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Brevier Legislative Reports, Volume XXI, 1883, 311 pp.


THURSDAY, January 18,1883 -10 a. m.

The SPEAKER commanded order and announced prayers by Rev. Mr. Sawyer, of Marion, Grant County.

On motion by Mr. HEFFREN, the reading of the Clerk's minutes of yesterday's proceedings was dispensed with.


The following described bills were introduced, read the first time and severally passed to the second reading, unless otherwise stated:

By Mr. HEFFREN [H. R. 208] a bill for an act to prescribe the limit to be charged by all joint stock companies, corporations of individuals who own stock yards, and also prescribing the limit to be charged for weighing certain animals.

By Mr. MOCK [H. R. 209] a bill for an act concerning elections, providing penalties and repealing all laws in conflict. The bill makes it unlawful to use "stickers" or print the names of candidates nominated by different political parties on the s me ticket.

By Mr. SMITH [H. R. 210] to amend Section 1 and repeal Section 2 of an act for the changing of County boundaries.

By Mr. KIRKPATRICK [H. R. 211] to amend Sections 30 and 34 of the general common school law-being Sections 4,504 and 4,425 of the Code of 1881.

By Mr. CARR [H. R. 212] a bill for an act fixing the time for holding Court in the Thirty-eighth Judicial Circuit.

On motion of Mr. CARR the constitutional rule was suspended-yeas, 96; nays, 1-the bill was read the second time by title, the third time by sections, and passed the House by yeas, 96; nays, 1.


The bill [S. 32] to punish the disclosing of contents of telephone messages.

The bill [S. 20] relating to the qualification of petit jurors.

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The bill [S. 12] to define the crime of false pretense so as to include oral represenation-

Were severally passed to the second reading.


The Senate concurrent resolution requesting the Secretary of War to reconsider his refusal to set apart a certain sum of money for the improvement of the harbor at Michigan City was taken up and concurred in.


Mr. McMULLEN, from a majority of the Judiciary Committee, returned Mr. Patton's [H. R. 36] to amend certain sections of an act concerning public offenses-to make libel a civil offense; with a recommendation that it pass with certain amendments. A minority report from the same Committee recommended the striking out of Section 10, the present law.

Mr. MOODY said: It seems to me that the reason these standing Committees are appointed is in reference to their fatness, and it certainly seems to me that we should give some consideration to their recommendation.

Mr. SMITH said: What the gentleman says is very pertinent, but I am a little like Andrew Jackson, who said, when asked if he had not worn to support the Constitution, said I swore to support the Constitution as I understood it. He desired an explanation of the provisions of the bill before voting on it.

Mr. McMULLEN said: I think if the gentleman from Tippecanoe [Mr. Smith] will not insist on the reading of the bill I can briefly explain the changes proposed, and thereby save the time that would be consumed by the reading The first section proposes a change in the existing law in this: the present statute makes it embezzlement for a tenant to appropriate to his own use, with Intent to defraud his landlord, the share of the crop belonging to the landlord. Under the present statute an indictment will net lie unless the whole crop is appropriated. The amendment reported by the Committee makes it embezzlement to thus appropriate $25 worth of a crop. The amendment reported by the Committee to Section 2 takes out of the present statute but part of what is known as the provoke law, making it a misdemeanor to attempt to provoke another to commit a breach of the peace. Sections 4 5. 6, 7, and 8 seek to amend the game laws by allowing seining and netting fish and trapping and otherwise killing quails. The Committee believe the present laws are better than the proposed bill, and therefore ask that the said Section be stricken out. Your Committee has reported in favor of Section 9 of this bill, for the reason that the Statutes of 1881 leave out the words, "or any false pretense," and this bill seeks to re-enact the statute as it is found in the statutes of 1876. Our Supreme Court, in a late case that will be reported in 8lst Indiana, came to the conclusion that under the statute as it now is, an indictment will not lie unless the false pretense is a false token or writing. The bill seeks to remedy that matter by enacting that if a person obtain anything of value by false verbal misrepresentation, he shall be punished. Section 2 of this bill seeks to repeal the libel act. Your Committee believes that the existing act is a statutory law and should not be repealed. We believe that persons pecuniarily irresponsible can be reached in no other way than through this act A judgment in an action of slander avails nothing, and if this statute is repealed DO remedy is left.

Mr. PATTEN said: I am in favor of repealing this libel law; that is, the law that makes it criminal to write and print libel. It think it is contrary to the spirit of our Constitution. For sixty years the State of Indiana existed without criminal libel, and it was only four years ago that it was incorporated in the statutes of Indiana. All men who attempt to do what is right need no such law as this to protect them. Today libel stands upon the same footing as that of slander. I think if it is right to make criminal libel it is right to make criminal slander. I think it is proper that we should have press criticism. Let the newspapers lay on the lash to every scoundrel in Indiana. An honest man invites criticism at all times. The newspapers are the schoolmasters to educate the people. I think this is a law that ought to be repealed. I hope that this House will wipe it out of existence. Every man in this House is willing to stand upon his own character, and as one Representative I am willing to be criticised.

The minority report was rejected.


On motion by Mr. NAVE the House took a recess for ten minutes, in order that members might make acquaintance with a number of the Alumni of the State University on the floor of the House; during which time speeches were made by General W. McKee Dunn, Dr. Lemuel D. Moss and Major John R. Cravens.

The House took a recess till 2 o'clock.


Mr. STEWART hoped the report of this Committee will be concurred in.

The question being on the adoption of the majority report, the same was concurred in by the House.


Mr. WILLIAMS, of Knox, from a majority of the Judiciary Committee, reported back Mr. Adams' bill [H. R. 74] to amend Section 372 of the civil procedure act, approved April 7, 1881, being Section 409 of the Revised Statute of 1881, with the recommendation that further action on the bill be indefinitely postponed. The minority of the same Committee submitted a report recommending that the bill to pass.

Mr. ADAMS said: I believe the report of the minority of this Committee ought to prevail, because I believe that if a Jury is competent to try a question of fact in one case it is in all cases. If a Jury is competent to try fraud in the execution of a note it is competent to try the same question with reference to the foreclosure of a mortgage. If a Jury can try fraud in a horse trade it can in a land trade. If a Jury is competent to try me for my life or my liberty it is competent to try me for my property or my money. There must have been somebody interested in the change of the rule that stood for nearly thirty years, and I can conceive of no people whose interest it affects sa much as the smart gentlemen who go over the country swindling men into the execution of mortgages through some fraud perpetrated upon them, and then denying them the right of a trial by a Jury of the citizens of their County.

Mr. MOCK: I believe in the minority report. I do not think it is right to leave it to the discretion of the Judge to say whether a man shall have a right to a Jury trial or not. If this minority report is adopted it will confer no greater right to any one for a trial by Jury than it did up to 1881. I believe that the law prior to 1881 was better than it, is now.

Mr. PATTEN: I do not see why, if a Jury has the right to try one case, why not let them try all cases. I am in favor of the minority report.

Mr. JEWETT: I think no man ought to vote for this minority report, and I hope that it will be voted down. It will almost double the length of our Courts should it prevail, and thereby incur a double expense to the taxpayers of the State.

Mr. WILEY: As one of the members of Judiciary Committee who signed the minority report, and believing it ought to prevail, I want to say just a few words. I can not coincide with the views of the gentleman from Scott [Mr. Jewett]. He seems to think that the minority report should page: 75[View Page 75] not prevail, because it would increase litigation and incur burdens upon the people by way of additional taxation. It does not seem to me to be in keeping with the spirit of our laws to let the question of dollars and cents interfere with the administration of justice. We must not measure the rights of citizenship by what the administration of justice costs. It is too small a measure. Rights, which belong to us as a people, must not be compassed by a question of expense. I believe the minority report ought to prevail, because the bill introduced by the gentleman from Morgan seeks to put every citizen upon. an equality in Courts of justice, and simply guarantees to every one a right which was acknowledged by the Code when the distinction between actions at law and proceedings in equity were abolished. As long as we have the Jury system, I am of the firm conviction that it is not right to deprive any citizen of the privilege of a trial by a Jury of his peers on any question of fact, and hence most heartily support the minority report.

Mr. GORDON: Nearly thirty years ago our code of civil procedure was adopted. By that code, as it stood until 1881, all questions of fact were triable by Jury. That plan worked well. The code established all distinctions between proceedings at law and in equity. The change made two years ago was a step backward; a step toward establishing the distinction abolished by the code. The litigants ought to decide whether they will try by Jury or not. Will the gentleman from Knox (Mr. Williams) give us anything like a definite idea as to what matters are triable by Jury as the law now stands? I am in favor of the the minority report.

Mr. FRAZER said: We have thus far tried to give stability to our laws, and not to suit the whim and fancy of some members. If gentlemen will examine the statute, they will find that there is no question of fact that may not be tried by Jury.

Mr. WILSON, of Marion, thought it would be going back to adopt the minority report.

The minority report was rejected-yeas, 60; nays, 35. The majority report, as amended by the minority report, was adopted.

Mr. MOCK, from the Committee on Rights and Privileges, reported back Mr. Campbell's bill [H. R. 146] to restrain certain animals from running at large, with the recommendation that it be indefinitely postponed.

After discussion thereon, the report was concurred in.

The House adjourned.