Muncie Post-Democrat, Muncie, Delaware County, 13 August 1925 — Page 3

THURSDAY, AUGUST 13,1925.

THE POST-DEMOCRAT.

PAGE 3

| Affidavits of Attorneys |

(Continued From Page Two.) up on his general past;” that others of said jury talked about and discussed defendant’s past life and reputation as grounds for defendant’s conviction regardless of his guilt in the case then upon trial. That while said jury was considering its verdict in said cause, and before they had arrived at their verdict said foreman of said jury took two of said jurors, one at a time, into a room separate and apart from the one in which the other jurors were, and after returning from said room said two jurors, who theretofore had been voting “not guilty” for the first time voted “guilty.” That such conduct on the part of the foreman prevented a fair and impartial consideration by said jury of the evidence given upon the trial of said cause, and of an open and fair discussion of the evidence by all the jurors; that said actions of said jurors in considering as evidence of defendant’s guilt statements by said the several jurors as to crimes which they alleged defendant had committed at a remote time, and their consideration of defendant’s alleged past reputation without any evidence thereof, was unconstitutional, in that it gave the defendant no chance to face his accusers and offer evidence to the truth or falsity of the charges they made and greatly prejudiced his rights; that defendant’s reputation was not in question and the hearing of evidence thereon, and the consideration thereof, was in violation of defendant’s right to a public trial by an impartial jury. That one of said jurors, Ella Collins, did not believe, and was not a tany time satisfied of defendant’s guilt, but after said jury had retired to deliberate upon their verdict and before they had arrived at a verdict, and after she had been voting “not guilty” she was, by the foreman of said jury brow beat into voting guilty; that after she so voted guilty, and before the verdict of the jury was signed and accepted, one of the ^aid jurors, A. E. Hoppes, said to the foreman, “you ought not to accept her vote for guilty,” to which state- - ' foreman replied, “I’ve got her vote for guilty now and that settles it regardless whether she believes him innocent or not.” That after said cause had been submitted to the jury and the jury had retired to their room for consideration of their verdict and before said jury had arrived at a verdict, Mrs. Trullender, a woman member of said jury, was permitted by the bailiff in charge of said to separate from said jury, and to leave her fellow jurors and go unattended to her husband’s store, and there, out of the hearing of the bailiff in charge of said jury, and out of the hearing of the other jurors, she conversed with someone in said store, and that after she had so absented herself from the other jurors she voted “guilty.” That while said jurors were considering of their verdict, as aforesaid, they were permitted by the officer in charge to separate when going to breakfast, and F. R. Nelson, one of the women members of said jury, and A. E. Hoppes, one of the men upon said jury, separated from their fellow jurors and went to a chandelier factory and therein talked with persons who were not members of said jury. That said jurors in said cause, after said cause had been submitted to them and after they had retired to their jury room to deliberate upon their verdict, and before they had arrived at a verdict, were permitted by the bailiff in charge of the jury to walk about the court room and adjoining rooms and in said rooms to talk to persons not members of said jury there present, and to so talk out of the presence and hearing of said bailiff, and out of the presence and hearing of other members of said jury. Affidant further says that the court room is on the third floor of the court house; that ingress and egress to and from the court room, on the west side thereof, are by two doors, one on the south side and one on the north side; that said north door is near to the jury rooms; that to go into the court room through said north door one has to pass near the jury rooms, and there are doors leading from the jury rooms out into the entrance way to said north door. That while said jury still was considering of the verdict, and before it had arrived at a verdict, defendant went to the court room to learn something concerning his case and on his way to said north door of the court room he passed the door to the jury room and heard one of the jurors, Gola Danner, say in a loud voice, “I was present at Wachtell’s store when Court Asher sold Les Wachtell half a pint of white mule,” also “I was helping at an auction sale at Wachtell’s store when Court Asher

came in and some one asked him ‘what are you doing now, Court,’ and Court replied, ‘O, I’m bootlegging yet,’ ” and also one of the jurors say, “Court Asher made a speech in the court house yard in which he said, “he had sold as much liquor as Ed Thomas.” And at said time, as he passed said jury room door, he heard the voice of a woman in the jury room say, “that Court slier had cost the taxpayers of Delaware county enough, and he ought to be sen up on general principles.” Said defendant, upon his said oath, further says that the information herein contained was obtained by him from certain of said jurors, from persons on the street and in the court house, from defendant’s counsel, Edward R. Templer, and Clarence E. Benadum, and what he heard in the hall from the jury room where said jury were confined while passing through a hall in the court house to said north door of the court room. Said defendant, upon his said oath, further says that as he passed said jury room on his way to the court room, while said jury was deliberating on its verdict he heard the foreman of said jury say: “I was on the jury that tried Court Asher for stealing Spurgeon’s liquor, and he was guilty of that, but the judge turned him loose.” Said affiant on his said oath, further says that he procured a subpoena from said Delaware Circuit court for Carl Losey and Fred Stone and had said subpoena duly served upon each of said persons commanding them to appear and testify in behalf of defendant upon the trial of said cause; that at the time set for the trial of said cause said persons so subpoenaed appeared in the Delaware Circuit court; that thereupon, Van L. Ogle, prosecuting attorney within and for the 46th Judicial Circuit of the State of Indiana, intimidated said two witnesses, and induced and procured them to leave said court room and absent themselves from said trial, by sending them word that if they testified that defendant was in Columbus, Ohio, on the 30th day of ilune, 1923, he would have them arrested for perjury before they left town; that said witnesses were in attendance in said court upon the first day of said trial, but at the end of said first day of said trial, and before they had been called upon to testify, because of their fear of being prosecuted if they testified to the truth left said court and returned to their homes and defendant was unable to procure their testimony upon said trial of said cause. That one of said jurors, while said jury so was in said jury room, said to the jury “that he saw Asher in a Klan parade in 1923, and that it caused him to resign from the Klan.” That two of said jurors who believed defendant was not guilty, and who voted “not guilty” were influenced to vote guilty by statements made by other jurors as to other crimes alleged to have been committed in the past, and by the repeated statements of other jurors that defendant’s bad character was sufficient to convict him. That there is no evidence in this case that defendant ever sold a half pint of liquor to Les Wachtell, nor any liquor at all; nor that defendant ever went into Wachtell’s store and said he was still a bootlegger; nor that defendant ever was tried for stealing Spurgeon’s liquor; nor that defendant marched in a Ku Klux Klan parade in 1923; nor that defendant was a notorious bootlegger; nor that he had cost, Delaware county taxpayers large amounts of money; nor that his past reputation was bad. That defendant did not learn that said jurors were permitted to separate and talk to other persons until after the verdict of said jury in said cause had been read; that he did not learn that the jury had discussed his past life and reputation and other alleged crimes he was said by some of the jurors to have been guilty of, except said statement of said Danner and said statement of said woman and said statement as to him having been tried for stealing Spurgeon’s liquor until after the verdict of the jury was announced to open court. v And defendant further says that he did not know of said Prosecuting Attorney having threatened affiant’s witnesses with prosecution if they swore he was in Columbus, Ohio, on the 20th day of June, 1923, and did not know that said Prosecuting Attorney had sent any word to said witnesses,,or either of them, by any persons and did not know that defendant’s said witnesses were intimidated and made afraid of prosecution, by such message and thereby were prevented from testifying and caused to leave Muncie and return to their homes until after the verdict had been read and the jury discharged. And that he did not know of the misconduct of the bailiff, hereinbefore set out and alleged, until after the verdict had been reqfl and the

jury^dismissed. COURT ASHER. Subscribed and sworn to before me this 29th day of July,, 1925. E. R. TEMPLER, Notary Public. (SEAL) My Commission expires February 3,1927. o * TEMPLER’S AFFIDAVIT. State of Indiana, Delaware County, ss.: In the Delaware Circuit Court, April Term, 1925. State of Indiana, vs. Court Asher. No. 7670. Affidavit in Support of Motion for New Trial. E. R. Templer, being duly sworn says that he is one of defendant’s attorneys who defended defendant on th e trial of said cause; that affiant did not know of or learn of the misconduct of the jury that tried said cause or of the bailiff who had charge of said jury, until after the verdict was returned into open court, and read. That the bailiff informed affiant in the court library that on the morning the verdict was returned and before it had been agreed to, that he took the jury to the Elks lodge coffee room for breakfast; that when at the corner of Main and High streets, he consented that Mrs. Trullender, one of the jurors, should go across the street to her husband’s grocery and talk to him, that she did go away from the bailiff and the other jurors, and go to her husband’s grocery and there talk briefly to some one; that she was, # while at said grocery, out of hearing of the jurors and himself, and out of their presence and hearing. Affiant says that the prosecuting attorney split up the transaction of the alleged liquor delivery June 30,1923, into two cases. The prosecuting attorney first filed an affidavit about six months after June 30,1923, charging Court Asher with having sold one Winfield Dillon a half gallon of intoxicating liquor June 30, 1923, which case finally came up for trial in the Delaware Circuit Court on the 19th day of May, 1925, before William A. McClellan, as special judge; that on said day defendant filed an application for a continuance on the ground of the absence of Clarence E. Benadum, an important and material witness for defendant, and said Asher swore that on the 30th day of June, 1923, he was in Columbus, Ohio, and that Clarence E. Benadum would so testify, if present; that said Judge handed said application to Van P. Ogle, the prosecuting attorney, who read the same and then said to affiant “if you file this, I’ll have Court Asher arrested for perjury before he leaves the court room.” That affiant then filed the application for a continuance, but the court overruled it. That the prosecuting attorney did not have defendant, Asher, arrested for perjury, and the cause proceeded to trial and the jury disagreed, and the case was finally dismissed. Affiant fl les this affidavit to show the practice prevailing by the prosecuting attorney in this court, and his apparent determination to secure defendant’s conviction on a felony charge at any cost. Then about eighteen moths after the commission of the crime, if one was really committed, the prosecuting attorney had defendant indicted for transporting the % same liquor, and he was convicted therefor and that is the conviction in this cause. E. R. TEMPLER. Subscribd and sworn to before me this 29th day of July, 1925. CLAUDE C. BALL, Notary Public. My commission expires January 21, 1927. BROTHER BENADUM ALSO. State of Indiana, Delaware County, ss.: In the Delaware Circuit Court, April Term, 1925. State of Indiana vs. Court Asher. No. 7670. Affidavit in Support of Motion for New Trial. . Clarence E. Benadum, being duly sworn, says that on the 30th day of June, 1925, he was informed by Van L. Ogle, prosecuting attorney of Delaware county, that if Carl Losey, Fred Stone, Howard Bennet and Foster Strader, witnesses from Indianapolis, should take the witness stand in the ( above entitled cause and testify that on the 30th day of June, 1923, Court Asher was in the city of Columbus, Ohio, all of that day, that he would have each of them arrested for perjury and put in jail. That they being friends of affiants, that he informed affiant of his intended action and asked affiant to inform the above named witnesses of the intention of the said prosecuting attorney and the message he sent them through me. That in compliance with the request of the said prosecuting attorney he did inform each of said witnesses of what the prosecuting attorney had said on said 30th day of June, 1925. That regardless of said message^aid Bennet and Strader did testify in said cause, but that for some reason Losey and Stone failed to return to the city of Muncie on the (Continued on Page Four.) # ^