Indianapolis Times, Volume 38, Number 305, Indianapolis, Marion County, 30 March 1927 — Page 4

PAGE 4

DEARTH SPENDS 1 DAY ON STAND BEFORESENATE Memory Weak on CrossExamination—Minor Victory for Defense. Although Judge Clarence W. Dearth recalled distinctly what occurred on various dates in regard to juries and cases in the Delaware Circuit Court over which he presides, when called to the witness stand in the Indiana Senate Tuesday morning, he suffered from memory lapsed later in the afternoon. These lapses occurred during his cross-examina-tion by Representative Delph McKesson of the House of Representatives board of managers who are charged with prosecution of Dearth before the Senate. Impeachment proceedings were launched on the grounds that the judge interfered with freedom of press by ordering newsboys into his court and having their papers taken from them and that he permitted jury irregularities. After testifying on his own behalf during the latter part of the morning and until nearly 4 o’clock in the afternoon, the judge was granted a respite before cross-examination while Arch Hamilton, jury foreman when George Dale, editor of the Muncie Post-Democrat was indicted for criminal libel, took the stand. He had been a defense witness Monday and was recalled by the prosecution for cross-examination. Ogle Writes Indictment Ho admitted that the judge told him that Van Ogle, former Delaware County prosecutor, friend of Dearth and now of the defense counsel, had prepared the indictment. This was before Dale was called before the grand jury to testify the jury foreman declared. Later the Judge returned to the stand and admitted that he had Ogle prepare the indictment*, adding that he was afraid that Prosecutor Joe Davis “wouldn’t do it right.” Defense won a minor victory when the case was resumed after the lunch hour by gaining admission of the issue of the suppressed Muncie PostDemocrat over the State objections. It was contended by chief defense counsel Frederick Van Nuys that the paper, dated Feb. 19, 1927, contained an article about the judge which was criminally libel per se. On this contention he maintained that the Judge had a right to suppress it. Dearth admitted ordering the copies taken away from about forty Muncie newsboys and warning them to sell no more. His first indication of the contents of the issue came when a newsboy walked through the court--1 ouso corridors shouting. "All about Judge Dearth and the murder,” he declared. Attempt of the defense to introduce copies of Muncie Post-Democrat

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into the records, other than the issue which the judge suppressed by confiscation and that of Nov. 9, 1923, expressing sympathy at the finding of the body of Margaret Dearth, the judge’s daughter in the Ohio river nearly a month after her disappearance, failed. Objection of the State was sustained by a rising vote of 29 ayes and 17 noes. Tells-of Tragedy Testimony then took on a sad note as Van Nuys had the judge relate the disappearance and death of his daughter. Judge Dearth talked low and his eyes filled with tears as he related how the girl disappeared on Nov. 1, 1923, following a physical and mental breakdown, and how her body was taken from the Ohio river on Nov. 27, 1923. “Have ydu examined the files of the papers presented here by Mrs. George Dale?” he was asked. “I have, but ohly the one of Nov. 9, 1923, contains any reference to my daughter, the others are missing,” the judge replied. This testimony was objected to as irrelevant. McKesson contending that the only reference ever made to the girl was in the issue of Nov. 9, 1923. Objection was sustained, but the judge through Van Nuys’ questions attempted to prove that there had been others .in which derogatory hints had been made regarding his daughter’s disappearance. This was one of the things brought out in the opening speech of defense counsel and for which Mrs. Dale has threatened suit against Van Nuys. Mrs. Dale Denies “When the facts are known there will be another side to the story,” was Dearth’s version of the other article which he insisted Dale had printed in his paper and alleged to be derogatory to his daughter’s reputation. Mrs. Dale has denied that such an article or any article other than that of condolence had appeared regarding Miss Dearth. The judge maintained that he had not carried any of the newspapers away from city police headquarters as had been testified to by the newsbody James Carigg. Questioning brought out the fact that the newspapers are now in charge of Charles White, Delaware County court reporter. Taking up the question of the judge’s efforts to have an affidavit filed against Dale for criminal libel for the publication of the article which caused the trouble on Feb. 19, 1927, the witness said: “Mr. Ogle (Van Ogle, now co-coun-sel), wrote the affidavits for me and I called the prosecutor’s office and told him I would be down. Davis and his deputy, Paul Brady, were present and I told them that I wanted to file an affidavit against Dale. Joe Davis told me about packed juries and I said, ‘Joe, if they are packed juries why don’t you put them off peremptory?’ and I further told him that he could have any citizen file an affidavit if the grand jury would not indict. It is true that ,he told me that there were twenty-five persons illegally drawn as jurors and that he asked me if I would put them off and I said ‘No, I want to see more about it.’ ” Didn’t Mean It Dearth said that lie did not mean to violate the right of freedom of the

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press, or the right of free speech or to confiscate property without due process of law when he ordered the newspapers confiscated and the newsboys brought into court. “I had been libeled and slandered for three and one-half years and got to a place where I couldn’t stand it any more and I felt that this was one time when I ought to go out and do something,” said Dearth, when McKesson asked him what prompted his action. ■ An elaborate card index filing system was explained by the witness. In this filing system the judge said lie kept a record of all the jurors who had served in his court so that he could have it for ready reference. The record contained 1,581 names he said. Van Nuys led the witness to the tearing conducted by Judiciary A committee of the House of Representatives when it was considering the impeachment charges and Dearth said that he had not been summoned to appear and knew nothing until 5 o'clock on the afternoon ing of the hearing until 5 o’clock on the afternoon of the day the hearwas to be held. Before taking up the cross-exami-nation of Dearth, McKesson recalled Hamilton. Not Subpoenaed Hamilton did not know if Dearth was subpoenaed in the regular manner when he appeared before that grand jury to testify against Dale in the criminal libel charge based on publication of the letter written by Clell Maple. He said that he as‘foreman had not issued the subpoena. Getting to the manner in which the indictment was returned against Dale and on which be is now a fugitive in Ohio Milton J. Sahvasser (Rep.), of LaPorte, queried the witness: “How long did you deliberate on this indictment?” "About fifteen minutes.” "Who prepared the indictment?” “Mr. Ogle, I was informed.” “Did Ogle appear before the grand Jury?” “No.” “When did Judge Dearth tell you that he had the indictment prepared?” “About the time he began to testify’.’ “Was Dearth the first witness?” “He was.” “Do you mean to say that Dearth

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had the indictment prepared before the grand jury heard any of the evidence?” “That’s my understanding.” After developing the fact that Hamilton was township trustee and had served as election inspector several times, although he said he knew nothing about polities, he was excused. ' Memory Suffers After asking a few perfunctory questions about the number of days spent ir\ court each year by the judge and the number of jurors used since lie took the bench, McKesson took up cross-examination of Dearth in earnest. Dearth explained that he did not ask to be heard by the Judiciay A committee “because I was waiting to bo called, I had my suitcase all packed.” After saying several times that he did not think that he would be welcome the witness admitted that his personal attorneys were present at the hearing, but did not offer to testify. Dearth took refuge in the fact that Ills attorneys had not been called to the stand at the hearing. At this point Judge Dearth could not remember whether he went before the grand jury in the libel case in the forenoon or afternoon or whether L. J. Parkinson, a reporter for a Muncie newspaper, had told him that he could appear before the committee. He couldn't remember if any newspaperman had conveyed any message to him from the Heuse committee, but did think that all. the evidence was hearsay and that he had read all of it in The Indianapolis Times. Several times during the examination by McKesson the presiding officer, Lieutenant Governor F. Harold Van Orman, warned the witness not to make a speech every time a question was asked. .Qualified Commisssioner “Did you deed Jacob Cavanaugh a piece of ground 20 feet square for the sole purpose of qualifying him as a jury commissioner?” McKesson asked. “I just qualified him.” “Did you have to do it?” “No, I just did it.” “Where is that land in reference to the lot from which it was deeded?”

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“On the back end. It wouldn’t be worth very much.” In reply, to a question as to what is on it the judge created a smile for himself and tho crowd by saying “Some white sweet corn planted by a colored lady who lives next door.” It was his first smile since the trial began. McKesson then questioned the witness regarding a record on file in the Supreme Court of Indiana in the ease of Dale vs. the State of Indiana where the charge was libel. Admitting that lie had signed the record and presided during the trial he could not remember that the record showed an orde by himself which stated “Let the record show that last year this court directed the jury commissioners to place 108 names in the jury box, and that they were selected from the tax duplicate and that the jury commissioners selected them In the treasurer's office and put them in, in accordance with the directions of this court.” He did not remember why he had said that they were drawn from the tax duplicate when lie had previously testified that he had never seen the commissioners draw names. “I don't remember what I said in the record but I signed it.” The defendant said lie couldn't read all tho records although "I might have had this one three weeks.” Jacob Cavanaugh’s “little red book” came back into the story but Dearth didn't remember any of the conversations about it. He wasn’t interested in what the book was for but knew that “Jake Cavanaugh was a good jury commissioner.’’ The testimony given by Dearth on cross-examination as to his conversation with Judge Robert F. Murray of the Delaware Superior Court did not quite check with his former reports of his talks with his fellow jurist. “l’es, I think I should have my own jury commissioners, my own bailiff, and own everything,” was the best reason given for a separate jury commissioners, although only one other county in the State has such an arrangement. Data collected by the judge on the number of jurors in his couic who were drawn twice did not agree with that submitted into tho record by

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