People v. Sherwin

• Citation: 334 Ill. 609,166 N.E. 513
• Decision Date: 05 June 1929
• Docket Number: No. 18040.,18040.
• Parties: PEOPLE v. SHERWIN.
• Court: Supreme Court of Illinois

334 Ill. 609

166 N.E. 513

PEOPLE

v.SHERWIN.

No. 18040.

Supreme Court of Illinois.

April 20, 1929.

Rehearing Denied June 5, 1929.

Error to Third Branch, Appellate Court, First District, on Writ of Error to Circuit Court, Cook County; Harry M. Fisher, Judge.

Lionel A. Sherwin was found guilty of contempt of court, and judgment was affirmed by the Appellate Court, First District, and defendant brings error.

Affirmed.Laramie & Sherwin, of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and James B. Searcy, of Springfield (Henry T. Chace, Jr., and Edward E. Wilson, both of Chicago, of counsel), for the People.

DUNCAN, J.

The circuit court of Cook county entered an order and judgment finding the plaintiff in error, Lionel A. Sherwin, guilty of a direct contempt of that court, assessed a fine of $300 against him, and entered an order that in default of payment of the fine he be committed to the jail of Cook county for a period not to exceed 30 days or until he might be otherwise discharged by due course of law. Plaintiff in error sued out a writ of error in the Appellate Court for the First district for the review of the record, and that court affirmed the judgment of the circuit court. He sued out a writ of error in this court for a further review of the record.

The record shows by its recitals that plaintiff in error was attorney for the defendants in the case of Steve Toht v. Louis K.Brown et al., No. 101201, which was pending for trial in the circuit court of Cook county on the docket of Judge Torrison, of that court; that while the case was so pending for trial plaintiff in error was served with notice by the attorney for the plaintiff in that case that said attorney would appear at a certain time before Judge Torrison and file a petition charging plaintiff in error with ‘criminal constructive contempt’; that a rule was entered by Judge Torrison requiring plaintiff in error to answer the petition charging him with such contempt; that plaintiff in error filed his answer under oath denying the allegations of the petition and that the case was set for a hearing; that after hearing the evidence Judge Torrison entered an order finding plaintiff in error not guilty of such contempt, but in his order made findings of fact that seem to have been very objectionable to plaintiff in error; that after the order finding him not guilty of contempt had been entered by Judge Torrison the case was assigned to Judge Harry M. Fisher, another judge of the circuit court, and while it was pending for trial before Judge Fisher, and on November 2, 1925, plaintiff in error presented to Judge Fisher and filed in the circuit court in said case his petition, in which he asked to have the findings of fact entered in the contempt proceedings of Judge Torrison expunged from the record. It was for the presenting and filing of this petition before Judge Fisher that plaintiff in error was found guilty of direct contempt, and it was Judge Fisher, presiding as circuit judge, who entered the order and judgment which plaintiff in error now asks to have reviewed by this writ of error.

The petition of plaintiff in error sets out that prior to the time the charge of contempt was filed against him before Judge Torrison, the latter had shown a vindictive and hostile spirit toward plaintiff in error to such an extent that plaintiff in error had advised his clients who had cases pending before Judge Torrison that he could not represent them in the court of said judge, and that in one case, at the request of his client, plaintiff in error had prepared a petition for change of venue from Judge Torrison, which had been allowed, and that in another case the hostility of Judge Torrison toward plaintiff in error was very pronounced and apparent.

The petition of plaintiff in error contains, among others, the following allegations: ‘When this cause came on the 8th of October on petition and sworn answer to the rule, petitioner asked what was there more to be heard, and stated to Judge Torrison that petitioner must be judged on his answer. Judge Torrison refused to follow the law of the state of Illinois and directed that a hearing be had and heard oral evidence contrary to the law of the state of Illinois, and notwithstanding the fact that such oral evidence clearly vindicated petitioner of any wrongdoing said Judge Torrison entered a finding of facts in an order so entered in this cause on April 21, 1925, and in the same order, in the last paragraph, discharged the rule and found your petitioner not guilty, though by his findings of fact as set up in said order, judgment or decree, or whatever it is which Judge Torrison filed in this case on April 21, 1925, though untrue and not supported by any legal or competent evidence, finds certain facts against petitioner, with the sole aim and purpose to humiliate and shame petitioner and blast the reputation of the petitioner.’ The prayer of the petition is as follows: ‘Petitioner now prays that this so-called order, judgment or decree, or whatever it may be called, of April 21, 1925, and particularly pages 1, 2, and 3, and all but paragraph 4 on page 4, be expunged from the records of this court; and your petitioner prays for other and further relief in this matter because your petitioner says that this so-called order, judgment or decree, and particularly the findings of fact therein, are contrary to law, not based on any law, and are a result of hatred and vindictiveness of said Judge Torrison towards petitioner.’

The first contention of plaintiff in error is that the petition filed by him amounts merely to a criticism of the action of Judge Torrison in making the findings of fact contained in the order entered by him and which plaintiff in error sought to have expunged from the records of the court, and that, even though such criticism might have reflected upon the integrity and honesty of Judge Torrison, it concerned a matter which had been finally disposed of by him and could not, therefore, be considered a contempt of court. Plaintiff in error cites Stuart v. People, 3 Scam. 395, and Storey v. People, 79 Ill. 45, 22 Am. Rep. 158. In these two cases it was held that criticism of a court in newspaper articles did not amount to a contempt of court. In the latter case the matter published reflected upon the honesty and motives of grand jurors in finding certain indictments. The indictments, at the time of the publication, had already been returned into court, and there was no showing that any further proceedings were being had or to be had before the grand jury concerning those cases. There was nothing in the articles, therefore having a tendency to impede, embarrass, or obstruct the grand jury in the discharge of any of its duties to be performed after the publications were made. It was held that under our Constitution the right freely to speak, write, and publish on all subjects is guaranteed, and that courts are not exempt from criticism or attack in a manner which does not directly hinder or embarrass them in the discharge of their duties. In the Stuart Case this court said: ‘Respect to courts cannot be compelled; it is the voluntary tribute of the public to worth, virtue, and intelligence, and whilst they are found upon the judgment seat, so long, and no longer, will they retain the public confidence. If a judge be libeled by the public press, he and his assailant should be placed on equal grounds and their common arbiter should be a jury of the country; and if he has received an injury, ample remuneration will be made.’ The rule of law announced and followed in those cases is supported by the great weight of authority, which is to the effect that to restrain or punish a criticism of the official conduct of judges or courts as to matters terminated would be an infringement upon the constitutional guaranty of freedom of speech, and that in this respect judges and courts stand in no better position than other public officers or tribunals. 17 L. R. A. (N. S.) 572, 585.

Plaintiff in error also cites In re Dalton, 46 Kan. 253, 26 P. 673. In that case an attorney was found guilty of contempt of the district court because of criticism of the acts and declarations of the judge of that court contained in a brief filed in the Supreme Court. The judgment was reversed by the Supreme Court, which quoted with approval from the case of In re Pryor, 18 Kan. 72, 26 Am. Rep. 747, to the effect that if a case is disposed of in the court in which it originated or is pending, ‘a court or judge has no power to compel the public, or any individual thereof, attorney or otherwise, to consider his rulings correct, his conduct proper, or even his integrity free from stain, or to punish for contempt any mere...