People v. Brautigan

• Decision Date: 06 February 1924
• Docket Number: No. 15538.,15538.
• Citation: 310 Ill. 472,142 N.E. 208
• Parties: PEOPLE v. BRAUTIGAN.
• Court: Illinois Supreme Court

310 Ill. 472

142 N.E. 208

PEOPLE

v.BRAUTIGAN.

No. 15538.

Supreme Court of Illinois.

Dec. 19, 1923.

Rehearing Denied Feb. 6, 1924.

Error to Criminal Court, Cook County; M. L. McKinley, Judge.

Arnold H. Brautigan was adjudged in contempt of court, and he brings error.

Reversed.

John C. Farwell and Nash & Ahern, all of Chicago (Michael J. Ahern, Thomas E. Swanson, Edward R. Litsinger, and Lorin C. Collins, all of Chicago, of counsel), for plaintiff in error.

Edward J. Brundage, Atty. Gen. (Frederick A. Brown, William P. MacCracken, Jr., and George L. Wire, all of Chicago, of counsel), for the People.

DUNN, J.

Arnold H. Brautigan, the plaintiff in error, while a witness in the criminal court of Cook county before the grand jury, refused to answer certain questions on the ground that the answers might incriminate him and subject him to fines, penalties, and forfeitures. He was brought into open court and persisted in his refusal. An order that he be released from all liability to prosecution or punishment in accordance with section 35 of division 1 of the Criminal Code (Smith-Hurd Rev. St. 1923, c. 38, § 82) was entered by the court, and he was sent back to the grand jury room. He again refused to answer the questions for the same reason he had given before, and having been again brought before the court persisted in his refusal, whereupon the court adjudged him guilty of contempt of court and sentenced him to imprisonment in the county jail for four months. He sued out a writ of error and by his assignments of error avers that it is apparent that answers to the questions asked might incriminate him; that the order entered was not broad enough to protect him from prosecution for crimes which his answers might tend to prove; that the section of the Criminal Code in question does not apply to investigations by grand juries; that the grand jury was not legally organized and all of its proceedings were void; and that there were various irregularities of procedure which denied to the plaintiff in error due process of law and rendered all the proceedings void.

The terms of the criminal court of Cook county are held monthly, beginning on the first Monday of the month. The record shows that at the August term, 1922, on the first Monday of the month, a grand jury was duly impaneled, sworn, and charged by the court, and that the same thing occurred in each succeeding month, to and including May, 1923. On the last day of the August term, 1922, an order was entered on the motion and petition of the state's attorney of Cook county, reciting that the court finds that it is for the best interest of public justice that the regular grand jury of Cook county be continued to the September term of the criminal court, in order, and for the sole purpose, that the grand jury may be enabled to complete its investigation of the alleged violations of criminal law by present and former members of the board of education of the city of Chicago and by present and former employees of said board, and by persons and firms doing business with said board or who have heretofore done business with said board, and by any persons acting in criminal concert with any of the aforesaid persons or firms; and it was therefore ordered that the regular grand jury of Cook county for the August term, 1922, was thereby continued to the September term, 1922, of the criminal court of Cook county, and was directed to continue its investigation in relation to the alleged violations of criminal law by the persons recited in the previous part of the order. A like order was entered on the last day of the September term and of then October term continuing the grand jury to the next term. Similar orders were entered on the last day of the November term on the motion of the state's attorney and the Attorney General, and on the last day of the January term on the motion of the Attorney General. On the last day of the February term on motion of the Attorney General a like order was made, which also directed the grand jury, in addition to the investigations which it had been engaged upon, ‘to investigate alleged violations of criminal law by present and former officers, employees and agents of the city of Chicago, Ill., and by persons and firms doing business with the said city of Chicago, its officers, agents and employees, or who have heretofore done business with said city of Chicago, its officers, employees or agents, and with persons and firms acting in criminal concert with any of the aforesaid persons or firms, and to consider no other matters whatsoever.’ The same order was entered on the last day of the March term and of the April term. It was at the May term, 1923, that the plaintiff in error appeared before the grand jury and the events which are the subject of this proceeding occurred.

At common law the sheriff of every county was bound to return to every session of the peace and every commission of oyer and terminer and of general gaol delivery 24 good and lawful men, who were sworn to the number of 12 at least and not more than 23, and constitute the grand jury, to whom indictments were presented for their consideration and action. 4 Blackstone'sCom. 302. Though the statute of this state does not in express language require a grand jury to be summoned at every term of the circuit court or at any term, such requirement has been assumed, in accordance with the proceedings at common law, unless the statute has expressly provided that no grand jury be summoned. The first three sections of division 11 of the Criminal Code (sections 711-713) direct that the grand jury, having been impaneled and instructed by the court, shall retire to their room to consider such matters as may be brought before them; that they shall present all offenses cognizable by the court at which they attend; and that if they are dismissed before the court adjourns they may be summoned again on any special cases at such time as the court directs. The act of May 2, 1873, ‘concerning circuit courts, and to fix the times for holding the same in the several counties in the judicial circuits in the state of Illinois, exclusive of the county of Cook’ (Rev. Stat. 1874, p. 334), made no reference to either grand or petit jury, except to provide in section 2 that when in the opinion of the judge it should not be necessary for the speedy administration of justice to summon a grand and petit jury, or either of them, he might by an order dispense with either or both of such juries for any term or part of a term. The act of 1915, ‘to revise the law concerning the time of holding the terms of circuit court and of the calling of juries in the several judicial circuits exclusive of Cook county’ (Laws of 1915, p. 353), retains section 2 substantially as section 19 of the latter act, fixed the time for holding the circuit courts in the various counties of the state except Cook, and establishes special regulations as to calling grand and petit juries in certain counties. It provides that at certain terms of court in certain counties no grand jury or no petit jury, or neither a grand nor petit jury, shall be summoned, unless by the order of the court or judge, and as to all other terms of court and all other counties there is no provision of any statute requiring a grand jury to be summoned, but the requirement is left as at common law by which a grand jury was summoned. The powers of the criminal court of Cook county and the judges thereof, and the proceedings, process, and practice in the court, and the same as those of the circuit court and the judges thereof. Rev. Stat. 1874, p. 339.

The grand jury at common law sat through the term unless its duties were sooner completed, and its existence ceased with the term. Two grand juries were summoned in the county of Middlesex and in the county of Suffolk, while in Yorkshire one panel of 48 freeholders and copyholders only could be returned to serve in the assizes, and at the sessions only 40 could be returned on the panel. 1 Chitty on Crim. Law, 157, 310, 311. These were special exceptions, there being under the common law of England, except in these instances, but one grand jury, consisting of not less than 12 or more than 23 men. 1 Chitty on Crim. Law, 310. Another grand jury might be summoned on two occasions, the first when before the end of the sessions the grand jury, having brought in its bills, was discharged by the court and after its discharge either some new offense was committed and the party taken and brought into gaol, or when, after the discharge of the grand inquest, some offender was taken and brought in before the conclusion of the sessions. The other instance of a new grand jury being sworn was when it was to inquire, under the statute 3 Henry VII, ch. 1, of the concealment of a former inquest. This was anciently the proper mode of punishing the grand jurors if they refused to present such things as were within their charge of which they had sufficient evidence. This latter case may be disregarded, for it fell into disuse many years ago, and the practice which has been since followed, instead of impeaching the grand jury who failed to find a true bill, was to present an indictment to another grand jury. The common-law power of the court to call a special grand jury, since the practice of impeachment of the grand jury has been abandoned, has been limited to cases of offenses committed after the grand jury has been discharged or when some offender has been...