dissents.
This is not the ordinary case of contempt, consisting of submitting by the respondent, knowingly and wilfully, of a false transcript to be certified by the court. In such case the scienter depends upon the knowledge of the presenting attorney that the transcript was false when he presented it.
In the motion for a new trial there developed a situation where the recollection of a particular question, or two, and the conduct of the plaintiff’s attorney at that time was in dispute. The recollection of the court and of the plaintiff’s attorney were in accord and the recollection of defendant’s attorney, the respondent herein, was in disagreement. The obligation was placed on the respondent by the court to obtain a transcript of what' the court reporter’s notes said. This obviously was not a request for a transcript to be certified. It obviously was a request for the transcript of the court reporter’s notes in their original state. It certainly was not a request for the respondent to obtain a transcript which corresponded with his recollection. The respondent ordered the transcript. The transcript came and the critical page (Number 7) corroborated the court and corroborated the plaintiff’s attorney as to what had been done and said. The respondent did not deliver that transcript to the court. Instead, the respondent called the court reporting agency, said that the transcript was inaccurate and poor work, and told the court reporting agency what his recollection of the transaction was. The court reporting agency picked up the transcript. They returned it the very next morning. Page 7 had been changed. It now read in a way that corresponded with the respondent’s recollection. He read the change. He submitted it to the court without any explanation. It is clear to me that the respondent did not comply with the court’s directions; that he knew he had not complied with the directions in a way to make effective the court’s intended use of the transcript, and that by failure to disclose that fact to the court, he intended to deceive the court.
As that deception would relate to an important point in a motion for a new trial, that deception tended to impede the administration of justice, and on those simple facts alone the respondent is guilty of a contempt of court.
All direct contempts are not committed in the actual presence of the court. Some direct contempts are committed in the environs of the court — the clerk’s office or the grand jury room — and some direct contempts are committed partly in the presence of the court and the remainder of the acts constituting the contempt are admitted by the contemnor in open court. Illinois Law and Practice, Vol. 12, pages 4-6, Sec. 3. It is my opinion that the conduct of the contemnor in this proceeding, conformed to the latter case. People v. Berof, 367 Ill. 454, 455-456.
At the time the judge first indicated that he was going to hold the contemnor in contempt of court, all those things had either been done in the presence of the court or had been admitted by the contemnor in open court upon the hearing of the motion to set aside the order granting the new trial. It was therefore direct contempt and the court could have at that time punished summarily. That the court entered a rule to show cause and directed the taking of testimony on behalf of the state and on behalf of the respondent, does not change the nature of the contempt. It is customary in cases where a direct contempt is not committed entirely within the presence of the court, to enter a rule to take testimony in regard to that part of the contempt not committed in the presence of the court itself. In re Estate of Kelly, 365 Ill. 174, 178-9; People v. Howarth, 415 Ill. 499, 508-509.
If, however, I should agree with the majority opinion that this was a more normal type of contempt involving the presentation of a false transcript in the ordinary sense of the word, which involves a question of certification, and imposing upon the court in that regard, and that it was an indirect contempt, which placed upon the state the obligation of proving the contemnor guilty beyond a reasonable doubt, I would still think him so. The difference in the concept merely changes the type of scienter from one where he knew he was not doing what the court requested him to do, and changed his instruction, so to speak, without advising the court, and thereby intended to deceive the court, to another type of scienter which would require the state to prove that the respondent knew that the transcript was false when he delivered it to the court.
Such a question of scienter is very difficult to prove because it involves the condition of a man’s mind. In this case all the testimony of the respondent was, of course, self-serving, and his credibility is to be judged by his interest. It depends entirely upon the exact words allegedly used by the representative of the agency when the respondent complained that the transcript was not accurate; and when the respondent told the representative of the agency what he thought the transcript should contain, respondent says that the agent said, “Send it back and we will check it with our notes.” The state did not call as a witness the representative of the agency, nor did the respondent. The slightest deviation in the exactitude of those words would change the whole problem of scienter. It is a well established principle of law, where only one witness testifies to a material event, that you are not required to believe that witness if it seems highly improbable and there are other reasons which affect credibility. Tepper v. Campo, 398 Ill. 496, 505.
There are certain collateral matters which were developed on the rule to show cause which shed light upon the credibility of this respondent’s self-exculpatory statement: (1) The court reporter’s notes were, and remained, in complete corroboration of the first transcript submitted; (2) The court reporter was no longer employed by the agency at the time the transcript was first delivered; (3) The court reporter’s notes were not in the possession of the agency; (4) She had taken the notes, written up the transcript at home on her own stationery and returned the transcript to the agency; (5) The agency could not have checked the notes. With that situation is to be coupled the fact that the respondent told the agency what the transcript should contain, in accordance with his recollection. Is it reasonable to believe that under the circumstances the agency said to the respondent, “Send it over and I’ll check it.”
I think the preponderance of the evidence indicates that the respondent approached Shirley Ann Cook and checked her notes with her and asked her to put in the words “police report,” and she refused. His interest in denying it is more evident than her interest in affirming it. The evidence is uncontroverted that the respondent on more than one occasion had conversations with the head of the reporting agency in regard to this matter. Even in the construction of this contempt as set out in the majority opinion, and with the provision that it is an indirect contempt and must be proved beyond a reasonable doubt, I am convinced that the respondent is guilty.
It has been urged on oral argument that the respondent’s fine reputation at the bar and his long and honored practice should in some way palliate his offense. It might appear that such a position at the bar would place upon him a greater obligation to be scrupulously correct in his conduct. I cannot give my approval to his conduct in this case.
In this connection it should also be pointed out that this case involves integrity in the administration of justice. The court appeared to be exceedingly fair. He gave the respondent rights in regard to the hearing which he might not necessarily have given him. He was fair and impartial in his rulings as far as the record discloses. In this case he was trying to maintain in his court room the highest standards of the profession and scrupulous integrity in the administration of justice. I think it is highly important that his effort in that regard be approved. I therefore must dissent.