The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-03-19
THE CONTEMPT HEARING
ARGUMENT AS TO LEGALITY OF
JUDGE CHAMBERs-s APPOINTMENT.
Under McCray's Tactics There Are
Three Judges for the Marion County
Criminal Court at Present.

Charles >. WlltSie, prosecuting attorney,
Gavin l.. Payne. city editor of the Journal,
and Walter A. ROyse. court reporter of the
Journal. We're cited for contempt of court,
the defendants yesterday filed a motion TO
quash the affidavit and discharge the rule
TO answer. The moti,n was argued the
principal part of the afternoon, and then
Judge Chambers announced that he desired
TO have references TO authorities on the
subject, and would like for the attorneys on
both sides to submit briefs as soon as posi-
BILE. Until there is a decision on this motion
there will be nothing further done in the
case. If the motion is sustained that will
be the end of the case. and Mr.. Chambers
will decide that he has no authority TO act
in the Ludwig cases.
During the entire afternoon Mr.. McCray
(the title OF judge cannot very We'll be di-
vided between three people, sat within the
railing at the left of the bench and listened
to the proceedings. His face had a very
healthy flush. and spoke well for the min
eral waters of Martinsville, for Il is only a
week ago that he was too i'll to preside in
the Criminal Court and appointed John c.
Ruckelshaus to attend to his duties.
Promptly at 2 o'clock the defendants in
the case, accompanied by their attorneys,
walked into the courtroom. and were soon
followed by W.. L. Fishback, w. G.. Kappes
and William Ludwig. The courtroom was
well filled with attorneys and others con-
nected with the courts and newspapers. At
torney General Ketcham came into the
room and took a seat inside the bailiff's
railing, not very far from Judge McCray.
When the question of having some one TO
represent the State arose Judge Chambers
asked if the attorney general had come for
that purpose. He said he was there merely
as a spectator, and not to take part in the
proceedings. Mr.. Wiltsie said that he did
not feel that he could play the double role
of defending and prosecuting himself, and
the court then appointed Messrs. Fishback
& Kappes, who are acting for Ludwig
THE MOTION TO QUASH.
During the rgumen Mr.. Kappes had oc-
casion to refer to the cause thai controlled
Judge McCray in withdrawing from the
case. On behalf of the defendants the fol-
lowing motion to quash was introduced:
1.-The defendant now comes and enters
MS special appearance herein for the pur-
pose OF making the following motions, and
for no other purpose, and the said de-
PENDANT. under said special appearance,
moves the court as follows:
"Ffrst-To quash the affidavit of William
Ludwig, filed herein. for the reason that
the Hon. Smiley n. Chambers, who oc-
cupied the bench of the said court at the
time said affidavit was filed in said court.
and who received and permitted said aft
davtt TO be filed herein, had not been legally
appointed special judge of the said court,
and had no Jurisdiction in said causes, or
either of them.
"Second-To discharge the rule heretofore
entered and issued herein, for the reason
that the Hon. Smiley n. Chambers. then
acting as special judge, and While so acting
as such special judge, made the order by
which said rule was issued without any
right, power, authority or jurisdiction 10
~ nlrn on Il nAN I'll - a +
sue, he having been appointed special
Judge OF the said court without authority
OF law. his said appointment. as shown by
the records OF the said court, under date
OF March 6. 1887. being as follows, to-wit:
Il, Frank McCray, judge of the Grim
inal Court of Marion county, Indiana, at
the present term being unable TO attend and
preside at the said court on account of
pressing personal engagements requiring
my absence, do hereby appoint Smiley \.
torney or said county of Marion and State
of Indiana, the said Smiley n. Chambers
being an attorney eligible 20 She office of
Judge OF said court, as Judge pro tenn,
and to preside as judge of this court in
cases of the STATE so, of J ind Ho,a VS.; Charles adIs,
TO which the defendant excerpts. and ten
days are given TO file a bill of exceptions. The
State also excerpts. and ten days are given
TO file BILL there having been no affidavit
the said Frank McCray, regular judge of
said court. filed in the said causes. or either
VI nri III lHe S1lu court
That after the entry of the said order.
as aforesaid, by the said Frank McCray.
Judge Of the said court the said McSray,
following order to be entered upon the rec
ords of the said court. to-wit.:
,ra, rrank McSray, Judge OF the Grim
present term being unable To attend and
preside at said court on account of illness,
reputable and practicing attorney of said
county of Marion and State aforesaid. the
said John q. Ruckelshaus being an attorney
eligible to the office OF Judge of said court.
as judge pro tenn. and to preside as judge
court
THAT pursuant to said order the said
John c. Ruckelshaus did. on the said date.
appear and make oath as required by law.
and entered upon the duties OF judge of said
court, and presided therein. and has ever
since continued to so preside i'm said court,
and conduct and carry on the business
thereof. in compliance with said order.
That since said date there has been no
further or different order made by the said
McCray and entered of record in said court
with reference. to the appointment of a
special judge therein.
'Third-For the further reason that the
Hon Smiley n. Chambers has no power,
authority or jurisdiction to hear or de-
termine the proceedings herein, against this
defendant, while attempting to act as spe-
cial Judge of this court. he not having been
legally appointed as special Judge"
MIR. ROLLINS'S ARGUMENT.
Re'1 :" III wv kINci1
Mr.. Wiltsie, made the first argument on the
motion. He devoted his time to the ques-
ton of the legality of the appointment, and
read the statutes providing for the appoint
ment Of Judges to sit in the absence of the
regular judge. After reading the section
providing for a change of venue on motion
of the defendant, Mr.. Rollins remarked to
the court: "Of course. your appointment
does not come under that section, for You
were appointed on account of pressing per-
Sonal engagements " MI. Rollins then read
the sections providing for the appointment
OF a special judge or a Judge pro tempore
IN case OF the inability OF the regular judge
TO reach the court. or illness of himself or
member of his family. or on account of any
other reason, which might include the preju-
dice or bias of the court There was no
section that provided for an appointment
because or pressing personal engage
ments."
Mr.. Kappes took the floor at the conclu-
sion OF Mr.. Rollinss argument, and was
soon arguing points that were entirely for
| eign to the motion. The II OtiOn asked that
the rule be discharged. because the APP
polntment OF Mr.. as judge was
not legal. but Mr.. KapDeS began arguing
the question of what might constitute con
tempt and whether the publication in ques-
ton was concerning an unfinished proceed
ing in court. The court remarked that MIR
kappes was not confining himself TO the
question before the court. and then the
tactics were changed. Mr.. kappes Their
argued that inasmuch as il has been for q
long time the practice in civil courts tC
even without special warrant of law, wher
the regular judge feels that his bias or in
tereSt in the case at issue would prevent
him giving it a fair consideration, there