Blankenbaker v. State

• Decision Date: 15 May 1929
• Docket Number: 24,825
• Citation: 166 N.E. 265,201 Ind. 142
• Parties: Blankenbaker v. State of Indiana
• Court: Indiana Supreme Court

166 N.E. 265

201 Ind. 142

Blankenbaker v. State of Indiana

No. 24,825

Supreme Court of Indiana

May 15, 1929

1. CONTEMPT---Direct Contempt---Statement of Judge---Accepted as True on Appeal.---In cases of direct contempt, the Supreme Court will accept as true the statement entered of record by the lower court of the matter constituting the contempt. p 153.

2. CONTEMPT---Direct Contempt---Appeal from Conviction---Presumption as to Judge's Statement.---On appeal from a finding of guilt of direct contempt, it will be presumed that the statement of the matter constituting the contempt, made by the judge pursuant to 1082 Burns 1926 contains all of the facts upon which the conviction for contempt was had. p. 153.

3. CONTEMPT---Direct Contempt---Filing Motion for New Trial---Insufficient to Sustain Charge.---The filing of a motion for a new trial in a criminal case by an attorney representing the defendant therein, setting out the reasons for a new trial which the attorney, in good faith, believed to exist, was not direct contempt of court within the meaning of 1076 Burns 1926, where there was no misconduct by the attorney, at the time of filing, which interfered with the proceedings of the court. p. 154.

4. CONTEMPT---Attorney's Right to Prepare and File Motion for New Trial---Contents of Motion---Held Not Contempt.---An attorney for any person charged with crime has the legal right, after his client has been found guilty as charged, to prepare and file a motion for a new trial, setting out therein the rulings of the court in which he believes the court erred and thereby prejudiced his client in the trial of the cause, and such act would not be a contempt although such motion contained statements that the judge deemed false and contemptuous. p. 154.

5. EVIDENCE---Judicial Notice---Supreme Court of its own Records.---The Supreme Court takes judicial notice of its own records. p. 155.

6. CONTEMPT---Charge of Contempt in Filing Motion for New Trial---Judge's Statement as to Grounds---Presumption as to Misconduct.---In a proceeding against an attorney for contempt of court in filing a motion for a new trial in a criminal case in which he represented the defendant, where the judge's statement as to the grounds for the charge does not disclose that there was any discourteous or disrespectful conduct at the time of filing said motion, it will be presumed that there was no objectionable conduct at that time. p. 158.

7. CONTEMPT---Conviction for Contempt---Absence of Legal Evidence---Conviction Contrary to Law.---Where there is no legal evidence to sustain a conviction for contempt, the conviction is contrary to law. p. 158.

From Clay Circuit Court; Thomas W. Hutchison, Judge.

Felix Blankenbaker was convicted of a direct contempt of court, and he appealed.

Reversed.

White Wright & McKay, Miller, Bieler & Causey, Henry W. Moore, Walter Brewer, Albert R. Owens, Charles C. Whitlock and Harold A. Henderson, for appellant.

Arthur L. Gilliom, Attorney-General, for the State.

OPINION

Per Curiam.

The appellant was convicted of direct contempt of court and fined in the sum of $ 100, and ordered imprisoned for a period of 30 days on the Indiana State Farm. From this judgment he appealed.

The record shows that on June 27, 1924, in the Clay Circuit Court of Clay County, Indiana, the following proceedings were had before the Honorable Thomas W. Hutchison, sole judge of said court:

"In the Matter of the Contempt Proceedings No. 686 Against Felix Blankenbaker. CONTEMPT OF COURT.

"Felix Blankenbaker, the accused, being present in court, the clerk thereof, by the direction of the judge, read to him a statement by the judge, charging him with direct contempt of court, which statement by the court, and the statement of his defense by said Felix Blankenbaker, are as follows:

"State of Indiana, County of Clay--ss:

"In the Matter of the contempt proceedings against Felix Blankenbaker.

Charges.

"The said Felix Blankenbaker, being present in court, the court makes the following statement of the contempt of court of which the accused is now and has been guilty:

"That he filed in the Clay Circuit Court of Indiana, on the 13th day of June, 1924, a motion for a new trial in the case of the State of Indiana against Edward Barber, Cause No. 669 of said court, containing certain false, willful, malicious, impertinent, scandalous, insulting, and contemptuous language, charges and insinuations and libels, not inuring in any way for the benefit of said defendant, the record disclosing and affirmatively showing that no proper objection was made at the time of such incidents, or exception reserved for the purpose of reviewing the same; but the same being inserted in said motion for a new trial for the sole and only purpose of belittling and injuring the dignity of the court, insulting the judge thereof, and to vent the feelings of a spiteful and malicious heart.

"The said language constituting such offense is as follows:

"'Fifth: The court erred in announcing from the bench, when a motion for continuance was filed in said cause, that defendant would not be given time to prepare his defense in said cause, as threats were being made to tear down the jail and release the defendant, and that an extra guard had to be employed to guard the defendant, at the expense of the county.

"'Sixth: The court erred in fixing the time for the defendant to be tried on the 5th day of May, the first day of the May term, in this to wit: That said motion for continuance was filed on the day of April, 1924, and that in said motion was shown to the court that defendant's counsel would be required to go to St. Louis, Missouri, and make an investigation and find witnesses' names and addresses and arrange to take depositions of witnesses, after an investigation, and that notice would be required to be given to the state; that the court sustained motion for continuance on the day of April, 1924, and set the time for trial for May 5, 1924, allowing only a period of nine days to elapse, which was not a reasonable time to get ready, and which made it impossible for defendant to prepare his defense and get his evidence.

"'Tenth: The court erred in demonstrating his bias and prejudice against defendant by announcing to the jury that he knew enough outside of the record to send the defendant to the electric-chair, which statement was false and untrue, and showed the biased mind of the court in trying said cause.

"'Eleventh: The court erred in interrogating jurors by requiring them to state that they would inflict the death penalty as readily as they would life imprisonment.

"'Twelfth: The court erred in requiring each juror to state that he would not shrink from assessing the death penalty any more than he would hesitate to assess a life sentence in this case.

"'Fourteenth: The court erred in demanding the sheriff to bring the defendant into court before the jury without giving him an opportunity to get shaved or fully dressed.

"'Fifteenth: The court erred in producing defendant, over defendant's objection, into open court before the jury with several weeks' growth of beard on his face, in tatters and rags and almost barefooted.

"'Sixteenth: The court erred in refusing defendant to file an amended special plea of insanity, before the jury was sworn to try the cause.

"'Eighteenth: The court erred in stating in open court that he had observed defendant, had had him in court to plead, and had noticed him in the court room and his eyes looked all right, and he therefore pronounced him to be of sound mind.

"'Twentieth: The court erred in striking out parts of witness Rothmeir's evidence after defendant had rested, and the court was informed that the witness had left the state.

"'Twenty-first: The court erred in ruling on State's motion to strike out the testimony of John Rothmeir for leaving the state. In saying in the presence of the jury that it was not the law that he could do that, but that Wigmore, the greatest authority on evidence, said it ought to be, and immediately proceeded to strike it out.

"'Twenty-second: The court erred in refusing to try defendant in the same manner as though the indictment had been returned in the Clay Circuit Court.

"'Twenty-third: The court erred in refusing to permit defendant to inquire of prospective jurors whether or not they belonged to any secret organization, for the purpose of exercising a peremptory challenge.

"'Twenty-fourth: The court erred in not making an order that Fred Tosser, who was confined in the State Prison at Michigan City, be produced in court to testify on behalf of defendant; his evidence was very material.

"'Twenty-fifth: The court erred in not giving defendant an opportunity to get an order from court to produce Mike Murphy, who was confined in prison at Michigan City, in court to testify for defendant.

"'Thirtieth: The court erred in not appointing a local attorney of the Clay County Bar to assist in his defense.'

"Whereupon the said Felix Blankenbaker and the said Hon. Thomas W. Hutchison, sole judge of said court had the following conversation, to wit:

Statement of Mr. Blankenbaker.

"Mr Blankenbaker: 'I want to take exceptions to the court ordering this part of the motion read, and want to inquire what is the nature of this proceeding.'

"Judge: 'I said the paper will speak for itself and you now have an opportunity to make a statement.'

"Mr. Blankenbaker: 'Is there a charge filed here against me? If there is, I want an opportunity to answer.'

"Judge: 'The statement was read to you and was made out according to law, and the reporter is here to take down whatever statement you have to make.'

"Mr Blankenbaker: 'I will state to the court that if there has been...