Dale v. State

• Decision Date: 25 February 1926
• Docket Number: 24310.,Nos. 24319,s. 24319
• Citation: 150 N.E. 781,198 Ind. 110
• Parties: DALE v. STATE (two cases).
• Court: Indiana Supreme Court

198 Ind. 110

150 N.E. 781

DALE

v.STATE (two cases).

Nos. 24319, 24310.^*

Supreme Court of Indiana.

Feb. 25, 1926.

Appeal from Delaware Circuit Court; C. M. Dearth, Judge.

Two prosecutions by the State against George R. Dale for contempt, and he appeals in each case. Affirmed in one case and reversed in other case, with instructions.Frank B. Jaqua and Moran & Gillespie, all of Portland, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White and Edward M. White, Deputy Attys. Gen., for the State.

TRAVIS, J.

The appeals in these two cases are brought to reverse judgments of the Delaware circuit court by which appellant was fined $500 and imprisonment for 90 days ordered, in each of the two cases upon the charges of contempt of court. In the case No. 24319 contempt was charged because of the publication of an alleged defamatory article by the appellant in a newspaper of general circulation which was edited, owned, and managed by him, and will be designated hereafter as the first case. Appeal No. 24310, hereinafter known as the second case, arose out of and is based upon the answer filed by appellant in the first case, which answer contained a verbatim copy of the alleged defamatory article which was the subject of the contempt in the first case. The subject of the alleged defamatory article was concerning an indictment which had just been returned by the grand jury to the court, and which indictment charged appellant with having committed a crime. This indictment was at the time of the publication of the alleged defamatory article pending in the Delaware circuit court. The article was an attack upon the jury commissioners, the grand jury which returned the indictment, which grand jury had not been discharged, other officers of the court, and the presiding judge of the Delaware circuit court.

The alleged defamatory article as published in the first case and uttered in the second case in the answer, in both cases by the appellant, is as follows:

“Kimbroughs, Notorious Bridge Grafters, Control Affairs Here.

Frankie on Guard on Grand Jury, Lloyd on the Board of Safety and Marsh on Board of Works-Framed Indictment Against Editor of Post-Democrat-Damnable Conspiracy.

Nobody in Muncie doubts for an instant that the framed up indictment of the editor of the Post-Democrat is the natural sequence of the general conspiracy to discredit this newspaper and its publisher.

We were indicted for being present in a law office in the Wysor block at the time the police visited the office with a search warrant charging the lawyer with the illegal possession of liquor.

It is claimed that evidence was secured to prove the charge contained in the search warrant and a newspaper man who was in the office on business strictly in his line of reportorial duty was indicted on three counts charging him with manufacture, possession, barter, sale, and the giving away of intoxicating liquor.

It is somewhat important to know, in this connection that out of the several hundred liquor cases in which the police have figured in the past year, this is the first and only one presented to the grand jury for consideration.

On the second night following the framed up raid in the Wysor block the police raided and searched a residence in Whitely where an admirer of the ‘Honey Gal’ vaudeville company was giving the men and women of the company a farewell dinner after the last show at the Star theater.

A pile of overcoats was searched and a half pint of liquor was found in the pocket of one of the performers.

Instead of presenting that case to the grand jury the actor who owned the whisky called on Judge Coons the next morning, handed him one hundred and thirty dollars in the way of a fine, and the incident was closed.

If the police, prosecutor and grand jury had been strictly on the level, playing no favorites, punishing no enemies and trying to treat all citizens exactly alike, regardless of their personal or political feelings, the grand jury would have had the Whitely case and every person who was in the house when the police searched it and found liquor should have been indicted on three counts, charging manufacture, sale and possession of intoxicating liquor.

In the Wysor block raid no liquor was found, but an empty bottle was found on the floor by a desk, by the feet of Court Asher, a notorious bootlegger and booze hauler who has been openly operating here for several months, with official protection, which was obtained by him by the Ku Klux Klan after he had joined that organization.

At the time Asher's overcoat was hanging over a bookcase and the pocket contained a pint of bonded whisky and in another pocket was a revolver. No attempt was made by the police to search Asher or his coat, although he was the only one in the room known to be a violator of the liquor laws.

The next day the case was presented to the grand jury and the four men in the office, including Asher, were indicted on three counts, but Asher, alone of the four, was subpœnaed as a witness and permitted to testify before the grand jury concerning the case. Asher was indicted the same as the others, but it was done by the prosecutor and grand jury with the full knowledge that he was rendered immune by so testifying in his own case, and that the indictment against him is utterly worthless, except for the ornamental purpose of making it appear that the case was being pushed against him, trusting that the supposed ignorance and credulity of the public would prevent them from understanding just what kind of a crooked deal was pulled off.

As to the grand jury itself, its guiding spirit is Frank Kimbrough, whose family became wealthy through pulling off crooked bridge contract deals by corrupting city and county officials in various parts of the country.

Lloyd Kimbrough, a brother of the celebrated grand juror, is president of the board of safety, and is now very much concerned in securing a pardon for his brother-in-law, Xene Smith, serving time in Michigan prison now for murdering a foreigner from whom he had purchased twenty gallons of white mule, and thought it was cheaper to waylay him along the road and kill him and steal the whisky than to pay him for it.

Frank Kimbrough was carefully selected for grand jury service by Judge Dearth's Ku Klux jury commission, John Hampton and Frank Kavanaugh, in order that the grand jury might properly collaborate with Lloyd Kimbrough personally conducted Ku Klux police department.

Walter D. White, official shorthand reporter and secretary of the grand jury, is a son of Will White, who is also a member of the board of safety. Everything is carefully safeguarded by this tickle me and I'll tickle you system and there is no danger of things going on in the grand jury room that would be unpleasant for the police department. And likewise if the police department wants a crooked deal put over like the framed up indictment against the editor of the Post-Democrat, Little Frankie, the degenerate descendant of the patriarchal bridge thief, who grafted every dollar he owns, is right there on deck to help put it over.

The Kimbroughs and Karl Oesterle, all members of the Ku Klux Klan, have been running the Quick administration. They have finally run it in the ground. The thieving bridge trust has its nose in every department, Doc Quick having been taken by the ear by old Kimbrough, the boss bridge grafter, and forced to fill his departments by men named by him and Oesterle.

The bridge trust is now directly represented on the board of safety by Lloyd Kimbrough, on the grand jury by Frank Kimbrough and on the board of works by J. R. Marsh, an office employee at the bridge works.

Those who know the Kimbroughs and who are possessed of the knowledge that their rotten money has been amassed through fraud, corruption, bribery and graft, have reason to be disgusted with a mayor and an administration which stands for their domination.

Placing men on grand juries and on boards of safety whose wealth was obtained through criminal methods, is in line with the action of Judge Dearth in naming such men as John Hampton and Frank Kavahaugh jury commissioners which empowers them to pack juries as their masters order.”

Both of the cases were briefed together and argued orally together, and both are now disposed of in this opinion. In the first case error is predicated upon the ruling of the trial court overruling appellant's motion for a change of venue from the judge, and that the finding of the court is not sustained by sufficient evidence, and is contrary to law.

[1][2] For convenience in distinguishing contempts of court, different classifications have been made, one as to whether contempts are civil or criminal in their nature, and the other as to whether they are direct or constructive (indirect). The alleged defamatory article which was published in the newspaper was directed against the dignity and authority of the court through its officers, and is plainly within the classification of criminal contempts. Any contempt of court, whether it be direct or constructive, which makes an attack upon the integrity of the court or an attack upon its officers, which attack hinders and delays the operation of the court with a case or cases then pending in the court, or which act is in disrespect of the court, or tends to obstruct the administration of justice by the court, or which tends to bring the court into disrepute, is a criminal contempt, and is subject to punitive punishment. The publication of the article here in question, if it be contemptuous, is clearly criminal in its nature.

[3] In the classification of the contempt in the first case at bar, as to being direct or constructive, the line of demarkation is almost obliterated. Appellant says in his brief and argument that the charge is for a constructiveor an indirect contempt. In ordinary contemplation an alleged contempt of court which is not in the immediate presence of the court is a...