The Daily Ardmoreite. [volume] (Ardmore, Okla.) 1893-current, 1921-07-26
Judge Smith Rules Writ of
Capias Should Be Served
on Executive; But That
He Be Given Chance
JUDGE ANNOUNCES
REPLETE OPINION
IS NOT AWARE OF FACT THAT
ELECTED OFFICIALS ARE IN.
CAPABLE OF COMMITTING
CRIME, JUDGE SAYS

oe served pron the governor bat that
the executiv,. should be permitted 10
make his appearance 1T his conven-
ience within reasonable time,
The judge developed his opinion as
follows:
THAT there is no such thing in
Illinois as the divine right of kings
AID that ihe III; nAs no counterpart
in Illinois.
2-That it is beyond the scope of
the governors power to call state
troops to shield him from arrest.
3-That Governor Small despite his
position as chief executive of the
state is subject to arrest and prose-
cution for his acts as state treasurer.
THAT the statutes of Limitation
would expire through any prolonged
delay in serving warrants upon the
governor.
5-That it is not the duty Of the
court to withhold warrants for the
governor
e-That Governor Small should be
permitted to present himself eventually
before the court.
Notification OF Governor Small by
telephone was the method Of pro-
cedure decided upon By Sheriff Mester,
Il may go over for an interview
with the governor later" Sheriff Mes
ter said.
No attempt will be made TO en-
barrass Governor Small. The order Of
the court explains how the matter will
be handled
q notice some one has very kindly
sent the court nice bouquet. the
judge observed. Il hope when they
have heard what the court has to say
they will be willing to let it remain. "
This brought laugh from specta-
tors.
Judge Reads Opinion
Addressing himself TO Attorney Fifer,
Gillespie and Graham, counsel for the
governor, Judge Smith began to read
his opinion.
In his opinion, Judge Smith declared
that each had been states attorney
and were well familiar with the laws
governing the procedure in criminal
matters" The opinion goes on:
Len Small became governor OF the
state Of Illinois in January. 1921. be-
ginning & term OF four years and is
row governor Of the state.
on the twentieth day OF July, 1921
the grand jury Of Sangamon county
returned into this court three indict-
uents against Len Small charging him
with criminal offenses.
The statutes make 1t the duty OF
the court. when an indictment Is re-
turned, TO fix bail II the offense
charged ls bailable and make II the
duty OF the clerk OF the court TO issue
Immediately process of capias directed
to the sheriff FOR service.
Appearing as amici curiae TO give
the court friendly advice as to It's
duties and the course the court should
pursue, you the governors counsel
advise that the court on its own mo-
ton should issue a restraining order
/ enioining the clerk OF the court from
| issuing process Of capias for the ap.
prehension OF the defendant until NJ
I ter expiration OF his term OF Office, ant
ttat the court should suspend prose
cuuon during said term.
The King Can Do No Wrong
/ In support OF this advice IL 1:
urged that because OF the high Off
cial position os the accused and III,
great disaster that would otherwis'
be;all the state and IN pursuance o.
public policy the defendant is Gmmun,
from arrest and that prosecution
should be suspended To sustain thl
contention the monarehical maxim
The king can DO no wrong. is quoted
THE king can do no wrong is al
ancient doctrine. but In this republic
It has never reached the application
that an elected official can do n'
wrong. We have been extremely for
tgnate In the character and condue
OF the elected officials but there ha
never been an intimation or suspicion
that they were not capable of commit
ting crime before. during and after IN
term of office our governors are no
born King They are not surrounde,
By a halo by birth that gives then
immunity FROM the temptations an,
frailties to which other humans ar
subject.
1t Is said In the constitutional his
tory Of England that In ancient day
the functions OF the king and prizes
were the true prerogatives OF brit
and {, Is said the kings power is
therefore. from God"
Judge Smith then quoted at length
from "Broom's Legal MaSims." a com
mon law treatise as TO the extent o
the divine rights OF kings. lie thei
continued.
1T will be seen that the maxim
that the king can do no wrong. apple
wholeiy and solely TO the manner q
official acts OF the king. The maxir
has no application in Illinois and n
application to the case at bar.
Impeachment the Only Punishment
1T Is argred that the constitutio
provides for the impeachment OF IN
governor and that because Il so prs
vides there can be no other punish
ment. that specifying this procedut
lrfeciudss eli others.