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People v. Gray





APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.


Defendant brings this appeal from a judgment in a bench trial finding him guilty of aggravated battery and sentencing him to a term of from one to three years. His only contention on appeal is that he was twice placed in jeopardy for the same offense.

In a prior divorce action, the court had issued a protective order enjoining defendant from striking, molesting and/or hitting his wife. He subsequently struck her with a gun and then shot her. An emergency petition was brought on behalf of his wife, asking that he be held in contempt of court. It appears that a hearing was held on this petition in which defendant was found to have been in wilful contempt and was sentenced to serve six months in the Cook County jail. In his contempt order, the trial judge first noted that defendant had been taken into custody and charged with the attempt murder of his wife, and then the order stated:

"Both parties and their attorneys being in open court and the court having heard testimony of the litigants and witness and being fully advised in the premises finds that the court has jurisdiction of the parties and the subject matter hereto and further finds that the defendant is in willful contempt of this court for assaulting and shooting the plaintiff * * *."

Thereafter, he was indicted for aggravated battery and the attempt murder of his wife. His motion to dismiss on double jeopardy grounds was subsequently denied.

The sole issue presented for review concerns whether double jeopardy prohibits a criminal prosecution for acts that have previously been punished as an indirect criminal contempt.


• 1, 2 Contempt can be either civil or criminal. (People v. Gholson, 412 Ill. 294, 106 N.E.2d 333.) A civil contempt is coercive in nature, designed to benefit a party to the litigation. (Cook County v. Lloyd A. Fry Roofing Co., 13 Ill. App.3d 244, 300 N.E.2d 830, rev'd on other grounds, 59 Ill.2d 131, 319 N.E.2d 472.) The contemnor is said to hold the keys to his own cell in that he may purge himself of the contempt by obeying the court order. (Sullivan v. Sullivan, 16 Ill. App.3d 549, 306 N.E.2d 604.) A criminal contempt, on the other hand, is punitive and the interest served is the protection of the judicial process. (Kay v. Kay, 22 Ill. App.3d 530, 318 N.E.2d 9.) The contemnor is sentenced to a definite term and is unable to avoid the punishment by complying with the court order. (Lloyd A. Fry Roofing Co.) A criminal contempt may be direct if it is committed within the presence of the court, or indirect if proof of extrinsic facts are necessary to prove the contempt. (McAdams v. Smith, 25 Ill. App.2d 237, 166 N.E.2d 446.) A direct contempt may be punished summarily (United States v. Rollerson (D.D.C. 1970), 308 F. Supp. 1014, aff'd, 449 F.2d 1000); whereas, an indirect contempt proceeding must satisfy due process safeguards (People v. Javaras, 51 Ill.2d 296, 281 N.E.2d 670).

In the instant case, the parties are in agreement that defendant was initially punished for an indirect criminal contempt. We are in accord with this view, because defendant was sentenced to a fixed term which he could not have avoided by compliance with any court order and because the acts occurred out of the court's presence. (See Lloyd A. Fry Roofing Co.; McAdams.) We are thus left with the determination of whether his subsequent conviction of aggravated battery constituted double jeopardy.

Prohibitions against a defendant being twice placed in jeopardy for the same offense are contained in the constitutions of both the United States and Illinois. (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10.) The Federal prohibition has been held to apply to the States through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056.

Double jeopardy would have no application in this case if we were to accept the State's position in its brief that contempt proceedings here were civil in nature, because it is a settled rule that as the double jeopardy prohibition applies only to criminal proceedings, a criminal prosecution would not be barred by a prior civil action. *fn1 (22 C.J.S. Criminal Law § 240 (1961); cf. People v. Kapande, 23 Ill.2d 230, 177 N.E.2d 825.) However, the United States Supreme Court in Bloom v. Illinois, 391 U.S. 194, 201, 20 L.Ed.2d 522, 528, 88 S.Ct. 1477, has clearly held that criminal contempt is a criminal offense.

"Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes:

"These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.' Gompers v. United States, 233 U.S. 604, 610 (1914).

Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem ...

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