People v. Vitucci

• Decision Date: 06 May 1964
• Docket Number: Gen. No. 49401
• Citation: 199 N.E.2d 78,49 Ill.App.2d 171
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph VITUCCI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 78

199 N.E.2d 78

49 Ill.App.2d 171

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph VITUCCI, Defendant-Appellant.

Gen. No. 49401.

Appellate Court of Illinois, First District, Fourth Division.

May 6, 1964.

A. Jerome Moos, Chicago, for appellant; Harry G. Fins, Chicago, of counsel.

Daniel P. Ward, State's Atty., of Cook County, Chicago, for appellee; Elmer C. Kissane, James R. Thompson, Asst. State's Attys., of counsel.

McCORMICK, Justice.

This is an appeal taken from a judgment entered in the Criminal Court of Cook County finding Joseph Vitucci, defendant, guilty of contempt of court and sentencing him to 30 days imprisonment in the Cook County jail.

After the judgment was entered the defendant made a motion in arrest of judgment, a motion for a new trial, and a motion to vacate the judgment. All motions were overruled by the trial court.

The first point raised by the defendant is that the court lacked jurisdiction and improperly held the defendant to trial without any specification or written allegation setting out the offense upon which the court's finding was based. The defendant was held to be in contempt of court because he procured the discharge of one Samuel Pittman who was employed by the Economy Folding Box Corp., of which one Edward Fellin was president. Vitucci was supervisor of a group of workers of which Pittman was one. Oral complaint had apparently been made by Pittman against Fellin that Fellin had discharged him because he had been called to serve as a petit juror of the Criminal Court.

If an employer discharges an employee who has been called to jury service and is required on that account to absent himself from his employment, there is no question that such conduct on the part of the employer would be contemptuous. People v. Huggins, 258 Ill.App. 238 (First Dist. 1930). However, there is equally no question that it is an indirect contempt. An indirect contempt is one which, in whole or in essential part, occurred out of the presence of the court and is therefore dependent for its proof on evidence of some kind. See I.L.P. Contempt, §§ 3 and 4, and cases cited therein. In People v. Pomeroy, 405 Ill. 175, 90 N.E.2d 102, it is said: '* * * In such case there must be a notice, citation or rule to show cause served upon the alleged contemnor. People v. Whitlow, 357 Ill. 34, 191 N.E. 222; People v. McDonald, 314 Ill. 548, 145 N.E. 636.' Also see People v. Hagopian, 408 Ill. 618, 97 N.E.2d 782.

The record shows that Edward Fellin appeared before the Criminal Court of Cook County and a hearing was held to determine whether or not he was in contempt of court. During the hearing Pittman testified that he had worked for the Economy Folding Box Corporation for a year and a half; that his immediate superior was Vitucci, and that he was a machine operator. On or about the 18th of April 1963, he received a subpoena to serve as a juror in the Criminal Court of Cook County. The jury service was to commence on May 6. About May 1 he told Vitucci that he, Pittman, had to serve as a juror. Vitucci said he would tell Fellin about it and asked Pittman if there was any way that he could get out of it. He had no further conversation with Vitucci about his jury duty.

On May 3 Pittman was called into Fellin's office. Fellin showed him certain boxes which he said had come back because of imperfections. Fellin also told him that he couldn't put up with that and that he would have to discharge him. Pittman also testified that as far as he knew his work was satisfactory and that there had been no complaints about his work before that time. He testified that Fellin did not say to him that he was discharging him because he was going to serve on a jury, nor did he get any such idea until after a considerable period of time had elapsed. He had talked to a union official about his discharge, but said nothing about being discharged because he was going to be on jury duty. The union official also testified, saying that he had had a telephone conversation with Pittman who told him he had been discharged, but that he didn't know for what reason. The union official went to the company and talked to Fellin, who told him he had discharged Pittman because his work was unsatisfactory. The union official then said he would call Pittman and set up a meeting and come back with Pittman. He made an appointment with Pittman which Pittman did not keep. He further testified that he was never advised by anyone that Pittman had received a jury summons.

Vitucci testified in favor of Fellin. In his testimony he stated that Pittman's work was not good; that he had previously talked to him about errors in items where Pittman forgot to change the number, and that he reported the matter to Fellin. He stated that no question was raised about the fact that Pittman had to serve as a juror, nor did he so inform Fellin; and they had no difficulty replacing Pittman during the period of his jury service. Vitucci further testified that the man who took Pittman's place was one Phillip Sansome, and that Vitucci's brother took Sansome's place.

At this point in the proceeding, the Assistant State's Attorney asked that Vitucci be joined with Fellin as a respondent to the contempt action. The attorney who was then representing Fellin told the court he was not representing Vitucci. The court continued the hearing, and at the second...