WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JOHN S. BOYLE, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
In 1963 the grand jury for the criminal court of Cook County issued a subpoena duces tecum directed to Sahara Inn North, Inc., a corporation, and Mandel Skar, president of the corporation, directing them to produce certain records. The subpoena was served on Mandel Skar, the defendant herein, and he appeared before the grand jury but did not produce the records called for by the subpoena. The foreman of the grand jury filed a petition in the criminal court asking that a rule be entered directing the defendant to show cause why he should not be held in contempt of court. A rule was entered and a hearing was held. The State introduced no evidence in support of the allegations of the petition and the defendant moved to dismiss the petition and discharge the rule. The court denied the motion and the defendant testified under oath in an attempt to explain his failure to produce the records. At the conclusion of the defendant's testimony the court found the defendant guilty of contempt of court and sentenced him to a term of 6 months in the county jail. A writ of error has issued from this court to review the judgment of conviction, a constitutional question being involved.
The defendant was charged with failure to obey the command of a lawfully issued subpoena. This conduct, if contemptuous, constituted a direct contempt of court, which has been defined as any conduct which tends to embarrass or obstruct the court in the administration of justice, or which tends to bring the administration of the law into disrepute. Direct contempts are divided into two classes; those which are committed in open court in the view and hearing of the judge, and those committed in any place set apart for the use of a constituent part of the court, even though the conduct complained of was not personally seen or heard by the judge. (People v. Hagopian, 408 Ill. 618, 621.) In the first class of cases, the trial judge may act upon his personal knowledge of the facts and may punish the offender summarily without the filing of a petition, the entry of a rule to show cause, or a hearing. (People v. Loughran, 2 Ill.2d 258.) The conduct involved here falls within the second class of direct contempts and the question presented is whether the procedure followed by the trial court in finding the defendant guilty conformed to the requirements of due process of law. In In re Oliver, 333 U.S. 257, 92 L.ed. 682, 68 S.Ct. 499, the United States Supreme Court was concerned with the question of the propriety of a summary sentence for contempt by a judge who had also acted as a one-man grand jury, under procedure authorized by the law of Michigan. In considering the problem the court reviewed prior authorities concerning the power of courts to punish for contempt. The court recognized the rule that where the contempt is committed in open court in the view of the judge, a judge has power to punish the offender at once without notice and without hearing. The court went on to point out that this summary power was extraordinary and constituted a departure from the accepted standards of due process and was only justified as "the least possible power adequate to the end proposed." (333 U.S. 257, 274; 68 S.Ct. 499, 508.) The court held that except for this narrowly limited category of contempts, where all the essential elements of the misconduct are actually observed by the court, due process of law requires a fair and impartial hearing. The court said (333 U.S. 273): "We further hold that failure to afford the petitioner a reasonable opportunity to defend himself against the charge of false and evasive swearing was a denial of due process of law. A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense a right to his day in court are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel." (Emphasis supplied.)
Our holdings in similar cases make it clear that in this class of contempts, due process requires that the charges be established by evidence. In People v. Spain, 307 Ill. 283, the defendant was found guilty of contempt of court for his refusal to answer certain questions before the grand jury. We reversed the conviction and said, (p. 292,) "When Spain was brought before the court on the charges preferred against him by the grand jury, he was entitled to a full and impartial hearing. Proceedings of this character are of necessity summary, but that does not prevent the courts from giving the accused all his rights under the law. He must be given the fullest opportunity to defend himself. [Citing cases.] Where one is charged with criminal contempt he is entitled to the same orderly trial accorded any other defendant. He is presumed to be innocent until his guilt is established beyond a reasonable doubt * * *." (Emphasis supplied.)
In In Re Estate of Kelly, 365 Ill. 174, the defendant was found guilty of direct contempt of court for allegedly knowingly presenting a false will for probate. We considered whether the defendant was charged with direct or indirect contempt and held that the contempt was direct since it had been committed in a constituent part of the court although out of the personal view of the judge. We held since the judge had no personal knowledge of the offense, extrinsic evidence to substantiate the charge was essential. In People v. Howarth, 415 Ill. 499, we again had occasion to consider the distinction between a direct contempt committed in the view of the judge and a direct contempt committed in a constituent part of the court outside the personal presence of the judge, and said, (p. 508) "However, when a direct contempt occurs in a constituent part of the court and not in the immediate presence of the judge, as is the case here, extrinsic evidence is essential to substantiate the charge."
In the present case the record shows that the State introduced no evidence in support of the petition. Counsel for the State said, "The State is ready, Your Honor, and since there is no answer that has been filed, at this time, the State would ask to stand on the petition that is before the court." We think it is clear from a consideration of the authorities discussed herein that due process requires something more. In People v. Spain we held that in cases of this sort, a defendant is presumed innocent until he is proved guilty beyond a reasonable doubt. The Kelly and Howarth cases establish that in such cases extrinsic evidence is necessary to support the charges made in the petition. In the present case the defendant was found guilty without any evidence being heard in support of the petition. In our opinion this procedure deprived him of due process of law and rendered the finding of guilty invalid. The judgment of the criminal court of Cook County is reversed.
Mr. JUSTICE UNDERWOOD took no part in the consideration or decision of this case.
Mr. JUSTICE SCHAEFER, dissenting:
The judgment has been reversed in this case on the ground that it was imperative that extrinsic evidence be introduced to support the allegations of the petition, and no such evidence was offered. But a full reading of the record satisfies me that the trial judge was justified in considering that the respondent had waived his right to answer the allegations of the petition. Since those allegations were not denied, no useful purpose could have been served by requiring extrinsic evidence to establish their truth.
The grand jury subpoena duces tecum, addressed to the Sahara Inn North, Inc., Mandel Skar, President, was issued on March 14, returnable on March 18. It was served on March 15. It recited the pendency before the grand jury of a complaint "against Michael Russo, et al.: an investigation into the theft of building materials from Edmier Inc.", and it called for the production of the following records of Sahara Inn North, Inc.
a. All records of cash receipts and disbursements on all bank accounts since incorporation.
b. All cancelled checks and all bank statements on all accounts since incorporation.
c. All contracts with subcontractors for contracts of the motel at 3939 North Mannheim Road, ...