121), to the effect that in a proceeding by habeas corpus to secure the release of one from a commitment for a direct contempt, we will look beyond the findings of the judgment where the truth of same as set forth in the return is- denied by the contemner, to ascertain the full facts from which the right to the writ may be determined.

II. The right of review not being confined to the findings of the commitment, let us inquire whether these findings are sufficiently in accord with the facts to sustain the judgment. If not, and the variance is in-a^ver^erL^ R is unexcusable; If wilful, it is worse. A more specific characterization is unnecessary because it is not conceivable, either in this or any other case, that a judge charged with the administration of justice and having a purpose only to preserve the dignity of the court in which he presides, will countenance or even tacitly consent to the making of a falsified record to sustain judicial action. Summarized, the findings upon which the- judgment is based are as follows: filing the.application for a change of venue; declining to proceed with the trial; saying to the court that the State could not have a fair and impartial trial in that tribunal; that the court was without jurisdiction; before the judgment of conviction was announced that petitioners were willing to go to jail in order to get justice; and in accusing the court, in its presence and hearing and in that of a large number of persons there assembled, of partiality to the defendant and prejudice against the State. The uncontradicted testimony of the witnesses sustains only three of these findings, viz: (1) filing the application for a change of venue; (2) declining to proceed with the trial; and (3) stating that the court was without jurisdiction. This last may properly be considered in connection with the declination to proceed with the trial, because it is shown to have been stated as a reason for not so proceeding.

The statute (Sec. 3881, R. S. 1909) so far as its terms are applicable to the facts here, defines a direct contempt to be any disorderly, contemptuous or insolent behavior committed during the session of the court in its immediate view and presence and directly tending to interrupt its proceeding or to impair the respect due to its authority. Comprehensive as is this definition it is not to be construed as a limitation upon the right of the courts to punish for contempt, this power being, as we held in State ex inf. v. Shepherd, 177 Mo. 205, and in Ex parte Crenshaw, 80 Mo. l. c. 453, inherent, is, in the absence of constitutional inhibition, free from the definitive action of the Legislature. In this general declaration as to the power of the courts we are not unmindful of the modification of the rule in the Shepard case in Ex parte Creasy, 243 Mo. 680, 708, which, however, under the facts, does not affect the matter at issue.

The manifestations of contempt being as varied as the actions of the human mind (6 R. C. L. 491, sec. 4), it remains to be determined, regardless of the statute, whether either or all of the three findings sustained by the facts are sufficient to establish the contumacy of the petitioners. A few general observations, although trite, may serve to clear the atmosphere for the concrete consideration of the question. Primarily courts are constituted to settle controversies. The nature of the matter in dispute is immaterial. It may involve the right of that intangible thing we call the State, to punish an offender for an’infraction of the law, or the settlement of differences between private individuals. In short, a court is, in a sense, a clearing house for errors. Its purpose is to determine the right conclusion to be reached in a given ease. If the question involved be not controverted, it is not for its consideration. The course pursued, therefore, by counsel in the conduct of a case, if deferential, can constitute no ground of offense. In a somewhat careful review of the authorities we have been unable to find any case in which it is held that the respectful filing of any pleading or motion, which may reasonably be termed pertinent and not in its terms offensive will be regarded as contemptuous. In Johnson v. State, 87 Ark. 45, it is affirmatively ruled that the _ repeated filing of motions suggesting the disqualifications of a judge, if done in a respectful manner, will not, although deemed by the trial court to be for vexation and delay, constitute contempt. A bolding to the contrary would in our opinion tend to limit the right- of counsel to the detriment of' litigants. If this latitude be denied, the full purpose of a court’s creation will cease and the reason for its existence will be at an end. If the power of the courts to thus limit counsel in the courteous presentation of wbat they may deem errors in a case be conceded, a condition of judicial tyranny will be rendered possible, which- will sooner or later make the administration of justice a farce and the impartial attitude of courts a by-word. If tbis conclusion is in accord with reason, then the challenge to the fairness of the judge made by counsel for the State and styled in the record a motion for a change of venue, did not, in itself, constitute such a mark of disrespect or a matter of offense as to merit punishment. Tbe burden of the motion was not to assail the integrity of the court, but that it had prejudged the case. We must look therefore to the manner in which the motion was made to determine if the action of the court can be sustained, for a contempt like a crime, must be measured by the intent with which it is committed. [People ex rel. v. La Fetra, 171 N. Y. App. Div. 269; Wells v. Commonwealth, 21 Graft. (Va.) 500; Ex parte Biggs, 64 N. C. l. c. 217.] Counsel asked leave to file the motion, stating the reason therefor, and citing the statute under which it was claimed to be authorized. The court, while questioning, the application of the statute, except when invoked by a defendant, granted the request. Tbe motion was prepared, examined by the court and permitted to be filed. It was then overruled and counsel directed to proceed with the trial. If, up to tbis point, there was any semblance of contempt in the conduct of counsel, the record does not indicate it, nor is it established by the testimony of witnesses present during the entire transaction. Tbe judge himself did not so regard it. Ever alert, as be should be, to preserve the dignity of bis tribunal, be found thus far, at least, no cause for affront; but, after having examined the motion, which is brief, clear and easy of comprehension, be gave bis assent to its becoming a part of the files and in the orderly course of procedure overruled it. If he had deemed it otherwise than the exercise of a right accorded to counsel under the recognized rules of precedure, he would have refused to permit it to he filed, and if. this had been inadvertently done, he would have ordered it stricken from the files. Familiar, therefore, with all of the facts and circumstances connected with the filing of the motion, the court gave its assent thereto, which it would not have done if the act had been accompanied by an insult of any character. An act which indicates no insult, even to the scrutinizing eye of the court, cannot reasonably be considered subject to censure, much less condign punishment. We must conclude, therefore, not only from the record, the testimony of the witnesses which we have set forth in detail in the statement of facts, and the conduct of the court, that there was neither in the act of counsel nor in the manner in which it was preformed a manifestation of disrespect. We might well conclude here and order the discharge of the petitioners, if the sum of their offending was limited to the alleged improper filing of the application for a change of venue. There are others, however, as we have noted: (1) declining to proceed with the trial and (2) denying the court’s jurisdiction. They may be considered together, because, under the facts in this case, they are inseparable. In declining to proceed on account of the court’s alleged unfairness, the question of its lack of jurisdiction was necessarily involved and hence not inconsistently asserted. We do not understand, and it is not contended, that either of these acts was committed in a contemptuous maner. If so, there is no evidence to sustain such a contention. The affirmative attitude of counsel, as indicated by Mr. Ewing, when directed to proceed with the trial, was to the contrary. He said, in substance, that he had filed the motion for a change of venue in good faith and with as much earnestness as he had ever filed a paper in court. The charge of contempt, therefore, if sustained by either of these findings must consist in the acts themselves. The only tenable ground upon which this contention can be based is that counsels’ conduct interrupted the proceedings of the court and thus hindered the administration of justice. That a refusal of an officer charged with the control of the prosecution of a State case to proceed with a trial, may or may not, under a proper state of facts, constitute' contempt, we are not .called upon to determine in this case. Counsel here seeking release were not so charged. Their duty as representatives of the Attorney-General acting under the direction of the Governor was to assist the prosecuting attorney. The statute (Sec. 967, R. S. 1909) in relation thereto is definite in its terms and unmistakable in its meaning. Neither upon their own assumption nor under the orders of the court were counsel authorized to exercise any greater prerogative in the absence of the disqualification of the prosecuting attorney. A condition might, of course, arise due to the incapacity of the latter which would render it necessary for the court to direct assisting counsel to assume control of the trial of a case. No such condition existed here. The record affirmativély declares that the prosecuting attorney had declined, no reason being stated, to participate in this prosecution. No such authority is conferred on this official; and, in the absence of any fact which would have disqualified him, his sworn duty required him to at least participate in, if he did not direct, the proceeding. The statute defining his duties is mandatory. [Sec. 1007, R. S. 1909.] The announcement of the court, therefore, that the prosecuting attorney would not prosecute but that assisting counsel would conduct the proceeding conferred no such unqualified controlling power upon the latter in the disposition of the case as to' render their presence alone necessary to the continuance of the prosecution. Construed otherwise the statute would authorize the Governor to override by his direction the will of the people, whether exercised wisely or not, in their selection of an officer to prosecute offenders against the law. The province of this statute is to afford assistance to the prosecuting attorney, and not to usurp his power. Rightly construed, it is a wise provision; given unusual scope, it. cannot but prove pernicious in its operation.

When, therefore, counsel declined to proceed, the court, conscious of the duty devolving on the prosecuting attorney, could have called him in and directed him to conduct the trial to a conclusion. There is no merit,. therefore, in the claim that the failure or refusal of counsel to proceed with the trial constituted any practical harrier to the court’s progress in the discharge of its duties.

Following the declination of counsel to proceed and the refusal of the court to grant them time in which to apply to the Supreme Court for a writ of prohibition, the court declared their conduct to be contemptuous and despite their repeated asseverations that they had filed the motion and declined to proceed, believing their conduct to be authorized under Section 5198, Revised Statutes 1909, they were fined. Upon their .refusal to pay same they were ordered committed to jail. An unfortunate incident followed the assessment of the punishment of counsel in the remark of the judge that it would be necessary to satisfy him-that the fines were not paid out of the public funds. We refer -to this reluctantly, only to say that the remark did not constitute an illuminating illustration of that cool judicial equipoise which should characterize the conduct of a judge assessing punishment against counsel for an infraction of the court’s dignity.

III. Holding as we do that the acts of counsel were neither in themselves nor on account of the demeanor which characterized their commission, contemptuous, it is not necessary to determine whether the mo^on which constituted a challenge to the fairness of the court was authorized under that subdivision of Section 5198, Revised statutes 1909, which provides that a judge shall be incompetent to hear and try a case when in anywise interested or prejudiced. The origin and history of this section has been chronologically presented in the briefs, where it may be readily examined, and it is, therefore, unnecessary to set it out herein. It will be time enough to construe the statute when confronted with that duty.

TV. Whatever may be said in the above behalf, however, since it does not constitute a( ruling necessary to the determination of the case, may properly be regarded as the personal observations of the writer.

The application of the statute other than when invoked by a defendant, although that seems to have been its usual construction, is not unreasonable. A condition of the public mind may exist in a locality which would impel a public prosecutor, in an honest effort to discharge his duty, to at least call the trial judge’s attention to circumstances indicating that he had, although without corrupt intent, prejudged the case and that it should be tried by another. This would involve no question of personal integrity, afford at least a fair opportunity for tthe State to conduct the prosecution free from any possible ulterior influence, and in no wise interfere with any right accorded to the defendant. Let us suppose, although the illustration may be remote, a condition of the public mind where the doctrine of meum and tuum, so far as it applies to the sacredness of public property, has come to be lightly regarded, and while a proper sensitiveness as to the rights of private individuals may prevail, as to the rights of the public, “the good old rule sufficeth them, the simple plan, that they should take who have the power and they should keep who can.” Where this standard of right prevails its influence may possibly extend to a greater or less degree to the instrumentalities employed in the administration of justice. Judges themselves, although unconscious of same,"may be subject to this influence. Where it exists justice cannot be fairly administered by those subject thereto. The remedy is simple. Upon the suggestion of prejudice being made under Section 5198, the judge, prompted by that sense of delicacy and duty which renders him averse to judicial action upon an intimation of his interest in the matter at issue, will retire and call in another to try the case. Section 5201, Revised Statutes 1909, reasonably construed, will authorize this course. Such a course' would indicate a high sense of official duty, as well as a dispassionate purpose on the part of the judge, to free the case from even an intimation that he could not fairly conduct it.

The reasoning of this court in awarding a writ of prohibition against a circuit judge in State ex rel. v. Wear, 129 Mo. 619, gives favorable color to the correctness of the foregoing conclusion. While the facts in that case are somewhat different from those in the case at bar, the construction given to Section 5198 (then Section 4174) is strongly persuasive of what constitutes a proper application of that section. In the Wear ease the ground of disqualification which the judge himself had recognized, was relationship to the accused. The judge, recognizing this relationship and its consequent disqualifying effect, had called in a judge from an adjoining circuit, hut when he appeared to try the case Judge Wear refused to surrender the court room to him or otherwise permit him to proceed. Thereupon the prosecuting attorney of the county where the case was pending applied for and was granted a writ, of prohibition. This court in granting the writ cited the Constitution (Sec. 29, Art. 6), which provides in the event of a vacancy in the office of a judge or his inability for any cause to hold a term or part of a term, the same may be held by a judge of any other circuit; and at the request of a judge of any circuit, any term or part of a term, in the circuit of the judge unable to hold the court, may he held by the judge of any other circuit. The Legislature is authorized to make such provisions for the holding of court as is found necessary.

“In obedience to this command of the Constitution” says the court, “the Legislature enacted Section 4174, Revised Statutes 1889.” The section is then set forth in full and is identical in its terms with what is now Section 5198. As a method to render this section operative, Section 4178, Revised Statutes 1889 (now Section 5201), was enacted which provides how and under what circumstances, when the incompetency of a judge is alleged, another may be called in. In discussing these constitutional and statutory provisions the court said: “It is plain that Judge "Wear by his relation to his son, the defendant, was disqualified, and knowing this, it was his imperative duty to either order the election of a special judge or to call in the judge of another circuit to sit in the trial of the said indictment.” As a logical conclusion flowing from this reasoning it would seem that the duty of the judge, whose right to sit was challenged, would be equally imperative, regardless of the ground of disqualification urged if within the terms of the statute.

For the reasons stated, we are of the opinion that the judgment against the petitioners should be set aside and that they should be discharged. It is so ordered.

Faris, J., concurs; Williams, J. concurs in paragraphs 1, 2, 3 and the result, but expresses no opinion as to matter discussed in paragraph é.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    THE STATE ex rel. R. F. LANCASTER, Collector of Nevada, Appellant, v. J. S. KENNEDY.
    Division Two,
    January 5, 1918.
    APPELLATE JURISDICTION: Revenue Law: Vacation of City Block. Where the only point to be decided is whether a block, which had been vacated in the manner provided by statute, should be described in the petition in the action for city taxes and in the tax bill as designated in the original plat, notwithstanding the vacating proceeding, or as unplatted grounds by metes and bounds, the revenue law or title to real estate is not involved, and, therefore, as the amount of taxes sued for is only $31.86, the appellate jurisdiction is in the Court of Appeals.
    Appeal from Vernon Circuit Court. — Hon. B. G. Thurman, Judge.
    Transferred to Kansas City Court of Appeals.

      J. N. Coil for appellant.

      W. M. Bowker for respondent.
   WILLIAMS, J.

This is a suit to recover city taxes, brought by the collector of the city of Nevada, Missouri, for the years 1911, 1912 and 1913 on land alleged to belong to respondent and described as “all of Block 21 of Prewitt’s Addition to the City of Nevada, Missouri.” The land is so described in both the petition and in the tax bill introduced in evidence. The amount of taxes involved is $31.86.

Trial was had before the circuit court of Vernon County, Missouri, which resulted in a judgment for the respondent (defendant below).

Thereupon steps for an appeal were by relator perfected and an appeal was granted by the trial court to' this court.

The only issue presented upon this appeal is whether or not the land was properly described in the tax bill and petition. Respondent contends that “Block 21 of Prewitt’s Addition to the City of Nevada, Missouri” was vacated on January 29, 1904, by a proceeding had in the county court of Vernon County, Missouri, under the provisions of Section 9505, Revised Statutes 1900, and that on May 31, 1904, a certificate of such act of vacation was made out by the clerk of said county court and duly filed for record in the recorder’s office of said county as by said act provided; that the effect of such vacation under said statute was to leave the land thereby vacated the same as if it had never been platted and that therefore, after it became vacated, “Block 21 of Prewitt’s Addition to the City of Nevada, Vernon County, Missouri,” was not a proper description of the land, but that it should be described as unplatted ground by metes and bounds.

Appellant does not deny that the above proceeding was had, but contends that the property may still be described as designated by the original plat, notwithstanding the vacating proceeding.

The determination of this point involves merely a construction of Section 9505, Revised Statutes 1909. Said statute is in no sense a “revenue law of the State” within the meaning of section 12, article 6, of the Constitution of Missouri. Neither can it be said that the title to real estate is here involved. [State ex rel. v. Elliott, 180 Mo. 658.]

There being no other matter involved which, under the above section of the Constitution, would confer jurisdiction of the appeal upon this, court, it follows that the cause should be transferred to the Kansas City Court of Appeals. It is so ordered.

All concur.


author: BOND, J.

text:
    THE STATE ex rel. ANNA RIESMEYER v. CHARLES W. HOLTCAMP, Judge of Probate Court.
    In Banc,
    January 19, 1918.
    1. ADMINISTRATOR: Appointment: Controlled by Mandamus. A supervising court has power by mandamus to compel a probate court to appoint an administrator in accordance with the specific provisions of the statutes.
    2. -: Renunciation: De Bonis Non. Where the decedent left no wife or children, but a brother and sister, and the sister filed a renunciation of her right to administer, together with, her request that letters of administration be issued to her brother, and that was done, and he died before the estate was fully administered, such renunciation did not operate as a waiver of her right to be appointed administratrix de bonis non of decedent’s estate, nor give the public administrator power to file notice that he had taken charge of the estate, but under the statute she had the right to administer, and upon the refusal of the probate court, upon her timely application, to appoint her, mandamus is appropriate to compel her appointment as administratrix de bonis non.

    3. -: -: Extent of Waiver. One cannot waive a right not at the time in existence. Waiver can never be effective except by intention and with knowledge of the existence of the right or thing intended to be relinquished. A renunciation by a sister in favor of her brother of her right to administer on a deceased brother’s estate did not operate as a waiver of her right, upon the death of the brother so appointed administrator, to be appointed administratrix de bonis non of said decedent’s estate, for her right to be so appointed was not in existence when she relinquished her right to administer in favor of the surviving brother.
    4. -: Public Administrator: Notice Superseded: Discretion. Whatever provisional power resulted to the public administrator from a filing by him of a notice, immediately after an administrator’s death, that he had taken charge of decedent’s estate, is superseded by the timely filing by a sister entitled to administer of an application to be appointed administratrix de honis non; and since the duty of the probate court to appoint her is statutory, the judge was not called upon to determine the effect of a previous renunciation of her right to administer filed after decedent’s death.
    Mandamus.
    Writ granted.

      D. J. O’Keefe and Rassieur, Kammerer & Rassieur for relator.
    (1) Mandamus will lie to compel a probate court to appoint an administrator, where that court has failed to perform its plain legal duty. ■ State ex rel. v. Holtcamp, 267 Mo. 420; State ex rel. v. Fowler, 108 Mo. 470; Flick v. Schenk, 212 Mo. 279; State ex rel. v. Holtcamp, 266 Mo. 372. (2) Under the circumstances of this case, there is an urgent necessity for the exercise of the jurisdiction of this court, in order to do full and complete justice to the parties, as full and adequate relief can only be given by this court. State ex rel. v. Fowler, 108 Mo. 465; State ex rel. v. Holtcamp, 266 Mo. 347. (3) No property of the estate of Louis H. Haase being left in a situation exposed to loss or damage, the filing of the notice by the public administrator that he had taken charge, was unauthorized by Sec. 302, R. S. 1909, and he did not obtain any jurisdiction over said estate by virtue of such notice. Mc-Cabe v. Lewis, 76 Mo. 302; Lewis v. McCabe, 76 Mo. 307; In re Est. of Landgraf, 183 Mo. App. 255; In re Est. of Brinckwirth, 268 Mo. 95. (4) If the filing of this notice conferred any authority upon the public administrator, then such authority was provisional only, to be exercised until the probate court was called upon to exercise its constitutional jurisdiction to appoint an administrator; and upon the filing of relator’s application, it thereupon became tbe duty of respondent to revoke the authority of the public administrator and to appoint her administratrix de bonis non of the estate, she being the only applicant and in all respects qualified to act. In re Estate of Brinkwirth, 268 Mo. 86; E. S. 1909, sec. 54. (5) The office of administrator de bonis non, created by Sec. _ 54, E. S. 1909, is a new office, entirely independent and distinct from the office of original administrator, created by Section 15 of the Administration Act. Woerner on Admin. (2 Ed.), sec. 351; 11 Am. & Eng. Ency. Law (2 Ed.), p. 1325; 18 Cyc. 1309; Harney v. Dutch-er, 15 Mo. 89; State ex rel. v. Hunter, 15 Mo. 490; Bussell v. Hoar, 3 Mete. (Mass.) 187; Stevens v. Larwill, 110 Mo. App. 140. (6) By waiving her preferred right to original letters under section 15, relator did not thereby waive her perferred right to appointment to the new office of administrator de bonis nonK under section 54. The waiver filed had no application 'to this new office, and the probate court therefore had no right to consider it in connection with relator’s application for letters de bonis non. Pendleton v. Pendleton, 14 Miss. 448; Brodie v. Mitchell, 85 Md. 516; 1 Williams on Executors, p. 573; 18 Cyc. 81; Perry v. De Wolff, 2 E. I. Í03; In re Haug’s Estate, 60 N. Y. S. 382; Coddington v. Newman, 3 Thomp. & Cook, 364, 63 N. Y. 639; Thomas v. Kneighton, 23 Md. 318. (a) A waiver is'the intentional relinquishment of a known right, i. e., a right or privilege then in existence. Hayes v. Mining, 263 Mo. 45; Henderson v. Koenig, 192 Mo. 714; Williams v. Eailroad, 153 Mo. 519; Bishop on Contracts, sec. 792. (b) In order to constitute a valid waiver, the right or privilege must be in existence. Ins. Co. v. Thomas, 82 Fed. 406; Berman v. Fraternities Assn., 107 Me. 373; 40 Cyc. 258. (c) Knowledge of the existence of the right is an essential prerequisite to its relinquishment. Williams v. Eailroad, 153 Mo. 519; Horstman v. Insurance Co., 194 Mo. App. 438; Jewell v. Jewell, 84 Me. 304 ; 40 ..Cyc. 259. (d) The question of waiver is mainly one of intention, which lies at the foundation of the doctrine: there can be no waiver unless so intended. Hayes v. Manning, 263 Mo. 45; Sav.
      & Loan Assn. v. Trust Co., 73 Mo. App. 165; Stiepel v. Association, 55 Mo. App. 233.

      George B. Webster and Frumberg & Russell for respondent.
    (1) The renunciation of relator filed in the prohate court was a final, absolute and irrevocable renunciation of her right to administer upon the estate of Louis EL Haase. Sec. 17, R. S. 190©; Lutz v. Mahan, 80 Md. 253 Stockdale v. Conway, 14 Md. 99; Thornton v. Winston, 4 Leigh (Tenn.), 152; State ex rel. v. Romjue, 136 Mo-App. 650; State ex rel. v. Holtcamp, 267 Mo. 412; State ex rel. v. Nortoni, 191 S. W. 429. (2) The filing of the statutory notice by the public administrator was sufficient to vest him with the administration, and no act of the probate judge was necesstry to that end. The probate court had no authority to interfere with his administration until it adjudged that relator had a superior right to administration. Vermillion v. LeOlare, 89 Mo. App. 55; Leeper v. Taylor, 111 Mo. 312; In re Estate of Hill, 102 Mo. App. 620; Tittman v. Edwards, 27 Mo. App.; Richardson v. Busch, 198 Mo. 174"; In re Estate of Brinekworth, 266 Mo. 473. (3) In determining the issues of fact and of law raised by the petition of relator in the probate court, respondent, as. judge thereof, acted judicially, and his action is not- subject to control by mandamus. State ex rel. v. McGown, 89 Mo. 156; State ex rel. v. Edwards, 11 Mo. App. 152; State ex rel. v- Bearing, 173 Mo. 492; State ex rel. v. Grimm, 220 Mo. 490; State ex rel. v. Wbrdeman, 187 S. W. 257; State ex rel. v. Holtcamp, 267 Mo. 412; State ex rel. v. Nortoni, 191 S. W. 429.
   BOND, J.

I. The facts admitted as set forth in our alternative writ of mandamus, are these:

On October 23, 1916, Louis H. Haase, a St. Louisan, died intestate, leaving neither wife nor child. His heirs at law were Edward T. Haase, a brother, Anna Riesmeyer> a sister and several nieces and nephews, ’ minor children of a deceased brother and sister. He died possessed of considerable real estate, besides personalty of over two thousand dollars.

In order to secure the appointment of her brother Edward T. Haase, as sole administrator of the estate pf her brother Louis H. Haase, Anna Reismeyer filed a waiver of her right to original letters of administration. The waiver of her right is as follows:

“Hon. Chas. W. Holtcamp, Judge of the Probate Court of the City of St. Louis:
“We, the undersigned persons entitled to administer on the estate of Louis H. Haase, late of the city of St. Louis, Misspuri, who died on the 23rd day of October, 1916, hereby renounce our right to administer on the estate of said deceased, and request that letters of ad-’ ministration be issued to Edward T. Haase.
“IÍírs. G. Riesmeyer.”

Upon the filing of this renunciation by Anna Riesmeyer, letters were issued to Edward T. Haase, who qualified as such administrator. But before the administration of the estate had been completed, on May 13, 1917, at ten o’clock p. m., Edward T. Haase died. On May 14, 1917, about nine o’clock in the morning and as soon as the office of the clerk of the probate court was opened, Frank M. Slater, public administrator of the city of St. Louis, filed notice that he had taken charge of said estate of Louis H. Haase. This notice was filed without the consent or request of any of the heirs or creditors of the estate, and the public administrator neither took, nor made any attempt to take, into his custody or control any assets belonging to the, estate.

Thereafter on May 17, 1917, the relator, herein, Anna Riesmeyer, filed her application for letters of administration de bonis non, together with a motion to remove the public administrator and revoke his authority to administer the estate. This motion was overruled and the application by relator for letters was denied. Thereupon relator instituted this proceeding for a writ of mandamus directing Charles W. Holtcamp, judge of the probate court of the city of St. Louis, to issue letters of administration de bonis non to her.

II. The power of a supervising court to compel a judge of probate to appoint an administrator in accordance with the specific provisions of the statutes of this State, designating the persons and the order in which they are entitled to appointment as such, is too settJec| for controversy. [State ex rel. v. Holtcamp, 267 Mo. l. c. 420; State ex rel. v. Fowler, 108 Mo. l. c. 470; Flick v. Schenk, 212 Mo. 275; State ex rel. v. Holtcamp, 266 Mo. 347.]

The undisputed facts in this ease show that the relator is the only surviving sister of Louis H. Haase, deceased ; that her brother Edward T. Haase was appointed sole administrator upon the death of Louis H. Haase, npon the renunciation and request of relator. In the nature of things this renunciation could not divest her of any right of which she was not apprised and which was not then in existence. It was merely a waiver on her part with full knowledge of any right to be joined in the original administration of her deceased brother’s estate. To that extent only did she waive any rights given her by the statute. A waiver can never be effective except by intention and with knowledge of the existence of the right or thing intended to be relinquished. [Bishop on Contracts, sec. 792; Hayes v. Manning, 263 Mo. l. c. 45; Henderson v. Koenig, 192 Mo. 690, 714; Williams v. Railroad, 153 Mo. l. c. 519; Michigan Sav. & Loan Assn. v. Trust Co., 73 Mo. App. 161; Stiepel v. Life Assn., 55 Mo. App. 224.]

At the time of the renunciation relied upon by respondent as a waiter on the part of relator, she was entitled by virtue of the provisions of the statute to be joined with her surviving brother in the administration of the estate of her deceased brother, since she and her surviving brother were the only competent distributees of the estate of their deceased brother, who left no wife or child.

The statute affording her this right is, to-wit:

“Letters of administration shall be granted: First, to the husband or wife; secondly, to those who are entitled to distribution of the estate, or one or more of them, as the court or judge or clerk in vacation, shall believe will best manage and preserve the estate.”[R. S. 1909, sec. 15.]

Her waiver or renunciation was necessarily confined, therefore, to the privileges accruing to her under the above statute and hence was totally without any evidentiary force as to any subsequent right to administer under the statute, which provides for the appointment of an administrator de bonis non upon the death or revocation of letters of the previous personal representative of the deceased. The provisions of that statute applicable in such cases are that “letters of administration of the goods remaining unadministered shall be granted to those to whom the administration would have been granted if the original letters had not been obtained; and the administrator shall perform the like duties and incur the like liabilities as the former executors or administrators.” [R. S. 1909, sec. 54.] Relator never became entitled to the privileges accorded to her by the above quoted terms of the statute until after the death of her brother, the previous administrator, on May 13, 19Í7. Demonstrably, therefore, her previous renunciation had no reference as a waiver to any privileges given by the latter statute, for when it was made those privileges had not accrued and she could not have known they would ever accrue. The terms of the renunciation do not purport to waive the right to be appointed administrator de bonis non.

III. When she applied to the probate court on May 17, 1917, for the grant of letters de bonis non, all the remaining heirs and distributees joined in that application and the jurisdiction of the probate court was thereby ^invoked to appoint an administrator in pursuance of the provisions of Section 54, Revised Statutes 1999, supra. The jurisdiction of the prohate court then assumed, was not dislodged by the fact that the public administrator, without taking charge of the assets of the estate, three days before and within a few hours of the death of the decedent, had filed a notice in the office of the clerk of the probate court, reciting, contrary to the fact, that he had taken charge of the estate of Louis H. Haase. [In re Est. of Brinckwirth, 268 Mo. l. c. 95.]

Whatever provisional power resulted to the public administrator from the filing of such notice, it was superseded when the jurisdiction of the probate court was invoked by the petition of the person designated in the statute as the proper appointee to administer the unadministered assets of Louis H. Haasev For then it became the statutory duty of the probate court to proceed to appoint an administrator de bonis non. In the performance of that statutory duty the judge of the probate court was not called upon to pass upon any waiver or renunciation on the part of relator, for neither in terms nor legal effect did her renunciation of her right to participate in the original administration have any reference to rights which might subsequently accrue to her under the statute applicable to the appointment of an administrator de bonis non. Hence no question of judicial discretion was presented. [State ex rel. v. Wurdeman, 187 S. W. l. c. 259.]

It follows that our writ should be made peremptory. It is so ordered.

All concur.


author: FARIS, J.

text:
    THE STATE ex rel. WILLIAM HARRIMAN v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    February 2, 1918.
    1. CERTIORARI: Conflict in Opinions: Former Decision of Coutt of Appeals. A prior decision rendered by another court of appeals is in no wise binding or pursuasive upon the Supreme Court in determining whether the opinion of the court of appeals in the case in hand is in conflict with its own prior rulings.
    2. -: -: Slander: Distinguished from Libel. There is a well-recognized distinction between libel and slander, in their civil, as well as their criminal aspects. Therefore, in certiorari to a court of appeals, based upon a charge that its opinion in a civil action for slander is contrary to -previous rulings of the Supreme Court, rulings of the latter court in libel cases are of no. concern in determining the question of conflict.
    3. -: -: -: Instruction. If the spoken words are slanderous per se and when taken alone are actionable, an in-' struction which tells the jury to find for plaintiff if they find defendant spoke said words of and concerning plaintiff in the presence and hearing of others, is not erroneous; but if they are of doubtful and ambiguous import, an innuendo is a necessary part of the petition, and an instruction which fails to require the jury to find they were spoken with the intended meaning and purpose alleged in the innuendo is erroneous.
    4. -:--:-: Ambiguous Words Omitted from Instruction. The petition charged that defendant, in whose employ plaintiff had formerly been as a manager of a certain printing business, said of plaintiff, “He has robbed me of hundreds of dollars and if you intend, to keep a crook in your employ you won’t get any more work of mine,” meaning thereby “that plaintiff was a thief and had wrongfully taken and stolen money from defendant, and meaning thereby that plaintiff was guilty of the heinous crime of larceny.” Held, that the words do not charge the felonious taking of the personal property of defendant, from his person, or in his presence, against his will, or by putting him in fear of immediate injury to his person, but they convey the thought of obtaining money by overreaching, or by chicanery or cheating, or by dishonest and fraudulent practices, and cannot therefore be treated as slanderous per se, and the innuendo was not surplusage but its allegations necessary, and could not be abandoned in the instructions, and an instruction telling the jury that if they found the defendant spoke the words of and concerning plaintiff they should find for him, omitted a necessary element, and the Court of Appeals did not err in so holding, and its ruling was not contrary to Callahan v. Ingram, 122 Mo. 355.
    Certiorari.
    "Writ quashed.

      Brownrigg, Mason & Altman, Henderson & Henderson, Vincent McShane and John M. Goodwin for relator.

      (1) A simple charge of robbery, unexplained by anything else in the statement complained of, is actionable per se. Jones v. Murray, 167 Mo. 25. (2) The above proposition is well settled by numerous other authorities. Klinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360; Smiddy v. Pearlstein, 201 Mass. 246; Slow-man v. Dutton, 10 Bing. 402 (Eng.); Rowcliffe v. Edmonds, 7 M. & W. 12, 4 Jur. 684; Newell on Slander & Libel (3 Ed.), secs. 151-153; 25 Cyc. 286. (3) The Supreme Court has repeatedly held that words which impute or charge the commission of a crime, and especially a felony, are actionable per se. Birch v. • Benton, 26 Mo. 153; Rammell v. Otis, 60 Mo. 365; Cook v. Pub. Co., 241 Mo. 326; Tilles v. Pub. Co., 241 Mo. 609. (4) The law is well settled in Missouri by controlling decisions of this court that where the slanderous statement itself is actionable per se, the plaintiff and the trial court had a right to disregard the inducement and, innuendo in submitting the case to the jury. Callahan v. Ingram, 122 Mo. 355; Julian v. Kansas City Star, 209 Mo. 91; Sotham v. Telegram Co., 239 Mo. 606; Rail v. Newspaper Assn., 192 S. W. 129. (5) The publisher of a slander or libel is held to have intended to charge the crime of robbery, when he so states, where at the same time he utters or speaks no further words explaining or qualifying what he said. When such additional words are uttered it is then deemed that the poison carries its antidote. Brown v. Knapp & Co., 21.3 Mo. 631; Cook v. Globe Ptg. Co., 227 Mo. 537. (6) The secret intention of the publisher of a slander or libel is inadmissible to ■ limit the meaning of the actual words uttered or published. 25 Cyc. 358; Newell on Slander & Libel (3 Ed.), pp. 373-374, see. 362.

      Charles E. Morrow for respondents.
    (1) The words alleged to have been spoken, taken in their natural and obvious import, do not either in themselves alone or when taken in connection with the inducement pleaded, necessarily charge plaintiff with the crime of robbery or any other crime, and are not actionable per se. (2) At most the words are ambiguous and of doubtful import and do not necessarily carry a defamatory meaning; do not necessarily charge a crime, but may have been meant to charge simply that plaintiff was dishonest. An oral imputation of dishonesty or rascality is not actionable per se. Rammel v. Otis, 60 Mo. 365; Jones v. Banner, 172 Mo. App. 137. (3) The language charged to have been spoken being ambiguous and' of doubtful import, plaintiff is bound by his innuendos. Callahan v. Ingram, 122 Mo. 355. (4) Even if the decision does conflict in certain particulars with previous decisions of this court, which we deny, yet the judgment is sustained by good reasons in law and should not be quashed. State ex rel. v. Reynolds, 194 S. W. 880. (5) The plaintiff’s instruction condemned in the opinion of the Court of Appeals is erroneous for a number of reasons, and the judgment is right. (a) The words alleged to have been spoken do not charge plaintiff with the crime of robbery, and the instruction is erroneous in assuming that the language used does so charge, (b) To say the least, the words charged are ambiguous, and the plaintiff in his innuendos has limited the charge to larceny and dishonesty, and he is bound by the meaning placed upon the language in his innuendos Callahan v. Ingram, 122 Mo. 355; Crandell v. Greeves, 181 Mo. App. 230; Michael v. Mathies, 77 Mo. App. 556. (c) This instruction correspondingly placed upon the defendant the burden of proving that plaintiff was guilty of the crime of robbery in order to prove the truth of the charge. Patterson v. Evans, 153 Mo. App. 684. (d) It permitted the jury to speculate in their own mind as to what constituted the crime of robbery. Krup v. Corley, 95 Mo. App. 640; Bryce v. Wheeler, 161 Mo. App. 507. (e) It does not define robbery, or inform the jury as to the elements of that crime. Krup v. Corley, 95 Mo. App. 640; Bryce v. Wheeler, 161 Mo. App. 507. (f) The instruction is against the theory on which the case was tried by both parties. It submitted the issue of the truth of the charges made and at the same time assumed that the language charged the crime of robbery, a charge which neither the pleadings nor the evidence justified.
   FARIS, J.

This is an original proceeding by certiorari, whereby it is sought to bring up for quashal, the opinion and record of the St. Louis Court of Appeals in a cause lately pending in that court, wherein relator William Harriman was respondent, and one T. M. Sayman, was appellant. [Harriman v. Sayman, 193 S. W. 1001.]

The said case of Harriman v. Sayman was an action for slander. Upon a trial thereof in the circuit court of the city of St. Louis plaintiff had judgment for $1500 actual damages, and $3500 punitive damages. From this judgment defendant therein after the conventional motions appealed. Upon a hearing in the St. Louis Court of Appeals, that court in an opinion rendered by Judge Becker, reversed and remanded the case for a new trial, upon the ground that a certain instruction, which is set out below, was erroneous.

Thereupon the respondent in that case, who is the relator here, after filing his motion for a rehearing, which was overruled, sued out here this writ of certiorari, to bring up the record in said cause, upon the ground that the opinion of the St. Louis Court of Appeals contravened certain well-settled rules of law decided by this court, more particularly in the case of Callahan v. Ingram, 122 Mo. 355.

The alleged point of contradiction urged,, together with such other facts as may be necessary to an understanding of the case, will be found in the subjoined opinion.

The gist of the alleged slanderous words as charged and proved in the case of Harriman v. Sayman, supra, was that Sayman, who as stated was the defendant in the slander suit, had said of relator to one Guilbeault he “has robbed me of hundreds of dollars and if you intend to keep a crook in your employ you won’t get any more work of mine.” This statement was garnished by an indecent and profane reference to relator, which while adding to the Inridness of the epithet applied, adds nothing of pertinence to the alleged slander as a matter of law. In the relator’s petition filed by him in his action for slander this allegation and innuendo occur:

“That on or about September 6, 1911, plaintiff entered into the employ of defendant as a printer and manager of defendant’s printing business, which was conducted under the name of the ‘Rush Printing Company;’ that under and by virtue of' plaintiff’s employment as before stated it was his duty to manage, conduct, transact and carry on all of the business of said Rush Printing Company; that on December 13, 1912, plaintiff severed his connection with defendant as aforesaid and ceased to work for defendant in the capacity before mentioned; that at said time, and at all times prior thereto, plaintiff had fully and honestly accounted for and turned over to defendant all money and property of whatsoever kind he had in his possession belonging to said defendant, and plaintiff had fully and efficiently and completely performed all of the duties and all of the services imposed upon him by his contract of employment with defendant. . . .
“That on or about the 3rd day of January, 1913, in St. Louis, Missouri, after plaintiff had left the employ of defendant, defendant, well knowing all of the beforementioned facts, set forth concerning plaintiff, wickedly, designedly and maliciously contriving to injure plaintiff in his good name and standing in his business . and occupation, as before defined, and to bring plaintiff into public scandal, infamy and disgrace with all persons, and especially those with whom plaintiff was then connected and associated in the pursuit of his business and occupation, or by whom he would likely become employed and associated with, and with his then employer, in the presence and hearing of Z. G-uilbeault and other persons, whose names are unknown to plaintiff, who were then employed by the T. J. George Press Room Company, for whom plaintiff was at the time working, wilfully, wantonly and maliciously spoke of and concerning plaintiff, and concerning him in his business and occupation, certain false, defamatory and slanderous words, to-wit: ll
“‘Where is Mr. Harriman (meaning plaintiff)? Are you (meaning Guilbeault) going to let him out,' as I told you over the ’phone yesterday? That G-d d-n s-n of a h-h has robbed me (meaning defendant) of hundreds of dollars, and if you intend to keep a crook in your employ you won’t get any more work of mine. Put that under your cap,’ meaning and referring to plaintiff, and meaning thereby that plaintiff was a thief and had wrongfully taken and stolen money and property from the defendant, and meaning thereby that plaintiff was guilty of the heinous crime of larceny, and meaning thereby that plaintiff was dishonest and lkcked credit, integrity and ability in his occupation and business of a printer and other services he performed in connection therewith, and meaning thereby that plaintiff was a dishonorable and dishonest employee and unworthy of being employed by his then employer. ’ ’

In the trial of the slander suit plaintiff therein asked and the court gave this instruction, to-wit:

“The court instructs you that if you believe from the evidence that the defendant, on or about the 3rd day of January, 1913, in the presence and hearing of Z. Guilbeault, and other persons, maliciously spoke of and concerning the plaintiff, Harriman, the words alleged in the second count of plaintiff’s petition, to-wit:
“ ‘Where is Mr. Harriman; are you going to let him out as I told you over the ’phone yesterday? That G-d d-n s-n of a h-h has robbed me of hundreds of dollars, and if you intend to keep a crook in your employ, you won’t get any more work of mine. Put that under your cap’ or that enough of the words stated as aforesaid have been proven to have been spoken by the defendant of and concerning the plaintiff to substantially constitute the charge imputed to the plaintiff of having robbed the defendant, and, if you further believe from the evidence that the words spoken were false, then your verdict should he for the plaintiff on the cause of action set out in the second count of plaintiff’s petition. ’ ’

• The learned St. Louis Court of Appeals deemed the above instruction erroneous, and because the trial court gave it, the case was reversed. In making this ruling the Court of Appeals in its opinion said this:

“This instruction does not confine the charges imputed to plaintiff to the meaning placed upon them by the innuendo pleaded in the petition, but submits the alleged words to the jury upon the supposition that the said words imputed to plaintiff the crime of robbery. This was error, for, as we have above stated, the alleged slanderous words cannot be held to so charge plaintiff, and the words are not actionable per se. The instruction should have submitted the question to the jury to determine whether the alleged slanderous words, or enough of the words alleged, had been proven to have been spoken by defendant of and concerning the plaintiff in the presence and hearing of others, to constitute the charge imputed to the plaintiff by the innuendo pleaded in plaintiff’s petition, and the failure to do so we hold is reversible error.”

It is strenuously contended that this ruling of the Court of Appeals is contrary to and out of harmony with what is said in the cases of Jones v. Murray, 167 Mo. 25; Brown v. Knapp & Co., 213 Mo. l. c. 681; Cook v. Globe Printing Co., 227 Mo. l. c. 537; Callahan v. Ingram, 122 Mo. 355; Julian v. Kansas City Star Co., 209 Mo. l. c. 91; Sotham v. Telegram Co., 239 Mo. 607, and Rail v. Natl. Newspaper Assn., 192 S. W. 129.

After a careful examination of these cases we are constrained to say that we do not regard the contention of relator as being well taken. The case of Rail v. Newspaper Association, supra, was decided by the Kansas City Court of Appeals, and not by this court. So that case is in no wise binding or persuasive upon this court in determining whether a Court of Appeals has failed to follow the previous ruling of this court. Moreover, we must assume that if the case of Harriman v. Sayman, be in fact out of harmony with the case of Rail v. Newspaper Association, snpra, the learned St. Louis Court of Appeals would of its own volition have certified the Harriman case here pursuant to the provisions of the Constitution in that behalf. All of the above cases which were ruled by us, except that of Callahan v. Ingram, supra, were cases of libel, and not slander eases. There is in almost all jurisdictions a well-recognized distinction between libel and slander, in their civil, as well as in their criminal aspects. Our own criminal statutes, it is persuasive to note,-recognize the existing differences in the definitions of these two distinct offenses. [Cf. Secs. 4817 and 4818, R. S. 1909.] So we need concern ourselves only with the rule announced in the Callahan case. If the ruling by the St. Louis Court of Appeals in the case of Harriman v. Sayman, quashal whereof is sought by the instant proceeding, shall be found to con-, travene the holding in the Callahan case, we ought tó quash the record of the Court of Appeals. Let us look alone to this point.

The language spoken of the plaintiff in the Callahan case was: “The superintendent of streets, this Callahan, is a downright thief, and I can prove it.” The pleader in his petition in that case, after setting out the slanderous words above quoted, then proceeded to charge by way of innuendo that “defendant meant and intended by the use of said words ... to charge plaintiff with being guilty of wilful, corrupt and malicious oppression, partiality, misconduct, or abuse of authority in his official capacity as such superintendent of streets or under color of his said office.” Judge Maceaklane, who wrote the opinion for this court, said:

“It will he seen that the office of the innuendo is to set a meaning upon words or language which are of doubtful or ambiguous import and taken alone are not actionable, and, it follows, that in case the defamatory meaning is apparent from the words used an innuendo is unnecessary. Its use is only necessary in order to bring out the latent injurious meaning of the words, employed. When used for this legitimate and necessary purpose, the plaintiff will be hound to abide by his own construction of the words used. The innuendo thus becomes a part of the cause of action stated.”

But this court was of the opinion in the Callahan case that the words “he is a downright thief” were not ambiguous; that they imputed a charge of larceny and were therefore actionable per se, and that in such case, ambiguity being absent the innuendo could be rejected as surplusage. This clearly appears from the opinion, for at pages 367 and 368, of the Callahan case, this court said:

“The rule, as given by all the text-writers, is different when the words charged are actionable in themselves. In such case the defendant can put in issue the truth of the words spoken, either with or without the alleged meaning. ‘It will then be for the jury to say from the proofs whether the plaintiff’s innuendo is sustained. If not, the plaintiff may fall back upon the words themselves, and urge that, taken in their natural and obvious signification they are actionable in themselves without the alleged meaning, and that, therefore, his unproved innuendo may be rejected as surplusage.’ [Newell on Defamation, Slander and Libel, p. 628, sec. 38; Odgers on Libel and Slander, p. 101, and cases cited.] “An innuendo will not vitiate the proceedings, though new matter be introduced; and where the matter is superfluous, and the cause of action is complete without it, the innuendo may be rejected.’ [Starkie on Slander and Libel (Folkard’s Ed.), sec. 447; Gage v. Shelton, 3 Rich. (S. C.) 242.] ‘If a complaint is sufficient without the innuendo, the innuendo may be rejected as surplusage; the innuendo may always be rejected when it merely introduces matter not necessary to support the action.’ [Townshend on Slander and Libel, sec. 344, and cases cited; 13 Am. & Eng. Ency. Law, 468.]”

In the ITarriman case, here by the writ of certiorari sought to be quashed, the language used was, to say the least of it, ambiguous. For there is a palpable difference between saying of another “he robbed me” or “he is a downright thief/’ and in saying of another “he has. robbed me of hundreds of dollars.” We are required to construe words in their plain and usual meaning and significance. It is obvious that so construed, the language used in the Harriman case, and last above quoted, does not necessarily impute the crime of robbery. In other words it does not charge the felonious taking of the personal property of another from his person, or in his presence, and against his will, by violence or by putting him in fear of immediate injury to his person. [Sec. 4530, R. S. 1909.] Rather do the words used in the Harriman case convey the thought of obtaining money by overreaching or by chicanry, or cheating, or by the use of dishonest and fraudulent practices. In such cases we are of the opinion that the innuendo pleaded was proper, and that plaintiff was bound by it. He could not abandon it in his instruction; nor could he treat as slanderous per se words which in the setting used did not necessarily impute the crime of robbery, or any other crime, but which upon the strongest view which can be be taken of them were susceptible of a reasonable interpretation, which excluded an imputation which was necessarily slanderous, and therefore the words used were ambiguous. This ambiguity was for the jury under proper instructions. It was not within the province of the court nisi to assume, and so instruct, that the ambiguous words used meant to charge the felony of robbery, and were therefore actionable per se. In so instructing, the learned trial court, as the St. Louis Court of Appeals correctly held, fell into error.

We are constrained to hold that the view taken by the St. Louis Court of Appeals was the only one lawfully to be taken upon the facts held in judgment by them. It follows that our writ of certiorari was improvidently granted herein and ought to be quashed. Let this be done.

Graves, G. J., Walher, Blair and Williams, JJ., concur; Bond, J., concurs in result; Woodson, J., dissents.