South Bend news-times. (South Bend, Ind.) 1913-1938, 1920-12-29
Sentences DambaCker And
thinner to Thirty-DayTern1
Court Disregards Jury Recommendation For Clemency
Releases Rum to Defendants; Government Agents
Grab It-First Seizure Illegal

/ wanted the federal authorities 10
\ take the liquor, from which they
/ were enjoiued by Judge Montgom-
I cry. pending the thinner and Dam
/ bacaer trial in the superior court that
[ Pros. Schwartz filed his motion for
! destruction OF the liquor. to be or
| dercd as a part Of the courts juds-
ment.
beyond His Jurisdiction.
Judge Montgomery holds that the
! liquor Is beyond his jurisdiction, so
Z far as concerns its destruction un-
/ der the Indiana prohibition act, due
] 20 the manner in which il was TAX
4 en- from the defendants. Had the
| arrest Of the men been coineident
/ with the seizure. the motion he held
would be proper, fled as IL had been
! prior 10 entry Of judgment Had
/ It been taken on search warrant,
/ the only other legal process recOg-
! nized by law, then IL would have TO
No disposed Of on notice and a hear
: ing on the search warrant notwith-
I standing the conviction. Numerous
/ cases and quotations from statues
, AID decisions are cited by tho court
I in support OF his view. holding that
! his position would have 10 be the
I same. even under the Nolstead act,
! which runs in much the same chan
\ mel as the Indiana statute as regards
| search and seizure, though in more
/ explicit terms
Judge Montgomery, IN concluding
| his decision on the above point. took
| occasion, however, TO point out ways
/ and means OF saving il from the
\ hands Of the defendants. lie says:
Points Way 10 Disposal.
| "By OveTruling this petition, and
] ~ a av-fw h.. al
, defendants, ] am not TO be under,
! stood as holding that upon lis re-
J turn II might not afterWard, on
! proper proceedings on the part of
\ ths state, be secured sroIu the de-
\ PENDANTS and its destruction effected.
/ But the court $ not called upon 10
/ discuss any such angle OF the case
! nor is II necessary. A deputy
. United States marshal with the prop
! CT papers is present in court TO take
/ charge Of this liquor in the event
/ Of an adverse ruling for the state
/ on IT'S petition"
!; appears that since filing the
| original motion 40 destroy the liquor,
/ Pros. Schwartz had amended his pc
/ titiOn asking that instead Of destruc-
/ ton, it be turned over to the fed
! eral government. OF this amend
ment Judge Montgomery says:
/ 'By the states petition. il may be
\ remarked here, in it's amended form.
requests the court to order the liquor
/ turned over to the federal authOri-
I ties. AS 10 such action the court
\ would be without power. Our state
I laws make no provision regarding
4 the disposition OF LIQUOR by the
/ court except 10 destroy il or return
/ il TO the owner. Beyond this the
! court would have no power or iuris-
I diCtCn. After the order of this
court. If the federal officer, on his
| papers, takes the liquor from the
I defendants. then a different case in
I n different proceeding is presented
/ With which this court has no con-
! Germ"
It il understood that Pros.
I Schwartz. anticipating such a pos
I sible ruling, was ready in court with
/ tho proper proceeding TO recover
/ the liquor. by separate action, had
! the United States marshal not been
/ there and acted on his libel papers
from the federal court at Indianap-
/ oils.
Declines Jury's Request.
As his reasons for disregardinG
/ the recommendation of the jury
( that convicted thinner and Dam
I bacher, that they be fined 500 each,
and that the minimum Jail sentence
I OF 80 days be suspended, Judge
/ Montgomery said:
The court in passing upon the
merit OF a suspended sentence, no
matter from what source the recon-
mendation comes may take into &C
count not only mitigating circum-
/ stances as may have become evil
| deBce at the trial. but also any such
| circumstances within the courts
H. -
record. Upon what the jury based its
recommendation is OF course not
known. and 1 will view the matter
! considering anything that tho jury
might properly have considered. Al
so anything outside the record as 10
them.
The defendants by their tcsti-
mony admitted the possession by
them Of this liquor. a very large
| quantity, but they cOntended. ami
offered 20 explain, that they did not
| intend TO uElawfully dispose OF II.
| The jury found 10 the contrary, that
/ they did intend 10 unlawfully dis
pose or this large quantity of LIQUOR,
! Of course for gain. This being the
finding IL must be admitted that
/ any mitigating circumstances call
/ ing for n suspended sentence should
/ be OF such force as would tend to
/ offset the extent OF the offense and
guilt.
Nothing Suggests LenienCy.
1T may be offered in support Of
n suspended sentence that the de-
/ PENDANTS are reputable business men,
| that IL is their first offense, and con-
sidcring their business interests
I that IL would be an unusual hard
ship upon them 20 be confined IN
/ jail for this period. AS TO the lat
ter the extra hardship in regard 10
/ their business. this is a consequence
/ of guilt 10 De expected, in addition
I to the punishment as prescribed, as
would be experienced, in varying
degrees, by all persons convicted,
I and is matter OF minor import
anCo whom considering q suspended
/ sentence. If considered. however.
I il works TO the Ciscredit OF the de-
( PENDANTS rather than 70 their credit,
l They had that much more 20 lose.
and they certainly knew this. Not
/ outstanding the more serious con-
/ sequences that would result TO them,
no doubt, that impelled them 10 en-
gage in this illegitimate enterprise.
/ ana I see nothing about this variety
OF weakness or misfortune, taken