Appeal from the County Court of Macon County; the Hon. BILL J.
SLATER, Judge, presiding. Reversed.
This is an appeal from an order of the County Court of Macon County adjudging defendant to be in contempt of court and sentencing him to the county jail for thirty days.
On March 21, 1962, defendant, Louis L. Mason, an attorney at law, was representing James Robert Salmons, who was on trial in the county court of Macon County on a charge of driving an automobile while under the influence of intoxicating liquor. On said date, during the course of the trial, the court declared a mistrial, excused the jury and ordered that defendant be held in contempt of court and sentenced to a term of thirty days in the county jail of Macon County. The contempt order, as the same appears in the record, is as follows:
"It is ordered by the Court that Louis L. Mason, counsel for defendant, be and is held in contempt of Court and sentenced to a term of thirty days in the County Jail of Macon County, Illinois; that said sentence be suspended on the condition that said Louis L. Mason withdraw as counsel for defendant in this cause; that appeal bond be and is hereby set in the sum of $1,000, to be approved by the Court."
On the following day, March 22, 1962, defendant appeared in court in response to a subpoena served upon him on that date. He was then asked by the court whether or not he had withdrawn as counsel for Salmons. His reply was that he had not and did not intend to do so until the results of his appeal were known. Thereupon the court entered the following order:
"The Court sentences Louis L. Mason to the County Jail of Macon County, Illinois, for contempt of Court for a term of thirty days. It is ordered by the Court that a mittimus issue directed to the Sheriff of Macon County. See written order on file."
The record further shows notice of appeal on file on said date and appeal bond approved by the court. It is pertinent to observe that the record shows no proceedings in the Salmons' case in which the defendant took part on March 22, 1962. It thus appears that on said date the court must have been punishing defendant for the contempt of which he was adjudged guilty on March 21, 1963. The notice of appeal recites that defendant will appeal from the order or orders of the court entered March 21, 1962. Praecipe for record was filed April 3, 1962. It directed the clerk to make up an authenticated transcript of all orders entered in said cause as shown by the clerk's docket, including the order finding defendant in contempt of court, of all entries and orders in the judge's docket, including the contempt order, and of all written orders of the court in connection with the contempt order other than those contained in the clerk's and judge's dockets.
The record on appeal was filed in this court on April 17, 1962. It includes no court orders other than those which were entered March 21 and March 22, 1962 respectively. On April 25, 1962, plaintiff filed its motion in this court to dismiss the appeal on the ground that the record indicated there was no final judgment from which an appeal could be taken. We denied that motion on May 1, 1962. On May 9, 1962, plaintiff again filed a motion to dismiss the appeal and included therein an alternative motion in diminution of record, and for leave to supply an essential missing document identified as Exhibit A. On October 2, 1962, we again denied the motion to dismiss the appeal, but allowed the alternative motion and granted plaintiff leave to file Exhibit A. The exhibit was filed October 2, 1962. On October 18, 1962, defendant filed a motion in this court to strike Exhibit A on the grounds that it is not properly authenticated by the clerk of the county court of Macon County as a part of the record on appeal; that it was filed after the filing of notice of appeal and more than thirty days subsequent to the entry of judgment on March 21, 1962, at which time the trial court lacked jurisdiction to enter any further orders in the case. This motion has been taken with the case.
Defendant's motion would appear to present the question which is decisive of this appeal. If Exhibit A is not properly a part of the record on appeal in this cause, then the contempt order must be reversed. Where the contempt has been committed in the presence of the court, evidence is unnecessary and no record is made. However, to protect the rights of the accused, it is necessary for the court to enter a written order setting forth fully and clearly the facts out of which the contempt arose. An order which does not meet such requirement cannot stand. People v. Rongetti, 344 Ill. 107, 176 N.E. 292; People v. Loughran, 2 Ill.2d 258, 118 N.E.2d 310. It appears to be conceded by plaintiff that the order entered in this case either on March 21, 1962 or March 22, 1962, as shown by the record on appeal, is wholly insufficient to show that the court entering the same had authority to do so. Were it otherwise contended, plaintiff would not have sought to file Exhibit A.
Exhibit A, which is entitled "Order for Contempt of Court" consists of ninety typewritten pages. It is dated March 22, 1962, bears the signature of the judge, and was filed with the clerk of the county court of Macon County on April 30, 1962. It appears to represent a partial transcript of the record in the Salmons' trial. Included therein are parts of the voir dire examination of jurors, of the interrogation of certain witnesses with the court's ruling on objections, of extended colloquies between the court and Mason, and descriptions of Mason's conduct during the trial. It concludes with certain findings and an order adjudging Mason to be in contempt of court and sentencing him to jail for sixty days. In view of the conclusion we have reached, any further recital of the matters set forth therein would serve no useful purpose.
The certificate of the clerk appended to Exhibit A is as follows:
"I, Darrell Foster, County Clerk and Clerk of the County Court of said County, do hereby certify that the annexed is a true and correct carbon copy of the Order for Contempt of Court in the matter of The People of the State of Illinois, versus Louis L. Mason No. 15130 and that the original order is a part of the files and records in my office, and that I am the custodian of the records and files of said office and the keeper of the seal of the said Court."
It was signed by the judge on March 22, 1962, and according to the clerk's file mark was filed April 30, 1962. The clerk has not certified that it is a copy of any part of the record in the cause on appeal, but recites only that it is a copy of the contempt order in such case, and a part of the files and records in his office. Attached to defendant's motion is an affidavit, which is not challenged, in which it is alleged that on October 17, 1962, the original of said exhibit was in the files in the case of People v. James R. Salmons; and that no entries were made in the clerk's office in said case subsequent to that showing the filing and approval of defendant's appeal bond on March 26, 1962. It is thus apparent that Exhibit A was not written up by the clerk and made a part of the court record. It is also apparent that neither his docket nor that of the judge contained any minutes or memoranda of any judgment pronounced by the court on March 22, 1962. As we have previously pointed out, the record herein shows the judgment holding defendant in contempt was pronounced by the court on March 21, 1962, and the only judicial act performed by the court on March 22, was the fixing of punishment. Exhibit A recites that the court on March 22, 1962 ordered that Louis L. Mason be held in "direct, willful and criminal contempt of this Court." If Exhibit A is properly a part of the record, it is difficult to account for it being in direct conflict with the transcript of the record as certified by the clerk.
It is plaintiff's theory that the trial court did not lose jurisdiction to enter the order identified as Exhibit A after the expiration of thirty days from March 21, 1962, for the reason that it was not a new judgment, but was the clerk's expansion of the court's judgment of March 21 and March 22 into a formal written order and represents a ministerial act performed by the clerk. Such contention must be regarded as somewhat remarkable in view of the fact that on April 25, 1962, or more than thirty days after the clerk performed the reputed ...