Appeal from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding. Reversed.
Rehearing denied July 10, 1968.
Respondent appeals from an order finding that he wilfully and contumaciously failed to appear in court upon the date set for trial of one Rice, charged with forgery. The court imposed a fine of $100 for criminal contempt.
The essential question is whether the respondent was, in fact, properly considered an attorney of record for the defendant Rice upon the indictment to be tried. The issue is created through the following facts upon which there is no substantial dispute. Respondent is an attorney residing and practicing law in Cook County. Rice and two others were arrested upon complaints charging forgery and respondent made appearance in the magistrate division of Champaign County in behalf of such defendants on November 21, 1966, apparently as the result of the efforts by the family or a friend of defendant, Rice. Motions for the reduction of bonds were subsequently made and on November 29th respondent participated in the preliminary hearings before the magistrate, at which time defendants were bound over to the grand jury. Respondent, thereafter, filed habeas corpus proceedings in behalf of each defendant in the general division of the circuit court to reduce the bonds. An indictment was returned as to Rice on December 20, 1966, and arraignment was set for December 28, 1966. Respondent received notice, apparently in the form of a letter, from the State's Attorney, but did not appear at the arraignment. Respondent admitted that he had made no motion to withdraw as counsel following the indictment, and that there was no oral or written advice to the defendant Rice that he would not appear to defend.
On February 23, 1967, the Rice indictment was set for trial on March 13th, and on February 27th the State's Attorney's office sent a letter:
". . . mailed according to an affidavit of mailing attached thereto, to Abe Rice and Delias (sic) C. Bracy."
This letter is not in the record.
On March 9th, in a telephone conservation with the Assistant State's Attorney handling the Rice matter, respondent stated that he was not representing the defendants upon the indictments. In a statement to the court made on March 13th, the Assistant State's Attorney characterized respondent's statement that he was not defending Rice as clear and definite, and further advised that respondent had so told a member of Rice's family or a friend.
The record shows a statement of the Assistant State's Attorney that he advised the court on March 10th of respondent's position, although the court's finding is that the court was first advised that respondent was not appearing, in a telephone conversation on March 14th. In the telephone conversation on March 9th, the Assistant State's Attorney stated to respondent that in the former's opinion he was still bound to defend the cases.
On March 13th, the Rice indictment was called for trial, with jurors on hand, but respondent was not present. The trial was recessed while a telephone call was placed to his office, but respondent was absent and the call was not returned that day. Thereupon the court, by docket entry, ordered a citation returnable on March 16th to issue requiring respondent to show cause why he should not be held in contempt for failure to appear for the trial of Rice.
Upon March 14th, respondent returned the telephone call made by the trial judge on the previous day, at which time he advised that he did not represent Rice.
It is not helpful to discuss at length the opposing views of the briefs as to whether or not these proceedings should be classed as direct or indirect contempt. It is apparent that the trial judge was required to consider extrinsic evidence as to matters of fact not within his personal knowledge so that the requirements of due process were invoked, i.e., reasonable notice, the right to counsel, pleadings as appropriate and the examination of witnesses. People v. Skar, 30 Ill.2d 491, 198 N.E.2d 101; People v. Buster, 77 Ill. App.2d 224, 222 N.E.2d 31; People v. Gholson, 412 Ill. 294, 106 N.E.2d 333.
While the record shows receipt by respondent on March 16th of the clerk's notice setting the citation for that morning, and that he thereafter travelled to Champaign to appear at such hearing, it also appears that he was advised by a telephone conversation with the trial judge on the morning of March 14th that a citation had issued and that he should appear on March 16th. He appeared without counsel. There was no motion for continuance for purposes of preparing an answer or other appropriate pleading, and no request that witnesses be sworn or cross-examined. He made no objection to proceeding through statements by himself and the Assistant State's Attorney to the court, and by colloquy between the court and himself. Under such circumstances no issue of due process was preserved upon review.
It is the position of the trial judge that:
"So far as this case of Abe Rice is concerned this is a continuing matter on the docket sheet. . . . it starts with November 18, 1966. . . . on November 21st, it was called by agreement and you were down here. This was the first appearance, ...