South Bend news-times. (South Bend, Ind.) 1913-1938, 1920-12-29

motion Of Pros. Schwartz that the
l03 cases OF American Pride"
whisky involved be destroyed. or
turned over 20 the federal authori-
! ties, Judge q. r. Montgomery. Of
the superior court, Tuesday ordered
! the defendants jailed for 80 days
each in addition TO the 800 fines.
and directed that their liquor be
returned 90 them.
Illegally Seized, Ruling.
Judge Montgomery refused TO let
| the fines and Jail sentences already
served by thinner and Dam bacher
/ for violating the Webb Kenyon
law. imposed by the federal court,
ment for violation Of the Indiana
/ prohibition law. Of which the jury
had found them guilty. and cOnsid-
eTing the large amount of liquor
involved, and the profit that would
nave Injured 10 the defendants had
| they not been mOlesteG they must
| take their punishment as a warn
ing 90 other such law viOlatOrs.
on the other hand, the court in
a lengthy opinion. submitted in
writing. held that thinner and Dam
| baCher were entitled 10 the return
OF their liquor. Il having been il
| legally seized in the first instance.
and that though they had been con-
victed Of holding for an unlawful
purpose. the method Of seizure pre-
served n prop erty value in il for
| them, that would have 10 he upset
In a separate proceeding. In legal
! circles it Is pointed out that the
! opinion calls attention to some glar-
! ing defects In the Indiana statute,
II 81. =
meanwhile the method OF the po-
| lice In Confiscating liquors needs 20
be more safely guarded.
JOY soon Fails.
The cup Of joy that was Hf-ed
10 the lips of the defendants. how
| ever, by the return Of their liquor,
was soon dashed TO the floor. as the
return was only constructive and
very temporary. As pointed out in
/ the decision, there was present in
court Deputy United States Marshal
Ream, armed with a writ OF libel ls-
sued out Of the federal court at In
dianapons, on which the liquor
could be seized as soon as the SUI
perior court released il.
Besides Pros. Schwartz was there
with a search and seizure warrant,
in apparent anticipation of the de-
Cision, with which 20 retake the
/ liquor i'm case the federal authOri-
ties did not take it. The L. :.
marshal helped himself. il was un-
necessary for the prosecutor TO act
and the return OF the liquor TO
thinner and Dambacher proved TO
! be only a sort of legal fiction.
Deputy Marshal Ream, accOmpa-
MED by Sheriff Duck, made ar
rangements for removal of the li4-
uor to indianapolis
The liquor, now possessed by the
federal government, under the Vol
stead act. viii now pass into a gov
eminent warehouse from which ii
may be dispensed 10 hospitals,
medical schools. etc, a in that act
provided thinner and Dambacher
will each pay a fine of 500 and are
sentenced each 10 80 days in the
, county Jail.
To Sue To Recover Rum.
Frank Gilmer, one OF the attOr-
neys for the defendants. announced
he would start a civil suit in the
courts for the recovery OF the con-
fsCated liquor. and that he would
hold a conference with the prison
ers Tuesday afternoon. thinner and
Dambacher, In the custody of
Deputy Sheriff Taylor. were taken
at once 10 the county Jail 10 start
! serving their sentence.
Judge Montgomery in his deCi-
sion, took occasion 10 remark on the
laxity OF the police force OF the city
in their liquor raids. and declared
that they operated with no author
ity.
scores Local Officials.
Local officials the court said,
do not operate under search war
rants for liquor. and they should do
SO. They are not responsible 10 any
one. and they can give the liquor
away, sell II. or drink 1t them
selves, and are not accountable TO
anyone for doing so, unless they are
accountable 10 the federal authOri-
ties II the federal authorities ask
for an accounting Of the liquor. they
are shown what the local officials
| have on hand and there Is moth
ing that can be done 20 them for
failing 20 produce ali that was TAX
en- In a certain place.
Atty Arnold, who has also been
interested in the defense OF the case,
asked that the court follow the rec
concentrations OF the jury literally
and literally. Judge Montgom-
cry refused 20 grant this plea.
The main point upon which Judge
I Montgomery decision turned was
that the Zimmer-Dambache liquor
was in the first instance illegally
seized inasmuCh as there was no
search warrant and no arrest made
at the tine of seizure. The police
merely entered the Zimmer-Dam-
bacher warehouse. took the 1873
cases OF american Pride"-whiCh
dwindled 20 los cases on the way
10 the city haIl-and without either
q search warrant or making an ar
rest. holding Il until forced 10 turn
lr over 10 Sheriff Duck for evidence
az the thinner and Dambacher
trials, after a long legal battle con-
cluded in the supreme court
History of Case.
thinner and DambaCher were not
4rrezted until some two weeks aft
or the search and seizure OF the
liquor in question. The police had
meanwhile steadfaStly neglected or
refused 20 make any arrest Il was
then that Pros. Schwartz took mat
tiers into his own hands. swore out
warrants. caused the arrests 10 be
made by the SheTifss, and that the
legal battle for the possession of the
LIQUOR began. resulting IN several or
ders from the superior court direct
ing Sheriff Duck 10 obtain the liquor