Mr. Justice Schaefer
delivered the opinion of the court:
A judgment of the criminal court of Cook County found the defendant, James Ryan, guilty of criminal contempt of court and sentenced him to the county jail until such time as he should comply with the order of the court by producing the books and records of Tam O’Shanter Country Club, a corporation, as specifically designated in a subpoena duces tecum. The case is here on writ of error.
The July, 1950, grand jury of the criminal court of Cook County was investigating violations of the State’s antigambling laws. On July 19, 1950, the State’s Attorney filed a verified petition in the criminal court seeking the issuance of a subpoena duces tecum requiring the Tam O’Shanter Country Club, an Illinois corporation, and Wilfred A. Weismann, its secretary, to produce certain books, records and documents alleged to be in their possession and necessary and material to be produced.
An order was entered that the desired subpoena duces tecum issue, directed to the club and its secretary, Weismann, commanding each of them to appear forthwith before the grand jury to give evidence in the cause and to produce all papers described. The subpoena duces tecum issued the same day contained the name of the defendant, James Ryan, in addition to the parties named in the petition and order. It commanded the corporation, Weismann and defendant to produce the following records before the grand jury:
“(A.) All records showing Cash Receipts of Tam O’Shanter Country Club for period January 5th, 1949, to July 5th, 1950.
“(B.) All records showing Cash Disbursements of Tam O’Shanter Country Club for period January 5th, 1949, to July 5th, 195P.
“(C.) All records showing Cash Receipts received by Tam O’Shanter Country Club for period January 5th, 1949, to July 5th, 1950, from operation of Coin Machines, including slot machines and from Gambling Games.
“(D.) General Ledger of Tam O’Shanter Country Club for period January 5th, 1949, to July 5th, 1950.
“(E.) All records showing Accounts Receivable and Accounts Payable of Tam O’Shanter Country Club for period January 5th, 1949, to July 5th, 1950.
“(E.) All records showing Accounts of Each Member belonging to Tam O’Shanter Country Club for the last three years,
“together with all copies, drafts, and vouchers relating to said documents, and all other documents, letters and paper writings whatsoever,' that can or may afford any information or evidence in said matter.”
This subpoena duces tecum and a grand jury subpoena ad testificandum were served upon defendant on the following day. He appeared before the grand jury, answered some questions, refused to answer others on the ground that the answers might tend to incriminate him, but failed to produce the materials demanded by the subpoena duces tecum. On August 3, 1950, the foreman of the grand jury filed a verified petition for a rule to show cause why defendant should not be held in contempt for failure to obey the subpoena duces tecum. An order directing defendant to show cause was entered on the same day. Defendant filed a sworn answer, and, after a hearing, he was found guilty of contempt and committed by the court to the county jail to remain until such time as he complied with the order by producing the books and records of the Tam O’Shanter Country Club specifically designated in the subpoena duces tecum.
To reverse the judgment, defendant first contends that he should be discharged because his sworn answer to the rule to show cause purged him of the alleged contempt. He argues that he was tried for a criminal contempt and therefore was entitled to be tried on his answer alone, that answer being conclusive as to the facts it alleges, and the remedy for false statements in the answer being by prosecution for perjury.
We do not pause to consider either our own decisions indicating that since the grand jury is a constituent part of the court, a contempt committed before it is a direct contempt to which the rule relied upon by defendant is inapplicable, (People v. Sheridan, 349 Ill. 202; In re Estate of Kelly, 365 Ill. 174,) or the decisions of other jurisdictions pointing out the anachronistic character of that rule. (See Clark v. United States, 289 U.S. 1, and the authorities there cited.) For analysis of defendant’s answer shows that even if the rule relied upon was applied here, it would not assist him. It is not just any answer which purges the witness of contempt, but only an answer which sets forth facts which, as a matter of law, excuse him from responding to the command of the subpoena.
Setting apart, for the moment, those portions of the answer in which defendant justifies his position upon constitutional grounds, the answer first points out that the subpoena was served upon defendant by a policeman of the city of Chicago at a place outside the city limits. Just what legal consequences of benefit to defendant might be thought to follow from these allegations is not apparent. (See, Chicago and Aurora Railroad Co. v. Dunning, 18 Ill. 494.) In any event, defendant’s assignment of error that no lawful service of the subpoena was had upon him has not been argued and is abandoned.
The answer next alleges that following defendant’s failure to appear before the grand jury he was arrested under an irregular writ of attachment and forcibly brought before the grand jury. This arrest occurred prior to the issuance of the rule to show cause which instituted the contempt proceeding now before us. It is manifest that defendant was arrested for his failure to appear as a witness in response to the subpoena ad testificandum which had been served upon him. The circumstances of that arrest and its validity or invalidity have no bearing upon the propriety of the order committing defendant for failure to obey the subpoena duces tecum.
Defendant’s answer next asserts that the petition for the issuance of the subpoena duces tecum was insufficient to give the court jurisdiction to order the issuance of the subpoena. The defect relied upon is the alleged failure of the petition to state the nature of the matter pending before the grand jury or any other fact indicating that the documents sought were necessary or material to the investigation. To sustain his contention, defendant relies upon section 9 of the Evidence Act (Ill. Rev. Stat. 1951, chap. 51, par. 9,) which provides: “The several courts shall have power, in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue.” It is true that in Bentley v. People, 104 Ill. App. 353, the Appellate Court, placing reliance upon this statute, held that a subpoena duces tecum to produce books and records before a grand jury should not issue, in the absence of any showing that the books requisitioned contain anything pertinent to any matter undergoing investigation before the grand jury. But the unambiguous language of section 9 discloses that it is not applicable to proceedings before a grand jury.
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Mr. Justice Schaefer
delivered the opinion of the court:
A judgment of the criminal court of Cook County found the defendant, James Ryan, guilty of criminal contempt of court and sentenced him to the county jail until such time as he should comply with the order of the court by producing the books and records of Tam O’Shanter Country Club, a corporation, as specifically designated in a subpoena duces tecum. The case is here on writ of error.
The July, 1950, grand jury of the criminal court of Cook County was investigating violations of the State’s antigambling laws. On July 19, 1950, the State’s Attorney filed a verified petition in the criminal court seeking the issuance of a subpoena duces tecum requiring the Tam O’Shanter Country Club, an Illinois corporation, and Wilfred A. Weismann, its secretary, to produce certain books, records and documents alleged to be in their possession and necessary and material to be produced.
An order was entered that the desired subpoena duces tecum issue, directed to the club and its secretary, Weismann, commanding each of them to appear forthwith before the grand jury to give evidence in the cause and to produce all papers described. The subpoena duces tecum issued the same day contained the name of the defendant, James Ryan, in addition to the parties named in the petition and order. It commanded the corporation, Weismann and defendant to produce the following records before the grand jury:
“(A.) All records showing Cash Receipts of Tam O’Shanter Country Club for period January 5th, 1949, to July 5th, 1950.
“(B.) All records showing Cash Disbursements of Tam O’Shanter Country Club for period January 5th, 1949, to July 5th, 195P.
“(C.) All records showing Cash Receipts received by Tam O’Shanter Country Club for period January 5th, 1949, to July 5th, 1950, from operation of Coin Machines, including slot machines and from Gambling Games.
“(D.) General Ledger of Tam O’Shanter Country Club for period January 5th, 1949, to July 5th, 1950.
“(E.) All records showing Accounts Receivable and Accounts Payable of Tam O’Shanter Country Club for period January 5th, 1949, to July 5th, 1950.
“(E.) All records showing Accounts of Each Member belonging to Tam O’Shanter Country Club for the last three years,
“together with all copies, drafts, and vouchers relating to said documents, and all other documents, letters and paper writings whatsoever,' that can or may afford any information or evidence in said matter.”
This subpoena duces tecum and a grand jury subpoena ad testificandum were served upon defendant on the following day. He appeared before the grand jury, answered some questions, refused to answer others on the ground that the answers might tend to incriminate him, but failed to produce the materials demanded by the subpoena duces tecum. On August 3, 1950, the foreman of the grand jury filed a verified petition for a rule to show cause why defendant should not be held in contempt for failure to obey the subpoena duces tecum. An order directing defendant to show cause was entered on the same day. Defendant filed a sworn answer, and, after a hearing, he was found guilty of contempt and committed by the court to the county jail to remain until such time as he complied with the order by producing the books and records of the Tam O’Shanter Country Club specifically designated in the subpoena duces tecum.
To reverse the judgment, defendant first contends that he should be discharged because his sworn answer to the rule to show cause purged him of the alleged contempt. He argues that he was tried for a criminal contempt and therefore was entitled to be tried on his answer alone, that answer being conclusive as to the facts it alleges, and the remedy for false statements in the answer being by prosecution for perjury.
We do not pause to consider either our own decisions indicating that since the grand jury is a constituent part of the court, a contempt committed before it is a direct contempt to which the rule relied upon by defendant is inapplicable, (People v. Sheridan, 349 Ill. 202; In re Estate of Kelly, 365 Ill. 174,) or the decisions of other jurisdictions pointing out the anachronistic character of that rule. (See Clark v. United States, 289 U.S. 1, and the authorities there cited.) For analysis of defendant’s answer shows that even if the rule relied upon was applied here, it would not assist him. It is not just any answer which purges the witness of contempt, but only an answer which sets forth facts which, as a matter of law, excuse him from responding to the command of the subpoena.
Setting apart, for the moment, those portions of the answer in which defendant justifies his position upon constitutional grounds, the answer first points out that the subpoena was served upon defendant by a policeman of the city of Chicago at a place outside the city limits. Just what legal consequences of benefit to defendant might be thought to follow from these allegations is not apparent. (See, Chicago and Aurora Railroad Co. v. Dunning, 18 Ill. 494.) In any event, defendant’s assignment of error that no lawful service of the subpoena was had upon him has not been argued and is abandoned.
The answer next alleges that following defendant’s failure to appear before the grand jury he was arrested under an irregular writ of attachment and forcibly brought before the grand jury. This arrest occurred prior to the issuance of the rule to show cause which instituted the contempt proceeding now before us. It is manifest that defendant was arrested for his failure to appear as a witness in response to the subpoena ad testificandum which had been served upon him. The circumstances of that arrest and its validity or invalidity have no bearing upon the propriety of the order committing defendant for failure to obey the subpoena duces tecum.
Defendant’s answer next asserts that the petition for the issuance of the subpoena duces tecum was insufficient to give the court jurisdiction to order the issuance of the subpoena. The defect relied upon is the alleged failure of the petition to state the nature of the matter pending before the grand jury or any other fact indicating that the documents sought were necessary or material to the investigation. To sustain his contention, defendant relies upon section 9 of the Evidence Act (Ill. Rev. Stat. 1951, chap. 51, par. 9,) which provides: “The several courts shall have power, in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue.” It is true that in Bentley v. People, 104 Ill. App. 353, the Appellate Court, placing reliance upon this statute, held that a subpoena duces tecum to produce books and records before a grand jury should not issue, in the absence of any showing that the books requisitioned contain anything pertinent to any matter undergoing investigation before the grand jury. But the unambiguous language of section 9 discloses that it is not applicable to proceedings before a grand jury. The statute specifically refers to pending actions, issues, reasonable notice and “the parties or either of them.” A proceeding before a grand jury is not a pending action but rather a secret investigation which may or may not result in the commencement of a criminal proceeding. The giving of notice of a motion for a subpoena duces tecum is unknown in grand jury investigations. There are no parties but only witnesses. There are no issues. Section 9 of the Evidence Act does not apply to grand jury investigations. There is no statutory requirement that the witness subpoenaed be informed as to the nature of the investigation, either in the petition for the subpoena or in the order directing its issuance. A witness commanded to produce documents before a grand jury may be entitled, however, to be informed as to the nature of the matter under investigation in order to safeguard his constitutional rights. In this case, the defendant was informed by the original petition, indeed by the subpoena itself, that the grand jury was investigating Tam O’Shanter Country Club in connection with gambling and slot machines. That information was adequate to meet any constitutional requirement. In addition, as hereinafter pointed out, the petition of the foreman of the grand jury for a rule to show cause spelled out in detail the relevance of each of the documents included in the subpoena.
Defendant’s answer next complains < that he was not named in either the petition seeking the subpoena or the order directing its issuance and that his name was improperly added to the subpoena issued by the clerk of the court. On this ground, he contends that he was not guilty of contumacious conduct in refusing to produce the designated books and records. Defendant was not named in the petition, and the order entered directed that a subpoena issue to the Tam O’Shanter Country Club and Weismann, its secretary. Defendant’s name, written in longhand, appears in the subpoena served upon him. The names of the other witnesses were typed. Defendant’s conclusion is that his name was added to the subpoena after it was issued by the clerk. But the facts remain that the documents requisitioned were the books and records of the corporation; that the petition filed sought a subpoena directed to the corporation; that the order authorized the issuance of a subpoena directed to the corporation, and that the corporation was named in the subpoena which issued. When the books and records of a corporation are desired to be produced before a grand jury, a subpoena duces tecum may be directed to the corporation itself and the corporate officer having their custody is a proper person to produce them. (Wilson v. United States, 221 U.S. 361; People v. Reynolds, 350 Ill. 11.) Answering the rule to show cause, defendant denied that he was an officer, director, member or official of the corporation. He admitted, however, that he was attorney in fact of the corporation, and in this capacity had the sole and exclusive possession of the records demanded, and that no other person had access to, or even knowledge of the location of, the documents ordered to be produced. As a corporate agent having possession and control of its records, defendant was amenable to the subpoena duces tecum directed to the corporation. This being so, whether he was named in the petition, order, or subpoena is immaterial. Since the subpoena was directed to the corporation, defendant was a proper person to be served and the subpoena, if otherwise legally sufficient, imposed upon him the duty of obedience to its command.
It is apparent that none of the allegations of defendant’s answer thus far discussed justify his refusal to comply with the command of the subpoena. The remaining portions of the answer raise constitutional issues — that enforced production of the books and records would deprive the defendant of his privilege against self-incrimination, and would constitute an unreasonable search and seizure.
In analyzing the claim based upon the privilege against self-incrimination, it is most important to note that the books and records sought by the subpoena were books and records of the corporation, Tam O’Shanter Country Club, and that it is the defendant who is asserting the privilege against self-incrimination. On these facts, it is quite clear that the privilege against self-incrimination is not an available defense, either under the Illinois constitution or that of the United States. As we stated in People v. Munday, 280 Ill. 32, “* * * while one cannot be compelled to produce any of his private books or papers which may tend to incriminate him, he cannot refuse to produce the books or papers of a corporation of which he is an officer or in which he may be interested even though they may be in his custody and under his control, as they are not his private books and records but the books and records of the corporation.”
The Supreme Court of the United States has so ruled as to the Federal constitution. “Since the privilege against self-incrimination is a purely personal one, it cannot be utilized by or on behalf of any organization, such as a corporation. Hale v. Henkel, 201 U.S. 43; Wilson v. United States, 221 U.S. 361; Essgee Co. v. United States, 262 U.S. 151. See, also: United States v. Invader Oil Corp. 5 F. (2d) 715.” (United States v. White, 322 U.S. 694.) And, because of the personal character of the privilege, the custodian of corporate records cannot claim a privilege against self-incrimination, even though production of the papers might incriminate him. Wilson v. United States, 221 U.S. 361; Dreier v. United States, 221 U.S. 394; Baltimore & Ohio Railroad Co. v. Interstate Commerce Com. 221 U.S. 612; Wheeler v. United States, 226 U.S. 478; Grant v. United States, 227 U.S. 74; Essgee Co. v. United States, 262 U.S. 43.
Concerning defendant’s claim that the subpoena is so broad as to amount to an unreasonable search and seizure, what was said in People v. Allen, post, page 508, decided today, is pertinent. Under the authorities there cited, the demand here is not unreasonable in view of the subject under investigation — the conduct of gambling operations by a country club. The petition for a rule to show cause spelled out the materiality of each of the demanded records in the following terms: “* * * that the records showing the cash receipts of the corporation for the period of January 5, 1949 to July 5, 1950 will show the cash receipts obtained by collections from slot machines and other gambling devices for the period mentioned; that the records showing the cash disbursements of the corporation for the period of January 5, 1949 to July 5, 1950 will show to whom the cash receipts obtained from the slot machines and other gambling devices was paid or delivered; that the general ledger of the corporation for the period of January 5, 1949 to July 5, 1950 will further establish the cash receipts of slot mechines and other gambling devices and the disposition of the said receipts; that the accounts receivable and accounts payable of the corporation will establish the record of I.O.U.’s signed by various persons with reference to gambling accounts of the said persons and the purchase, rental and repair of various gambling devices; that the records of the corporation showing the accounts of each member of the Tam O’Shanter Country Club will establish that members operated various gambling devices on the premises of the Tam O’Shanter Country Club and had charged against their accounts certain sums of money used by the respective members in the operation of gambling devices.”
In one particular, however, the question is not ruled by People v. Allen. The last clause of the subpoena reads, “together with all copies, drafts and vouchers relating to said documents, and all other documents, letters and paper writings whatsoever, that can or may afford any information or evidence in said matter.” The petition for the issuance of the subpoena did not contain this clause, nor did the order directing its issuance. It was a part of the printed form of subpoena used. The same clause appeared in the subpoena in People v. Allen, but there the propriety of the various items of the subpoena was tested by a motion to quash, and the resulting order of the court enumerated the specific items to be produced.
This general language in the subpoena, not requested and not authorized, is clearly surplusage. It neither adds to nor detracts from the subpoena. Standing alone, it would not support a contempt citation. There was no challenge directed to this printed portion of the subpoena in the trial court. Defendant, however, relies upon the statement in Bowman Dairy Co. v. United States, 341 U.S. 214: “One should not be held in contempt under a subpoena that is part good and part bad.” It is important to note, however, that the offending clause in that case had survived a motion to quash in the trial court. In our opinion the inclusion of an improper item in a subpoena duces tecum does not result in total invalidity so that a witness thereby escapes the obligation of complying with any portion of it. Cf. Tolman v. Jones, 114 Ill. 147; Ex parte Connor, 240 Ala. 327, 198 So. 850; Kimball v. Superior Court, 38 Cal. App. 761, 177 Pac. 488; Hanna v. State, 169 Miss. 314, 153 So. 371; In re Knaup, 144 Mo. 653, 46 S.W. 151; Ex parte Tinsley, 37 Tex. Crim. App. 517, 40 S.W. 306, aff’d 171 U.S. 101; Liquor Control Com. v. McGillis, 91 Utah, 586, 65 Pac. 2d 1136. See: New Parkway Vistas, Inc. v. Ginsberg, 258 App. Div. 1089, 18 N.Y.S. 2d. 4.
In affirming the Tinsley case, the Supreme Court displayed a different attitude from the one stated in the Bowman Dairy Co. case. “We concur in the view that it was undoubtedly competent for the District Court to compel the surrender of the minute book and notes, in Tinsley’s possession, and that he could not be discharged on habeas corpus until he had performed or offered. to perform so much of the order as it was within the power of the District Court to impose, even though it may have been in some part invalid. In re Swan, 150 U.S. 637.” (Tinsley v. Anderson, 171 U.S. 101, 107.) And this court, in Tolman v. Jones, 114 Ill. 147, adopted an even more stringent viewpoint: “The order of June 16, at the most, was not wholly void, but only in the particular wherein it is complained of as being too broad. Appellant’s proper remedy would have been an application to the court to modify the order in that respect. * * * There was no offer or willingness ever expressed to execute any assignment to the extent it is not objected to, as being too broad.” See, also: Berkson v. People, 51 Ill. App. 102, 109, 111.
A witness faced with a subpoena duces tecum which he believes to be invalid in whole or in part has the opportunity to appear before the court which issued it and move that it be quashed, vacated, or amended. At that time a speedy adjudication of the validity of the entire subpoena may be had. If the witness chooses, instead, to sit by and do nothing but wait for the contempt proceeding in which to litigate these issues, he assumes the risk of punishment for failure to obey the valid portion of the subpoena. In this case, defendant took that risk. Power to punish his disobedience is not lost because he points out, for the first time in this court, a technical objection. A concession that the general language of the last clause of the subpoena is bad would not aid defendant. The judgment sentencing him for contempt of court commits him to the county jail until he produces the books and records “specifically designated” in the subpoena. Since the last clause of the subpoena does not specifically designate any documents, it is clear that defendant was not sentenced for failure to comply with that clause, but only for his failure to produce the books and records which were specifically designated in clauses “A.” to “F.” inclusive.
Defendant next contends that a sentence to indefinite imprisonment is improper in a criminal contempt proceeding. He relies upon People v. Redlich, 402 Ill. 270, a civil contempt proceeding, where the following observation, unnecessary to the decision, was made: “Imprisonment imposed for a criminal contempt is purely punitive and must be for a definite term.” The only authority cited in support of the quoted statement is Rothschild & Co. v. Steger & Sons Piano Mfg. Co. 256 Ill. 196, another civil contempt case, which does nothing more than intimate that imprisonment should be for a definite term. Our decisions in this area have been characterized by a flexibility which is not reflected in the single sentence relied upon from People v. Redlich. In People v. Elbert, 287 Ill. 458, the court weighed the relative effectiveness of punishment for civil or criminal contempt and then said: “The dividing line between the acts constituting criminal and those constituting civil contempts becomes indistinct in those cases where the two gradually merge into each other. In those cases contempts have been classified and punished by the courts in some jurisdictions as criminal contempts and in others as civil contempts. Some courts adhere to the rule defining them as civil or criminal contempts, according to the character of the suit in which they occur, designating them as civil contempts if the original suit is a civil suit and as criminal contempts if they arise in an original suit criminal in form. In most cases where they thus rest on the boundary line they are both civil and criminal con-tempts, and so far as the rights of the contemnors are concerned may be punished as either.” In People ex rel. Brundage v. Peters, 305 Ill. 223, this court said: “There is no difference in the power of the court to administer punishment in the two classes of contempts or in the penalty that may be inflicted. * * * All the authorities agree that the power of courts to adjudge punishment for contempts does not depend on constitutional or legislative grant, but is inherent in all courts as necessary for self-protection and an essential auxiliary to the administration of the law.” Commitments of the character here involved were sustained in Wilson v. United States, 221 U.S. 361, and Hale v. Henkel, 201 U.S. 43, both involving criminal contempts for failure to produce corporate books and records in grand jury investigations.
In any event, the present defendant, who was sentenced to an indefinite term of imprisonment, is hardly in a position to complain that he was not sentenced to a definite term of imprisonment. As has been aptly observed, he carries the keys of his prison in his own pocket (In re Nevitt, 117 Fed. 448, 461,) when sentenced to an indefinite term. He can end the sentence when, as and if he so desires. This he could not do if sentenced to a definite term.
Defendant’s last contention is that the judgment order of August 25, 1950, is impossible of performance because it commands him to produce the documents before the July, 1950, grand jury, now nonexistent, in order to obtain his release from confinement. He supports this contention by directing attention to the portion of the judgment which commits defendant to the county jail until he complies with the order of the criminal court by producing the records of the corporation, “as specifically designated” in the subpoena duces tecum. The quoted words refer to the documents to be produced, rather than to the place of production. The judgment entered August 25, 1950, subsequent to the expiration of the term of the July, 1950, grand jury does not purport to command the production of the corporation’s records before that or any other grand jury. Production in the criminal court of the books and records specifically designated in the subpoena dated July 19, 1950, would constitute complete compliance with the judgment.
The judgment of the criminal court of Cook County, is affirmed.
, , , Judgment affirmed. .