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People v. Bialek

APRIL 26, 1961.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

MAX BIALEK, APPELLANT.



Appeal from the Superior Court of Cook county; the Hon. JOHN E. PAVLIK, Judge, presiding. Reversed.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

This appeal is taken from an order entered in the Superior Court of Cook County finding Max Bialek, hereafter referred to as the defendant, guilty of a direct contempt of the Superior Court of Cook County and sentencing him to the County Jail of Cook County for a period of thirty days. The defendant's theory here is that he did not intentionally give false answers affecting material issues and that he was confused by the cross-examination inasmuch as the attorney who cross-examined him included in his questions inferences and inaccuracies.

There has been an increase in the cases brought to this court to review contempt orders entered by the trial court based on false testimony given by witnesses in the trial of a case. Within a comparatively recent period we have had before us People v. Hewlin, 28 Ill. App.2d 40, 169 N.E.2d 819, and People v. Koniecki, 28 Ill. App.2d 483, 171 N.E.2d 666.

"Contempt" is defined as any act or conduct which is calculated to embarrass, hinder or obstruct the court in the administration of justice or to lessen its authority or dignity. 12 I.L.P. Contempt, sec. 21. "Perjury or false swearing by a witness may, under some circumstances, be treated as a contempt, notwithstanding it is also punishable as a criminal offense. However, such procedure is warranted only when exceptional conditions justify it." 12 I.L.P. Contempt, sec. 27. In the case before us the commitment was for a direct criminal contempt.

[1-3] The only record properly before this court in cases of this character is the order entered by the trial court. In People ex rel. Butwill v. Butwill, 312 Ill. App. 218, 38 N.E.2d 377, the court says: "An order committing a witness to jail for direct contempt in giving false testimony must set forth the facts so fully and certainly as to show the crime was actually committed. The language of the order must be strictly interpreted and no presumptions can be indulged in its favor. People v. Salbar, 282 Ill. App. 506. Such a case will be considered in this court on the order alone. People v. LaScola, 282 Ill. App. 328, 329." See also People v. Hogan, 256 Ill. 496, 100 N.E. 177.

A direct criminal contempt is one which takes place in the very presence of the judge, making all of the elements of the offense matters within his own personal knowledge. People v. Harrison, 403 Ill. 320, 86 N.E.2d 208; People v. Berof, 367 Ill. 454, 11 N.E.2d 936. At the trial it must be made to appear by the witness' own admission, or perhaps by unquestioned or incontrovertible evidence, that the testimony he gave was false. People v. Vogel, 335 Ill. App. 475, 82 N.E.2d 378. In People v. Hagopian, 408 Ill. 618, 621, 97 N.E.2d 782, the court says: "A direct criminal contempt consists of any conduct which tends to embarrass or obstruct the court in the administration of justice or tends to bring the administration of the law into disrepute. (People v. Sherwin, 334 Ill. 609; People v. Cochrane, 307 Ill. 126.)" In People v. Hille, 192 Ill. App. 139, the court says:

". . . it must appear beyond a reasonable doubt from the personal knowledge of the court, or by admissions from the lips of the defendant himself in open court, and in the presence of the court, and from no other source whatsoever, that (1) the representations so made were false and untrue when made; (2) that the defendant knew of their falsity when he made them; and (3) that he made them knowing their falsity and with a wilful and malevolent intention of assailing the dignity of the court, or of interfering with its procedure and the due administration of justice. . . .

"Before a person can be found guilty of contempt of court it must clearly appear that in committing the offense complained of he was actuated by some malevolent intention to assail the dignity of the court, or to wilfully and knowingly interfere with its procedure or due administration of justice. There must be a union or joint operation of act and criminal intention."

In People v. LaScola, 282 Ill. App. 328, the court, after citing the perjury statute, says:

"And it is also the law that because perjury, which tends to obstruct the administration of justice, is punishable as a criminal offense is no reason why it may not also afford basis for punishment as a contempt; but that punishment for a contempt is only warranted when exceptional conditions so justify. Ex parte Hudgings, 249 U.S. 378; People v. Anderson, 272 Ill. App. 93.

"In the Hudgings case the court said (p. 382): `Because perjury is a crime defined by law and one committing it may be tried and punished does not necessarily establish that when committed in the presence of the court it may not, when exceptional conditions so justify, be the subject-matter of a punishment for contempt.'

"In the Anderson case, 272 Ill. App. 93, the court quoted with approval the statement of this rule from 11 A.L.R., p. 343 (p. 100): `The rule is well settled that perjury or false swearing may, at least under some circumstances, be punished as a contempt of court.' But there is some doubt whether this rule is the law of this State. People v. Hogan, 256 Ill. 496. In that case one was committed to jail for an alleged contempt committed in open court without plea, issue or trial; the court, after holding that the commitment was unwarranted, said (p. 501): `It is not to be inferred because the question is not discussed, that we think a court can in any case, upon its own knowledge of the facts, punish summarily as for a contempt against the dignity of the court, a witness who has testified falsely in a cause.'"

See also People v. Koniecki, supra, and People v. Hewlin, supra.

In the case before us the order of the court recites that the court has jurisdiction and finds that the defendant had filed a suit against the Yellow Cab Company. In the complaint he alleged that on March 19, 1956 he and one Jean Bialek were passengers in a cab and were exercising due care, that the driver negligently collided with the rear of another vehicle, and that the plaintiffs sustained injuries, had medical expenses, were prevented from attending to their usual employment and lost a large amount of income thereby, to their damage in the sum of $50,000 each. The order sets out in detail certain testimony given by the defendant on direct examination and in greater detail the testimony given by him on cross-examination. Fifteen pages of the record are devoted to a recital of the testimony.

The witness on direct examination testified that after the date of the accident (March 19, 1956) he first returned to work in June, that he did low work, and that he remained on the job until July 20th. On cross-examination he testified that from March 19th until June he did not return to work at all. The cross-examiner in the course of his cross-examination went over the biweekly periods commencing at March 15th. The witness stated that he did not remember whether or not he worked, nor whether he was off work from the time of the accident until June of 1956. The cross-examiner questioned him as to whether he had worked in the period from April 30th to May 15, 1956 and in that period put in 16 hours of overtime. The defendant stated, "We never worked overtime," and the court then interposed, asking him if it was true or not. The witness then stated: "If I worked, I must have worked then." The question was then asked: "Well, then, it's true, isn't it?" The witness answered "Yes."

The People in their brief state that defendant admitted that his testimony that he did not work from March 19th until June of 1956 was not true and that "this self-confessed perjury, as to a material matter, was a direct contempt." Apparently this statement is the principal one upon which the State relies. However, in the record on cross-examination the following questions and answers appear:

"Q. And isn't it true that you were off of work from the time of this accident until June of 1956? Is it?

"A. I can't remember that.

"Q. Well, you just testified to it.

"A. But I can't remember if I worked or not."

Later the witness was asked the following question, which is not based on any testimony of the defendant appearing in the record, and the following answer was given:

"Q. But you do remember that you didn't work until June 20, or do you want to change that now?

"A. Well, if I worked, then I'll have to change it."

Then he was asked as to whether during the two periods from May 31st to June 15th and from June 15th to June 30th he did not put in overtime, and he said he did. Then the following took place:

"Q. Will you tell this jury now whether or not it isn't a fact that this period of time which you previously told us you didn't work, that you actually put in two weeks, during that two-week period from June 15th? That would be the sixteenth, the day following, to June 30th, whether or not you put in twenty hours of overtime, for which you received a check for Two hundred Seventy-five dollars. Is that true, sir?

"A. That's true."

The only contradiction appearing in this portion of the examination is that referring to the period from the date of the accident until the first of June. Nowhere in the record has the witness testified that he did not return to work until June 20th. All of these questions are not based on testimony appearing in the record and are confusing and unfair.

The cross-examiner also went into the question of earnings of the defendant. The questions and answers are as follows (the asterisks appearing below being contained in the trial court's order, indicating omissions of testimony):

"Q. In 1956, what were your earnings at Loyola University?

"A. For the whole year?

"Q. You tell me what your recollection was. You testified that in 1957 you earned thirty-one hundred; in 1958 thirty-four hundred; and in 1959, forty-two hundred. Right?

"A. Yes.

"Q. How much did you earn ...


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