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People Ex Rel. Morgan v. Mulliken

MAY 20, 1963.

PEOPLE OF THE STATE OF ILLINOIS EX REL. BIRCH E. MORGAN, PETITIONER-APPELLEE,

v.

WALLACE M. MULLIKEN, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. BIRCH E. MORGAN, Judge, presiding. Reversed. ROETH, JUSTICE.

This appeal is prosecuted by Wallace M. Mulliken, an attorney, from a judgment of the Circuit Court of Champaign County which found him guilty of contempt and fined him $50 for his refusal to comply with an order of court directing him to turn over a certain written document to opposing counsel for their inspection during the trial of a case.

The events giving rise to the contempt order occurred during the trial of two cases which had been consolidated for trial entitled Juanita H. Wright, Individually and as Administrator of the Estate of David G. Wright, and John P. McMillan, Individually and as Administrator of the Estate of John S. McMillan v. John Joseph Royse et al. A report of proceedings as to what actually occurred in open court upon the trial of these cases in connection with the subject matter of the contempt order is incorporated in the record on appeal. We therefore look to the report of proceedings rather than the contempt order to determine whether the contempt order was correct. People v. White, 8 Ill. App.2d 428, 131 N.E.2d 803.

The record before us discloses that Chester Payne and the two deceased young men were passengers in an automobile being driven by the defendant John Joseph Royse at a time when it became involved in an occurrence in which the two deceased young men lost their lives. Apparently the four young men had been in a tavern drinking prior to the occurrence and the question of the intoxication of the driver Royse was an issue in the case. Charles Payne was called as a witness for the plaintiffs. On cross-examination of Payne by Wallace M. Mulliken the following appears in the report of proceedings:

"Q. Now, Mr. Payne, you stated on your direct examination that you did not think Royse was intoxicated at the time you left Pembroke's tavern?

A. I do not.

Q. And to drive back?

A. That's right.

Q. Now, have you changed your opinion since you testified at the Coroner's inquest?

A. No, I haven't.

Q. Do you remember at one time having an opinion about Royse that he was completely sober — was not completely sober? He couldn't thread a needle, but he could hit a nail?

Mr. Hendrix: I'll object, Your Honor.

A. I don't believe I made a statement like that.

Q. You don't think you made such a statement?

Mr. Franklin: Do you represent that he did, Mr. Mulliken?

Mr. Mulliken: Yes I do.

Mr. Franklin: In the Coroner's inquest?

Mr. Mulliken: Not in the Coroner's inquest.

In another statement.

Mr. Franklin: How big a nail?

Mr. Mulliken: Well, Mr. Payne didn't say.

Q. Mr. Payne, you had an interview with Mr. Joseph Luig at your home on or about April 26th, 1961?

A. Yes sir.

Q. Do you recall that interview?

A. Yes.

Q. And do you recall Mr. Luig asked you some questions about the condition of Royse at the time you left Mr. Pembroke's ...


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