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The People v. Burkert

OPINION FILED NOVEMBER 23, 1955

THE PEOPLE OF THE STATE OF ILLINOIS, DEFENDANT IN ERROR,

v.

ALFRED BURKERT, PLAINTIFF IN ERROR.



WRIT OF ERROR to the Circuit Court of Lake County; the Hon. BERNARD M. DECKER, Judge, presiding.

MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:

This is a writ of error to review a judgment of the circuit court of Lake County convicting Alfred Burkert of contempt of court for his failure to answer questions before the grand jury, and sentencing him to the Illinois State Farm at Vandalia for a term of six months. The judgment followed the entry of an order granting Burkert immunity under the witness immunity statute enacted in 1953. (Ill. Rev. Stat. 1953, chap. 38, par. 580a.) Although the offense was a misdemeanor, the writ of error was properly sued out of this court because a construction of the constitution is involved.

The Witness Immunity Act, upon which the proceeding against Burkert was based, provides: "Whenever, in any investigation before a grand jury or trial in a court of record of any person charged with a criminal offense (either felony or misdemeanor), it shall appear to the court that any person called as a witness in behalf of the prosecution is a material witness and that his testimony or any evidence he may produce, documentary or otherwise, would tend to incriminate him, on motion of the State's Attorney the court may cause an order to be entered of record that such witness be released from all liability to be prosecuted or punished on account of any transaction, matter or thing concerning which he may be required to testify or produce evidence, documentary or otherwise; and such order shall forever after be a bar to any indictment, information or prosecution against the witness for any felony or misdemeanor shown in whole or part by such testimony or evidence, documentary or otherwise, except for perjury committed in the giving of such testimony; provided however, that the court shall deny a motion of a State's Attorney made under this section and shall not enter an order releasing such witness from such liability if it shall reasonably appear to the court that such testimony or evidence, documentary or otherwise would subject such witness to an indictment, information or prosecution (except for perjury committed in the giving of such testimony) under the laws of another State or of the United States; * * *. Any witness who, having been granted immunity as aforesaid, refuses to testify or produce evidence, documentary or otherwise, may be punished for contempt of the court and sentenced to the county jail for not more than two years." Ill. Rev. Stat. 1953, chap. 38, par. 580a.

On July 8, 1954, Burkert appeared before the grand jury of Lake County, which was then engaged in an investigation of gambling. He was asked a number of questions which he declined to answer on the ground of self incrimination. The following morning the State's Attorney filed a petition in the circuit court which set forth the questions and Burkert's responses, recited that Burkert was a material witness and that his testimony would tend to incriminate him, and prayed for the entry of an immunity order pursuant to the statute.

Burkert was thereupon brought before the court. His request to be represented by counsel was denied. The court explained to him the purpose of the proceeding and the effect of an immunity order, and advised him that from the face of the petition the court saw no reason why the witness would be subject to prosecution under the laws of the United States or of any other State, and asked him if he had anything to add to what was contained in the petition. Burkert stated that he had nothing to add, but would like to talk to his attorney. The court then entered an order which required him to answer such relevant and material questions as might be put to him, and granted him immunity from prosecution for any matters concerning which he might be required to testify.

Later on the same day, before he had been taken back before the grand jury, Burkert again appeared before the court, accompanied this time by his attorney, who made an oral motion to vacate the immunity order. A hearing was had at which it was disclosed that Burkert had been arrested on June 12 on a charge of operating a handbook, and was awaiting trial before a police magistrate. Burkert took the stand at this hearing. His counsel asked him several questions relating to his compliance with the various Federal statutes and regulations applicable to persons engaged in the occupation of taking wagers. (See 26 U.S.C. § 4401-4414.) Burkert stated that he had held a Federal occupational gambling tax stamp during fiscal 1953, but he declined to state, on the ground that his answers might incriminate him, whether he presently held such a stamp, whether he had filed informational returns required by the Federal statute, and whether he had paid the Federal tax of ten per cent of the gross amount of wagers handled by him. He also stated that to answer the questions asked him before the grand jury would tend to incriminate him under the laws of the United States.

After the hearing the court amended its immunity order to provide that Burkert should not be required to give any testimony relating to any matter or transaction occurring after June 30, 1953. Burkert was then taken before the grand jury and asked a number of questions similar to those previously asked of him, but qualified to conform with the time limitation contained in the court's amended order. He was asked what his occupation had been from July 1, 1952, to June 30, 1953; where he had worked in 1952, in 1948, and in 1938; whether he knew of any gambling activities in Lake County; whether he knew of any vice or prostitution there; and whether he was acquainted with two named persons. Burkert again refused to answer any of these questions on the ground that his answers might incriminate him under the laws of Illinois or of the United States.

On July 13 the State's Attorney filed a petition for a rule on Burkert to show cause why he should not be held in contempt. Burkert filed an answer which admitted that he had refused to answer before the grand jury. So far as the questions as to where he had worked in 1948 and 1938 were concerned, the answer based his refusal solely on the fear of incrimination under Illinois law, and he offered to answer these questions upon condition that his answers should not be used against him in any criminal procedings, and that his privilege in respect to other questions should not thereby be deemed to be waived. As to the remainder of the questions Burkert justified his refusal to answer on the ground of possible incrimination under the Federal statutes and regulations relating to the tax imposed on persons engaged in accepting wagers, a list of which was included in the answer. The obvious purpose of the answer was to suggest that truthful replies to the questions asked would have disclosed violations of Federal law or would have furnished clues from which such violations could be discovered.

On July 23 the court, after denying a motion by defendant for a continuance of ninety days, and a request for a jury trial, adjudged him guilty of contempt. The imposition of sentence was deferred for one week to afford the defendant an opportunity to appear again before the grand jury if he desired to do so. He did not choose to appear, and he was committed to the Illinois State Farm in Vandalia for a term of six months.

The first contention of the defendant is that he was deprived of the right to counsel. This contention is readily disposed of. At the first hearing on July 9 the court did deny defendant's request for counsel. But at the subsequent hearing held that day upon the motion to vacate defendant was represented by his attorney, who offered evidence and advanced arguments in his behalf. He thus had effective representation by counsel before the immunity order was acted upon, and he was represented at all times thereafter. It is therefore unnecessary to consider whether a witness is entitled to counsel upon an application for the entry of an immunity order. See People v. Cochrane, 307 Ill. 126; cf. People v. Zazove, 311 Ill. 198.

Plaintiff in error's second contention is that he was deprived of his constitutional right to a trial by jury upon the question of whether or not his refusal to answer before the grand jury constituted contempt. This contention has its point of departure in People v. Gholson, 412 Ill. 294. Prior to that decision this court had held that in cases of indirect criminal contempt the sworn answer of the alleged contemner denying the facts upon which the charge was based must be accepted as conclusive, and that he was thereupon entitled to be discharged. (People v. McDonald, 314 Ill. 548.) If his answer was false, he could be prosecuted for perjury, but his sworn answer effectively purged him of contempt. This anachronistic doctrine of purgation by oath was abandoned in the Gholson case. Cf. People v. Ryan, 410 Ill. 486, 490.

Defendant's argument is that since under the old practice he would have been entitled to a trial by jury on an indictment for perjury, the issue of whether a contempt had been committed was thus triable by a jury at common law. Therefore, so runs the argument, section 5 of article II of the constitution preserves that right, and since the Gholson case permits the determination of whether a contempt occurred to be made in the contempt proceeding itself, that proceeding requires a jury trial.

In reply to this argument the People contend that the former doctrine of purgation by oath was limited to "indirect" contempts, while the contempt committed here was "direct," since it took place before the grand jury. Our decisions indicate that a refusal to answer before the grand jury is a direct contempt. (See People v. Cochrane, 307 Ill. 126; People v. Sheridan, 349 Ill. 202.) But the precise question of whether a sworn denial would discharge one charged with a refusal to testify does not appear to have been passed upon. We do not agree with defendant's argument that a constitutional right of trial by jury can be distilled from an analogy to the perjury prosecution which might have followed under the former practice of purgation by oath, for the contempt proceeding was terminated by the sworn answer, and the perjury prosecution was an independent criminal proceeding. The present case, however, does not present the issue sought to be raised, for here the defendant admitted his refusal to answer before the grand jury. There was thus no factual issue to be tried, by jury or otherwise.

Defendant's right to a continuance, which he contends was wrongfully denied, was in the sound discretion of the court. The continuance requested here would have delayed the proceedings beyond the duration and jurisdiction of the particular grand jury, when the cogency of his testimony would no longer exist, and since defendant had admitted the nature of his alleged contempt at ...


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