State v. Shumaker

• Decision Date: 20 July 1928
• Docket Number: No. 25147.,25147.
• Citation: 200 Ind. 623,162 N.E. 441
• Parties: STATE v. SHUMAKER et al.
• Court: Indiana Supreme Court

200 Ind. 623

162 N.E. 441

STATE

v.SHUMAKER et al.

No. 25147.

Supreme Court of Indiana.

July 20, 1928.

Supplemental opinion denying rehearing.

For former opinion, see 157 N. E. 769.

Arthur L. Gillion, Atty. Gen., and Wm. Thompson and Solon J. Carter, both of Indianapolis, for the State.

Bingham & Bingham, of Indianapolis, for respondents.

MYERS, C. J.

On August 6th following the filing of the prevailing opinion in this case (157 N. E. 769), respondent Shumaker appeared in open court and moved to arrest the judgment against him, which motion was overruled, and thereupon judgment was pronounced. At that time respondent Martin was reported without the state, and further proceedings as to him were postponed until the convening of court in October following. On August 16th, attorneys for respondent Martin moved for him a new trial, and on the 18th respondent Shumaker separately moved for a new trial, which motion was at that time overruled. On September 17th, the state filed a motion to modify the Shumaker judgment by increasing the penalty, to which motion respondent Shumaker, on September 22d, entered a special appearance and moved to strike it out. On October 7th, the motion to strike was overruled. On October 5th, Shumaker filed his separate petition for a rehearing. On the same day, Martin appeared in open court, and on leave of the court was permitted to file an additional response. By this response, which was properly verified, it was made to appear that he (Martin) did not participate as trustee of the League or otherwise in ordering the publication of the report as made by Shumaker to the board of trustees of the Anti-Saloon League, and had no part in its publicity. This supplemental response, in connection with his original response to the information filed by the Attorney General, we hold is sufficient to purge him of the charge preferred by the state. It is therefore ordered that Jesse E. Martin go hence without day.

Hereafter, we will use the word “respondent” for the words “respondent Shumaker.”

The state's motion to modify the judgment, and the petition of respondent for a rehearing, are the matters before us for disposition. The motion of the state to modify because of an inadequate sentence is based upon allegations, in effect, that the respondent, while his case for contempt was pending before this court, corruptly attempted to induce citizens of great political influence and well known throughout the state for their splendid citizenship to influence for him a favorable decision.

A motion by respondent, filed October 8th, to require the state to make its motion more specific, was, on October 25th, overruled. On November 1st, a further hearing on the pending motion by the state was fixed for November 21st. On November 16th, objections to the further trial and hearing on the motion of the state were filed by respondent and overruled on November 21st. Thereupon the case was submitted for trial. The state and respondent were permitted to introduce oral evidence, and at the same time, over the objections of respondent, the state read depositions.

[1][2] While this proceeding may be classed as one for criminal contempt, yet by no means is it a criminal action in the sense that the rules for the admission of evidence in a criminal case apply. Dale v. State, 198 Ind. 110, 121, 150 N. E. 781, 49 A. L. R. 647. It is a remedy inherent in the courts, and evidence in the form of depositions of witnesses residing in foreign jurisdictions is not objectionable. Una v. Dodd, 38 N. J. Eq. 460.

From the evidence, it appears that respondent exerted considerable activity in an attempt to have the Republican State Central Committee called together for the purpose of passing a resolution condemning the Attorney General of the state for his act in prosecuting the contempt proceeding then pending in this court. In the 1926 campaign, two United States Senators and various state officers, including two members of this court, were to be elected. There was evidence well supporting an inference that, if the then pending contempt case was disposed of favorable to respondent, it would clear the atmosphere very materially as to the position he would assume and the influence he might have toward the success of the Republican state ticket.

In August, 1926, although this court was then in recess and would continue to be until October 5th, respondent sought the advice of our junior Senator, then a candidate for re-election on the Republican ticket. Respondent's purpose, so says the Senator, was to have an early decision of his case, and, on being told by the Senator that he was in the legislative department of the federal service and could not help him, some further conversation was had which resulted in calling the senior Senator, who was also a candidate for re-election and then at Lake Maxinkuckee, to the phone, and with whom respondent had a conversation with reference to this case, the substance of which, as the Senator remembers it, was that respondent thought he (the Senator) “ought to use your influence to get that court called together for the purpose of rendering a decision in my case, and I think that court should decide that case in my favor; it looks to me like they are going to let it run until after the election, and after the election send me to jail or the penal farm, a thing they would not probably do before the election,” and that the Senator should do two things: (1) Have the Supreme Court meet and decide his case which he thought ought to be decided in his favor; and (2) have the Republican State Committee called together to pass a resolution condemning the Attorney General for having brought the contempt proceedings. On being told by the Senator that he could not meet either of the requests, respondent replied that “the Anti-Saloon League and the Methodist Church will hold you personally responsible if that is not done.” Respondent was advised to consult the Republican state chairman on the subject of calling the committee together, as he (the Senator) had no power to call them, and, as to the court, “he had never attempted to influence the decision of any court,” and would not attempt to do so, to which the respondent replied:

“I think I am entitled to know one of two things immediately, either a decision of the court or a plain unequivocal statement from yourself and the Republican organization that you are not in sympathy with Gilliom's movements.”

Respondent positively denied making any such statements as above detailed, but admitted that he said in that conversation that he could not understand why the matter was going over, “and that I didn't know just what our rights were, whether we would be permitted to go ahead and make our usual statement as to the record, or attitude of candidates, with this an undisposed-of case.” However, another witness, Henry Lane Wilson, was present and heard the telephone conversation at the Maxinkuckee end of the line, and testified that he heard the Senator say “he had no power to call the state organization together, and he would not do it if he had the power”; furthermore “that he had never attempted to influence the decision of any court, since he had been in public life, and he had no intention of beginning at this time”; also, “Do you mean to say that you will...