Appeal from the Circuit Court of Peoria County; the Hon.
CHARLES IBEN, Judge, presiding. Judgment reversed.
This is an appeal from an order of the Circuit Court of Peoria County which found the Respondent-Appellant James Lewis, guilty of civil contempt for violation of a permanent injunction and sentenced the respondent to serve one year in the county jail.
On September 6, 1961, on the relation of the State's Attorney, a permanent injunction was issued by default by the Circuit Court of Peoria County against the respondent James Lewis. The permanent injunction restrained Lewis from owning or operating any premises within the jurisdiction of the court for the purposes of prostitution, etc., including specifically, the premises at 610 South West Jefferson, Peoria, Illinois. On October 22, 1967, the State's Attorney filed a petition for a rule on respondent to show cause why he should not be held in contempt of court for violation of the permanent injunction. The petition alleged that the respondent Lewis had an equitable interest in a house of assignation, being the premises at 610 South West Jefferson Street, Peoria, Illinois. The petition also alleged that the respondent Lewis was present in such house of assignation on January 11, 1967, and October 20, 1967, while said premises were being used as a house of prostitution.
Hearing on the rule was set for 10 o'clock a.m., January 29, 1968. Lewis did not appear personally at that time although his attorney indicated that Lewis had been notified of the hearing by certified mail. The hearing was recessed until the afternoon but again Lewis did not personally appear. The hearing however commenced in Lewis's absence and he did not personally attend the hearing until the last witness for the State had nearly finished his testimony.
After hearing, the respondent Lewis was found guilty of violating the permanent injunction and sentenced to serve one year in the county jail, from which order he has appealed. Respondent has made several assignments of error. However, the only alleged error which we believe we need consider is his contention that the State failed to sustain its burden of proof in that it failed to produce any evidence in support of an essential element of its case. This was respondent's argument in the trial court and it is again renewed here, both parties conceding that it is the principal issue of the case.
The State presented the testimony of seven witnesses and certain documentary exhibits, the respondent making no objection to any of the evidence so presented. The respondent introduced no evidence. Although it may be said that the facts are undisputed, the reasonable inferences to be drawn therefrom are disputed and constitute the central issue of this case.
Since the sufficiency of the evidence is the principal issue in this case a summary of the significant evidence relied upon by the State to support its position is required.
Seven persons testified at the hearing, namely an attorney, four police officers, the Clerk of the Court and a patron.
Two police officers testified that on January 11, 1967, they executed a search warrant (unrelated to prostitution) for the premises in question. One officer testified that in searching the upstairs he observed a couple having sexual intercourse. Each officer saw respondent Lewis in the kitchen drinking coffee with other persons. Neither officer testified to any conversations with Lewis or as to any conduct of Lewis except his presence.
One Robert Angel, a tugboat employee, testified that on October 19, 1967, he went to the premises for the purpose of prostitution, was solicited for that purpose by one Pam Miller, and that the intended services were rendered for which he paid $20. Angel's testimony is devoid of any reference to respondent Lewis. After he left the premises he was apparently questioned by the police, no reason therefor appearing from the record, and as a consequence a search warrant was issued based on prostitution.
The next two police officers testified that they executed the search warrant heretofore referred to, and conducted a search of the premises on October 20, 1967. So far as Lewis is concerned they testified that he again was present in the kitchen with other persons but no conversations or other conduct are described. Apparently some men in the living room were arrested as "frequenters."
The Clerk of the Court testified concerning certain records in his office namely injunction orders concerning the premises in question and two other premises, and also identified the search warrant served on October 20, 1967.
In summarizing the evidence presented by the testimony of the six witnesses it can be said that Lewis was on the premises on January 11 and October 20, 1967, and that prostitution did take place on the premises with Lewis's knowledge thereof. However, there is nothing in such evidence from which it can be inferred that Lewis exercised any control or ownership of the premises, was responsible for the prostitution which occurred or that his presence was other than that of a friend, guest or customer. The State appears to concede that this evidence standing alone would be insufficient to justify a finding that respondent violated the injunction, lacking as it does any indication that Lewis owned, operated or controlled the premises.
This brings us to a consideration of the testimony of Walter Winget, an attorney. Although he testified first we are considering his testimony last since it is the evidence principally relied upon by the State to support its contention that Lewis had an equitable interest in the property. He testified that prior to 1958 the premises were owned by a Dr. Dixon. In 1958 the Dixons entered into an agreement for warranty deed with respondent Lewis for the purchase of the property. The agreement contemplated monthly payments and included a provision that the interest of the purchaser Lewis could not be transferred without the consent of the sellers. Dr. Dixon died in 1965, his widow was appointed executor of his estate, and the witness thereafter represented such executor. In November, 1967, preparatory to instituting proceedings to forfeit the contract for nonpayment, the witness, in searching the real ...