author: MR. PRESIDING JUSTICE McCORMICK

text:
    Kathleen Kilbride, Plaintiff-Appellee, v. Robert E. Kilbride, Defendant-Appellant.
    Gen. No. 49,881.
    First District, Fourth Division.
    November 5, 1965.
    Rehearing denied November 30,1965.

      Hall & Borkenhagen, of Chicago (Richard W. Hall and Raymond H. Borkenhagen, of counsel), for appellant.

      Scariano, Gubbins and Pappas, of Chicago (Michael D. Gubbins, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This is an appeal by the defendant from certain postdecretal orders entered in the Circuit Court of Cook County, 6th Municipal District. The orders complained of were:

1) that the defendant was denied a change of venue;
2) that the court struck and dismissed a petition to vacate the decree of divorce without a hearing on the merits;
3) that the court denied defendant’s motion to modify the decree of divorce as to alimony payments ; and
4) that the court entered an order awarding plaintiff $500 attorney’s fees.

The case grew out of a divorce decree entered October 11, 1962, by Judge Carl W. McGehee, in the City Court of Chicago Heights, Illinois. The divorce was granted to the plaintiff, Kathleen Kilbride, from Robert E. Kilbride, the defendant.

On June 11, 1962, plaintiff filed a complaint for divorce in the City Court of Chicago Heights. The defendant answered on August 17, 1962. On October 6, 1962, a stipulation was entered into between the parties which provided that the cause might be placed on the uncontested calendar of the court and set down for immediate hearing “on complaint and answer as a default matter.” At the same time the parties entered into a stipulation with reference to property rights and alimony payments, together with support money for a minor child of the parties whose custody was to be awarded to the mother. On October 6, 1962, the cause was heard and a decree of divorce entered on October 11, which decree made the property agreement a part thereof.

On March 5, 1964, the court issued a rule on defendant to show cause why he should not be held in contempt of court for an alleged arrearage of $108 in alimony. On the same day the court permitted a substitution of attorneys, allowed the defendant to plead to the petition for the rule, and denied a motion made by the defendant that the matter be transferred to a judge assigned to hear post-decree motions in the Circuit Court of Cook County. On March 10, 1964, the defendant filed an answer to the petition, denying the allegations therein, and on March 13 the defendant asked leave to file a petition to vacate or modify the decree of divorce instanter, and also prayed for a change of venue from Judge Carl W. McGehee and Judge Maurice E. Schultz. Attached to the petition to vacate were the decree of divorce and the certificate of evidence. In his motion for change of venue the defendant set out that there was a cause pending before the court with reference to an order on the defendant to show cause theretofore entered by Judge McGehee, and that the petitioner feared he would not receive a fair and impartial trial before either Judge McGehee or Judge Schultz, with reference to the rule to show cause, the petition to vacate, or the petition to modify the decree. In that motion he stated that the prejudice first came to his knowledge “as of the commencement of these proceedings to vacate or modify the Decree of Divorce.” He further prayed that the said judges should perform the ministerial act of giving bim leave to file a petition to vacate or modify the decree of divorce instanter, and that an order for a change of venue should also be entered. On March 19, 1964, the defendant was given leave to file his petition, and the motion for change of venue was denied. The cause was reassigned to Judge McGehee for hearing.

At that time three matters were pending before the court; first, plaintiff’s rule to show cause; second, defendant’s petition to vacate the decree theretofore entered in the divorce action; and third, a prayer to modify the alimony payments ordered in the decree by virtue of a property agreement. The defendant had filed a motion for a change of venue from both Judge McGehee and Judge Schultz as to all three. With reference to the rule to show cause, the defendant’s attorney, in his argument before the trial court, stated that defendant had no right to ask for a change of venue with reference thereto. Under those circumstances defendant can now have no complaint before this court.

Defendant’s petition with reference to relief from the decree of divorce was brought under section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 72). Defendant urges that the Circuit Court erred in refusing to grant a change of venue before a hearing on this petition.

People v. Sheppard, 405 Ill 79, 90 NE2d 78, was a case in which a judgment was entered against the defendant. Defendant filed a petition in the nature of a writ of error coram nobis under section 72 of the Civil Practice Act (Ill Rev Stats 1949, c 110, § 196). At that time the section provided that all errors of fact which would have been corrected by the writ of error coram nobis might be corrected by a motion made in the court in which the original error was committed. His motion in the nature of a writ of error coram nobis was assigned to the judge who had presided at the trial. The defendant was denied a change of venue. This ruling was upheld. The Supreme Court quoted from Chapman v. North American Life Ins. Co., 292 Ill 179, 126 NE 732, where it was stated:

“ ‘At common law the writ of error coram nobis could be sued out of the same court when a judgment at law was rendered to reverse the judgment, and before the same judge who rendered the judgment, for an error of fact that might be brought to the knowledge of the court that would be sufficient, of itself, to defeat the judgment.’ See: 1 Holdsworth’s History of English Law, p 224; 1 Black on Judgments, sec 300; 49 CJS, Judgments, sec 316. The reasons which required the old common-law writ to be presented to the same judge who rendered the original judgment obtain with like force under section 72 of the Civil Practice Act. Accordingly, neither sections 1 nor 18 of the Venue Act is applicable to coram nobis proceedings. Defendant’s petition for a change of venue was properly denied.”

Under section 72 of the Civil Practice Act, as amended (1955, July 19, Laws 1955, p 2238, §1), and now in effect, the same rule must be applied. The trial court committed no error in denying the motion for change of venue with reference to that portion of defendant’s petition which asked that the original decree of divorce be vacated.'

The next question to be considered is whether or not the court properly denied a change of venue from that portion of the petition which prayed the court to modify the alimony payments ordered in the decree, because of a change in circumstances of the parties. It is the law that while husband and wife may not enter into an agreement for divorce, yet the amount of alimony the husband shall pay to the wife, the terms of the payment, and the length of time payment is to be made may be arranged between them by consent. When they agree upon alimony the court will embody the agreement in its decree, and the parties will thereafter be concluded. It is also the law that where there is a property agreement between the parties the question as to whether the condition of the parties has changed since the entry of a decree may be raised and passed upon by a court. Smith v. Smith, 334 Ill 370, 166 NE 85. The prayer to modify alimony in the instant case was a separate and distinct matter, and the change of venue should have been granted. Minster v. Minster, 53 Ill App2d 428, 203 NE2d 446; Gates v. Gates, 38 Ill App2d 446, 187 NE2d 460. All other proceedings taken by the court on that particular matter are void.

On April 21, 1964, Judge McGehee struck the portion of defendant’s petition asking that the decree of divorce be vacated, and the defendant was discharged on the rule to show cause. On May 11, 1964, after hearing, Judge McGehee denied defendant’s petition to modify the decree of divorce, and the defendant was ordered to pay plaintiff the sum of $500 for attorney’s fees. A petition for rehearing was filed, and was denied on May 18, 1964. From all of the foregoing orders this appeal is taken.

The defendant urges that the court erred in striking the portion of his petition which sought to vacate the divorce decree theretofore entered. That portion of the petition which prayed that the decree be vacated was based on allegations that the defendant had consented to have the case heard without putting in a defense, and that he had signed the property agreement under duress; also, that the plaintiff and her witnesses had committed perjury. The alleged duress was that the defendant had been employed by the American Red Cross, and had commingled with his own money certain funds (amounting to $408) which he held for the Park Forest Playhouse ; that he might be in danger of losing his employment if this matter were brought to the attention of his employer; that the plaintiff agreed to and did go to great lengths to protect defendant’s employment with the Red Cross on the condition that he would not contest the divorce action brought by her, and that he would agree to the property settlement therein incorporated. The perjury alleged was that the charge and evidence in the divorce case with reference to a certain assault allegedly made upon the plaintiff by the defendant on July 28, 1961, were false.

In Caswell v. Caswell, 120 Ill 377, 11 NE 342, it was held that a bill of review to impeach a decree cannot be based on the ground that the only fraud was that the decree had been obtained by false evidence.

In Burton v. Burton, 176 Okla 494, 56 P2d 385, duress is defined as such restraint being put upon a person as to compel him to act against his will, and virtually take away his free agency. Also see Robinson v. Robinson, 77 Wash 663, 138 P 288, 51 LRA 534. In 17 Am Jur, Divorce and Separation, § 497, it is stated that in order to show duress the party must show that he was compelled, not merely persuaded, to obtain a divorce.

In Bock v. Felker, 302 Ill App 116, 23 NE2d 568, the court quoted:

“ ‘Duress has been defined as a condition which exists where one by an unlawful act of another is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will. (14 Cyc 1123.) Mere annoyance or vexation will not constitute duress, but there must be such compulsion affecting the mind as shows that the execution of the contract or other instrument is not the voluntary act of the maker. (Citing cases.) ’ Harris v. Flack, 289 Ill 222.”

The agreement under which the wife was to cooperate with defendant to help him conceal his admitted wrongdoing was not duress. Dow v. Blake, 148 Ill 76, 35 NE 761, held that a man cannot allege that a decree of divorce had been obtained by collusion with his wife. This is true upon the well settled principle that in a court of justice a man cannot complain of a wrong done by himself, or of another’s wrong in which he was a partaker.

In the instant case the defendant knew the testimony which his wife proposed to introduce in the case. He was represented by his counsel, who stood silent in court while the testimony was being introduced.

In Anderson v. Anderson, 4 Ill App2d 330, 124 NE2d 66, the defendant alleged in his petition to vacate that he had called at the office of plaintiff’s attorney to sign some papers, but did not understand that one paper was an appearance and waiver of service of summons and consent to the immediate hearing of a cause; that subsequently he found he had signed an answer, the contents of which he did not know; and that when he first realized that the plaintiff intended to file divorce proceedings, “his grief and shock so overwhelmed him he did not have free use of his faculties, he felt he did not care what happened, did not understand what was happening; and if he executed any documents, he did not realize the significance of same; . . In that case the court cited and quoted from chapter 77, Ill Rev Stats 1958, sections 82 and 84, which provided that a judgment has the same force and effect upon the expiration of 30 days from the date of its rendition as, under the former law, it had at the expiration of the term of court at which it was ordered; and the court cited and quoted from section 72 as it existed before the 1955 amendment. The court then discussed the fact of the collateral attack on a judgment or decree on the ground that a fraud was imposed on the court, and pointed out that all the facts alleged in the defendant’s petition were known to him at the time of the divorce and if they were true he misled the plaintiff and the court by concealing such facts. The court said:

“. . . He had every opportunity to present in the divorce case the questions he now raises for the first time by petition to vacate about 21 months after the decree. . . .
“As to the alleged ‘fraud, perjury, and deceit’ referred to in defendant’s present petition, considering the record and all the evidence at the original divorce hearing and all the evidence at the hearing on this petition, there was no ‘fraud’ practiced on defendant or the court going to the jurisdiction of the court. Defendant was not prevented from appearing, or from presenting any alleged defense.”

The court held that he had his day in court and that the defendant could not be afforded a second opportunity to litigate jurisdictional or other facts. While the court held that section 72, as then existing, was not applicable to the chancery case, nevertheless, had it been applicable, section 72 would not be sufficient to support the petition filed by the defendant inasmuch as it

. . does not permit going into matters of law or into alleged facts appearing on the face of the record, or contradicting the finding of the court, or putting in issue a fact that has been adjudicated in the action or which arose on the original pleadings. It is never intended to relieve a party of the consequences of his own negligence. It does not lie merely to go into alleged false testimony at the original hearing, otherwise there would never be an end to litigation: [Citing cases.] ”

In Antczak v. Antczak, 61 Ill App2d 404, 209 NE2d 838, an appeal was taken from an order dismissing a petition filed under section 72 of the Civil Practice Act, seeking to vacate a divorce decree previously entered. The complaint in the divorce case alleged cruelty on the part of the defendant. An answer was filed and a stipulation was entered that the matter be heard upon complaint and answer as a default matter. The court, after hearing, entered a decree in favor of the plaintiff. In his petition, under section 72, the defendant alleged fraud in that the plaintiff committed perjury during the trial. The court pointed out that the defendant’s instant petition was a collateral attack on the decree, and cited Anderson v. Anderson, supra. The Appellate Court held that the trial court properly denied the defendant’s petition and that the defendant was guilty of negligence in not raising the matters at the time of the trial.

In People v. White, 63 Ill App2d 105, 211 NE2d 9, we called attention to the fact that in People v. Lewis, 221112d 68, 174 NE2d 197, the court stated that section 72 of the Civil Practice Act afforded a remedy in a proper case to obtain relief from a judgment based on perjured testimony; the court, however, further held that the petitioner must show that it was through no fault or negligence of his own that the grounds upon which he now claims relief were not presented to the court. In that opinion the court does not mention or overrule People v. Touhy, 397 Ill 19, 72 NE2d 827, or Hall v. People, 402 Ill 478, 84 NE2d 418, which cases held that a petition under section 72 of the Civil Practice Act does not lie to correct false testimony. Even under the ruling in People v. Lewis, supra, the trial court acted properly inasmuch as there was no proper showing of lack of fault or negligence on the part of the defendant. The court properly dismissed that portion of the defendant’s petition which sought to vacate the decree entered in the divorce action.

The orders of the trial court refusing to grant the defendant a change of venue as to that portion of his petition which seeks to vacate the original divorce decree, and the order of the trial court refusing to grant a change of venue on the rule to show cause, are affirmed.

The order denying the petition of defendant for change of venue as to that portion of his petition which seeks to modify the monetary provisions of the divorce decree because of change of circumstances, is reversed.

The order of thé trial court dismissing that portion of defendant’s petition which seeks to vacate the decree entered in the divorce action is affirmed. The order of the trial court denying the dismissal of that portion of the petition which seeks to modify the monetary provisions of the divorce decree is reversed and the cause remanded to the Circuit Court of Cook County.

At the close of all the evidence the trial court awarded the plaintiff a lump sum of $500 attorney’s fees for work done by her attorney on the rule to show cause and his work in connection with the entire petition of the defendant, both as to the vacation of the original divorce decree and the modification of that decree. The cause is remanded to that court to reconsider the award of attorney’s fees and to award reasonable attorney’s fees to plaintiff on the proceedings taken concerning that portion of defendant’s petition seeking to vacate the original divorce decree and on the proceedings taken on the rule to show cause. The attorney’s fees, with reference to the portion of the petition remanded, are of course within the jurisdiction of the court which hears that matter. That court is directed to allow defendant a change of venue as to the portion of his petition seeking to modify the monetary provisions of the divorce decree and to transfer that issue to the appropriate division of the Circuit Court in Cook County.

Affirmed in part and reversed in part.

DRUCKER and ENGLISH, JJ., concur.

       § 72. Relief from judgments and decrees.
      (1) Relief from final orders, judgments and decrees, after 30 days from the entry thereof, may he had upon petition as provided in this section. Writs of error coram nobis and coram vobis, writs of audita querela, bills of review and bills in the nature of bills of review are abolished. All relief heretofore obtainable and the grounds for said relief heretofore available, either at law or in equity, whether by any of the foregoing remedies or otherwise, shall be available in every case, by proceedings hereunder, regardless of the nature of the order, judgment or decree from which relief is sought or of the proceedings in which it was entered. There shall be no distinction among actions at law, suits in equity and other proceedings, statutory or otherwise, as to availability of relief, grounds for relief or the relief obtainable.
      (2) The petition must be filed in the same proceeding in which the order, judgment or decree was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by rule.
      (3) The petition must be filed not later than 2 years after the entry of the order, judgment or decree. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.
      (6) Any order entered denying or granting any of the relief prayed in the petition is appealable.
      (7) Nothing contained in this section affects any existing right to relief from a void order, judgment or decree, or to employ any existing method to procure that relief.


source: Caselaw Access Project

author: JUSTICE ENGLISH.

license: Public Domain

text:
    Alfred Tabron, Plaintiff-Appellee, v. Roy W. Pleasant, et al., Defendants-Appellants.
    Gen. No. 49,892.
    First District, Fourth Division.
    September 24, 1965.
    Joseph E. Davis, of Chicago, for appellant;
    Alfred Tabron, of Worth, for appellee.
   Opinion by

JUSTICE ENGLISH.

Not to be published in full.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Appellee, v. Sam DeStefano, Appellant.
    Gen. Nos. 50,163, 50,164, 50,165.
    First District, First Division.
    November 8, 1965.
    Rehearing denied November 26,1965.

      Julius Lucius Echeles, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick A. Tuite, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In three separate orders, defendant, Sam DeStefano, was found guilty of contempt of court for his conduct during a trial, wherein he was charged with and found guilty by verdict and judgment of “illegally offering to vote,” the subject of a separate appeal in this court, No. 50162.

Although defendant had counsel of his own choice, he also acted pro se during the 11-day trial, from November 16, 1964, to November 27, 1964. After the conclusion of the trial, three separate orders were entered on December 9, 1964, finding him guilty of direct contempt on November 20, 24, and 27, 1964. For each contempt, defendant was sentenced to the County Jail for a term of one year, and the sentences were ordered to run concurrently. The third order also imposed a fine of $2,000.

On defendant’s motion, the three separate appeals from the contempt orders, Nos. 50163, 50164, and 50165, were consolidated and are considered as one appeal. Also, on .defendant’s motion, the Record and Abstract filed in appeal No. 50162 were allowed to stand as the Additional Record and Additional Abstract in the instant three appeals.

The three contempt orders are as follows:

Appeal No. 50163 — contempt of November 20, 1964:
“Now, in the name and by the authority of the People of the State of Illinois, the defendant, Sam DeStefano, being present in his own proper person, the matter against said defendant of alleged direct contempt is considered by this court.
And, thereupon, the Court finds as follows:
1. That on November 20, 1964, being one of the days of the November term A. D. 1964 of the Circuit Court of Cook County, Criminal Division, the case of People of the State of Illinois vs. Sam DeStefano, Indictment No. 64-1435, Illegal Voting, come on to be heard in the regular course before the court.
2. That a petit jury had been duly impaneled and sworn to try the issues before them in said case.
3. That during the course of said case the defendant, Sam DeStefano, acted as his own counsel.
4. That throughout said trial which commenced on November 16, 1964, the court repeatedly asked said defendant, Sam DeStefano, to obey the court’s rulings and instructions.
5. That on November 20, 1964, during the direct examination of witness, Mary Austin, the following took place:
Mr. Tuite, Assistant State’s Attorney: . . . Q. Mrs. Austin what, if anything, happened after that, after the defendant, DeStefano, signed his name on that document?
A. Then he goes to the two girls that have the — ■
Mr. McDonnell: Objection. Objection. It’s obvious what this witness is doing. The witness is saying what—
The Court: Keep your voice down.
Mr. McDonnell: I beg your pardon.
The Court: You don’t have to holler at me.
Mr. McDonnell: I am not hollering at your Honor.
Mr. DeStefano: Excuse me.
Mr. McDonnell: This witness is reciting what is ordinarily done.
The Court: Sit down and be quiet.
Mr. DeStefano: May I address the Court?
The Court: No.
Mr. DeStefano: Exception. The Court won’t let me address the Court.
The Court: Sit down and be quiet.
Mr. DeStefano: You were hollering at my co-counsel.
The Court: Step in the chambers.
(Whereupon, the following proceedings were had in chambers, outside the presence and hearing of the jury.)
The Court: I am citing Mr. DeStefano for contempt. On the record. Your remarks have been contemptuous. You totally disregard the Court’s order and instructions. You have been warned many times. At the end of this trial, we will take action on it.
Mr. DeStefano: May I address the Court ?
The Court: You may.
Mr. DeStefano: May I make a statement for the record? I didn’t mean to, Your Honor. I didn’t want to. But you were shouting at Mr. McDonnell much more than he was raising his voice.
The Court: That’s contempt, also.
6. That the conduct of the defendant, Sam De Stefano, which conduct of said defendant took place while this court was in open session, tended to impede and interrupt the proceedings and lessen the dignity of this Court.
The Court further finds that the defendant, who is now and here present in open Court, is by reason of said conduct of said defendant, guilty of direct contempt of this court in open court.
It is, therefore, Ordered, Considered And Adjudged, that the said defendant Sam DeStefano, because of said contempt as aforesaid be and he is hereby sentenced to confinement in the County Jail of Cook County, Illinois, for a term of one year from December 9, 1964, and after delivery of the body, of said defendant to Warden of the County Jail of Cook County, or until he is otherwise discharged by due process of law and the Sheriff of Cook County is hereby committed to take the body of said defendant from the bar of this Court and confine the same in the Cook County Jail in safe and secure custody for and during said term as aforesaid.”
Appeal No. 50164 — contempt of November 24, 1964:
“Now, in the name and by the authority of the People of the State of Illinois, the defendant Sam DeStefano being present in his own proper person, the matter against said defendant of alleged direct contempt of this court is considered by the Court.
And thereupon the Court finds as follows:
1. That on November 24, 1964, being one of the days of the November A. D. 1964 Term of the Circuit Court of Cook County, Criminal Division, the case of People of the State of Illinois versus Sam De Stef ano, Indictment No. 64-1435, Illegal Voting, came on to be heard in the regular course before the Court.
2. That during the course of said case, the defendant, Sam DeStefano, acted as his own counsel.
3. That on November 24, 1964 said defendant Sam DeStefano presented a motion for a mistrial.
4. That during the hearing on the motion the following took place between the Court and defendant, Sam DeStefano.
The Court: Proceed, proceed.
Mr. DeStefano: Mr. Martin is also suborning perjury—
The Court: Stop screaming at the Court. There is no need to yell at the top of your voice in this courtroom.
Mr. DeStefano: Are you speaking only to the defendant, pro se, sir?
The Court: Yes, I am speaking to you because you are shouting and they are not shouting.
Mr. DeStefano: They were not shouting, sir? Let the record show that both — not both, Mr. Tuite was shouting when he interrupted me and continued shouting afterwards. That the defendant, pro se, does not shout. He does have strong lungs even though the rest of his body isn’t as well as his lungs.
The Court: I cite you for contempt on that because Mr. Tuite did not shout at you.
Mr. DeStefano: He was shouting.
The Court: You are stating a falsehood when you say that he did shout because he did not raise his voice and shout.
5. That the conduct of the defendant, Sam De Stefano, which conduct of said defendant took place while this Court was in open session, tended to impede and interrupt the proceedings and lessen the dignity of this Court.
The Court further finds that the defendant, who is now and here present in open Court, is by reason of said conduct of said defendant, guilty of direct contempt of this court in open Court.
It is, therefore, Ordered, Considered And Adjudged, that the defendant, Sam DeStefano, because of said contempt as aforesaid be and he is hereby sentenced to confinement in the County Jail of Cook County, Illinois for a term of one year from, after December 9, 1964, delivery of the body of said defendant to Warden of the County Jail of Cook County, or until he is otherwise discharged by due process of law and the Sheriff of Cook County is hereby committed to take the body of said defendant from the bar of this Court and confine the same in the Cook County Jail in safe and secure custody for and during said term as aforesaid.”
Appeal No. 50165 — contempt of November 27, 1964:
“Now, in the name and by the authority of the People of the State of Illinois, the defendant Sam DeStefano being present in his own proper person, the matter against said defendant of alleged direct contempt of this court is considered by the Court.
And thereupon the Court finds as follows:
1. That on November 27, 1964, being one of the days of the November A. D. 1964 Term of the Circuit Court of Cook County, the case of People of the State of Illinois vs. Sam DeStefano, Indictment No. 64-1435, Illegal Voting, came to be heard in the regular course before the Court.
2. That a jury was duly impaneled and sworn to try the issues before them.
3. That the defendant Sam DeStefano during the course of the trial acted as his own counsel.
4. That on November 27, 1964, the defendant delivered a closing argument to the jury selected in the above mentioned case.
5. That the defendant, Sam DeStefano made, among other things in this closing argument to the jury the following statements:
I want to also thank his honor for showing me and you people that I, the defendant Sam DeStefano, cannot get a fair trial. I think the Cardinal Mindzenty of Hungary received a fairer trial from the Russian communists than we received from this court and the State.
6. That in the same closing argument to the jury the defendant Sam DeStefano also made the following statements:
What I can’t understand, here is a man on our bench, approximately 56 years old, who has always been known as a mild mannered man, a soft-spoken man. This man, Judge Herbert R. Friedlund, until this trial has been known as a fair, impartial, merciful judge. He was known as a good lawyer before he came upon the bench. He has a reputation throughout our county and state as a mild, fair gentleman at all times with an unblemished record.
What I can’t understand is where this viciousness, where this man who was so mild all of a sudden became vicious, angry and treated this defendant and the spectators and the defendant’s co-counsel as he has done in the past ten or twelve days. That, I can’t understand. I know the man for what he has been. I don’t know this man that has treated the defendant Sam DeStefano as he has done and made him belabor out here with the threat of contempt over and over again.
7. That in the same closing argument to the jury the defendant Sam DeStefano also made the following statements:
Lord Coke of England in 1620, and Pope Innocent, III, at around 1200 A. D. their bones must be turning over in their graves knowing what your Honor has done to this defendant, knowing the rulings, two great lawmakers such as them. That is the language that your Honor understands. Certainly, you must have learned and read of Lord Coke, one of our greatest lawmakers.
The Court: Talk to the jury.
Mr. DeStefano: I am talking to them, sir, when I am addressing you. Or Pope Innocent, III, the greatest lawmaker that ever sat on the papal chair. I’ll bet you his bones are turning over this day.
Some day, Judge, you will sit in silence with your own conscience and say this is the dirtiest day’s work you have ever done. You, sir, a man who was always so kind before, but this is the dirtiest day’s work you have ever done.
How? Why? I would like to know the answer. I would give anything to know that answer, how a man like you could turn like this. For 56 years unblemished, and then so cruelly and inhumanly browbeat a defendant and his co-counsel like this.
All of you people heard Mr. McDonnell. He is not only my co-counsel but a very dear friend of mine. We associate together, and I am proud, and that’s where I learned a little bit of my law. We have been together for a long time. He spends a great deal of time in my home and I spend a great deal of time in his home.
Now, if you recall, when Attorney McDonnell made that objection he really didn’t shout loud. It was the judge who angrily tried to browbeat him. And I jumped up to object because he was prejudicing my case. He took me in for contempt of court. And he was the one that committed the crime. But it is a weak judge, a weak judge who holds the whip of contempt of court over a citizen.
8. That the conduct of the defendant, Sam De Stefano, which conduct of said defendant took place while this Court was in open session and before a jury tended to lessen the authority and dignity of this Court.
It is, therefore, Ordered, Considered and Adjudged, that the said defendant, Sam DeStefano, because of said contempt as aforesaid be and he is hereby sentenced to confinement in the County Jail of Cook County, Illinois for a term of one year from December 9, 1964, and after delivery of the body of said defendant to Warden of the County Jail of Cook County, or until he is otherwise discharged by due process of law and the Sheriff of Cook County is hereby committed to take the body of said defendant from the bar of this Court and confine the same in the Cook County Jail in safe and secure custody for and during said term as aforesaid. And I further fine the Defendant, Sam DeStefano, the sum of Two thousand dollars for his contempt.”

Defendant’s contentions here are: (1) the recitals in the orders are not complete; (2) the conduct of defendant was not per se contemptuous under the circumstances; (3) the court failed to take into consideration defendant’s ill health and his lack of legal training; and (4) the sentences were excessive and unnecessarily punitive.

We consider first defendant’s contention that the recitals in the orders are not complete. He argues the orders do not include necessary language, and for that reason they are defective and should be reversed. We agree that.it is necessary for the trial court to enter a written order setting forth fully and clearly the facts out of which the contempt arose. (People v. Rongetti, 344 Ill 107, 176 NE 292 (1931).) All the essential facts must be fully set forth, and no part thereof can be supplied by presumptions or inferences. However, an order may be so drawn as to include matters by reference, and on review such matters so incorporated may be considered as part of the order. People v. Tavernier, 384 Ill 388, 51 NE2d 528 (1943).

As to the order covering the contempt of November 20, 1964, defendant argues that “there nowhere appears in the order any of the court’s rulings or instructions which the order states the court repeatedly asked defendant to obey. Nor does the recital in the order state that the defendant failed to obey such court’s rulings and instructions.” As to the order for the contempt of November 24, 1964, defendant states, “The recital order sets out only a part of the proceedings which took place. For if, as is apparent from the recital order the only reason the court held the defendant in contempt was that he stated that Mr. Tuite, the prosecutor was shouting also, it would be unfair not to permit the twenty-one persons in the audience to give sworn testimony to the fact that Mr. Tuite also shouted.” As to the order for the contempt of November 27, 1964, defendant notes that “the recital order . . . stated that during the closing argument to the jury the defendant ‘made, among other things in this closing argument to the jury the following statements. . . .’ Thereafter, the court excerpted certain of the statements which it deemed to be contemptuous.”

An examination of the orders to ascertain the merits of this contention shows that the order for the November 20 contempt states defendant was told twice to “sit down and be quiet,” and his remarks included, “You were hollering at my co-counsel.” This was in the presence of the jury. In chambers, and in citing defendant for contempt, the court said, “Your remarks have been contemptuous. You totally disregard the Court’s order and instructions. You have been warned many times. At the end of this trial, we will take action on it,” and defendant’s remarks in reply included, “But you were shouting at Mr. McDonnell much more than he was raising his voice.” This colloquy in open court and in chambers demonstrates contemptuous conduct per se.

The order for the contempt of November 24 shows a colloquy between the court and defendant, and that after defendant was directed to “stop screaming at the Court. There is no need to yell at the top of your voice in this courtroom,” he made disrespectful remarks to the court. At defendant’s suggestion, we have examined the Abstract filed in appeal No. 50162 and note that the recital order does not include all of the proceedings which then took place, including the following:

“The Court: I don’t know what you think you are accomplishing by screaming at me.
“Mr. DeStefano: Well, your Honor, I am not screaming at you. You stand here and let him call me an ex-convict. If you have any personal animosity against me you know what to do. You know where I live, I don’t know where you live. Why don’t you send me an invitation? ”

The foregoing excerpt from the colloquy of November 24 does not militate against a finding that the recital part of the order is sufficient to demonstrate contemptuous conduct per se. Likewise, the order covering the contempt of November 27 amply manifests contemptuous conduct per se. We hold that the recitals in each of these three contempt orders are sufficient to sustain a finding of contempt in each instance.

We consider next defendant’s contention that his conduct “was not per se contemptuous under the circumstances.” Defendant argues that he was not a lawyer, and that he was on trial from November 16, 1964, to November 27, 1964, charged with a crime never before prosecuted in this state; “he was, as he put it, fighting for his life. . . . The stress and strain on a defendant while standing criminal trial is considerable. How much more when that defendant chooses (foolishly perhaps) to represent himself and engages in colloquy and argument with court and prosecutor?” He further states, “We believe that every judge who has had the experience of presiding over criminal trials has had to caution counsel at one time or another to keep his voice down — both counsel for the State and for defendant. If every time a voice was raised above normal speech level, there was an order of contempt, the bar of criminal practitioners would be decimated for such periods of time as the courts imposed sentences.”

Defendant further states that in his address to the jury, “the thrust of defendant’s argument was that he received an unfair trial at the hands of the court,” and his remarks related to “the court’s conduct of the trial.” He asserts because no objections or attempts were made to stop the defendant from proceeding with the kind of argument he was presenting to the jury, “defendant was led to believe that his remarks to the jury were not improper; for otherwise, there would have been objections. At the outset of his remarks, the defendant apologized to the jurors for all the time that was wasted, but stated that it was not the fault of the defense, but that it was the fault of either the State or the court. Both prosecutors objected; and the court struck the remarks of the defendant.” He argues, “The court’s failure to interject during the closing argument, and the failure of the prosecutor to make any protest, militates against the finding that defendant’s remarks to the jury ‘tended to lessen the authority and dignity of this court.’ ”

In reply, the State argues that the contempt order for defendant’s conduct of November 20 shows that the defendant, “in the presence of the jury reprimanded the Court,” and “this conduct tend[ed] to impede the proceedings and disrupt the orderly process of a trial,” and “four days later the Court held the defendant in contempt once more.” The State asserts, “[at that time] the defendant questioned the Court’s veracity and blatantly accused the Court of stating a falsehood when the Court said the prosecutor was not shouting. This conduct surely brought the administration of justice into disrespect.” As to the third contempt, the State comments that “during his closing argument (or rather, tirade) Mr. DeStefano made an attack upon the Court in what will probably go down in legal history as the most contemptuous performance ever seen or heard. It seemed as if the contemnor was delivering a speech on how to be contemptuous by really trying.”

The guidelines to be used in reviewing contempt orders are set forth in People v. Loughran, 2 Ill2d 258, 118 NE2d 310 (1954). On page 262, the court said:

“All courts are vested with an inherent power to punish for contempt as an essential incident to the maintenance of their authority and the administration and execution of their judicial powers. A summary proceeding to punish for direct contempt, properly used within the discretion of the court, is not a violation of the constitutional guarantee of due process. In re Terry, 128 US 289; People v. Siegal, 400 Ill 208.”

On page 263, the court said:

“In a direct criminal contempt proceeding, that is, for contempts committed in the presence of the judge, in court, which he observes and has personal knowledge of, no formal charge is filed and no plea, issue or trial is required. (In re Terry, 128 US 289, 9 S Ct 77.) The contempt having been committed in the presence of the court, evidence is unnecessary and no record is made. (People ex rel. Owens v. Hogan, 256 Ill 496.) However, the accused has a right of appeal, and it is, therefore, necessary for the court to enter a written order setting forth fully and clearly the facts out of which the contempt arose so that the reviewing court may determine if the committing court had jurisdiction to enter the order. (People v. Rongetti, 344 Ill 107.) All the essential facts must be fully set forth and no part thereof can be supplied by presumptions or inferences (People v. Tavernier, 384 Ill 388,) and no facts which did not occur in the presence of the court should be taken into consideration by the court in adjudging guilt or in fixing the punishment. People v. Rongetti, 344 Ill 107.
“The power to adjudge guilt and impose punishment without proof or examination, and without plea, trial or issue exists in no other situation or proceeding. It is an exception to our constitutional guarantees which we would regard as intolerable in any other proceeding or for any other purpose. It is readily susceptible of abuse and fraught with danger not only to personal liberties but to the respect and confidence which our courts must maintain. Although such a power is universally recognized as essential to an orderly and effective administration and execution of justice, it should be exercised with utmost caution and strictly restricted to acts and facts seen and known by the court, and no matter resting upon opinions, conclusions, presumptions or inferences should be considered.”

The following pronouncements are also pertinent here. Conduct which tends to embarrass or obstruct the court in the administration of justice, or which tends to bring the administration of the law into disrespect or disregard, constitutes a direct contempt and is punishable as such. (People v. Gard, 259 Ill 238, 242, 102 NE 255 (1913).) Statements reflecting on the personal integrity of a judge in a suit that is pending before such judge is contempt of court. (Kneisel v. Ursus Motor Co., 234 Ill App 371, 380 (1924).) “A trial properly conducted is a dignified procedure. . . . Often in the heat and fervor of a sharply contested trial these standards are forgotten. Too often they are not only forgotten but completely disregarded and dragged in the mire. Objections properly made are addressed to the court and counsel is entitled to state his reasons for his objections, but an inflammatory statement accompanying each objection, apparently made solely for the purpose of prejudicing the jury, is improper. Abuse of opposing counsel and of the court has no proper place in a trial. All of these matters rest within the control of the trial court, and the trial court has the power and duty to preserve decorum. The trial court can and should institute contempt proceedings against recalcitrant counsel and impose either a fine or jail sentence.” Eizerman v. Behn, 9 Ill App2d 263, 286, 287, 132 NE2d 788 (1956).

In contempt proceedings, no matter how fully and clearly the facts are set forth, the recital part of the order cannot convey the complete picture of the courtroom scene. It does not depict such elements of misbehavior as expression, manner of speaking, bearing and attitude of the respondent. “Reliance must be placed upon the fairness and objectivity of the presiding judge. The occurrence must be viewed as a unit in order to appraise properly the misconduct, and the relationship of the petitioner as an officer of the court must not be lost sight of.” (Fisher v. Pace, 336 US 155, 161 (1949).) See, also, Sacher v. United States, 343 US 1 (1952), where the court said (pp 10, 11):

“In this case counsel repeatedly were warned that their conduct was regarded as contemptuous. No claim can be made that the judge awaited the close of the trial to pounce upon them for some offense unnoted at the time it occurred. If we were to hold that summary punishment can be imposed only instantly upon the event, it would be an incentive to pronounce, while smarting under the irritation of the contemptuous act, what should be a well-considered judgment. We think it less likely that unfair condemnation of counsel will occur if the more deliberate course be permitted. . . . We hold, . . . that if [the trial judge] believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power.”

When a defendant in a criminal trial undertakes to exercise his constitutional right to conduct and manage his own case pro se, it necessarily follows that he cannot embarrass or obstruct the court during the course of the trial. He does not have the right to let his temper, his zeal or his intention lead him into disrespectful, accusative language to the court. The trial court must, of necessity, maintain order and decorum in its presence. To sanction such conduct in open court, before a jury, would be to demoralize the authority of the court before the jury and the public. See MacInnis v. United States, 191 F2d 157, 159- (1951). Whether a contempt has been committed depends upon the act and not the alleged intention of the offending party. Kneisel v. Ursus Motor Co., 316 Ill 336, 342, 147 NE 243 (1925).

Considering the instant contempt orders in the light of the foregoing, we hold that the recitals in each of the three orders, of the facts which occurred in open court and in the presence of the court and jury during the trial, were sufficient for the entry of summary contempt orders and within the inherent power of the trial court. It was within the court’s sound discretion to enter the orders after defendant’s criminal trial had concluded, because the entry of the contempt orders on the occurrence dates might have endangered the due progress and termination of a difficult and extended trial.

Finally, the defendant contends that the court failed to take into consideration defendant’s ill health and defendant’s lack of legal training, and “under all the circumstances of the case the sentence was excessive and unnecessarily punitive.”

Defendant argues, “We do not contend, as a matter of law, that a defendant representing himself has any greater privilege than a lawyer trained in the art of trial. We do contend, as a practical matter, that a defendant trying his own case cannot lessen the dignity of the court in complaining to a jury that he received an unfair trial at the hands of the court. However inept and artless his remarks may have been, certainly the jury must have considered that remarks, which may not have been in good taste, came from a defendant who was not a lawyer, and against whom a felony conviction had been proved.” Also, defendant argues that the sentence and fine “exceeds the punishment for conduct during a trial in any single contempt case of which we are aware, either in the federal or'State courts.” Instances are cited where lawyers, found guilty of contempt, have been fined or sentenced from ten days to six months.

In reply, the State argues that “during the trial the defendant made objections and moved for mistrials when he thought it was appropriate. All this clearly shows that the defendant did have more than a rudimentary understanding of the law. In fact, when he wanted to, he acted as an attorney. The plea that the contemnor was without legal training and therefore should in some way mitigate his conduct is without merit,” and further, “how the defendant’s claimed ill health could excuse or mitigate his scurrilous attack on the court or his other reprehensible conduct and serve as a bar or shield and refuge is beyond comprehension. Has physical illness ever been a defense to a crime ?”

We find the instant contempt orders recite flagrant misconduct, disrespect and open defiance of the court’s authority, continued in the face of repeated warnings and findings of contempt during the trial. These contempts clearly embarrassed the court, disrupted and defeated the prompt and fair administration of justice. No court should permit such gross, deliberate and blatant disrespect for the court to go unpunished, whether by a lawyer or by a layman acting pro se in his own defense. Our courts could not long endure under such circumstances. Remarks made in Hallinan v. United States, 182 F2d 880 (1950), are apropos here (pp 887-888):

“Complaint is made as to the severity of the sentence. It is severe. We are unable to say the Court abused its discretion in imposing it. Gross misconduct merits commensurate punishment. We cannot have the same appreciation of an existing situation, from a review of a cold record, as does a presiding judge who witnesses the transgressions and senses the unfavorable impact upon the orderly administration of justice. An officer of a court has a higher duty to assist in maintaining the dignity and integrity of courts than does the ordinary citizen. True, every lawyer, if he is worthy of the name, must use every legitimate effort in support of his client and in so doing will be relieved from an improper contempt judgment. ... No such condition exists here. The record reflects quite the contrary.”

For the reasons given, the three orders of contempt appealed from, consolidated and considered as one appeal, are affirmed, and as the County Jail sentences 'are to be served concurrently, we see no reason to disturb them.

Affirmed.

BURMAN, P. J. and KLUCZYNSKI, J., concur.


text:
    People of the State of Illinois, Appellee, v. Sam DeStefano, Appellant.
    Gen. No. 50,162.
    First District, First Division.
    November 8, 1965.
    Rehearing denied November 26,1965.

      Julius Lucius Echeles, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick A. Tuite, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendant appeals from a judgment on a jury verdict, finding defendant guilty “of illegally offering to vote in manner and form as charged in the indictment.” Defendant was sentenced to the penitentiary for a term of one to three years.

Defendant was tried on a two-count indictment. Count 1 charged that on April 2, 1963, defendant “committed the offense of illegal voting in that he knowingly offered to vote at the municipal election held in the City of Chicago, Cook County, Illinois, and in precinct 64 of Ward 36 of the City of Chicago when the said Sam DeStefano had been convicted of the offense of rape in indictment No. 45013 in the Criminal Court of Cook County, in the State of Illinois on December 23, 1927, and when the said Sam DeStefano thereafter had never received a certificate restoring his rights of citizenship from the governor or court entitled to grant such certificate, in violation of chapter 46, section 29-26 Ill Rev Stats 1961.” Count 2 charged that on the same day the defendant “committed the offense of illegal voting in that he knowingly voted. ...”

Section 29-26 of. chapter 46 — Elections (Ill Rev Stats 1961) provides:

“If any person who shall have been convicted of bribery, felony or other infamous crime under the laws of any state, and who has never received a certificate restoring his rights of citizenship from the Governor or court entitled to grant such certificate, shall thereafter vote or offer to vote at any election or primary, he shall upon conviction thereof be adjudged guilty of a felony, and, for each and every offense shall be punished by imprisonment in the penitentiary for not less than two nor more than five years.”

Although defendant had counsel of his own choosing, he acted pro se during the entire trial.

At the conclusion of an 11-day trial from November 16, 1964, to November 27, 1964, the case was given to the jury for its consideration and verdict. After deliberating for some time, the foreman of the jury informed the court, in open court and with the jury in the jury box, that the jury was unable to reach a verdict. Thereupon the court ordered that a juror be withdrawn from the jury box, and the court declared a mistrial and excused the jury. Shortly thereafter, the court reconvened the jury, reopened the case, and received a verdict of guilty on Count 1. Judgment was entered on the verdict, and defendant was sentenced to the penitentiary. It is from this conviction defendant appeals.

Defendant’s contentions are: (1) The court having declared a mistrial because of the announced inability of the jury to agree on a verdict, the subsequent order of court reopening the case and receiving a verdict as to one count was a nullity. (A) The prosecutor’s communications with the jurors before the return of the so-called verdict contaminated the jury’s findings. (2) The court erred in refusing to poll the jury upon demand by the defendant. (3) The Act under which defendant was indicted is unconstitutional as applied to the defendant. (4) The Act under which defendant was indicted was repealed without a saving clause before defendant was indicted. (5) There was insufficient evidence to justify the verdict. (A) No proof that defendant knowingly violated the law or that he had the requisite criminal intent. (1) The judge refused to instruct that knowledge was essential. (B) No proof that he “offered to vote.” (C) No proof that a court did not restore defendant’s rights. (6) Defendant was entitled to his discharge under the Four Term Act. (7) The court erred in failing to inquire about the prejudice of a juror who announced to another juror that “it will be all over in five minutes.”

Initially, as defendant seeks reversal without remandment, we consider those contentions which, if considered valid, are sufficiently basic to require final judgment here.

The first considered of these contentions is, “The Act under which defendant was indicted [or convicted] is unconstitutional as applied to the defendant.” Defendant asserts that “knowledge of the disability to vote was essential to the proof of the State’s case.” Defendant maintains that Lambert v. California, 355 US 225 (1957), is controlling on this point. In that case, a Los Angeles Municipal Code provided that any person who had been convicted of a felony was required to register with the police if he remained in the city for more than five days, and that failing to do so constituted a crime. The evidence shows that a Miss Lambert had previously been convicted of forgery and failed to register. Upon such proof, defendant was convicted and sentenced. During the course of her trial she attempted to prove she had no actual knowledge of the requirement that she register. Such offer was refused by the trial court. The United States Supreme Court held the ordinance to be unconstitutional as it applied to the defendant and stated (p 228):

“Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges.”
Also, “. . . [A] ctual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. . . . Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.” (pp 229, 230.)

The State notes that in Lambert v. California, it was also said (p 228):

“But we deal here with conduct that is wholly passive — mere failure to register. It is unlike the commission of acts .... The rule that ‘ignorance of the law will not excuse’ ... is deep in our law, as is the principle that of all the powers of local government, the police power is ‘one of the least limitable.’ ”

From this the State argues the Lambert case was concerned with punishing passive conduct, and since the complained of actions of defendant were positive, the Lambert case does not apply here. We agree.

Pronouncements made in Thompson v. State, 9 SW 486 (Texas) (1888), are pertinent here:

“Upon the trial the court gave an instruction as follows: Tf the defendant had been convicted of an assault with the intent to murder, as alleged in the indictment in this cause, and if he knew at the time he so voted that he had been so convicted, such knowledge of his conviction would be equivalent in law to knowing himself not to be a qualified voter.’ It is contended by counsel for defendant that said instruction is erroneous in principle, and that it is also upon the weight of evidence. We believe the instruction to be correct and unobjectionable. Ignorance of the law is no excuse for a violation of the law, . . . and no mistake of law excuses one committing an offense. . . . Everyone is conclusively presumed to know the law, both as to civil and criminal transactions. The law is administered upon the principle that everyone must be taken conclusively to know it, without proof that he does know it. . . . As the defendant knew the fact that he had been convicted of the offense of assault with intent to murder, it must be conclusively presumed that he knew the legal consequences of such conviction; That he knew that the law declared that offense to be a felony; and that the constitution and the law made one of the consequences of the conviction his disqualification to vote. He cannot be heard to deny such knowledge; and it was not necessary that it should be proved that he had such knowledge, because the presumption of law supplied and dispensed with such proof. ... It seems to us that if we were to hold the law to be that the State must prove that the defendant knew that the offense of which he had been convicted was a felony, and that such conviction disqualified him to vote, the effect would be that a conviction for illegal voting by persons convicted of felony could rarely be obtained, because it would be an exceptional case in which such proof could be made. Such a holding would not accord with our understanding of the spirit and reason of the law, and is not supported by any precedent to which we have been cited, or which we have been able to find.” (pp 486-487.)

See, also, Gandy v. State, 86 Ala 20, 5 So 420, to the same effect.

Defendant also quotes the Fifteenth Amendment to the Federal Constitution:

“Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

From this, defendant argues, “a convicted felon is no less a citizen of the United States. And although the Fifteenth Amendment was adopted after the Civil War primarily to insure the right to Negroes to vote in southern states, the plain language of the Amendment applies to the defendant here. His ‘previous condition of servitude’ in a penitentiary is held to bar his voting; but that is a condition prohibited by the Amendment.”

Defendant further asserts, “The 13th Amendment provides, ‘Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.’ Accordingly involuntary servitude relates to penal confinement. And the 15th Amendment forbids any State to deny the right to vote on account of a person’s ‘previous condition of servitude/ . . . Nor is there any case that has decided squarely that it is not an unconstitutional abridgement of a citizen’s right to vote to legislate against a felon from so doing.”

In reply to this contention, the State cites Lassiter v. Northampton County Board of Elections, 360 US 45 (1959), where it is said:

“We do not suggest that any standards which a states desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record (Davis v. Beason, 133 US 333, 345-347) are obvious examples indicating factors which a state may take into consideration in determining the qualifications of voters.” (p 51.)

Also, Rice v. Elmore, 165 F2d 387, cert denied, 333 US 875, where the court said:

“The Fourteenth and Fifteenth Amendments were written into the Constitution to insure to the Negro, who had recently been liberated from slavery, the equal protection of the laws and the right to full participation in the process of government.” (p 392.)

We believe the foregoing authorities indicate that defendant’s contention that section 29-26, chapter 46, Ill Rev Stats 1961, the basis for the instant indictment, “is unconstitutional as applied to the defendant,” is without merit.

Next considered is defendant’s contention, “The Act under which defendant was indicted was repealed without a savings clause before defendant was indicted.” Therefore, defendant asserts, “No law existed thereafter which made it a crime to ‘offer to vote.’ ” Defendant was indicted in May, 1964, for an alleged offense committed April 2, 1963. The indictment charged a violation of section 29-26 of the Election Code (Ill Rev Stats 1961, c 46). Article 29 of said Act was repealed without a saving clause on August 7,1963, by Laws of 1963, p 2569, § 2.

The State argues the prosecution is valid under the general saving clause of the Construction of Statutes Act (Ill Rev Stats 1963, c 131, § 4). Defendant argues that People v. Tanner, 27 Ill2d 82, 188 NE2d 42 (1963), requires an “explicit saving clause” incorporating by reference section 4 of the Construction of Statutes Act, and “accordingly, it is clear that the statute under which defendant was indicted and convicted was repealed without a savings clause.” We do not agree. In People v. Bilderback, 9 Ill2d 175, 137 NE2d 389 (1956), our Supreme Court considered the application of section 4 of the Construction of Statutes Act, and said (p 181):

“Nowhere in the combination of circumstances out of which this problem arose is there a suggestion that the legislature was expressing its purpose that conduct which took place before the statutory change should no longer be criminal. No thought of a general pardon for those who had committed the offense here involved can be distilled from the circumstances of this legislative change. The case falls squarely within the terms of the Statutory Construction Act, and the judgment was correct.”

We consider this statement applies here, notwithstanding the law under which defendant was indicted was repealed without replacement.

Defendant next contends “there was insufficient evidence to justify the verdict.” Defendant again argues, “The State failed to prove the defendant had knowledge that he could not ‘offer to vote.’ No means existed by which a person convicted of a felony could avail himself of such knowledge, unless that fact were brought to his attention. Lambert v. California, 355 US 225.” Defendant asserts the court refused defendant’s instructions, which “related to the requirement that before the jury could find the defendant guilty, it had to find that the defendant’s act was done with conscious intent to violate the law and that further ‘knowledge of a material fact includes awareness of the substantial probability that such fact exists.’ ” He also states the court “refused to permit the defendant to prove through the wardens of the Illinois Penitentiary that no prisoner was ever told that he could not vote upon his release.”

We find no merit in any of the foregoing points. As defendant knew he had been convicted of the offense of rape, it must be conclusively presumed that he knew the legal consequences of such conviction. The rule that ignorance of the law is no excuse applies here. In People v. Becker, 179 Ill App 446 (1913), the court said (pp 451, 453):

“[T]he rule that ignorance of the law excuses no man applies with all its force to cases of the violation of the election laws; that if the voter is aware of a state of facts which disqualify him under the law and is ignorant of the law, he may be convicted of the crime of illegal voting. . . . We do not perceive any substantial difference between the question of intent, mistake of law, ignorance of law, and mistake of fact involved in this and in other criminal cases.”

The record shows that the State established proof that defendant was convicted of a felony in 1927; that defendant on September 15, 1961, registered to vote by filling out an application and swearing “he was fully qualified to vote”; that on April 2, 1963, he signed an application for ballot and entered a voting booth on election day. The State also asserts, “The State did prove through a certified copy that a search of the certificate of Kestoration records of the Secretary of State’s Office failed to reveal that Sam DeStefano’s rights were restored by any Governor of the State of Illinois from the year of his conviction to the present. This is a proper method of proof. People v. Dolgin, 415 Ill 434.” The State argues, “In the clearest sense of the word, the defendant ‘offered to vote.’ He took substantial steps toward the act of actually voting. He did everything required of a person in order to vote (except of course, receive restoration of his voting rights). An offer is a proposal to do a thing. Smith v. Illinois Valley Ice Cream Co., 20 Ill App2d 312.”

Defendant argues, “The State failed to prove that the defendant ‘offered to vote’ as charged in Count 1. It proved, if it proved anything, that defendant ‘voted’ as charged in Count 2. But as to that count, the jury could not agree upon a verdict.” Defendant further argues, “But even assuming that the State presented proper and sufficient evidence that the defendant was not restored by any governor, the record is entirely silent that defendant was not restored by any ‘court entitled to grant such certificate’ (of restoration). This is proof affirmative which the State was required to make under the language of the section under which defendant was indicted.”

The proof made by the State was sufficient to present the issues to the jury. It was not necessary for the State to prove “that defendant was not restored by any ‘court entitled to grant such certificate.’ ” If defendant’s “rights of citizenship” had been restored by any court, that fact was peculiarly within defendant’s knowledge, and the averment that no court restored him is taken as true unless disproved by the defendant. People v. Prystalski, 358 Ill 198, 192 NE 908 (1934).

Defendant also contends that he was entitled to his discharge under the Four Term Act. The statute provides that “every person on bail or recognizance shall be tried by the court having jurisdiction within 120 days from the date defendant demands trial unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.” Ill Rev Stats, c 38, § 108-5 (b), Code of Criminal Procedure 1963, effective January 1, 1964.

Defendant states he “was arrested on April 30, 1964, and appeared in court May 4, 1964 and continuously demanded trial on May 11, June 10, June 19, July 2, August 27. He should have been discharged in accordance with see 103-5, chap 38, Ill Rev Stats 1963. He moved for a discharge on September 23, September 30, October 7, and on October 8. He was not put to trial until November 17, 1964.”

The State replies, “The record clearly shows delays occasioned by the defendant.” On May 25, 1964, defendant filed a motion for change of place of trial. This was denied on June 10, 1964. On July 2, 1964, defendant filed motions to dismiss the indictment, which were denied on August 27, 1964, and on September 23, 1964, defendant again moved to take the case out of Cook County, which motion was again denied. On September 30.1964, a hearing was had on a motion of defendant for substitution of judges. This was denied. On October 7, 1964, defendant renewed his motions to dismiss the indictment and asked the court to consider the motions overnight and decide them on October 8, 1964, which request was granted. The trial commenced on November 17.1964.

The foregoing motions made by defendant show that the failure to try defendant within 120 days was because of delays occasioned by the defendant, and therefore his “Four Term Act” contention is without merit. In People v. Hamby, 27 Ill2d 493, 190 NE2d 289 (1963), the court said (p 495):

“Where, however, the accused has sought and obtained a continuance, or agrees to a continuance, or in any manner causes delay in trial by his own action, the four-months period is renewed and starts to run again from the date the delay occurred, or to which the cause was continued. . . . The motions to test the validity of the indictments in this case and the delay occasioned thereby were correctly charged to the defendant.”

Finally, we reach defendant’s determinative contentions that every act subsequent to the declaration of a mistrial was a nullity, and that it was error not to poll the jury on his request.

The record shows that the following occurred prior to the reception by the court of the guilty verdict.

“Whereupon at 10:45 P. M. the following proceedings were had:
‘The Court: Mr. Foreman, have you reached a verdict?
The Foreman: No, your Honor, we haven’t.
The Court: Does it look like you can come to a unanimous decision ?
The Foreman: No, sir, it doesn’t.
The Court: All right. Mr. Clerk, will you call the name of one juror.
The Clerk: Robert G. Arnold, will you step out of the jury box.
The Court: This Court declares a mistrial. You are all excused. You may go home.
Mr. Tuite: We are not objecting to their deliberating further.
The Court: He says they can’t come to a unanimous verdict.
Mr. Tuite: I think the Foreman wants to say something.
Mr. McDonnell: Thank you, your Honor.
Mr. DeStefano: I thank all of you.
The Court: You are discharged.
Mr. DeStefano: May I speak ?
Mr. Tuite: Let the record show the State objects to the mistrial.
Mr. DeStefano: Counsel for the Defense objects to the mistrial. We object to the mistrial.
(Whereupon, the following proceedings were had outside the presence and hearing of the jury:)
The Court: There is one more matter we have to take care of. One matter we have to dispose of is your contempt. I am citing you, again, for your conduct today during the course of the trial and your closing argument.
A Bailiff: The jury told me they’ve come to a verdict on one of the charges.
Mr. Tuite: The jury informed us they reached a verdict on one count and misunderstood the Court. They have told me.
The Court: Bring the jury back. Bring the jury back.
Mr. McDonnell: Objection to re-opening the case after a mistrial has been declared.
(Whereupon, the following proceedings were had in open court, within the presence and hearing of the jury:)
The Court: The jury has made a request to come back, and the case will be re-opened. Is that true, Mr. Foreman ?
The Foreman: Yes, sir.
The Court: For what purpose ?
The Foreman: We found the defendant guilty on one count.
The Court: Well, you failed to state that to me before.
The Foreman: You didn’t ask me, sir.
The Court: I asked you if you reached a unanimous verdict. That meant either count.
The Foreman: I am sorry. I misinterpreted.
The Court: You mis-informed me? All right, give the verdict that you have arrived at to the Clerk. The Bailiff will pick it up. Please sit down over there where you belong.
Mr. DeStefano: They were near the jurors.
The Court: Did you reach this verdict before you came out the first time?
The Foreman: Yes, sir.
The Court: You were ready to deliver it to the Court, but you misunderstood me? Is that true?
The Foreman: Yes, sir.
Mr. McDonnell: Judge, please, your Honor—
The Court: Then, pass your verdict up to the Clerk.
The Bailiff: Your Honor, I left it on the desk in the jury room. Should I get it ?
The Court: Go with the Bailiff and bring it in. It is obvious there has been a mistake here. I am correcting it.
Mr. DeStefano: When the jury was out here, the State’s Attorney and other people were near them, your Honor. The jury is supposed to deliberate in a closed room. After they left the court room and other people got near them, and so forth, then they come back, sir. A mistrial was declared, sir.
The Court: All right, Mr. Foreman, will you deliver your verdict to the Clerk ?
Mr. Clerk, see if the verdict is in order.
The Clerk: Yes, Judge, the verdict is in order.
The Court: All right. Read the verdict.
The Clerk: “We, the jury, find the defendant, Sam DeStefano, guilty of illegally offering to vote, in manner and form as charged in the indictment. We, the jury, further find that the defendant is now fifty-five years of age.” Signed by the Foreman and the eleven other jurors.
The Court: How about the other count? On the other count you are unable to reach a unanimous verdict ?
The Foreman: Y es, your Honor.
Mr. McDonnell: You have declared a mistrial. It is not only illegal—
The Court: Make your argument after we have dismissed the jury.
Mr. DeStefano: I wish to poll the jury.
The Court: Are you able to come to a unanimous decision on the second count?
The Foreman: No, your Honor.
The Court: The jury is excused, then.
Mr. DeStefano: I thank you, anyway.’ ”

Obviously, the foregoing presented an unusual situation. Defendant argues the trial judge followed the procedure prescribed in Illinois for the declaration of a mistrial (People v. Noel, 6 Ill2d 391, 128 NE2d 908 (1955); People v. Miller, 55 Ill App2d 146, 204 NE2d 305 (1965)), and thereafter the jurors could not render a valid verdict.

The State argues the court properly corrected a mistake, and the trial judge had “a duty to vacate an order entered if changed facts or circumstances make the prior order unjust.” (Richichi v. City of Chicago, 49 Ill App2d 320, 199 NE2d 652 (1964).) The State also cites People v. Powell, 99 Cal App2d 178, 221 P2d 117, where, after a mistrial, the trial court learned of a mistake and vacated his order declaring a mistrial and received a guilty verdict on one count. On review, it was held that the trial judge acted properly in vacating the mistrial and correcting the error.

The defendant points out that in People v. Powell, 99 Cal App2d 178, 221 P2d 117, all of the proceedings attending the reception of the guilty verdict occurred with the jury still in the box and, further, “at the defendant’s request, ‘the jury was polled and it appeared that the verdict was unanimous.’ ” Defendant further notes that in the Powell case it was argued the verdict was void because it was received after the jury had been discharged, and People v. Chong, 29 P 776, was cited in support. The reviewing court in the Powell case, in noting the cases differed factually, said (p 119):

“For instance, in the Chong case the jury had left the box, had separated, had engaged in conversation with various persons, deeming they had been discharged and might therefore discuss the case, and it was held under such circumstances reversible error had been committed in thereafter re-assembling them and proceeding to receive and record a verdict. While it is true here that the court, laboring under the belief that the jury had not agreed on any verdict as to appellant, preliminarily announced its intention to discharge them, nevertheless the error was discovered before they had been permitted to leave the box and the court was therefore fully justified in rectifying, and, indeed, in the performance of its duties was required to rectify, the misunderstanding and receive the verdict which the jury had unanimously agreed upon. It often happens, due to the reluctance of jury members to speak out, that such misunderstanding as existed here will arise, and a trial court would be remiss in its duties if, before it lost control of a jury, it discovered that such a situation had developed and did not correct it.”

In the instant case, the misunderstanding by the foreman was most unfortunate, particularly after a lengthy and turbulent trial. However, the jury had left the box and returned to the jury room, they had engaged in conversations with a bailiff and an Assistant State’s Attorney, deeming that they had been discharged and might therefore discuss the case, and the court in effect had “lost control” of the jury before the court discovered that a misunderstanding had occurred which caused the discharge of the jury. The integrity of a jury verdict and its receipt and recordation in any jury trial must be above question, especially in a criminal case, where the interests of both the defendant and the public are involved. There are situations in which a trial court is fully justified in rectifying a misunderstanding by the jury and receiving a verdict which the jury had unanimously agreed upon, but we do not believe the circumstances portrayed here justified the receipt of the instant verdict.

We now consider defendant’s contention that “for failure of the court to poll the jury upon demand, the judgment should be reversed.” It affirmatively appears from the record that when the court received the verdict, defendant stated, “I wish to poll the jury.” The record does not disclose any ruling by the court on this request of defendant, and it is not disputed by the State that the jury was not polled after the verdict was received. Defendant argues, “The law in'Illinois requires the polling of the jury upon demand of the defendant. This procedure was established early in the judicial history of Illinois.” Cases cited include Nomaque v. The People, 1 Ill (Breese) 145 (1825), where the court said, “The prisoner had a right to have the jurors polled.”

The State argues that “Illinois has no Constitutional or statutory provision giving the defendant the right to poll the jury. The right, if any, which exists respecting the polling of a jury is from the common law,” and “the Illinois eases cited in Appellant’s brief all deal with sealed verdicts where it is sound to have the jury polled to ascertain whether the verdict read is the verdict signed and sealed earlier by the jury. ... In the case of an open verdict, where the jury hears the verdict read in open court as in this case and can dissent if the verdict read is not the verdict reached during deliberation, it would seem that no substantial right of the defendant is violated when the court does not poll the jury.”

The state further argues that as this point was not included in defendant’s written motion for a new trial, “it is deemed to have been waived and therefore not subject to review.” (People v. Touhy, 31 Ill2d 236, 240, 201 NE2d 425 (1964).) This is the general rule, but we think defendant’s contention comes within the recognized exceptions which call for the use of this court’s discretionary power to “consider errors that have not been properly preserved for review.” See People v. Bradley, 30 Ill2d 597, 601, 198 NE2d 809 (1964); People v. Fleming, 54 Ill App2d 457, 203 NE2d 716 (1965); and the Code of Criminal Procedure (Ill Rev Stats 1963, c 38, § 121-9 (a)), which provides:

“(a) Insubstantial and Substantial Errors on Appeal.
Any error, defect irregularity or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”

As to the right to poll the jury in general, an annotation in 49 ALR2d 619, divides the states into three categories: those where the right is absolute, those where it is forbidden, and those where it is viewed as discretionary. On the basis of the language in the case of Nomaque v. The People, ALR views Illinois in the first category. An extended discussion of the various authorities pro and con is unnecessary here. The circumstances attending the receipt of the instant guilty verdict demonstrate the importance of the polling of a jury. Even if the verdict had been properly returned, we consider the failure to poll the jury, after an affirmative request so to do, to be reversible error.

Other contentions of defendant have not been considered because we believe that on a new trial the events upon which these contentions are based will not reoccur.

Because of the reversible errors which occurred in the receipt of the verdict and in the failure to poll the jury, the judgment of the Criminal Division of the Circuit Court of Cook County is reversed and the cause remanded to that court for further proceedings in accordance with this opinion.

Reversed and remanded.

BURMAN, P. J. and KLUCZYNSKI, J„ concur.