APPEAL from the Circuit Court of McLean County; the Hon.
SAMUEL GLENN HARROD, III, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Appellant appeals a finding that he was in contempt of court and a sentence imposed under the following order:
After finding that witness Aaron PATRICK had previously waived the 5th Amendment and ordering him to testify,
It is found that respondent Aaron PATRICK is guilty of wilful contempt for continuing to refuse to testify.
It is ordered that the clerk issue a mittimus directing the sheriff to take and keep custody of Aaron PATRICK or until 10 September 1972 or until released by process of law."
There is no record of the proceedings and the facts are ascertained from a certain stipulation of the State's Attorney and counsel for the defendant, which includes the following:
In September of 1971, appellant was served a subpoena to testify as a defense witness in a cause in litigation before the Circuit Court of McLean County, said cause being entitled People v. Stiles. He appeared without counsel and was questioned by defense counsel and by Paul R. Welch, State's Attorney of McLean County, as a witness in that trial. Defense counsel, in the matter of People v. Stiles, sought to elicit from appellant, as a witness in such case, that the witness had participated in the burglary with the defendant Stiles, and that at the time of the burglary he had been a police informer or police agent. Appellant denied participation in the burglary and denied being a police informer. Subsequent to such testimony, the trial judge suggested to the prosecutor and to defendant Stiles' attorney that the court believed that appellant may have committed perjury in his testimony. No such charges were brought or prosecuted as to appellant. However, he was subsequently advised that the trial court had indicated that perjury may have been committed by appellant.
On March 10, 1972, the appellant was subpoenaed to testify for the defense in the trial of Robert Stufflebeam, in the Circuit Court of McLean County with the present judge presiding. The trial of Stufflebeam concerned the same factual occurrence as the 1971 burglary case hereinbefore referred to as People v. Stiles. Appellant was still without counsel, and was again asked questions with reference to the burglary and his involvement therein. He refused to answer said questions on the ground that he might incriminate himself. The trial judge found that his denials of participation made in the prior trial had constituted a waiver of privilege against self-incrimination. When defendant still declined to answer, the trial judge then ordered the appellant immediately incarcerated for contempt of court and entered instanter the order quoted.
After the entry of the order defendant procured counsel who moved that bond be fixed and that defendant be permitted to purge himself of contempt. The court refused to hear arguments or proceed on the motion for purgation, although no objection was made. Bond pending appeal was denied in the trial court, but fixed in this court.
• 1, 2 The trial court erred in concluding that testimony by appellant in the trial of Stiles constituted a waiver of his privilege against self-incrimination in the present proceeding. In People v. Walker, 28 Ill.2d 585, 192 N.E.2d 819, it was asserted that defendant had waived his privilege against self-incrimination by voluntarily testifying both upon his application for probation and before a grand jury. The court stated that the doctrine of waiver is limited to the particular proceeding in which the voluntary testimony is given and testimony at a first trial is not a waiver of self-incrimination claimed at a subsequent trial. In In re Neff, 206 F.2d 149, 36 A.L.R.2d 1398, the court said:
"It is settled by the overwhelming weight of authority that a person who has waived his privilege of silence in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding. The privilege attaches to the witness in each particular case in which he may be called on to testify, and whether or not he may claim it is to be determined without reference to what he said when testifying as a witness on some other trial, or on a former trial of the same case, and without reference to his declarations at some other time or place."
This rule was followed in Ottomano v. United States, 468 F.2d 269.
• 3, 4 It appears that the trial court assumed that the proceedings might be treated as a direct criminal contempt. As such a proceeding, there is no adequate order nor is there any record supporting the finding. It was ...