Appeal from the Circuit Court of Cook County, County
Department, Criminal Division; the Hon. ALEXANDER J. NAPOLI,
Judge, presiding. Reversed and summons quashed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
MR. JUSTICE ENGLISH delivered the opinion of the court.
There is involved here an appeal in a proceeding to secure the attendance of an Illinois witness to testify before a grand jury in Massachusetts. This extraordinary action, unknown to common law, was brought under a "Uniform Act" which has been adopted in many states over the past thirty years but enacted by the Illinois legislature only in 1959, and this is the first case in which the statute has been construed by a court of this state. Ill Rev Stats, c 38, § 156-1, et seq. The trial court, by order entered and summons issued on March 31, 1965, directed the respondent to attend for the purpose of testifying before the grand jury in Boston on April 12, 1965, and there to produce certain books and records of which he is the custodian. *fn1 Respondent has appealed, and with remarkable dispatch filed the record in this court on April 6. Extensive oral arguments were heard on April 8.
The primary contention for reversal is that there was insufficient showing in the trial court that respondent is a material and necessary witness. It is also argued that the statute does not authorize a summons or subpoena directing the production of documents.
The paragraphs of the statute pertinent to consideration of these points read as follows:
"Witness," as used in this act, shall include a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding.
The word "summons" shall include a subpoena, order or other notice requiring the appearance of a witness.
§ 156-2. Summoning witness in this state to testify in another state.
If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution, or grand jury investigation, and his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.
If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence (and of any other state through which the witness may be required to pass by ordinary course of travel), will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.
The parties agree that the extent to which the application of this act can impinge upon the personal affairs and liberties of an individual requires strict construction of the statute. In re Mayers, 9 Misc.2d 212, 169 NYS2d 839, 840.
On March 1, 1965 there was filed in the Circuit Court of Cook County a duly exemplified certificate of the Chief Justice of the Superior Court, Suffolk County, Massachusetts, stating in its relevant parts:
1. That there is now a sitting of the Grand Jury of the County of Suffolk, which Grand Jury will be conducting an investigation and proceeding relative to the ...