Ex Parte Mckee, 18 Mo. 599

Gamble, Judge, orally delivered the opinion of the court. The sixth

section of the second

article of the act concerning “ habeas corpus” (R. 0. 1845) provides, that it shall be the duty of the court or magistrate before whom any party is brought on a writ of habeas corpus, forthwith to remand the party, if it shall appear that he is detained in custody “ for any contempt specially and plainly charged in the commitment by some court, officer or body having authority to commit for a contempt so charged.” The tenth

section of the same

article provides that “ no court shall have power to enquire into the justice or propriety of any commitment for contempt, made by any court, officer or body, according to law, and plainly charged in such commitment, as hereinbefore provided.” Under these sections, whenever a party is brought before a court on a writ of habeas corpus, and the return shows that he is in custody under a commitment for contempt, the only questions to be considered are, 1, Whether the commitment plainly and specially charges a contempt, and 2, Whether it was issued by a court, officer or body having authority to commit for such contempt. 1.

It has been agreed that the present application shall be considered as if a writ had been- issued and returned, and if such bad been tbe fact, we would have tbe commitment, as it accompanies tbe petition, returned as tbe ground for holding tbe petitioner in prison. The commitment states, that tbe notary adjudged tbe petitioner guilty of a contempt, and that tbe contempt consisted in a refusal to answer certain questions which are sot out in tbe commitment.

As the questions are set out, it is insisted that, as a matter of law, a contempt could not be committed in refusing to answer them, because they were irrelevant to the matter in issue in tbe cause. But it is to be observed, that tbe nature of tbe action is not stated in any of tbe papers before us, and therefore it is clearly impossible for us to decide upon tbe question of relevancy.

Again, tbe officer who takes a deposition, and who may know tbe nature of tbe action, when be requires a witness, under tbe penalty of imprisonment, to answer a question propounded to him, does in effect decide that it is a proper question, and one sufficiently relevant to the issue to require an answer. Tbe opinion of tbe witness, that the question is irrelevant, is entitled to no consideration. If that is bis only objection to answering it, there can no injury result to him from compelling him to answer.

If a merely frivolous or impertinent question were asked of a witness, the officer taking tbe deposition might not feel himself called upon to compel an answer ; but it would only be in a very plain case of impertinence, that be would undertake to decide that the witness should be allowed to avoid answering.

Tbe court in which tbe cause is pending will, at tbe trial, reject irrelevant evidence, and it would greatly detract from tbe value of our statutes, which authorize tbe taking of depositions, if the question of relevancy was to be raised before and decided by every justice of tbe peace or other officer, who takes a single deposition in tbe cause, when be cannot know tbe aspect which tbe case will probably assume at tbe trial.

To allow tbe witness himself to pass upon tbe question of relevancy, and refuse to answer such questions as be thought irrelevant, would be to deprive the party of tbe testimony of every unwilling witness. / We are compelled to assume, in the present case,-that the /notary decided that the questions were proper and relevant, as he committed the witness for refusing to answer. There is no provision made for any record of such decision. The fact is here stated in the commitment. The warrant states that the notary adjudged the witness to be guilty of a contempt in refusing to answer the questions.

This is a sufficient decision upon the relevancy of the questions. The commitment specially and plainly charges a contempt, and under the sections of the habeas corpus act, the prisoner must be remanded, unless the other position assumed in his defence can be maintained, which is, that a notary public cannot commit for such a contempt as is here charged. 2. The act approved February 13th, 1847, gives to notaries public power to take depositions.

The act approved March 3, 1851, provides that they shall have the same powers which are conferred on justices of the peace by the act concerning depositions, approved January 17, 1845. The sixteenth

section of the act concerning depositions, (R. C. 1845,) provides that “ every person, judge or justice of the peace in this state, required to take depositions, &c., shall have power to issue subpoenas to witnesses to appear and testify, and to compel their attendance in the same manner, and under the like penalties as any court of record of this state.” The eighth

section of the act concerning “ Witnesses,” (R.

C. 1845,) provides: “A person summoned as a witness and attending, who shall refuse to give evidence which may lawfully be required to be given by such person, on oath or affirmation, may be committed to prison by the court, or other person authorized to take his deposition or testimony, there to remain without bail until he give such evidence.” A notary public, then, being authorized to take depositions, and having the same powers for that purpose as are conferred on justices of the peace, may summon a witness before him, and may enforce his attendance, if he fails to attend ; and if he attends, and refuses to give evidence which may lawfully be required to be given, the notary may commit him to prison j until he give the evidence.

The commitment in the present) case states that the petitioner was summoned before the notary! to give his deposition, and attended, and that he was committed! to prison fcrr a refusal to answer questions, there to remain1, until he should give the evidence which the questions called for. Under the statutory provisions above referred to, when it is insisted that the notary had no authority to commit, it is supposed that it can only be argued in support of such a position, that the questions which are set out in the commitment are not such as may lawfully be required to be answered.

What, then, is the meaning of the words, “whichmay lawfully be required to be given ?” It is sufficient to say in general terms that, so far as the witness himself is concerned, he may lawfully be required to answer any questions which it is not his personal privilege to refuse to answer. In some familiar cases, which it is not necessary to enumerate, evidence may be sought to be obtained from a witness, which it is his privilege to refuse to give, and which he cannot lawfully be compelled to give, however pertinent it may be to the issues in the cause.

All evidence, which is not of this character, the witness may lawfully be required to give, even though it may not prove to be rele■vant or competent in the particular cause in which it is sought to be obtained. The objection to the relevancy or competency of evidence is for the parties litigant to make and not for the witness. It does not appear to have been claimed before the notary, nor is it here claimed, that any of the questions set out in the commitment belong to the category of privileged questions.

This being the case, and the notary having decided that they must be answered, and having committed for the refusal to answer, it cannot, on an application for a habeas corpus, with any propriety be urged against his authority to commit that the evidence demanded was not relevant. The application for a writ must be refused.