The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-09-04
MOunDay Contempt Proceed
ings Interminable.
Constitutional Rights Form
Basis OF Defense.
.HITE HAS MANY CITATIONS
Attorney for Defense UnrOlIs
Folds of the Law.
DOster for State Charges OBJ
structive Tactics.

| Whether Don A. MounDay and l..
D. w. MounDay, his wife, acted within
their constitutional rights in refusing
to answer questions propounded to
them by John Marshall as receiver for
| the affairs of the MounDays and the
American Sugar Manufacturing & Re
filming company, or whether their re-
fusal to answer questions constituted
contempt of court, is question
which will occasion two days of argu-
ment in Judge Dana's division of the
Shawnee county district court. Not
until Friday night will lawyers in the
case be able to review the technical
legal questions involved in the con-
tempt suit and to call the courts at
tention to several supreme court de-
cisions that are offered both by the
state and defense. that the Shawnee
tribunal may make no error in its
guess on law and justice.
With the MounDay cases piled up in
the state and federal court, it requires
card index system for the lawyers
to keep tab on the various proceed
ings. And apparently each proceed
ing calls for a review of all former
litigation and each previous hearing
arOuSeS constant contention as to
whether it has or has not some ma
SideratiOn. So, with a, half dozen diff
ferent suits on the various court
dockets, there was an excellent op-
portunity for the lawyers to drag be-
fore Judge Dana small wagon load
of law books to prove that the several
contentious in the contempt case are
not speculative but established by the
beaten paths of court procedure.
Hite's Ingenious Argument.
AS usual d. r. I1ite took the lead in
presenting the case for the Noun
Days. The shrewd Topeka lawyer was
loaded to the guards with argument
and legal citations and for an hour
and a half he contended that Noun
Day and his wife not only should not
be compelled to answer the questions
which Receiver Marshall had asked
but that as a matter of law and JUS
tice, the receiver had no right to ask
the questions.
In the first place, Hite argued that
the proceedings before Marshall were
new and novel and that the re-
ceiver did not possess nor could
be vested with the right to administer
oaths to witnesses and require testi-
mony. Under no conditions, Hite ar
gued. could the court give to a receiver
the power which Marshall sought to
exercise in the MounDay case and that
such authority belonged only to a ref
cree appointed to hear evidence and
to make impartial findings.
THAT is just one of the strangest
things in a very strange lawsuit said
Hite in discussing the Marshall hear
ing which resulted in the citing of
MounDay and his wife for contempt
when they refused to answer certain
questions,
Might Incriminate Moundays.
Arguing still further Hite contend
ed to the court that the Marshall in
qury, which sought to reveal the as
sets and properties of MounDay and
his wife and the sugar companies with
which they are alleged to have been
connected. was a mere fishing trip and
- Il
on which to base either future prose-
cutions or to strengthen the present
criminal prosecutions of the Noun
Days in the federal court.
THE very questions which were
asked" said Hite, 'show that the ac-
cusations. which if true, prove a legal
justification for the refusal of the de-
PENDANTS to answer the questions and
they could stand on their legal rights
May Mean New Case.
Not only did Eite object to the de-
PENDANTS being compelled to answer
the questions because of the present
criminal case against them in the fed
eral court, but he contended that evi-
dence which the receiver sought to Sc
cure might be used against MounDay
and his wife in some possible future
prosecution under the Kansas blue
sky law. And, Hite urged, because
the possible answers to the Marshall
questions might prove to be incrim- |
mating. his clients were not compelled
to answer and could not now be pun |
ished for contempt
Still further, Hite found relief for his |
clients in the constitutional provisions !
which declare that a person cannot be
compelled to bear witness against him |
self
Not alone these contentious said |
Hite. in summing up the possibility of |
using the MounDay testimony against |
them in the federal court and in the !
state courts under the blue sky law, |
but these defendants would be COM |
PEELED to answer questions which would |
but tend to incriminate them in pros |
ecution under any other law
That Councilman Case.
Especial attention was called to the |
famous Councilman case, 142d United |
States reports. This case was urged |
in defense of the rights of MounDay |
and his wife in refusal to answer queS-
tions which might incriminate them.
Two weeks ago, Hite used the same |
decision effectively in his arguments !
before United States Commissioner Lee |
Bond at Leavenworth, when the Tope- |
ka lawyer succeeded in excluding from |
the records of the preliminary the tes- |
of MounDay before the county !!
regarding taxations; |
and also eliminated from the records /!
the MounDay affidavit in the supreme /
court. At that time Hite made clear |
to the commissioner that evidence in |
one tribunal could not be used against /
the defendants in a hearing in another /
tribunal under the Councilman deci- |
that under the same decision the |
might loSe Soroa ofA /