OPINION
Travis, J.
This
case is one of alleged contempt of court by appellant, acting
at the time of such contempt as a grand juror. He, with the
other five grand jurors, appeared in open court, and filed
with the court what the grand jury termed to be its final
report. The judge of the court did not know the contents of
the report so filed until after the grand jury had separated
and gone to their several homes; and on the day following the
filing of such report, the judge prepared a written statement
of such parts of such report which was alleged to constitute
contempt of court; which written statement was set forth in
the order of the court, and which directed the arrest of
appellant. The written statement made by the court, in which
was set forth the contemptuous language used by appellant and
his co-grand jurors in their said report, is as follows
"Be it remembered that heretofore, to-wit:--December
19th, 1920, the following named parties, to-wit:--Lance M
Coons, et al, and the other five grand jurors, who were then
and there members of and constituted the grand jury of
Delaware Circuit Court for the September term, 1920, came
into open court and as such jurors and in open court
presented to the court for filing and to be filed what was by
them denominated the grand jury's final report, which
said report so presented was signed by each and all of said
parties and by each and all presented to the court as
aforesaid; that said report so presented and when presented
in
open court contained the following scandalous, false,
libelous, and contemptuous language and paragraphs, to-wit:--
"'The
grand jury also laments the fact that the presiding judge is
known by the members of the bar to be biased and prejudiced
to such an extent that a large number of attorneys at the bar
believe him to be so unfair in the trial of cases in his
court, that they cannot get fair rulings and decisions from
the judge, to such an extent that the judge is
known to take one side or the other in all cases tried before
him, and is known to favor certain lawyers and disfavor
certain other lawyers that practice law before
him.'"
Also
the following:--"'The grand jury returned into the
court after a further investigation, an indictment against
Court Asher for burglary; who is generally known to be a law
violator. Humble, law-abiding citizens wanting homes and
citizens protected from thieves and burglars, and innocent
women and children perhaps from death at the hands of
burglars we think this man, Asher, who was charged with
burglary, should have been punished and sent to prison. There
was no doubt, from the evidence, as to the guilt of Court
Asher. It was not denied. The presiding judge blocked the
efforts of the prosecuting attorney and would not let the
case go to the jury for a decision, but deliberately selected
one of the petit jurors and requested him to sign a verdict
of not guilty, and thereafter refused the prosecuting
attorney permission to poll the jury.'"
Also
the following:--"'We are of the unanimous opinion
that through a connivance and conspiracy on the part of the
presiding judge, Court Asher, Tom Miller and others, the
burglary case against Court Asher was fixed and understood
between the parties that Court Asher would be assisted in his
defense by the presiding judge and his acquittal had. And in
support of this opinion we have the sworn testimony that
Court Asher, a short time before the trial of his case,
offered to bet and wager money that if he were tried in this
court he would be acquitted.'"
Also
the following:--"'And we, the grand jury, do not
believe that the presiding judge of our court should hand out
such high-handed decisions. We believe that Court Asher was
guilty of the crime charged against him in the indictment,
and that, had the presiding judge been fair
and impartial in his rulings and dealings, and permitted the
jury to have decided the case, a conviction would have been
found.'"
Also
the following:--"'Members of this grand jury saw the
presiding judge talk privately with Tom Miller, after he, Tom
Miller, had been indicted for burglary by this grand jury,
and we are appraised of the fact that the presiding judge,
after learning that Tom Miller and Court Asher and Gene
Williams had been indicted for burglary in an adjoining
county, communicated with an officer of an adjoining county
and requested that officer to be very easy on Court Asher,
Tom Miller, and Gene Williams.'"
Also
the following:--"'For us to say that the good
citizens of Delaware County have been outraged by such
misconduct on the part of our presiding judge is putting it
mild, and in behalf of the decent and respectable citizens of
Delaware County who pay their taxes to maintain a court house
and a court where justice should be meted out to lawless
people, we the grand jury, make this request that the
presiding judge, William A. Thompson, forthwith transmit his
resignation as the judge of the Delaware Circuit Court to the
Honorable James P. Goodrich, Governor of the State of
Indiana, and that the same be effective at once. The
presiding judge being declared the protector of criminals,
has no right to sit upon the bench and further usurp the
office of judge.'"
"That
all of the above and foregoing paragraphs were contained and
set out in said report when the same was so presented to said
court for filing in said court.
"That
said report was passed to the court at about dusk on Saturday
December 19, 1920, and that the court did not see and know
the contents of said report until after the said grand jurors
had separated and gone to their several homes,
many of them far distant in the country, and now, on this the
20th day of December, 1920, and at the first opportunity the
court now makes and enters the above and foregoing concerning
the conduct of the said parties above named in and about the
matters hereinbefore set out, and the court now orders and
directs that a warrant issue for the arrest and production in
open court in the said Delaware Circuit Court of the parties
above named, at 2:00 o'clock P.M. on the 21st day of
December, 1920, to make answer to and be held responsible by
said court for and on account of said contemptuous conduct as
hereinbefore set out and charged as having been done and
performed by said parties. And this matter is now postponed
and continued until said date in order to permit the sheriff
to produce in court the above named parties."
At the
time fixed in the warrant the sheriff produced the said
members of said grand jury in court. Thereupon appellant
presented to the court for filing, and offered to file, his
verified application and affidavit for change of venue from
the judge; and the court refused to note the filing of such
verified application and affidavit, and refused to file the
same, or permit the same to be filed as one of the papers in
said cause. Thereupon appellant and his co-grand jurors
presented to the court for filing, and offered to file, their
separate and several motion to quash and set aside the writ;
and the court refused to note on its minutes the filing of
such motion, and refused to file such motion, or to permit it
to be filed; and thereupon appellant, together with his
co-grand jurors, offered to file their separate and several
answer to the statement of the court theretofore entered of
record; and the court refused to note the filing of said
answer, and refused to file it, or permit it to be filed; to
all of which rulings by the court appellant at
the time of such rulings, duly excepted. The court thereupon
announced its finding, opinion, and judgment in writing; that
each of said grand jurymen was guilty of contempt, and
punishment by a fine for such contempt; to which finding and
judgment
appellant duly excepted; and thereupon appellant, with his
co-grand jurors, filed their separate and several motion
asking the court to reconsider its opinion and judgment,
which motion was by the court overruled; and thereupon sixty
days were granted said grand jurors to file any and all bills
of exceptions; and each of said grand jurors prayed an appeal
to this court, which appeal was perfected by but one of them,
viz., this appellant.
The
case comes to this court on appeal based on ten assignments
of error, to-wit: (1) Refusing to note the finding, or to
file application for change of venue from the judge; (2)
refusing to note the filing of, to file, or allow to be filed
a motion to quash and set aside the writ; (3) refusing to
note the filing of, and to file the verified answer; (4)
refusing to have noted upon the docket of the court the
filing of the verified answer; (5) in rendering judgment; (6)
in the opinion and judgment of the court; (7) overruling the
motion to reconsider opinion and judgment; (8) overruling
motion for a new trial; (9) for rendering judgment without
arraignment, and without requesting appellant, or allowing
him to make a statement in explanation, extenuation, or
denial of the charge; (10) for refusing to allow appellant to
make a statement in writing, which he offered in explanation,
extenuation, and denial of the charge.
One
charged with contempt of court is not entitled to a change of
venue from the judge. State v. Newton
(1878), 62 Ind. 517; Merchants', etc., Co. v
Board (1912), 201 F. 20, 20 C. C. A. 582;
Clymer v. Kennedy (1894), 64 Conn. 310, 29...
