Kilgallen v. State

• Decision Date: 18 November 1921
• Docket Number: No. 23820.,23820.
• Citation: 192 Ind. 531,132 N.E. 682
• Parties: KILGALLEN v. STATE.
• Court: Indiana Supreme Court

192 Ind. 531

132 N.E. 682

KILGALLEN

v.STATE.

No. 23820.^*

Supreme Court of Indiana.

Nov. 18, 1921.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

James Kilgallen was convicted of indirect contempt, and he appeals. Affirmed.Henry N. Spaan, Walter Myers, and Whitcomb & Dowden, all of Indianapolis, for appellant.

Ele Stansbury and Remster A. Bingham, both of Indianapolis, for the State.

WILLOUGHBY, J.

This is an appeal from a judgment of the Marion criminal court by which appellant was convicted of an indirect contempt of the criminal court of Marion county, Ind., and the grand jury of said court.

The facts alleged to constitute such contempt were brought to the knowledge of the court by an information duly verified and filed by the prosecuting attorney as follows:

“Claris Adams, prosecuting attorney in and for the Nineteenth judicial circuit, of the state of Indiana, being duly sworn upon his oath, would represent and give the court to understand and be informed that on the 12th day of January, 1920, in the city of Indianapolis, county of Marion, and state of Indiana, the grand jury for the criminal court of Marion county of said state for the January term of 1920, composed of the following persons, to wit: Edward J. Gust, John Faukner, Wm. D. Hartman, Anton King, Richard Hurforth, Albert Hendricks -was duly and legally impaneled, sworn, and charged by Hon. James A. Collins, who was the duly and legally elected, acting, and qualified judge of said court.

“That during the month of January in said term said grand jury investigated, heard testimony, and deliberated upon the case of one Harry Parsons and Benjamin Parsons, who were then and there charged with the crime of receiving stolen goods at and in the county of Marion and state of Indiana, about the 30th day of October, 1919, and against whom an affidavit had been previously filed in the city court of the city of Indinapolis charging them with such crime.

“That said grand jury, after hearing the testimony of witnesses touching said charge of receiving stolen goods against the said Harry Parsons and Benjamin Parsons as aforesaid, and after deliberating thereon, indicted the said Harry Parsons and duly returned an indictment into criminal court of Marion County on the 4th day of February, 1920, charging the said Harry Parsons with the crime of receiving stolen goods as aforesaid, which indictment was legally voted by the members of said grand jury and duly indorsed a true bill by Edward J. Gust, who was then and there foreman of said grand jury.

“That said indictment is now pending in the Marion criminal court, and has been since the said 4th day of February, 1920, and remains undisposed of upon the records of said court. That the said grand jury, after hearing the testimony of witnesses in said case of Benjamin Parsons, failed to return an indictment against him for the reason that there was not sufficient evidence produced against him to justify his indictment.

“That at the time said cases of said Harry Parsons and Benjamin Parsons were considered, investigated, and acted upon by the said grand jury the said Harry Parsons and Benjamin Parsons had employed as their attorney to represent them in said criminal case one Charles W. Rollinson, a practicing attorney in the city of Indianapolis, and at his solicitation the said Harry Parsons and Benjamin Parsons were permitted by the said grand jury to appears as witnesses in their own behalf during the investigation of their said cases. That the said grand jury and each member thereof in their investigation, consideration, and action upon the said cases of Harry Parsons and Benjamin Parsons were actuated solely by a sense of public duty. That no influence was exerted, no suggestion made, and no form of corruption or coercion was either employed or attempted by any person whatsoever to influence said grand jury or any member thereof in the slightest degree in the consideration, deliberation, or action of said grand jury or any individual member thereof in said case. That the action of the said grand jury and each member thereof was taken in each of said cases solely in accordance with the judgment of said grand jury and each member thereof upon the evidence as produced before said body in such investigation.

“That on the 14th day of April, 1920, and for many months prior thereto, the defendant, James L. Kilgallen, was the managing editor of the Indiana Daily Times, a newspaper of general circulation published in the city of Indianapolis, county of Marion, state of Indiana. That this newspaper and each copy thereof circulated freely among and was read by some of the citizens of the city of Indianapolis, Marion county, Ind. That this said defendant, James L. Kilgallen, as managing editor of the said Indiana Daily Times, on the 14th day of April, 1920, did willfully, knowingly, and corruptly publish, circulate, disseminate, and cause and procure to be printed, published, circulated, and disseminated the following false, corrupt, and libelous article and statement in the said newspaper, named and styled the Indiana Daily Times, with the unlawful and corrupt purpose and intent of bringing the said grand jury and each member thereof, the court, the judge, and all officers thereof, into disrepute and contempt, and with the corrupt and wicked purpose and intent of embarrassing the administration of justice in the case of the State of Indiana v. the said Harry Parsons, which was then and there pending in the Marion criminal court, and with the corrupt and wicked purpose and intent of prejudicing the public as to the merits of said case, which was then and there pending in the Marion criminal court, which said false, corrupt, and libelous article is in words and figures following, to wit:

‘To the Indianapolis Bar Association:

‘Charles W. Rollinson, a practicing attorney of Indianapolis, has publicly declared that with the knowledge and consent of Claris Adams, prosecuting attorney of Marion county, he appeared with witnesses before the Marion county criminal court grand jury and there “conducted a defense” of two clients charged with receiving stolen property.

‘He further declared that following his “defense” of these two clients as conducted before the grand jury one client was freed and a faulty indictment returned against the other.

‘You gentlemen, as reputable attorneys of this county bar, having a high regard for the ethics and standards of your profession, cannot afford to allow conditions to obtain in this county which make it possible for men accused of felonies to place their representatives in the grand jury room with the intention of defeating the very purposes for which the grand jury is maintained.

‘You cannot afford to have the courts wherein you practice debauched and stultified in this manner.

‘You cannot afford to have the suspicion retained that it is possible in this county, by the use of money, to influence the deliberations of a grand jury charged with the investigation of crime.

‘You owe it to yourselves, to the community, to the courts, to the good name of Marion county, to demand of James A. Collins, judge of the criminal court, a complete and open investigation of this trifling with the means of justice in this county.

‘Are you jealous or ashamed of your profession?’

That said article and statement was intended by him to refer and was understood by those who read said article to refer to the said cases of the State of Indiana v. Harry Parsons, and the case of the State of Indiana v. Benjamin Parsons, as heretofore described. That by the following language contained in said article, to wit: ‘You cannot afford to have the courts wherein you practice debauched and stultified in this manner. You cannot afford to have the suspicion retained that it is possible in this county by the use of money, to influence the deliberations of a grand jury charged with the investigation of crime’-and by the other language used and statements made in said article and statement, said defendant meant, intended to convey the impression to the public, and intended the readers of such article and statement to understand and believe that the Marion criminal court, the judge, and said grand jury and each member thereof, had been debauched and corrupted by the use of money and other corrupt and wicked means in connection with the investigation and indictment of Harry Parsons in the case of the State of Indiana v. Harry Parsons, which was then pending in the Marion criminal court and the investigation and discharge of Benjamin Parsons in his case. That by such language and other statements contained in said article published by this defendant as aforesaid he meant, intended to convey the impression to the public, and intended the readers of said article to understand and believe that in their investigation of the case of the State of Indiana v. Harry Parsons and the State of Indiana v. Benjamin Parsons, in their indictment of the former and in their discharge of the latter, that the grand jury of Marion county and each member thereof had been influenced in their deliberations and actions by the use of money and other corrupt influence. That these statements and the innuendoes they were intended to imply and did imply as heretofore set out were then and there wholly false and untrue. That this language and the other statements contained in said article published as aforesaid by this defendant in the Indiana Daily Times on the 14th day of April, 1920, were wickedly and corruptly published and caused to be published, circulated, and disseminated by this defendant with the unlawful, wicked, and corrupt intent of bringing the Marion criminal court, the judge thereof, and the grand jury of said court for the January term, 1920, and each member thereof, into contempt and disgrace, and with the corrupt and wicked intent to embarrass, impede, and corrupt the administration of justice in the case of...