Fishback v. State

• Decision Date: 22 April 1892
• Citation: 131 Ind. 304,30 N.E. 1088
• Parties: FISHBACK v. STATE.
• Court: Indiana Supreme Court

131 Ind. 304

30 N.E. 1088

FISHBACK

v.STATE.

Supreme Court of Indiana.

April 22, 1892.

Appeal from circuit court, Vigo county; D. N. TAYLOR, Judge.

William O. Fishback was convicted of contempt, and appeals. Reversed.

Mack & Henry, Piety, & Piety, and Fishback & Kappes, for appellant. A. G. Smith, for the State.

OLDS, J.

The prosecuting attorney of the Vigo circuit court and of the forty-third judicial circuit filed his affidavit in said court, alleging, in substance, that in March, 1892, and prior thereto, the city of Terre Haute was engaged in building and repairing certain of her streets, and, being desirous of building a sewer along and under one of her streets, her civil engineer, one Frank Cooper, was directed to make plans and specifications for such sewer, and to make an estimate of the cost of contracting the same That Cooper made plans and specifications for such work, and estimated the cost thereof at $10,000, and the plans and specifications were adopted and approved by the city, and pursuant to law the city advertised for bids for the construction of the sewer, and received certain bids from various persons, stating amounts of each, and the contract was awarded to Frederick Fischer, his bid being the lowest,-$14,540. Each of the others was $15,000 and upwards. That afterwards, in March, 1892, it became and was a general rumor in the city of Terre Haute, and it was published as a fact in two of the daily papers in said city, that certain of the bidders had combined and agreed to make the bids which they did, and that a certain firm should do the work, and receive therefor $10,000, and $5,000 excess should be secretly divided between the others. That the bids made by the bidders were not good-faith bids, and the work was not in fact worth more than $10,000, including reasonable profit for the contractor. That Fischer was not a member of the combination, and, in consequence of his bid, the object of the others was defeated. It was further rumored that the city engineer, Cooper, had been guilty of some fraud in connection with his duties as city engineer, and in connection with the planning of said sewer, and that he had entered into some combination with certain of said bidders. It is alleged that it was believed by many of the citizens and residents of said city that said rumors and publications were true, and, if true, some crime or misdemeanor against the laws of Indiana had been committed. That on the - day of March, 1892, the grand jury of Vigo county began an investigation of the letting of such sewer contract, and of said alleged combination bids, and of the alleged misconduct of said Cooper and said contractors. That afterwards, on the 29th day of March, 1892, it was rumored in said city that the grand jury had ceased its said investigation in relation to the aforesaid matters, and in relation to the alleged misconduct of said Cooper and contractors. That Cooper was a Republican, and T. W. Kinser, of T. W. Kinser & Son, one of the bidders on said work, was a Democrat. That the Honorable DAVID N. TAYLOR, judge of the Vigo circuit court, and the prosecuting attorney, were Democrats, and that the political sentiments of such persons were well known to the citizens and residents of said city and county. That on the 30th day of March, 1892, the appellant, William O. Fishback, was the editor of the Terre Haute Express, a daily newspaper published in Terre Haute, and having a large circulation in said city and in the county of Vigo. That on March 30, 1892, said appellant printed and published, and caused and procured to be printed, the following editorials in the Terre Haute Express of said date: (1) “The best reason for redoubled efforts to get at the bottom of these contract scandals is the fact that certain influences are being brought to bear to shut off serious investigation.” (2) “The Gazette called upon the grand jury to investigate Peker. Why, it won't even investigate a Republican when a Democratic contractor is involved. Suppose the Gazette consults its friend, Judge TAYLOR, early this morning.” (3) “The array of lawyers to defend those who are to be investigated in this city scandal increases day by day, and the array of Democratic fine-workers who are doing day and night work in the case under the direction of the Democratic bosses is also increasing. Some days ago the Express called attention to the fact that it had been demonstrated that in every instance when unusually excessive profit was to be secured by the action of public officials that Democrats were the beneficiaries. Democratic lawyers are also the ones who are the politicians outside the court room. The intelligence and integrity of the citizens' committee is the safeguard now.” It is further alleged that the Terre Haute Evening Gazette is a daily Democratic newspaper published in said city of Terre Haute; that Peker, referred to in the second editorial set out, was a Democratic trustee of Harrison township, in Vigocounty; that the Gazette referred to in their editorial was the Terre Haute Gazette; that said Gazette had, prior to said date, published charges against said Peker of misconduct as such trustee, and urged that the grand jury investigate in regard to said Peker's alleged misconduct. It is further alleged that said appellant intended the readers of the Express to understand that the grand jury would not investigate the alleged misconduct in relation to the letting of the contract for the building of said sewer; that by the sentence, “Why, it won't investigate a Republican when a Democratic contractor is involved,” said appellant meant and intended the readers of the Express to understand that the grand jury would not continue the investigation it had begun, and which, according to rumor, had been stopped, and would not investigate the Republican engineer, Cooper, because T. W. Kinser, a Democratic contractor, was involved. It is further alleged that by said editorials said appellant meant and intended to be understood by the readers of the Express as charging that certain Democratic politicians of Terre Haute, denominated “bosses” in said editorial, had an undue and improper influence over the grand jury and Judge TAYLOR, of the Vigo circuit court, and that through such influences such court had been induced to stop the investigation of the conduct of said Cooper and said contractors; and that is had been so induced to stop the work of the grand jury on account of T. W. Kinser, a contractor, being involved in said matter, and on account of the fact that said Kinser was a Democrat; that by the sentence, “The intelligence and integrity of the citizens' committee is the safeguard now.” said appellant meant and intended that the readers of the Express should understand, and meant to charge publicly, that the Vigo circuit court, and the officers and grand jury thereof, could not be relied upon to investigate the alleged misconduct of said Cooper and contractors, and that such court could not be relied upon to bring such alleged offenders to justice in case any offense against the criminal laws of Indiana had been committed, that the readers of the Express understood the editorials, and the various parts thereof, according to the aforesaid intent and meaning of said Fishback. Then follow averments denying the truth of the alleged charges, alleging that they are false, and alleging that the grand jury had not completed such investigation; that it was still continuing it, and had not adjourned, and was still in session; and that said editorials were so published by said appellant for the purpose and with the intent of bringing the honorable Vigo circuit court and the judge and grand jury thereof into disrepute and disgrace, and with the purpose and intent of attacking the integrity dignity of said court and its officers, and bring said court into discredit with the people, and with the intent of embarrassing said court and its grand jury in the administration of justice in respect to the alleged misconduct of said contractors and said city engineer, Cooper.

Upon the filing of such affidavit the appellant was ruled to appear and show cause why he should not be attached and punished for contempt. The appellant filed a verified answer to the affidavit, admitting that the said Gazette referred to in said editorial was the said Terre Haute Gazette, and that said Gazette had, prior to March 30, 1892, published charges against said Peker of misconduct as such trustee, and had urged in its columns that the grand jury investigate said Peker on account of his alleged misconduct, and alleging that on Tuesday evening, March 29th, he was informed by George M. Allen that a member of the grand jury had said that the investigation of said sewer charges by the grand jury had commenced that day, but had been suddenly stopped; that the Peker referred to was the township trustee, who during the existence of the grand jury in the last month had been publicly charged with malfeasance in office, and said Gazette had insisted on the grand jury investigating said charges, but he is informed and believes it was never done; that at the time he wrote said article he honestly believed from his information that the investigation of the said sewer cases was stopped for political reasons affecting both Democrats and Republicans, and he desired the examination to proceed, and called upon the editor of the Gazette, who was a friend of the judge, and had been in favor of grand jury investigation, to consult him; that he was informed and believed and still believes, that the investigation by the grand jury had been stopped, and further investigation abandoned by the grand jury, the day before this publication was made; that on Monday of this week he applied to the judge of the circuit court for leave to obtain affidavits of the grand jurors, by whom he expected to prove and could prove that it was stopped; that the court refused to...