Indiana daily times. [volume] (Indianapolis [Ind.]) 1914-1922, 1922-01-20
MAN
CHARGES COURT
RULING UNFAIR
Continued From Page one.)


having published pertained TO a case
which the prosecutor had publicly stated
had been dismissed and which, there
fore, was a proper subject for criticism
which could not interfere with the due
administration Of justice.
It Is the law In this jurisdiction that
the facts set up in such an answer to a
citation for contempt must be regarded
as true and the Supreme Court Of In
LLAMA said In the case Of Fishback vs..
hate:
1.-THE Judge himself can not assert facts
existing in his own mind as against the
answer. In this the rule differs ma
teriRly from that in case Of direct
contempt The defendant has verified an
answer which constitutes a good defense.
e The court in such proceedings must take
It as a verify. If the judge believes the
facts stated are untrue, that issue may
be tried, and the Judge can testify to the
facts within his knowledge in a proper
prosecution"
The trial court. intent on Furnishing an
innocent man for the act Of another which
in itself was not punishable, disposed of
as follows:
/. The court held that since Klgallen
had testified on March u, 1919 that he
assumed responsibility for everything in
the Times his sworn statement on April
Z, 1920, that he did not have the respon-
sibuity and authority for everything in
the newspaper was false.
2 He ignored absolutely, both in his
findings and his judgment, the issue
raised as on the facts that the cause on
which the alleged contemptuous crit
joisn was raised was not pending at the
time Of the publication Of the alleged
contempt.
An appeal was taken to rhe Supreme
Court OF Indiana and in deciding that
appeal the Supreme Court ruled that the
answer made by Kugallen was not suf-
hcient because It vas in three para
,~graphed and the verlhcation Of it was
u the end Of the third paragraph land
ssshis affidavit cannot be considered as a
verifcation Of each paragraph Of the
answer"
Thus, the Supreme Court ignored the
fact that Mr.. KIlgallen;
L Did not write. publish or cause to
be written or published the alleged con-
tempt
2 That he did not have the authority
to prevent the writing or publication
Of the alleged contempt.
8. That the article was not a contempt
because it did not pertain to a cause
pending in the court
The Supreme Court further found, al
though it is difficult to ascertain why
It should SO find IN this particular case,
that
1.-THE publisher Of a newspaper can
not exonerate himself from liability to
punishment for contempt in case an ar
ticle rejecting on the courts Is published
in his paper by denying that he had
knowledge Of the article prior to its pub
ication.
PUBLISHER MUST
EXERCISE CAUTION.
1T is the duty Of the proprietor Of g
public paper that may be used for the
publication Of improper communications,
to use reasonable caution IN the con
duct Of his business that no Hbels
be published. ="
Mr.. Kugallen was not the publisher"
Of the Times and It was not so charged
at any time in the case, consequently 1t
. could make no difference to him what
the duties or liabilities Of the ''pu-
fisher" were, and he certainly never
should have been convicted because Of
any failure on the part Of the pub
Usher.
But, as a result Of the two decisions,
one by q lower court intent upon con-
viction and one by a higher court which
failed to decide all the issues raised, Mr.
Kilgallen stands the victim Of a mis-
carriage Of justice in which he was sen
fenced 70 Jail because another person,
over whom he had no control prepared
and caused to be published an article
the preparation and publication Of
which Mr. KiIgallen was poWerIess to
prevent
It is with 3 view to calling the atten-
ton Of the Supreme Court Of the State
to the injustice that has been perpe-
trated that Mr.. Kilgallen has petitioned
for & rehearing Of the case and has
caused an extensive brief to be filed for
its perusaL
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