Central Law Journal. A LEGAL WEEKLY NEWSPAPER Central Law Journal Company 420 MARKET STREET, ST. LOUIS, MO. To whom all communications should be addressed. Subscription price, Five Dollars per annum, in advance. Subscription price, including two binders for holding two volumes, saving the necessity for binding in book form, Six Dollars. Single numbers, Twenty-five Cents. Copyright, 1914; by Central Law Journal Co. Entered at the Post-Office, St. Louis, Mo., as second-class matter. NEEDHAM C. COLLIER, EDITOR-IN-CHIEF ALEXANDER H. ROBBINS, MANAGING EDITOR CONTENTS EDITORIAL. Was he Guilty? J. S. was a clerk who attended his employer on a race track to record in a book his employer's bets on the races. Was he guilty of "occupying a place on the ground for the purpose of recording bets," under a penal statute making that a punishable offense? 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"At about 2 o'clock in the morning of July 16, 1912, in one of the most public portions of the City of New York at such an hour, one Herman Rosenthal was shot to death in the street.” Thus opens and continues in true melodramatic style the opinion of Judge Hiscock of the New York Court of Appeals justifying the decree of the majority of the court in reversing the judgment of the lower court in the case of People v. Becker, 104 N. E. Rep. 396. The opinion is noteworthy by reason of the ill concealed feeling of friendliness manifested for the defendant and the special pleading which the court puts forth in his behalf. It reads more like an advocate's fervid plea for the defense than a court's cold, calm decision on the law. In fact there are no important declarations of law to be found in the decision. The court seems to be sitting rather as a jury than as a court of appeals. In the very beginning of its argument it makes this astounding statement: "Absolutely no testimony was given on the trial directly tending to connect the defendant with the murder by other than six witnesses." Six witnesses! Surely sufficient testimony to give a jury some right to hang a verdict on even if every witness is vulnerable as to his character and credibility. But the court proceeds to show why, if they were sitting as a jury, they would not have believed a single one of these six witnesses. It dismisses the first two witnesses, Luban and Hallen, by showing they were convicts temporarily released from jail for the purpose of testifying and then. concludes a review of their testimony by saying that "much of the testimony of these men is, as it seems to us, inherently im probable and unworthy of belief." Surely, this is a most astounding statement coming from an appellate court in reviewing the verdict of a jury who alone are supposed to pass on the credibility of a witness and whose opportunity for determining that fact is far superior to that of an appellate judge poring over a printed abstract through the small hours of the night. ant." The court takes up the testimony of the next four witnesses, Rose, Webber, Vallon and Schepps, and calls attention to the fact that they were testifying "under an agreement sparing their lives provided they would give evidence to convict the 'defendThen follows for several pages a close analysis of alleged discrepancies in the testimony of these four men, even going so far as to split hairs over the inferences to be drawn from the testimony that at the time Becker was planning the death of Rosenthal he was trying to defeat and discredit Rosenthal before the grand jury who were investigating the latter's charges that Becker was a "grafter." It is unprofitable and unnecessary to follow the court through its difficult task of weighing each bit of the evidence offered as it only proves what is true in every criminal case that there are doubts and uncertainties that can only be solved by the men sworn to try the facts and who have opportunity to look a witness "in the eye" and observe his demeanor on the stand. Every lawyer knows that this is the best and final test of a witness' credibility and it is this that gives the verdict of a jury its importance and finality. It is certainly unfortunate if the public confidence in the verdict of a jury is going to be shaken by an appellate court's close analysis of the testimony upon which such verdict is rendered. We wish to make our position clear. We may agree with the court that as we read the evidence which they set forth we would have decided the case for the defendant. But we insist that an appellate court is not responsible for the verdict but only to see that the defendant had a fair trial and was not denied any of his rights to the material injury of his defense. Judge Hiscock's statement that an appellate court "should recoil from the proposition of taking the appellant's life" in view of the testimony shows a singular lack of appreciating his responsibility as an appellate judge. On the question of the defendant's guilt under the law and the evidence the jury is supreme and bears the full responsibility and does not share this responsibility in any particular with either the lower or the higher court. Much rather should an appellate judge recoil from disturbing a verdict of a jury who have performed their duty to society in pointing out a criminal whose conduct has been subversive to human government and dangerous to society and whose capacity and authority to decide that point is so superior to that of an appellate court. There were many minor points of error alleged and discussed. We say minor, because of the fact that such errors are usually passed over by appellate courts generally as immaterial. Such errors. for instance, as the order of admitting testimony, the judge's harsh rejoinders to importunate counsel, the limitation of the right of cross-examination. One of the curious features of this very unique opinion is the attempt of the count to excuse defendant's counsel for losing his temper while criticising the court for giving way to what it regards as a reasonable provocation. Thus the court says that "the defendant's counsel took several hundred objections and that whatever discretion was exercised against him by the presiding judge was but just repression and condemnation of methods which were obstructive and unwarranted." But the court goes on to show in behalf of defendant's counsel "extenuation of his conduct" in the "great responsibility, fatigue and nervous strain" incident to such a trial. Why such extenuating circumstances might not sometimes be pleaded in behalf of an over worked trial judge who must sit calmly through a long trial and be forced to decide in the spur of the moment "several hundred unwarranted and obstructive objec tions" thrown at him by counsel for defendant with no other idea than to confuse the court and the jury and obstruct the cause of justice, we never have been able to understand. We stand firmly for the trial court and for the trial jury who labor through the heat and burden of the day and we deny emphatically the right of an appellate tribunal to go over the result of their efforts with the rule and compass to find immaterial flaws and imperfections in their work, and particularly to impeach their intelligence and competency and ruthlessly to set aside the verdict of the jury because. forsooth, the appellate judges would have rendered a different one. The decision in the Becker case is even harder to understand when read in connection with the declaration in the case of People v. Decker, 157 N. Y. 186, where the court, in speaking of Sec. 528 of the Code of Criminal Procedure, said that "in determining whether a new trial shall be granted under it, it is not the province of this court to review or determine controverted questions of fact arising upon conflicting evidence, but that the jury is the ultimate tribunal in such a case, and that with its decision the court may not interfere unless it reaches the conclusion that justice has not been done." The dissenting opinion of Mr. Justice Werner in the Becker case sets forth evidence which the majority of the court unfairly passed over corroborating the testimony of the "six alleged and confessed criminals" and which would have been sufficient in any court in this country to have given the case to the jury. Having shown this fact, Justice Werner rightly concludes. that the majority of the court have no right to speculate as to the guilt or innocence of the defendant but that the jury's verdict is forever conclusive of that fact, saying: "Judges may differ as to the effect and weight of testimony, but it still remains the law that when an issue of fact is created in a case triable by jury the character of the witnesses and the weight of their testimony cannot be disposed of by this court even in a case involving the death penalty." We have carefully followed the criticism of this decision by the secular press, but only one such criticism has interested us. That is the editorial comment in the World's Work for April, 1914. This comment is as follows: "The Court of Appeals criticises the trial court for precisely the reasons that led the popular mind to applaud it. Judge Goff insisted upon an expeditious trial. The higher court declares that the accused man had no fair opportunity to prove his innocence. Judge Goff refused to consider what he regarded as foolish interruptions or to permit the defendant's counsel to cross-examine witnesses indefinitely. On this ground the higher court denounces him as prejudiced. "We need not necessarily criticise the New York Court of Appeals. Its decision falls in with the traditional spirit of American judicial institutions. The long period of time it took to reach the decision is also in accordance with conventional court procedure in this country. It presents such a striking illustration of our legal shortcomings, indeed, that it may serve a real public end. It may result in the miscarriage of justice in a particular case; it may facilitate it in the long run. It has given the newly established American Academy of Jurisprudence and the numerous similar movements for judicial reform in many states another picture of the problem that lies before them." It seems that all the sincere efforts of the American Bar Association and of the local state bar associations to reform procedure and to minimize the opportunity for delay and reversal of verdicts and judgments is hopeless as against an appellate court who cannot get away from the tradition that all error is reversible error. The difficulty is in getting the appellate court away from the idea that they are in any way responsible for the result of the trial in the lower court. From confessions which appellate judges have made to us, we are confident. that they sometimes improperly assume a heavy responsibility for the verdict in the case before them, and feel that unless they can be convinced beyond a reasonable doubt that justice has been done, that they ought to set aside the verdict. It is unnecessary to argue that this is a mistaken assumption of responsibility and that rather is the responsibility greater toward society not to disturb the finding of the jury upon whom alone society has imposed the duty and the responsibility of determining the guilt or innocence of an accused person. To disturb such a verdict unless the court is convinced affirmatively that justice has not been done or the substantial legal rights of the defendant have been violated is to breed anarchy and to destroy the confidence of the people in the administration of justice. A. H. R. NOTES OF IMPORTANT DECISIONS. PARDON-EFFECT OF AS TAKING AWAY FIRST OFFENSE IN HABITUAL CRIMINAL LAWS.-We discussed in 75 Cent. L. J. 51, in the case of Graham v. West Virginia, 224 U. S. 616, an habitual criminal statute imposing increased penalty upon a convict for a second conviction, where the first conviction was in another jurisdiction. The statute was upheld, the doctrine in McDonald v. Massachusetts, 180 W. S. 311, being adhered to. There it was ruled that this did not impose additional punishment for the crime committed elsewhere, “but is the heavier (in the new crime) if he is an habitual criminal," the state being allowed to call something a former crime for this purpose, though committed elsewhere. Now the point is made, that if a pardon is set up as to that former crime, it is limitation on the power of the jurisdiction where it was committed, to say that it still may be called a former crime. Carlesi v. New York, 34 Sup Ct. The former crime was an offense against the United States and it had been pardoned by the president, and it was averred in an indictment that he had been convicted of a former offense for which the defendant had been arrested. He moved to strike out from the in |