« ForrigeFortsett »
written notice of temporary injunction was DE YOUNG, J. A bill for an injunction given him.
under the Prohibition Act (Laws of 1921, p. 13. Intoxicating liquors em 279_Defendant 681) was filed in the circuit court of Lake
could not purge himself of contempt for vio- county on September 20, 1921, in the name lation against maintenance of liquor nuisance of the state of Illinois, by Ashbel V. Smith, by sworn answer denying violation.
state's attorney of that county, against EdIn contempt proceeding, based on violation ward Froelich, Minnie Rosenberg, and An. of injunction against maintenance of liquor dreas Rosenberg. The bill alleges that a cernuisance, under Prohibition Act, $ 25, in which tain parcel of real estate situated in Lake the evidence showed that defendant had violated county, particularly described, is improved such injunction, defendant could not purge by a 2-story frame building known as Willis himself of the contempt, and be discharged Inn; that the premises are used and mainmerely because his sworn answer denied con- tained by Froelich as a place where intoxicattempt.
ing liquor, as defined by section 2 of the Pro14. Intoxicating liquors @w279-Violation of hibition Act, is manufactured, sold, kept or
injunction against maintenance of liquor bartered in violation of the provisions of the nuisance can be established by a preponder- act; that the premises, and all intoxicating ance of the evidence.
liquors kept and maintained therein, are a In contempt proceedings, under Prohibition Act, $ 25, based on 'violation of in public nuisance, as defined by section 21 of junction against maintenance of liquor nui- the act; that Froelich is the owner and prosance, violation can be established by pre prietor of the business conducted on the ponderance of evidence, and need not be proved premises; that Minnie and Andreas Rosenbeyond reasonable doubt.
berg are the owners of the premises, and 15. Intoxicating liquors 279-Evidence held
have knowledge that the building is occupied to prove defendant guilty of violating injunc- and used for the sale of intoxicating liquor tion against maintenance of liquor nuisance. contrary to the provisions of the act, and al
In contempt proceedings, based on violation low such occupation and use, and that unless of injunction against maintenance of liquor restrained Froelich will continue to keep, nuisance, under Prohibition Act, $ 25, evidence maintain, and use the premises as a place held to prove violation of injunction by defend-where intoxicating liquor is manufactured, ant.
sold, kept, and bartered in violation of and 16. Intoxicating liquors Om 279-Evidence held as a common public nuisance, as defined in
to prove venue in contempt proceedings based section 21 of the act. The prayer was for on violation of injunction against mainte- process directed to the sheriff commanding nance of liquor nuisance.
him summarily to abate the nuisance, for a In contempt proceedings, based on violation temporary injunction pendente lite, and for of injunction against maintenance of liquor a permanent injunction upon the final hearmuisance, under Prohibition Act, $ 25, evidence ing. The bill was verified by the state's at: held to prove venue.
torney. Summons was issued and personally 17. Intoxicating liquors Ow279—Order held served upon Froelich on September 23, 1921.
valid as against contention that it failed to The joint affidavit of Robert E. Jeske and fix beginning and termination of period of Fred Muenchen, stating that they had on imprisonment.
different days purchased beer at Willis Inn, In contempt proceedings, based on violation which, in their opinion, was intoxicating and of injunction against maintenance of liquor nui contained more than one-half of 1 per cent. sance, under Prohibition Act, $ 25, order ad- of alcohol by volume, was filed on October judging defendant guilty of contempt, and sen: 10, 1921. On the same day a temporary intencing him to imprisonment in certain jail junction was issued but the writ was not for period of 90 days, held valid as against contention that it failed to fix the beginning and served on Froelich. Although served with termination of period of imprisonment.
Froelich did not appear but de
saulted, and by order the bill was taken as Heard, J., dissenting in part.
confessed against him. The proof in support Error to Circuit Court, Lake County;
of the bill was not confined to affidavits, but Claire C. Edwards, Judge.
testimony also was heard. On June 8, 1922,
a decree for a permanent injunction was enEdward Froelich was adjudged guilty of tered, in which, after finding, among other contempt, and he brings error. Affirmed.
things, that the premises situated in Lake E. V. Orvis, of Waukegan (John T. Murray, county, Ill., were used and maintained by of Chicago, of counsel), for plaintiff in error. Froelich as a place where intoxicating liq.
Edward J. Brundage, Atty. Gen., Ashbel uor was manufactured, sold, kept or bartered V. Smith, State's Atty., of Waukegan, Al- in violation of the Prohibition Act, and that bert D. Rodenberg and Virgil L. Blanding, the premises, and all the intoxicating liquor both of Springfield, and George C. Dixon, of and property kept, used, and maintained Dixon (Sidney I. Block, of Waukegan, of therein, were a public and common nuisance counsel), for the State.
jas defined and declared by the act, the court em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N.E.) enjoined Froelich and his agents and serv- , because it fails to fix the beginning and terants from manufacturing, selling, bartering mination of his imprisonment. or storing upon the premises any liquor con- The proceedings in the circuit court were taining one-half of 1 per cent. or more of al. conducted by authority of the Prohibition cohol by volume, and ordered that the prem- Act (Laws of 1921, p. 681), and to determine ises should not be occupied or used for one their character a consideration of the appliyear unless permitted by subsequent modi- cable provisions of that act is necessary. fication of the decree, and that the sheriff | Section 21, among other things, declares that close and lock the premises forthwith. On any room, house, building, boat, vehicle, August 11, 1924, a petition in the name of structure or place where intoxicating liquor the people of the state of Illinois, by Ashbel is manufactured, sold, kept or bartered in viV. Smith, state's attorney, was filed, which olation of the act, or where property designcharged that since the issuance of the perma-ed for the illegal manufacture of liquor is nent injunction Froelich had sold intoxicat- kept, and all intoxicating liquor or other ing liquors on the premises to different per- property so kept and used, are a common nui
The prayer of the petition was for a sance, and that a single unlawful sale, barter citation against Froelich and certain of his or act of manufacturing liquor shall conagents and employees, commanding them to stitute such a nuisance. The twenty-second show cause why they should not be held in section provides that an action to enjoin a contempt of the court for violating the in- nuisance defined in the act may be brought junction. Such a rule was entered. Froe- in the name of the state of Illinois by the Atlich filed his answer thereto, in which he ad-torney General, or any state's attorney or mitted the filing of the bill and the issuance other designated public officer, or by any citof the permanent injunction, but denied the izen of the county where such a nuisance exother allegations of the petition, and pray- ists; that such action shall be brought and ed that the citation be quashed. On the hear- tried in equity by the court without a jury ; ing testimony was offered in support of the that a temporary injunction prohibiting the petition. The court found that Froelich had continuance of the nuisance, and an order reviolated the permanent injunction and ad- straining the removal of or interference with judged him guilty of contempt, and fixed his the liquor, fixtures or other things used in punishment at imprisonment in the county violating the act may be issued pending the jail of Lake county for 90 days. He seeks a suit, and that upon the trial of the cause, review by this writ of error.
if the material allegations of the petition are The contentions of plaintiff in error, in sub- found to be true, the court shall enjoin the stance, are: (1) That the proceedings under manufacture, sale, barter or storage of liqthe Prohibition Act in which he was adjudged uor in such room, house, building, boat, veguilty of contempt of court constitute a crim- hicle, structure or place, or any part thereinal prosecution; (2) that as a criminal pros- of, and may, upon ordering the abatement ecution the proceedings are governed by sec- of such nuisance, direct that any such place tion 33 of article 6 of the Constitution, and shall not be occupied or used for one year, from their inception should have been carried or, in its discretion, may permit it to be ocon in the name and by the authority of the cupied or used if the owner, lessee, tenant or people of the state of Illinois, and concluded occupant shall give bond, with sufficient sure against their peace and dignity; (3) that sec- ty, conditioned that intoxicating liquor will tion 25 of the Prohibition Act, which pro- not thereafter be manufactured, sold, bartervides that the court may summarily try and ed, kept or otherwise disposed of therein, and punish the defendant for the violation of any that he will pay all fines, costs and daminjunction granted pursuant to the provisions ages that may be assessed for any violation of the act, violates the fifth and ninth sec of the act upon the property. The twentytions of the second article of the state Con- fifth section provides that in case of the vistitution, and the fifth and sixth amendments olation of any injunction, temporary or perto the federal Constitution, which guarantee manent, granted pursuant to the act, the the right of trial by jury; (4) that he did court, or, in vacation, a judge thereof, may not have 5 days' written notice of the grant- summarily try and punish the defendant. ing of the temporary injunction, as provided [1, 2] The sole object of the bill of comby section 22 of the Prohibition Act, and for plaint was to restrain the maintenance of a that reason could not be adjudged guilty of nuisance. It did not seek to enforce any contempt; (5) that his sworn answer denied criminal liability or to impose any punishall the material allegations of the petition ment. Section 22 of the Prohibition Act which charged violations of the permanent (Laws of 1921, p. 690), expressly provides injunction, and upon that answer he was en- that the suit “shall be brought and tried as titled to his discharge; (6) that the violations an action in equity by the court, without a charged should have been shown by proof be-jury.” By the form and substance of the yond a reasonable doubt; (7) that the venue bill and the relief sought, as well as the exwas not established; and (8) that the order press provision of the act under which the adjudging him in contempt of court is void suit was brought, the remedy is civil. Like
wise the proceeding to punish for contempts the people, and that petition was sufficient of court in violating its injunction is for the for the purpose. Laws of 1921, $ 25, p. 692. purpose of advancing the remedy of the  The power of courts to punish for concomplainant. It is from its inception to its tempt does not depend on constitutional or conclusion essentially a civil chancery pro legislative grant, but is inherent in all courts ceeding, conforming itself, in its pleadings, as necessary for self-protection, and as an character, and quantity of proof required, essential auxiliary to the administration of to the rules and practice applicable to other the law. People v. Panchire, 311 Ill. 622, chancery proceedings. People v. Buconich, 143 N. E. 476; People v. Peters, 305 Ill. 223, 277 Ill. 290, 115 N. E. 185; Rothschild & Co. 137 N. E. 118, 26 A, L. R. 16; Schmidt v. v. Steger Piano Co., 256 Ill. 196, 99 N. E. Cooper, 274 Ill. 243, 113 N. E. 641; People 920, 42 L. R. A. (N. S.) 793, Ann. Cas. 1913E, v. Wilson, 64 III. 195, 16 Am. Rep. 528; Stu276; Hake v. People, 230 Ill. 174, 82 N. E. art v. People, 3 Scam. 395. It is one of the 561; O'Brien v. People, 216 Ill. 354, 75 N. E. attributes of a court of justice that it should 108, 108 Am. St. Rep. 219, 3 Ann. Cas. 966. have the power of enforcing its orders withHence plaintiff in error was adjudged in con- out the necessity of calling upon a jury to tempt of court in a civil proceeding and not assist it in the exercise of that power. The by a criminal prosecution.
fine and imprisonment which the court is [3-10] Section 33 of article 6 of the Con- authorized to impose for a contempt are not stitution provides that all prosecutions shall intended as a punishment for a violation of be carried on "in the name and by the au- the criminal law, and punishment for conthority of the people of the state of Illinois,” tempt is not a bar to a prosecution for the and conclude, “against the peace and dignity same act if it also constitutes a criminal ofof the same.” The word "prosecutions,” in fense. The constitutional guaranties of the its broadest sense, would embrace all pro- right of trial by jury do not apply to proceedings in the courts of justice for the ceedings to punish for contempt, and those enforcement or protection of a right or the guaranties are not violated by the imposipunishment of a wrong. Obviously, the word tion of punishment by the court, without a as used in the constitutional provision in- jury, in a contempt proceeding. People v. voked has no such comprehensive meaning, Rushworth, 294 Ill. 455, 128 N. E. 555; Peobut signifies only prosecutions of a public ple v. Seymour, 272 Ill. 295, 111 N. E. 1008; or criminal character and concerns the for- O'Brien v. People, supra; Barclay v. Bar. mal accusation of offenders by presentment or clay, 184 Ill. 471, 56 N. E. 821; People v. indictment by a grand jury or by informa- Kipley, 171 Ill. 44, 49 N. E. 229, 41 L. R. A. tion. People v. Gartenstein, 248 Ill. 546, 94 775. N. E. 128; Moutray v. People, 162 Ill. 194, 44  No written notice of the granting of N. E. 496; Donnelly v. People, 11 ill. 552, the temporary injunction was given to the 52 Am. Dec. 459. The provision is manda- plaintiff in error. Such notice is necessary, tory in all prosecutions to which it is appli- if such an injunction is to remain in force cable, and the omission of the constitutional pending the final hearing of the cause. Prorequirement in such cases may be urged on hibition Act, $ 22. But the plaintiff in error motion in arrest of judgment or on writ of was not punished for a violation of the temerror. People v. Gartenstein, supra; Hay v. porary injunction, and it was not the basis People, 59 Ill. 94. But the constitutional of the petition to have him adjudged guilty provision has no application to a civil pro- of contempt. Section 22 of the Prohibition ceeding to punish for contempt in violating Act requires the suit to be brought and tried an injunction. Hake v. People, supra; as an action in equity without a jury, and O'Brien v. People, supra. Whether such a nothing in that act or in equity practice comproceeding should be entitled and prosecuted pels the complainant, in a case of this charas an independent proceeding in the name acter, to make application for or requires the of the people, or carried on as a part of the court to grant a temporary injunction. Recivil suit to which it is incident, is of com- lief may be granted on the final hearing by a paratively little importance, and the prac- permanent injunction without the issuance tice is not uniform. The mere entitling of of a preliminary writ. Peters v. Harris, the proceeding cannot change its nature or 245 Ill. 419, 92 N. E. 281; Holden v. City of character. Manning v. Securities Co., 242 Alton, 179 Ill. 318, 53 N. E. 556; Brown F. Ill. 584, 90 N. E. 238, 30 L. R. A. (N. S.) 725; Luehrs, 79 Ill. 575; New Haven Clock Co. Hake v. People, supra ; Lester v. People, 150 v. Kochersperger, 175 Ill. 383, 51 N. E. 629. Ill. 408, 23 N. E. 387, 37 N. E. 1004, 41 Am. The plaintiff in error was personally served St. Rep. 375. The bill of complaint in the with the original summons more than ten instant case was filed in the name of the days prior to its return day. Hence the state of Illinois, as required by section 22 court had jurisdiction of his person as well of the Prohibition Act. Laws of 1921, p. as of the subject-matter of the suit. He 690. The contempt proceedings were insti- made no defense, and by the court's order the tuted by a verified petition in the name of bill was taken as confessed by him. Subse
(146 N.E.) quently, upon the hearing, the permanent in- , plaintiff in error. The order was sufficient junction was granted, and the plaintiff in and valid in every respect. error was bound to obey it. The petition by We find no reversible error in the record, which the contempt proceedings were in- and, accordingly, the order of the circuit augurated was based upon the permanent, court will be affirmed. and not the temporary, injunction, and the Order affirmed. fact that plaintiff in error received no written notice of the granting of the temporary HEARD, J. I agree with the conclusion injunction is of no consequence.
reached in this opinion, but not in all that  The twenty-fifth section of the Pro is said therein. hibition Act (Laws of 1921, p. 692), provides that in proceedings to punish for contempt
(316 Ill. 86) for the violation of any injunction granted PEOPLE v. WESTERDAHL. (No. 16418.) pursuant to the provisions of the act, the (Supreme Court of Illinois. Feb. 17, 1925.) "trial may be had upon affidavits, or either party may demand the production and oral 1. Indictment and information om 110(2)-Inexamination of the witnesses.” The prac- formation following statute, omitting certain tice authorized by the statute conforms to
words, held sufficient; "payment." the practice in chancery to punish for civil
Information, under Smith-Hurd Rev. St.
1923, c. 38, § 255, for obtaining property in recontempt. People v. Buconich, supra; Hake
turn for check which drawer had not sufficient v. People, supra; Loven v. People, 158 IU. funds to pay, held sufficient, notwithstanding 159, 42 N. E. 82. The testimony of witnesses omission of words of statute "in full on prewas properly heard by the circuit court, and sentation"; "payment" of a check involving the plaintiff in error could not, merely by his full payment and not its partial payment. sworn answer, purge himself of the con- 2. Indictment and information Ow71-Indict. tempt and be discharged.
ment or information specific enough to notify [14, 15) No rule of law requires proof be
accused of charge, and to enable him to
prepare defense, and enable court or jury to' yond a reasonable doubt in a civil case. Civ
easily understand it, is sufficient. il rights, only, were involved in the proceed
If indictment or information is so specific ing to punish the plaintiff in error for con- that accused is notified of charge, and is able tempt, and it was only necessary to establish to prepare defense, and nature of charge may the violation charged against him by a pre- be easily understood by court or jury, it is ponderance of the evidence. We have, how- sufficient. ever, reviewed the evidence in the record, and
[Ed. Note.-For other definitions, see Words we are convinced beyond any reasonable and Phrases, First and Second Series, Pay
ment.] doubt that the plaintiff in error violated the permanent injunction as charged in the pe- | 3. False pretenses em 6Fact that check, which
drawer had not sufficient funds to meet, was tition.
postdated, held no defense.  The bill, confessed by plaintiff in error, particularly described the property in prosecution, under Smith-Hurd Rev. St.
That check was postdated, held no defense, known as Willis Inn, and stated that it was 1923, c. 38, § 255, for obtaining property in resituated in the town of Grant, Lake county, turn for check, which accused had not sufficient Ill. On the hearing in the contempt pro- funds to pay. ceedings an abstracter testified to the same
4. False pretenses en 49(5)-Evidence held effect. Other witnesses at the same hearing sufficient to sustain conviction for obtaining testified that plaintiff in error sold intoxi- property for check, to pay which accused cating liquor to different persons on the same did not have sufficient funds. premises after the permanent injunction had In prosecution for obtaining property withbeen granted.
The evidence is clear that out having sufficient funds to pay check given plaintiff in error violated the injunction with- for it, evidence that property was delivered in in the jurisdiction of the circuit court or reliance on check rather than on personal cred
it of accused held sufficient to sustain convic Section 25 of the Prohibition Act au
tion. thorizes the court summarily to punish for 5. Criminal law w 258(2)—Judgment, entered contempt. The circuit court, after making on finding that accused was guilty in matter specific findings that plaintiff in error had and form as charged in information, held violated the permanent injunction, adjudged
sufficient. him guilty of contempt, and sentenced him In prosecution under Smith-Hurd Rev. St to imprisonment in the county jail of Lake 1923, c. 38, $ 255, for obtaining property in county for the period of 90 days. The term return for check, to pay which accused had not
sufficient funds, where trial was by court withof imprisonment was definitely fixed. It
out jury, finding of guilty“in manner and would begin immediately unless some appro- form as charged in the information." and judgpriate action to stay or review the court's ment thereon, held proper as conforming to of. order of commitment was invoked by thelfense charged in information.
em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-47
6. Criminal law em 258(2)-Record, showing release of all claims arising out of its sale;
that court found accused guilty and sentenced and that he should pay the balance of $932.him in accordance with statute, held suffi- 62 in money. The old car was returned and clent.
the release was given. For the balance of No particular form of finding is required, 8932.62 Westerdahl drew a check on the Pioand, if from whole record it is apparent that court finds accused guilty of offense charged able to the order of and delivered it to the
neer State Savings Bank and made it pay. and sentences him in accordance with statute, it is sufficient.
company. The new Hudson car was deliv
ered to him at the same time. The release 7. Criminal law eml165(2)-Judgment not re- recited that he had paid the sum of $932.62. versed for mere error of form.
The transaction was consummated about A judgment of conviction will not be re- 5:30 o'clock p. m. on Saturday, November 4, versed for mere technical error of form. 1922, but the check, although delivered at
that time, was dated two days later. It was Error to First Branch Appellate Court, not deposited until the 12th or 13th of NoFirst District, on Error to Municipal Court vember, and was returned unpaid by the of Chicago; Howard Hayes, Judge.
bank upon which it was drawn for lack of
sufficient funds. Westerdahl mortgaged the Hugo Westerdahl was convicted in the mu
new automobile within a few days after obnicipal court of obtaining property for a check without having sufficient funds to Itaining possession of it.
Knutson, the agent for the company, testi. pay it, and brings error to review the judgment of the Appellate Court, affirming the fied that, when the check was given to him,
Westerdahl informed him that he had $4.000 judgment of conviction. Affirmed.
to his credit in the bank, and that the check Robert W. Daniels, of Chicago (John B. was good; that on Monday, the 6th of NoFruchtl, of Chicago, of counsel), for plain-vember, Westerdahl called him on the tele. tiff in error.
phone and requested him to hold the check, Edward J. Brundage, Atty. Gen., Robert E. but that he told Westerdahl he could not do Crowe, State's Atty., of Chicago, and Virgil | so, and that, after the check was returned L. Blanding, of Springfield (Edward E. Wil- unpaid, he often interviewed Westerdahl, son and Clyde C. Fisher, both of Chicago, of who repeatedly promised to pay it, but never counsel), for the People.
Westerdahl testified that he was a general
contractor; that on November 4, 1922, he DE YOUNG, J. An amended information was engaged in building a church; that he filed in the municipal court of Chicago informed Knutson that, because of his buildcharged that Hugo Westerdahl on November | ing operations, he was short of funds; that 4, 1922, with intent to defraud, drew a cer- Knutson agreed, if he would give him à tain check for $932.62 on the Pioneer State check for the balance due on the new antoSavings Bank, Chicago, and delivered it to mobile, he (Knutson) would hold it for one the Parkway Motor Sales Company, and or two weeks; that, with this understandthereby obtained from that company an au- ing, the check was delivered to Knutson; tomobile of a specified value, without hav- that Knutson had called him several times ing, and knowing at the time that he did on the telephone, but that the calls were not have, sufficient funds in or credit with with reference to the controversy which the bank upon which the check was drawn arose out of the sale of the first automobile; to pay it. A jury was waived and upon that he had mortgaged the new automobile, trial by the court Westerdahl was found but that it was done with Knutson's knowlguilty and sentenced to the house of correc-edge and consent; that the release which be tion for six months, and to pay a fine of $500 signed had been drawn by the attorney for and costs. On review by the Appellate Court the company; and that he had never stated the judgment of the municipal court was af- | to Knutson that he had $4,000 in the bank. firmed. He seeks a further review by this He admitted that he did not have sufficient writ of error.
money in the bank to pay the check and that Prior to the transaction in question Wes- he had never paid it. terdahl had purchased from the Parkway  In the trial court the plaintiff in error Motor Sales Company an automobile, which made a motion to quash the amended inforproved unsatisfactory, and he had sued the mation, asserting that it failed to state an company for damages for an alleged breach offense. The motion was denied. He renews of warranty arising out of the sale. To set the contention here that the amended infortle the controversy, the parties agreed on No-mation is insufficient. The statute (Smith's vember 4, 1922, that Westerdahl should buy Stat. 1923, c. 38, par. 255, p. 685) provides from the company a new Hudson automobile that any person who with intent to defraud for $1,932.62; that the company would al- shall draw any check upon any bank and low him a credit of $1,000 on his purchase thereby obtain from any person any personal for the return of the old automobile and a l property, knowing at the time of the making
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes