Indiana daily times., 1922-01-17
INDIANA DAILY TIMES, TUESDAY, JANUARY II, 1922
NEWSPAPER MAN
ASKS REHEARING


employed by the Indiana Daily Times as
it's managing editor, and Mr.. Butler as
its editor. Mr.. Kilgallen had charge OF
the news and Mr.. Butler Of the editorial
matter published in the paper. Neither
was subordinate to the other and both
were individually responsible to the own
ers of the newspaper.
The alleged contemptuous article was
written by Mr.. Butler without the knowl-
edge of Mr.. Kilgallen, who only became
aware of its existence when the type was
placed in the forms for publication. The
brief submitted to the Supreme Court
sets out these facts as follows:
Subsequent to March Il, 1919, said
Robert A. Butler was employed as EDITOR
Of the Indiana Daily Times and the rec
ord herein disclOses that Butler, and no
other person, is responsible for both the
preparation and publication of the ar
ticIe set forth in the information filed ty
the prosecuting attorney, and for all ar
ticles of a similar character published IN
said newspaper. Butler was not selected
or employed by appellant-neither was
Butler ever subjected to appellants or
ders or control. The powers and duties
Of said Butler, as editor Of said news
paper, have always been of q wider
scope than the powers and duties
of appellant herein If the court knows
any fact at all by common knowledge,
it knows that the editor OF newSpS per
is wholly Independent of the 'manaEing
editor thereof. Appellant had no juris-
diction or control over said Bulnr or any
of his acts as editor and appellant had
no power whatever to prevent. and Gould
not in fact prevent, either the preparation
or the publication by said Butler of the
editorial comment which this court has
held amounts to an indirect contempt Of
the Marion Criminal Court These facts
are all admitted They are set forth in
Appellants answer herein, and are not
disputed by the attorney general in APP
pellee's brief Appellant insists that
there Is no other decision published in
the English language in which higher
court has upheld the Judgment of a lower
court cOnvicting innocent man of
crime which was committed by another
known Individual without the knowledge
or consent of the convicted defendant.
The theory on which this court has
affirmed the judgment OF the lower court
is that it is the duty Of the publisher or
proprietor Of public paper to use Teaa
sonaDie caution to prevent the pubiica-
ton OF llbels and that therefore he can
not exonerate himself from liability to
punishment for contempt in case an ar
ticle rejecting on the courts is pub
nshed in his paper by denying that he
mad any knowledge of the article prior
to It's publication, and further that one
who furnishes the means for CARRYING on.
and derives profit from. the publicarion
OF n newspaper, ana intrusts its man
agement to servants and employees whom
he selects ana controls. may be said 10
cause TO be published what actually an
pears and should be held responsible
therefor. etc
SAYS ERROR LIES N
Coz Kl-S ASSI'AiPTION
he error Of the court in adopting this
theory lies in the fact that 1t assumes
that the editorial comment which con.
sltutes criminal contempt In the in
stant case was prepared and published
by an employe Of the Indiana Times who
was selected, employed and controlled
by Appellant. As above set forth, said
article was prepared and published by
one Koh"rt a. Butler, who was not. IN
any, sense. selected, employed or con
trolled by Appellant. Moreover. the un-
disputed fact is tas above pointed ou)
that said newspaper article was prepared
written and published under the sole dl-
TTecuon' c2ntrGi ana authority Of said
Robert A Butler in the ordinary course
Of the duties Of said Robert A BftIer
as IN employe Of said newspaper.
It Is further shown by the record
herein that the Indiana Daily Times is
corporation organized under the laws OF
the State OF Indiana, and that said cor
porationl was and is the owner ana pub
Usher Of said newspaper; that said Butler
was employed by said corporation and
was subject 10 the orders and under the
control Of hts employer. and that said
Butler was not employed by or subject
to the orders Of Appellant as manager
Of said newspaper, The president and
board Of directors II said corporation
are alone responsible for tho acts OF said
Butler 1t IS Obvious. therefore, that this
court has erred in its assumption that
Appellant Is responsible for articles
which are prepared and published In the
Indiana Daily Times by said Robert A.
Butler II the proprietor or publisher ~
said newspaper is ~ be punished for
Buffers acts, then the president aud the
board Of directors are the guilty PARTIES
not this appellant"
Editors Aote-In subsequent articles,
the peculiar process by which tho courts
have arrived at the conclusion that an
innocent man should he punished for tho
actions of one over whom he had no con-
troll will be discussed in greater de-
tail)