People v. Gilbert

• Decision Date: 19 December 1917
• Docket Number: No. 11568.,11568.
• Citation: 281 Ill. 619,118 N.E. 196
• Parties: PEOPLE v. GILBERT.
• Court: Illinois Supreme Court

281 Ill. 619

118 N.E. 196

PEOPLE

v.GILBERT.

No. 11568.

Supreme Court of Illinois.

Dec. 19, 1917.

Error to Appellate Court, Second District, on Error to County Court, Boone County; William C. De Wolf, Judge.

G. W. Gilbert was adjudged guilty of contempt, and from a judgment of the Appellate Court (204 Ill. App. 97), affirming the adjudication, he brings error. Affirmed.

Alexander J. Strom and William L. Pierce, both of Belvidere, for plaintiff in error.

Edward J. Brundage, Atty. Gen., F. A. Oakley, State's Atty., of Belvidere, and Sumner S. Anderson, of Charleston (David R. Joslyn, E. H. Waite, and Paul J. Donovan, all of Woodstock, of counsel), for the People.

DUNCAN, J.

Plaintiff in error, G. W. Gilbert, was found guilty of having committed a contempt of the court in the county court of Boone county, and was sentenced to pay a fine of $150 and to imprisonment in the county jail for 24 hours. A writ of error to the county court was sued out of the Appellate Court for the Second District to review the judgment and sentence of the county court. That court reversed the judgment of the county court, with an order that plaintiff in error be discharged. Subsequently the Appellate Court granted a rehearing, and on February 10, 1917, affirmed the judgment of the county court, and the record has been brought to this court by writ of error for review.

From the record it appears that an election was held in the town of Belvidere upon the question whether or not that territory should be saloon or anti-saloon territory. It further appears that the election resulted in making the town anti-saloon territory, and that a suit had been brought by several parties in the county court to contest that election. The court had entered an order for the counting of ballots, and thereafter, upon argument, the court ruled that the ballots in four of the precincts were not admissible in evidence and should not be counted. The ballots were counted and admitted in evidence in the Third precinct. The county judge called in two other county judges to sit with him, and announced that the other sitting judges would act only in an advisory capacity, and that the decision and rulings in the case would not be the decision and rulings of the three or a majority of the three judges, but would be made solely by himself. The court had previously, on May 20, 1914, entered an order that three commissioners be appointed to assist the court in making a recount of the ballots, and had also appointed two persons to act as clerks in making the recount, all of said parties assisting in said recount to be allowed the sum of $4 per day, to be taxed as costs. The ballots were not opened and recounted in open session of the court, but were removed to the directors' room of the People's Bank, where the recount was made.

A written information was filed November 27, 1914, by David R. Joslyn, state's attorney, charging plaintiff in error with the publication in the Belvidere Journal, a weekly newspaper published in the city of Belvidere, of a certain article alleged to be contemptuous. The said article was published on June 27, 1914, and reads as follows:

‘The Wet and Dry Controversy Still in the Melodrama Stage-Judge De Wolf Makes Grand-Stand Play in Rejecting the Recount of Ballots as Evidence in Four of the Five Wards in the City.

‘We do not presume that we are competent to pass upon such grave questions as was before Judge De Wolf on last Wednesday afternoon.

‘As far as we are concerned there is no material difference whether the final decision is ‘wet’ or ‘dry.’

‘It is our right to propound a few questions to a thinking public for their consideration.

‘Does any one think there were any questions involved that required the presence of three judges sitting en banc?

‘Why did Judge De Wolf not order the count in compliance with the Election Law (sec. 27), which reads as follows:

“In all cases of contested elections the parties contesting the same shall have the right to have the said ballots opened, and have all errors of the judges in counting or refusing to count any ballots corrected by the court or body trying such contest, but such ballots shall be opened only in open court, in open session of such body and in the presence of the officer having custody thereof of the ballots.'

‘The law is as plain as any man could wish and needs no legal mind to construe it, yet Judge De Wolf ordered men to make this count, and after it was made, not in open court but in the private room of the People's Bank, at a cost to the county of $16.00 a day, refuses to admit the count in evidence in four-fifths of the precincts.

‘Why did not Judge De Wolf read all of the decisions cited by the contestants, one of which is as follows: West v. Sloane, 238 Illinois Supreme Court report, page 331. The Supreme Court held under the statute the ballots were admissible in evidence in any event, but their probative force depends upon the care with which they have been preserved. This case was cited by the contestants, but not referred to by Judge De Wolf.

‘It is inconceivable why Judge De Wolf allowed the ballots cast in the Third precinct to be introduced in evidence when the evidence showed that Mr. Alexander, as a judge of elections in the Third precinct, placed the sacks containing the ballots in a room in his home where there were two or three school-teachers boarding, any of which could have tampered with the ballots, and refused to allow the ballots introduced in evidence of the Second precinct on the ground that Mr. Girch took the ballots to his home election night and placed them on the table in a room adjoining his, he having one boarder and his family.

‘He ruled that the Third precinct could be admitted while those in the Second were rejected, yet he says ‘there was no intimation that any of the ballots were tampered with.’

‘In our judgment Judge De Wolf could have admitted all ballots as evidence of their probative force, and, in harmony with the law, by so doing would have thereby furthered the ends of justice, which cannot be reached in any other way.

‘There is a strong desire of the rank and file to have the election gone into to ascertain the true facts, and we feel sure had the people the power to recall decisions, as they should have, this is one that would be recalled.

‘The other two judges who sat with Judge De Wolf have no weight with any thinking man, as advisory guests seldom dissent with their host.

‘In our discussion of this case we are simply bringing out, for the benefit of the public, the questions that present themselves to any inquiring mind, with the hope that justice may prevail in the end. Because we dissent to the opinion of Judge De Wolf does not prove that we are right, but with these few points called to your attention we leave the final judgment to the people.

‘What we try to do is give the facts, and we do not believe that any honest thinking man can blame us when he takes all things that surround this case into consideration.

‘The question will arise in our mind, why? The law is mandatory that these ballots should have been opened and counted in open court.

‘While we do not criticize Judge De Wolf in making the decision, as no doubt it was his honest conviction that the decision as rendered was in keeping with his ideas of justice, yet we claim the right to differ with him regarding his ideas of justice and right, and we do not believe that his decision was in keeping either with the preponderance of the decisions of the Supreme Court or was in harmony with law or public opinion.

‘In cases of this kind the people should have the right to the recall of decisions of the county court, as cases of this kind cannot be reviewed by a higher court. In cases of this kind a county judge becomes an absolute czar.

‘It is conceded that in the Third precinct, where the ballots were properly preserved, the wets made a clear gain of fifteen votes. Taking this as a basis, any man can see what the actual majority would have been if the return made by the judge of the election had been correct.

‘What we want is a square deal-simple, old-fashioned justice.’

At the time of the publication of the article aforesaid the election contest was still pending in the county court and was not finally disposed of until some two weeks after the publication of the alleged contemptuous article. It appears from affidavits filed by some of the parties and their attorneys interested in the contest that the decision of the county court that the ballots of four of the precincts were not admissible in evidence or that they would not be considered as evidence affecting the result of the election was the settling of the main proposition upon which they had based their hopes of success in the election contest, and that while they had not made it known to the court nor to the contestees or their attorneys that the decision by the court would finally necessitate a decision against them as to the final result, yet as a matter of fact, shortly after such decision and before the publication of the said article, they had determined among themselves that they would not further prosecute the suit, as they could not hope to show that there were enough illegal votes cast by voters voting for the town to remain antisaloon territory to change the result of the election, and that they had so informed the plaintiff in error. The affidavits filed on behalf of plaintiff in error do, however, clearly show that at the time said publication was made the contest of election was still pending in said court and that plaintiff in error knew it was still pending.

Plaintiff in error by his sworn answer denied that he either prepared the headlines of said article or that he authorized any one else to prepare them, and therein averred that the article, with the headlines, was published without his knowledge or procurement. He further sets forth in his affidavit that he was reliably and credibly informed...