Elwell v. United States

• Decision Date: 11 January 1921
• Docket Number: 2829.
• Citation: 275 F. 775
• Parties: ELWELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

275 F. 775

ELWELL v. UNITED STATES.

No. 2829.

United States Court of Appeals, Seventh Circuit.

January 11, 1921

Rehearing Denied June 16, 1921.

On Petition for Rehearing.

Roy D Keehn, of Chicago, Ill. (Charles Center Case and Edward G Woods, both of Chicago, Ill., of counsel), for plaintiff in error.

Rex Mackenzie, of Chicago, Ill., for the United States.

Before BAKER, EVANS, and PAGE, Circuit Judges.

PAGE Circuit Judge.

This is a writ of error prosecuted to reverse an order of the United States District Court for the Northern District of Illinois Eastern Division, adjudging the plaintiff in error (herein called plaintiff) guilty of contempt of court.

Because of the publication in the Chicago Evening American on January 26, 1920, of alleged facts said to have been gathered for presentation to, and touching a matter then pending before, a grand jury duly impaneled at the December, 1919, term of the said court, the grand jury was inquiring into the origin of such publication. In response to a subpoena, plaintiff, on February 3, 1920, appeared before the grand jury, and, being interrogated, said he knew who wrote the article in question, but refused to divulge the name, saying:

'If newspapers do not protect people who furnish them news, it would be impossible for them to get news.'

Pursuant to petition by the grand jury, setting up such refusal to answer, plaintiff was ordered by the District Court to appear and show cause why he should not be required to answer the questions or be punished for contempt. Plaintiff appeared before the court and filed his answer, alleging: First, that the term for which the grand jury had been impaneled had terminated, and therefore the grand jury had ceased to exist; second, he admitted the publication as charged and set out, but justified refusal to answer, because such answer would tend to incriminate him under the statute of Illinois relating to criminal libel; third, he set out in full the article as published; fourth, he admitted that he was city editor of the paper publishing the article, and specified many, if not all, of his duties as such; fifth, he admitted that he appeared, as charged, before the grand jury and was questioned regarding the article, that he responded to the questions as set out in the petition, that the testimony was given reluctantly and under compulsion, that at the time he had no opportunity and had not consulted with counsel, that he since such time had advised with counsel, and averred that answers to questions which he declined to answer as aforesaid might tend to incriminate him; sixth, that he ought not to be required to answer any question which might tend to incriminate him, and asked all the immunities and privileges granted him by law, including those guaranteed by the Fifth Amendment to the Constitution of the United States, and that he be not required to answer such questions, or any of them, and that he be discharged.

Upon the hearing, the court found that the petition was true, and the information sought to be adduced was necessary and proper, in order to enable the grand jury to comply with the order of the court, and ordered plaintiff to appear on March 15, 1920, before the grand jury, and answer the questions set forth in the petition. On the 15th day of March, 1920, the grand jury filed its further petition in the District Court. The language of the petition, in part, is:

'And this honorable court did, on the 12th day of March, 1920, enter an order directing the said Hector H. Elwell to appear on March 15, 1920, at 2 o'clock p.m., before the said grand jury and answer said questions set forth in said petition hereinabove referred to. Your petitioner further represents unto your honor that the said Hector H. Elwell did appear before the said grand jury on the day and the hour above set forth in the petition hereinbefore filed before this honorable court, and the said Hector H. Elwell then and there declined to answer said questions.'

It is probable that the grand jury used the above underscored word 'petition' instead of the word 'order.' Upon the filing of said petition, the District Court, on the 15th day of March, entered the following order:

'This matter coming on to be heard upon the order heretofore entered herein by this court on, to wit, the 12th day of March, A.D. 1920, ordering Hector H. Elwell to appear forthwith before the said grand jury and to answer the certain questions set forth in the certain petition of the said grand jury heretofore filed herein, as set forth in said order last hereinabove referred to; and the court having heard the arguments of counsel in the premises; and it appearing to the court that the said Hector H. Elwell has wholly refused to comply with the said order of March 12, A.D. 1920, hereinabove referred to: The court doth find that the said Hector H. Elwell has willfully refused to answer the said questions above referred to, as he was ordered to do, as aforesaid, and has willfully refused to comply with said order last hereinabove referred to. Therefore it is hereby adjudged that the said Hector H. Elwell is guilty of a contempt of this court in having so willfully refused, as aforesaid, and to comply with said order. It is therefore ordered, adjudged, and decreed that the said Hector H. Elwell forthwith pay to the clerk of this court a fine of $500, and that the said Hector H. Elwell be imprisoned in the common jail of Cook County, there to remain charged with contempt, until he answers the said questions as aforesaid, and that a warrant for said commitment issue to carry this judgment into effect.'

Plaintiff, on March 24th, appeared before the District Court and moved to vacate and set aside the last entered order, quash the order for commitment, and dismiss and discharge the respondent, for the following reasons, stated in writing: That he had not willfully refused to answer the questions or wholly refused to comply with the previous order of March 12, 1920; that there was no grand jury; that the persons who had theretofore been a grand jury assembled on March 15th and assumed to act as a grand jury, and that plaintiff appeared before them; that certain questions were asked him, and that his response to such as he failed to answer was set forth in 'Exhibit A' attached to said motion. Referring to the person who wrote the published article, the question asked plaintiff was, 'Will you tell the grand jury the name of that man? ' 'Exhibit A,' so far as material, is:

'I regret that I must decline to answer the question. * * * I decline to answer, because my answer might tend to incriminate me. I regret I cannot explain how or why my answer might tend to incriminate me, because such explanation might tend to incriminate me.'

1. The question as to whether there was a grand jury before which plaintiff could be required to answer is partially disposed of by plaintiff's own motion, which says:

'The said persons who had composed the December, 1919, grand jury aforesaid, after separating as aforesaid, did not thereafter assemble until on March 15, 1920, * * * when they assembled and assumed to act as a grand jury.'

It is admitted that the grand jury during the December term was legal. The motion shows a de facto grand jury on March 15, 1920. Section 284 of the Judicial Code (Comp. St. Sec. 1261), referring to the District Court, provides:

'And said court may in term order a grand jury to be summoned at such time, and to serve such time as it may direct.'

An order of the District Court entered January 31, 1920, showed unfinished business before the grand jury, and expressly continued its existence to finish business then before it. See United States v. Rockefeller, 221 Fed.at page 466; People v. McCauley, 256 Ill. 504, at page 509, 100 N.E. 182, Ann. Cas. 1913E, 318. There is some claim that the formal order continuing the jury is not properly shown. In any event the court that originally organized it was treating it as a bona fide grand jury, and it was doing the business ordered by the court.

2. It is contended that when the order of March 15, 1920, was entered there was nothing before the court to show that plaintiff did not appear and answer questions as commanded in the order of March 12th. This contention is based upon the claim that the petition filed March 15th fixed the time of plaintiff's appearance before the grand jury by an obviously inadvertent reference to a petition which had no existence. Despite the use of the word 'petition,' we are of opinion that it was clearly shown that plaintiff appeared before the grand jury on March 15th, pursuant to the court's order of March 12th, and that he there refused to answer the questions. (See reference to grand jury's petition of March 15th, supra.)

3. It is argued, too, that plaintiff was not present when the order of March 15th was entered; but his motion makes no such contention, and the order shows that the court heard arguments of counsel, and that it appeared that plaintiff wholly refused to comply with the order of March 12th. His motion shows that he was before the grand jury on March 15th and refused to answer. Every utterance of plaintiff, from his first appearance before the grand jury to the end of the record, shows, not compliance, but refusal to comply, so that, unless the plaintiff was to be excused because of his claim made under the Fifth Amendment, the only thing the court could have done, at the hearing on plaintiff's motion, was to deny it, or else set the order of March 15th aside and immediately re-enter it as of March 24, 1920, which would have been an idle and purposeless ceremony.

4. Plaintiff's main contention is based upon the question raised by the following answers to the grand jury,...