30 Ill. App. 399 | Ill. App. Ct. | 1889
Lead Opinion
The act entitled “An act to revise the law in relation to the common law,” approved March 5, 1884, and which provides that “ the common law of England, so far as the same is applicable and of a general nature, * * * shall be the rule of decision, and shall be considered as in full force until repealed by legislative authority,” is declaratory of what has been the law by which the inhabitants of the territory now constituting the State of Illinois have been governed, and of the rights, privileges and immunities to which they have been entitled ever since Anglo-Saxon civilization first obtained a foothold in it.
Upon the question of what the common law of England is upon any subject upon which they write, the concurring testimony of Blackstone and Hawkins, the first in his Commentaries, and the last in his Pleas of the Crown, is conclusive. Blackstone, writing of contempts, having described the preliminary proceedings and then referring to courts of equity, proceeds: “And thereafter the party in contempt has answered the interrogatories, such his answer may be contradicted and disproved by affidavits of the adverse party; whereas, in the courts of law, the admission of the party to purge himself by oath is more favorable to his liberty, though perhaps not less dangerous to his conscience; for, if he clears himself by his answers, the complaint is totally dismissed.”
Hawkins states the same, in somewhat similar language. The purging of which they speak is his answer to written interrogatories, taken by a master of the court. 3 Bl. Com. 288; 2 Hawk. P. C. 207, and notes; 3 Burr. 1329. Three different times, the first and last separated by an interval of over twenty years, the Supreme Court of this State have recognized the rule so laid down as correct. Crook v. The People, 16 Ill. 534; Buck v. Buck, 60 Ill. 105; Story v. The People, 79 Ill. 45. Except by statute, there is no legitimate mode by which the judge of a court of law or equity may be informed of facts upon which he is to act by the oral testimony of witnesses delivered in his presence. The authorities, or the dicta, upon which the counsel for the defendants in error ask this court to assume the functions of the Legislature and change this “rule of decision,” in the order cited are: State v. Mathews, 37 N. H. 450, a divorce case, and the contempt was in violating an injunction; Bates’ Case, 55 N. H. 325, in which the only thing decided is that exceptions by Bates to evidence which had been admitted against him were well taken, and they were sustained; Dobbs v. State, 55 Ga. 272; where the court below had heard testimony against Dobbs,, and the Supreme Court reversed the judgment, with no allusion to the propriety of so doing; Crow v. State, 24 Tex. 12, where there was a jury trial, and the Supreme Court said the proceedings were erroneous but that Crow had no appeal, and the ° appeal was dismissed; Sinnott v. State, 11 Lea (Tenn.), 281, in which no question touching the point in issue was made; and the last, Henry v. Ellis, 49 Iowa, 205, in which the court did have before them, and did decide, the point that witnesses might, as in a case of libel, be examined as to how an ambiguous newspaper publication, which Henry acknowledged to be his act, was understood by the readers. The court declines to say that, there was any contempt in -the case, as Henry, in his application for a certiorari, upon which application the decision was made and the writ refused, had not raised the question. There was no-discussion of the law or reference to authorities in the case.
1 have not searched for any additional support to the position of the defendants in error, but assume that the field has been exhausted by the industry of the counsel. Every case except the one from Iowa presents mere dicta, which certainly are no more authoritative than the thrice written dicta of the court whose decisions are paramount as to what the law of this State is. The claim that the loose case from Iowa overbalances the unbroken current of English authority, and the many cases in accord therewith in the United States, would be too preposterous for serious consideration. Jackson v. Smith, 5 Johns. 115; U. S. v. Dodge, 2 Gall. 312; In re Pitman, 1 Curtiss (U. S.), 186; Conover v. Wood, 5 Abb. Pr. 84; State v. Earl, 41 Ind. 464; Burke v. State, 47 Ind. 528.
The plaintiff in error, in answer to the rule to show cause why he should not be attached for contempt in attempting to influence a juror, by his affidavit explicitly, without evasion, denied the whole charge in detail. Without the corroborating affidavits which he presented that denial should have ended the inquiry; unless, indeed, the court called upon hinj to answer, under oath, specific written interrogatories, which would have heen, manifestly, of no practical effect.
The court had jurisdiction of the subject-matter and of the person of the plaintiff in error, but it had no jurisdiction of the mode of proceeding. This distinction is not easily defined (Lange v. Benedict, 73 N. Y. 12) but is easily illustrated. The criminal court, having before it a defendant indicted for an offense, however trivial, has no authority, without his consent, to try the issue of fact. If he pleads guilty, the court may fix the punishment. If he denies the charge against him, the court, unaided, can go no further. The sturdy principles of the common law exempt him from submitting an issue of fact to any other tribunal than a jury of his peers, with the right of challenge. People v. Hanchett, 16 Legal News, 320, is as instructive and almost as persuasive, as authority, as if the eminent judge who decided it had sat where he did when he delivered the opinion in People v. Whitson, 74 Ill. 20.
All the further proceedings, by examining witnesses, were without warrant of law. There is in the record no plausible foundation for the position that they were by consent. The j udgment should be reversed.
Judgment reversed.
Concurrence Opinion
I concur in reversing the order of the Superior Court, but, to guard against any inference that may be drawn as to the limit of the jurisdiction of this court in this class of cases, I think brief reference should be made to another feature presented by counsel for the people. It is ■denied that this court,in criminal contempts, can examine anything beyond the question of jurisdiction of the court below. Whether that rule obtains when the act constituting the contempt is committed in the actual presence of the court, we need not determine. That view was adopted in Clark v. The People, Breese (Beecher’s Ed.) 340, where the fine was imposed for an act in the presence of the justice. There is no present necessity for the expression of doubt concerning the authority of that case, as it was distinguished from a case of constructive contempt in Stuart v. The People, 3 Scam. 395, where the court recognized its duty of obedience to the statute which declared a writ of error a writ of right in' all criminal cases not capital, and where Breese, J., delivering the opinion of the. court, said:
“Perilous, indeed, would be the condition of the citizen if he had not the privilege in such a case to have it reviewed by another tribunal, and defective would be our jurisprudence if it afforded no means of relief.” It is true, as Bapalje, in his work on Contempts, Sec. 141, says, that the judgment of every superior court of record, in cases of contempt, is final and conclusive, and not reviewable by any appellate tribunal unless specially authorized by statute; but in Thompson on Trials, Sec. 124, the application of the rule is limited to cases of contempt committed in the presence of the court.
Foreseeing the difficulty of confining the inquiry in this case to the bare question of jurisdiction if the offense charged should be held to be a constructive contempt, an argument has been presented to prove that the act charged against Welch was a direct contempt, committed in tho. presence of the court.
There is no pretense that the attempt to bribe the juror was made in the actual presence of the judge, or while the court was actually in session. But for the purpose of • bringing this case within the class of direct contempts, reliance is placed upon an expression of the court in Stuart v. The People, to the effect that all acts calculated to impede, embarrass, or obstruct the court in the administration of justice would be considered, as done in the presence of the court. The opinion, however, does not say that every such act would be a direct contempt; and that the writer of the opinion meant that such offenses, not committed in the actual presence of the court, would nevertheless be constructively in its presence, is manifest from his definition, viz: “ Contempts are either direct, such as are offered to the court while sitting as such, and in its presence; or constructive, being offered, not in its presence, but tending, by their operation, to obstruct and embarrass, or prevent the due administration of justice.”
In commenting on this question, the text writers above referred to make no distinction between civil and criminal contempts. Both classes have been uniformly treated in the same manner by the Supreme Court of this State, as shown by the decisions cited in the opinion of Mr. Justice Gary, no case having yet arisen where the court has refused to review the action of the Circuit Court or Superior Courts, on questions other than that of jurisdiction, in cases of constructive contempt.
There is no such limitation as contended to the power of this court.
Moran, J. Upon full and careful consideration of the authorities, I am in complete accord with the opinion of Mr. Justice Gary herein as to the rule of procedure in contempts of a criminal nature. There can be no doubt that the rule and practice is as stated by him, nor can there be any question that it is error for a court to depart from the authorized and established practice in such a contempt proceeding. In this connection^ wish to say that on an occasion that will be remembered by the bar, for it excited general interest, I made the mistake of adopting the practice which was pursued in this case. I did it on but slight investigation as to the correct practice, but I am unwilling to condemn the error of a brother judge without at the same time acknowledging that I committed the like error myself, particularly as my action in that regard may have had some influence in leading him to follow the same practice.
While the rule of practice is as stated, and while the courts are undoubtedly bound by it as a rule of procedure, it is a rule of common law.practice which, in my opinion, does not in our day and generation tend to the promotion of public justice. It is notorious that attempts have been made, not unfrequently, to influence the result of jury trials in this country by corrupting juries. Many persons have an abiding conviction that certain classes of litigants rely for success more on their ability to corrupt jurors than on the merits of their particular cases. It is disclosed by the record that the investigation carried on in this case has exposed one person, at least, as being engaged in the nefarious business, and compelled him to seek safety in flight. There have been exposures from time to time of attempts to bribe j urors, and although there have been trials, so far as 1 can recall, there has never been a conviction in the Criminal Court for such an offense.
All criminal prosecutions have failed, and I believe that the chief restraining influence of jury bribers has been the fear of contempt proceedings for their punishment. It is essential to the pure administration of justice that attempts to corrupt jurors should be summarily and fully investigated, and the guilty persons exposed to public execration and subjected to prompt punishment. There is a plain distinction between acts which tend to corrupt the tribunal and those which merely obstruct its judgment by opposition, or embarrass the execution of its orders or decrees by circumvention or fraud. To impose on the court by false documents or perjured evidence is not so reprehensible in itself, nor so far-reaching or injuri ous in its consequences as to seduce the court or the jury to a false judgment by means of a bribe. In the one case, justice may be misled, to the wrong of a particular party, but in the other, she is herself debauched, to the wrong and injury of the community, and the dangerous weakening of the confidence of the people in one of the most cherished of our institutions. Therefore, contempts of this particular nature should be made exceptions, and the rule of procedure made the same by statute as that which governs in civil contempts in chancery.
Contempt proceedings against j ury-fixers under the common law rule by which the courts are now bound, are idle. A man who will bribe a juror, will, as a rule, purge his contempt by denying the fact in an affidavit, and take his chances in a trial for perjury in the Criminal Court, and will generally go unwhipped of justice. The courts can only declare the law as they find it, and follow it as it is. The Legislature alone can make new laws or change existing methods of trial and rules of procedure, and to the Legislature, those who would make contempt proceedings for jury-bribing effective, must look for a change of the common law rule.
The principles of the common law which guards the citizen against the exercise of uncontrolled judicial discretion, are unquestionably wise, and should be maintained; but, in my opinion, there is, under our system of elective judiciary, less danger to be apprehended from the tyranny of excesses of judges than from the practically unrestrained operations of jury-fixers. As for trial by jury, unless we are able to secure .and preserve it uncorrupted, it were better to abolish it altogether.
What I have said is without reference to the merits as presented by the record. The point on which we have been compelled to decide the case has rendered the examination of the evidence unnecessary.
