SUPPLEMENTING FORMER OPINION.
(Filed July 20, 1928.) On August 6, following the filing of the prevailing opinion in this case, respondent Shumaker appeared in open court and moved to arrest the judgment against him, which motion was overruled, and thereupon judgment was pronounced. At that time, respondent Martin was reported without the state, and further proceedings as to him were postponed until the convening of court in October following. On August 16, attorneys for respondent Martin moved for him a new trial, and, on the eighteenth, respondent Shumaker separately moved for a new trial, which motion was at that time overruled. On September 17, the state filed a motion to modify the Shumaker judgment by increasing the penalty, to which motion respondent Shumaker, on September 22, entered a special appearance and moved to strike it out. On October 7, the motion to strike was overruled. On October 5, Shumaker filed his separate petition for a rehearing. On the same day, Martin appeared in open court and, on leave of the court, was permitted to file an additional response. By this response, which was properly verified, it was made to appear that *Page 693 he (Martin) did not participate as trustee of the league or otherwise in ordering the publication of the report as made by Shumaker to the board of trustees of the Anti-Saloon League, and had no part in its publicity. This supplemental response, in connection with his original response to the information filed by the Attorney-General, we hold is sufficient to purge him of the charge preferred by the state. It is therefore ordered that Jesse E. Martin go hence without day.
Hereafter, we will use the word "respondent" for the words "respondent Shumaker."
The state's motion to modify the judgment, and the petition of respondent for a rehearing are the matters before us for disposition. The motion of the state to modify because of an inadequate sentence is based upon allegations, in effect, that the respondent, while his case for contempt was pending before this court, corruptly attempted to induce citizens of great political influence and well known throughout the state for their splendid citizenship, to influence for him a favorable decision.
A motion by respondent, filed October 8, to require the state to make its motion more specific was, on October 25, overruled. On November 1, a further hearing on the pending motion by the state was fixed for November 21. On November 16, objections to the further trial and hearing on the motion of the state were filed by respondent and overruled on November 21. Thereupon, the case was submitted for trial. The state and respondent were permitted to introduce oral evidence and, at the same time, over the objections of respondent, the state read depositions.
While this proceeding may be classed as one for criminal contempt, yet by no means is it a criminal action in the sense that the rules for the admission of evidence in a 12, 13. criminal case apply. Dale v. State (1926), 198 Ind. 110, 121, 150 N.E. 781. *Page 694 It is a remedy inherent in the courts and evidence in the form of depositions of witnesses residing in foreign jurisdictions is not objectionable. Una v. Dodd (1884), 38 N.J. Eq. 460.
From the evidence, it appears that respondent exerted considerable activity in an attempt to have the Republican State Central Committee called together for the purpose of passing a resolution condemning the Attorney-General of the state for his act in prosecuting the contempt proceeding then pending in this court. In the 1926 campaign, two United States senators and various state officers, including two members of this court, were to be elected. There was evidence well supporting an inference that if the then-pending contempt case was disposed of favorable to respondent, it would clear the atmosphere very materially as to the position he would assume and the influence he might have toward the success of the Republican state ticket.
In August, 1926, although this court was then in recess and would continue to be until October 5, respondent sought the advice of our junior senator, then a candidate for re-election on the Republican ticket. Respondent's purpose, so says the senator, was to have an early decision of his case, and, on being told by the senator that he was in the legislative department of the federal service and could not help him, some further conversation was had which resulted in calling the senior senator, who was also a candidate for re-election, and then at Lake Maxinkuckee, to the telephone and with whom respondent had a conversation with reference to this case, the substance of which, as the senator remembers it, was that respondent thought he (the senator) "ought to use your influence to get that court called together for the purpose of rendering a decision in my case, and I think that court should decide that case in my favor; it looks to me like they are going to let it *Page 695 run until after the election, and after the election send me to jail or the penal farm, a thing they would not probably do before the election," and that the senator should do two things: (1) Have the Supreme Court meet and decide his case, which he thought ought to be decided in his favor; and (2) have the Republican State Committee called together to pass a resolution condemning the Attorney-General for having brought the contempt proceedings. On being told by the senator that he could not meet either of the requests, respondent replied that "the Anti-Saloon League and the Methodist Church will hold you personally responsible if that is not done." Respondent was advised to consult the Republican State Chairman on the subject of calling the committee together, as he, the senator, had no power to call them, and as to the court, "he had never attempted to influence the decision of any court" and would not attempt to do so, to which the respondent replied: "I think I am entitled to know one of two things immediately, either a decision of the court or a plain unequivocal statement from yourself and the Republican organization that you are not in sympathy with Gilliom's movements." Respondent positively denied making any such statements as above detailed, but admitted that he said in that conversation that he could not understand why the matter was going over, "and that I didn't know just what our rights were, whether we would be permitted to go ahead and make our usual statement as to the record or attitude of candidates, with this an undisposed-of case." However, another witness, Henry Lane Wilson, was present and heard the telephone conversation at the Maxinkuckee end of the line, and testified that he heard the senator say, "he had no power to call the state organization together and he would not do it if he had the power"; furthermore, "that he had never attempted to influence the decision of any *Page 696 court since he had been in public life and he had no intention of beginning at this time"; also, "do you mean to say that you will use the power of the Methodist Church and the Anti-Saloon League against me unless I interfere in your behalf?"
Prior to the telephone talk, it appears that the two senatorial candidates, at Washington, D.C., had some talk relative to assisting respondent out of his trouble, and the political effect it might have if respondent was sent to jail, but neither of them thought it advisable to mention the subject to any of the personnel of this court. Finally, it was decided that each should act in the matter as to him might seem advisable. But no action, it seems, was taken by either, other than the writing of two letters by the senior senator to personal friends in Indiana requesting that they see the Attorney-General and have him consent to a mere fine in case respondent was found guilty.
There is also evidence tending to show that on a Sunday morning in September, 1926, the respondent, in the Methodist Church at LaGrange, saw the Republican State Chairman, and to him, in substance, complained about the action of the Attorney-General in bringing the contempt case against him, which would injuriously affect the Republican party and its success at the election. However, he thought if the Attorney-General "could be convinced or see the situation as he (respondent) thought was right, that it would help greatly if he would call off this contention." The trend of his conversation was that the chairman should see the Attorney-General and have him stop the controversy and have the court dispose of it before election. If this were done, it would greatly benefit the ticket as "he (respondent) would like to do what he could to help elect the ticket." Only one of the candidates for the office of judge of this court was standing for re-election *Page 697 and it was his candidacy alone that respondent bitterly opposed, but thought if the Attorney-General could be made to understand that he was wrong in prosecuting the contempt case, and it could be disposed of as he thought it should be, the candidacy of the judge he was opposing would be acceptable. The witness testified that it was his understanding from his talk with the respondent that if he were "able to convince the Attorney-General it would help his (respondent's) own situation and help politically, likewise." Respondent directly denied any such conversations, and, in addition, testified "that if I said anything to him on that (candidacy of the judge), it was that no matter what the decision would be, the attitude of the league would remain unchanged."
From all the evidence in this case, the conclusion must follow that respondent evidently thought that a more favorable decision to him might be had before than after the election. In order to bring about this result, he sought certain action from those influential in the councils of the Republican party. He may not have intended that those responsible for party success should directly attempt to influence the court in his favor, but he planned to do it indirectly. Notwithstanding the inference which might well be drawn from his various activities, we are not disposed, in view of the status of this case, to modify the judgment already announced as the result of the original hearing.
Respondent has filed his petition for a rehearing, which is not materially different in its attack upon the majority opinion and finding in this case than was presented by his motion for 14. a new trial. This case originated in this court. It was tried here, and any ruling of the court at which either party may feel aggrieved may be properly presented by a motion for a new trial.
Respondent's petition for a rehearing is denied. In *Page 698 this connection, however, and with reference to his motion for a new trial, wherein he insisted that the appointment of a committee to act as amici curiae was error and harmful to him, it may be said that this insistence seems exceedingly inconsistent with his statements prior to the trial, in effect, that he thought two of the justices of this court, Willoughby and Travis, were against him, and as inconsistent with his additional cause for a new trial that these two judges should not have participated in the decision of his case. His feelings, best known to himself, toward these two justices, and the character of his activities and methods used to defeat them for re-election, might well be regarded as vindictive and the foundation for his belief that they could not give him a fair trial. In order to meet this contingency, and to assure all of the respondents a fair and impartial consideration of their case, the court appointed a committee of six outstanding well and favorably-known members of the bar of Indiana as a committee amici curiae, and requested its conclusion upon the case submitted to the court and, upon which showing, respondent had moved for his discharge. Seldom, if at all, did any member of this committee have anything to do with cases involving liquor law violations, and, in the opinion of the court, not one of them had any prejudice for or against either of the respondents. They were church members and acted under their solemn oath taken upon their admission to the bar.
One of the members of this committee, Judge Lairy, while a member of this court, wrote the case (Zuver v. State [1919],188 Ind. 60, 121 N.E. 828) expressly relied on by respondent for his discharge. This committee, as will appear from its report on file in this case, gave the questions involved exceedingly careful consideration, with the result that five of the six unanimously agreed that the respondent's acts charged in the information *Page 699 were contemptuous and that his response was insufficient to purge him of the charge. The other member of the committee, Mr. Shirley, reported that "while I regard his (Shumaker's) conduct in preparing and publishing the alleged report as entirely without justification, and while the publication is absurdly inaccurate in its report of the decisions in question, I do not think that the language used is libelous per se, or that it necessarily imputes lack of integrity to the court or any of the judges." His conclusion, as will be observed from reading his report, was based upon the assumption that the publication charged as contemptuous had to do with cases no longer pending in this court in any form. The other members of the committee interpreted the publication of the matters alleged to be contemptuous as applying not only to cases disposed of, but an attempt, in its effect and purpose, to control the decisions of this court in like cases well known to be pending for decision, by falsely representing to the public or to the members of respondent's organization the attitude of the personnel of the court or certain of its members in the decision of intoxicating-liquor appeals.
It will hardly be said that the exhibits filed with the information, and which were widely distributed throughout the State of Indiana, did not evince a purpose to control 15, 16. the decisions of this court in the class of cases generally known as "liquor cases," for the reason, additional to those mentioned in the original opinion, by requiring a pledge, or at least some intimation from a candidate for election to this bench indicating acquiescence with respondent's views that "substantial justice has been defeated repeatedly" in the enforcement of what is known as our Prohibition Law (Acts 1917, ch. 4) if he would obtain the indorsement and active support of the respondent. Each member of the Supreme Court of Indiana, before proceeding with *Page 700 the duties as such judge, must take an oath to support the Constitution of the United States, the Constitution of the State of Indiana, and to faithfully discharge the duties of his office. The oath is broad and comprehensive. His general fitness for the place is determined, or should be, by those who place him in nomination, and his election should not depend in any respect upon promises made, directly or evasively, of any "advantage" through decision to any person, bloc, or organization. Under such circumstances, the promisor would be more or less consciously advised of the particular influence which assisted in his election, and, to some extent, at least, would embarrass the independence of his judgment, a condition possibly sought to be eradicated by the Corrupt Practices Act (§§ 7661-7675 Burns 1926).
We find no reason for changing our former ruling on respondent's motion for a new trial.
Gemmill and Martin, JJ., concur in the ruling on the motion of respondent Martin, and in the ruling on relator's motion to modify the judgment and increase sentence of respondent Shumaker, but dissent as to the rulings on the petition for a rehearing and the motion for a new trial of respondent Shumaker and reserve the right to file an opinion within the term.