n

m

doubt, growing out of the testimony;" that it is "a doubt founded in every-day common sense and judgment;"" that it is. "actual, and not technical disbelief;"" that it is a probability of innocence, that it is "something more than a probability, and less than an absolute certainty of guilt; that it is "something less than a sentiment clear and strong in favor of a conviction; that it is "a doubt arising out of the evidence," or "the want of evidence," and that "they must not go outside of the evidence to hunt for doubts."P He also tells them that it is "a doubt for which a good reason can be given;" that there must be a "moral certainty," or "a reasonable and moral certainty," or an "abiding conviction" of guilt; or a conviction "which a man would act upon in matters of the highest concern and importance to his own interest, or "such as would cause a prudent man to pause and hesitate in his own most important affairs." And so on, through an almost endless catalogue of pertinent suggestion, fantastic deviation, or metaphysical diffusion. At every stage in this process, the trial judge runs great risk of reversing any conviction which may be obtained. If, in defining reasonable doubt, he lets slip the word "captious," a new trial must be

t

h People vs. Finley, 38 Mich. 482.

i State vs. Elsham (Ia.) 31 N. W. Rep. 66.

j Com. vs. Harman, 4 Pa. st. 269,272.

k Bain vs. State, 74 Ala. 38.

State vs. Rounds, 76 Me. 123.

m Bowler vs. State, 41 Miss. 571, 578.

8

n Cicely vs. State, 13 Sm. & M. (Miss.) 202, 210; United States vs. Foulke, 6 McLean (U.S.) 349, 355.

o State vs. Porter, 34 Ia. 131, 135; Earl vs. People, 73 III. 330, 333.

p Earl vs. People, supra.

q United States vs. Jackson, 29 Fed. Rep. 503; S. C.. 9 Cr. Law Mag. 325; People vs. Steubenvell, (Mich.) 8 Crim. Law Mag. 265; State vs. Meyer (Vt.) 3 Atl. Rep. 195, 198.

r Reg. vs. Sterne, cited in Best on Evidence 295 and in 3 Greenl. Ev. 229; Com. vs. Costley, 123 Mass. 1, 23; State vs. Vansant, 80 Mo. 67, 72; Dunn vs People, 109, Ill. 635, 644; McKleroy vs. State, 77 Ala. 95, 97; Coleman vs. State, 59 Ala. 52; People vs. Padillia, 42 Cal. 535, 540.

8 Com. vs. Costley, 123 Mass. 1, 23.

t Com. vs. Webster, 5 Cush. (Mass.) 295, 320; Dunn vs. People, 109, Ill. 635, 644; State vs. Pierce, 65 Ill. 89, 90; Miller vs. People, 39 Ill. 463, 464; Minich vs. People, 8 Colo. 454; State vs. Vansant, 80 Mo. 67, 72; People vs. Ashe, 44 Cal. 188, 290; James vs. State, 45 Miss 572, 575.

u Stark. Ev. 9th Am. ed. $65; 3 Greenl. Ev. 14th ed. 30, note a.

v State vs. Kearley, 26 Kan. 77, 87. Compare Polin vs. State, (Neb.) 16 N. W. Rep. 898, 900; S. C., 14 Neb. 540; State vs. Nash, 7 Ia. 350, 385; United States vs. Jackson, 29 Fed. Rep. 503; S. C. 9 Crim. Law Mag. 325; United States vs. Wright. 15 Fed. Rep. 112. 114; People vs. Dewey (Idaho), 6 Pac. Rep. 103, 106.

had." At one time, in my State, if he told the jury that it was a "real" doubt, the like consequences followed. But our Supreme Court, while clinging to its disapproval of the use of the word "real,” have more recently concluded not to order new trials, because the trial judge has employed it. If, in one jurisdiction, the trial judge tells them what, as just seen, some decisions sanction, that it is "a probability of innocence," away goes the labor of the whole trial. The same result would follow if he were to tell them that it is such a doubt as makes them feel "uncertain whether to convict or not." b If he ventures to direct their minds to the standard, by which they would be guided in their own. most important affairs, he must first search carefully the reports of his own Supreme Court; for he runs great risk of a reversal, according to numerous holdings.

с

And, finally, if the trial judge, forgetting where he is, goes to the wild length of instructing the jury that "the law contemplates that juries of the country, in exercising their judgment in such matters, will act in a sensible, rational manner, and give in all cases no more and no less weight and credit than is rightfully due," the judgment must be reversed. It is an invasion of the province of the jury to direct their minds to the standard of common sense; since they are at liberty to decide only according to the technical sense which they receive in a short lesson from the bench. Then, although in theory of law the jury are supposed to have the highest capacity for weighing the evidence, for distinguishing the false from the true, the judge proceeds to give them a series of cautionary instructions as to the manner of weighing evidence in various phases of the case-as to the probative value of circumstantial evidence, the evidence of confessions, the maxim falsus in uno, falsus in omnibus, the value of evidence of character, of negative testimony as distinguished from positive testimony,

e State vs. Swayne. 68 Mo 606, 616.

State vs Owens, 79 Mo. 620, 681; State vs. Smith, 21 Mo. App. 595.

y State vs. Payton (Mo.), 2 S. W. Rep. 294.

z State vs. Blunt (Mo.), 3 S. W. Rep. 394.

a Browning vs. State, 30 Miss. 657, 672.

b State vs. Ah Lee, 7 Ore. 237, 258.

e Bradley vs. State, 31 Ala 492, 498, 504; People vs. Brannon, 47 Cal. 96; Territory vs. Bannigan, 1 Dak. Ter. 452, 465; State vs. Dineen, 10 Minn. 498; State vs. Crawford, 32 Mo. 200: Jane vs Com. 2 Metc. (Ky.) 30, 34; State vs. Oscar, 7 Jones L. (N. C) 305.

d Sisk vs. State, 9 Tex. App. 246; Densmore es. State, 67 Ind., 306.

e Contra: People vs. Finley, 38 Mich. 482; State vs. Elsham (Ia.) 31 N. W. Rep. 66.

the caution to be employed in respect of the defense of alibi, and other like elements of proof-until he has either thoroughly frightened them or thoroughly convinced them that they are not to decide according to their real belief, founded on what the witnesses have told them, but according to some artificial conceptions which they but feebly understand.

Thus bewildered and dazed, they are, in my State and several other States. turned over to the advocates, to be played upon or further confused by their skill and cunning. But here there are similar attempts, generally wise, when we consider the infirmity of this tribunal, but often fantastic, to restrain the speeches of the advocates within reasonable limits. The judge may, indeed, in his discretion, limit the time of the advocates; though in two States this is prohibited by statute."

But if he limits the counsel for a thief to the half hour which was allowed to Cicero to speak in defense of Caius Rabirius, on a charge of murder, on an appeal from the Duumviri to the people, he runs the risk of having to try the cause over again. Not that abuses of discretion in this regard are to go uncorrected by the appellate tribunals. The discretion of limiting the time for argument, especially in criminal cases, is an extremely delicate one. The cases must be very plain-the occasions very rare-where the judge will attempt such a limitation in advance, thus presuming to determine what length of time is necessary to enable counsel to say all that may fairly and properly be said in behalf of his client. But, on the other hand, most judges and lawyers of experience will agree that the conception is equally extravagant, no matter from what distinguished source emanating, that the power to restrict the time of argument should be taken away from the judges altogether, thus allowing counsel, by "talking against time," to protract the trial of a single cause indefinitely, to the delay of other suitors, or until a mistrial is produced by the lapse of the term. The true view seems to be that, while the court should not limit counsel in advance in important or difficult causes, yet where the judge sees that counsel have talked them

f 9 Crim. Law, Mag. 614, 615; 2 Thomp. Tr. 2923 et seq.

i

g Miller Rev. Code (Iowa), 2783; Hall vs. Wolff, 61 Iowa, 559, 562; State vs. Miller, 75 N. C. 73, 75. Compare State vs. Collins, 70 N. C. 241.

A Dille vs. State, 34 Oh. St. 617; Compare Hunt vs. State, 49 Ga. 255.

i See the observations of the Hon. Daniel Dougherty in his address before the last meeting of the New York Bar Association, advocating the view that the power of limiting the time of argument should be withheld from the judges. 22 Am. Law Rev., 185.

selves out that they have worn the subject threadbare and are going back and traveling their ground over again-he should not hesitate to stop them, and should be upheld in such an exercise of discretion.

Then, in respect of the matter of the argument, counsel for the prisoner are practically unrestrained; but in some jurisdictions if the prosecuting attorney, or the counsel for the unsuccessful party in a civil action, spreads his arms too widely, pitches his voice at too high a key, or makes the traditional American bird scream a little too loudly, the judgment is reversed and a new trial granted. I am not arraigning all courts, nor a majority of them; but our recent books of reports abound in cases of reversals for mere slips of the tongue. For the error of stating some matter which is not in evidence, thus conceding the incapacity of the jurors to discriminate between what is in evidence and what is not; for expressing belief in the innocence of the prisoner; for alluding to former trials' or reversals" of the same case; for appealing to local, or to religious prejudice, and for other extravagances of statement or declamation, the catalogue of which could be greatly extended.❞

Do not think that I criticise the mass of these decisions. I agree that causes must be tried according to settled rules of evidence, and that the exuberance of advocacy must be restrained within reasonable limits. This is absolutely demanded by our every day experience with the infirmity of this species of popular tribunal. And there is nowhere to be found a nobler sketch of the true limits allowed to counsel in arguing causes to juries than that given by your own Nisbet in Mitchum vs. State which received the honor of being copied almost literally, but without quotation points or credit, into a leading decision of the Supreme Court of New Hampshire, from whence it has, through

f 1 Thomp. Tr. p. 747, and numerous cases cited.

k Pierson vs. State, 18 Tex. App. 524, 563. In this case, while the practice was condemned, a new trial was denied.

Hatch vs. State, 8 Tex. App 416; Moore vs. State, 21 Tex. App. 666.

m Humphrey vs. State, 21 Tex. App. 666, 668.

n School Town of Rochester vs. Shaw, 100 Ind. 268.

o Rudolph vs. Landwerlen, 92 Ind. 34, 39

p 1 Thomp. Tr. p, 761 et seq.; and cases cited.

q 11 Ga. 615.

r Tucker vs. Henniker, 41 N. H. 317, 324. A friend of mine suggests that, as the war

had just broken out, this was on the principle of confiscating rebel property.

other transplantings, become a part of our American jurisprudence. Nor is there to be found in any book a loftier or more eloquent exposition of the privileges and duties of an advocate in this regard, than is to be found in the opinion of your own. Lumpkin, in another case decided about the same time. "Under the fullest inspirations of excited genius, they may give vent to their glowing conceptions in thoughts that breathe and words. that burn. Nay, more, giving reins to their imagination, they may permit the spirit of their heated enthusiasm to swing and sweep beyond the flaming bounds of space and time-extra flammantia moenia mundi. But let nothing tempt them to pervert the testimony, or surreptitiously array before the jury facts which, whether true or not, have not been proven.'

We have advanced so far beyond the conceptions of our English ancestors and of our English brethren of to-day, that in many of our American State jurisdictions we have sealed the mouth of the judge upon all questions of fact. We have prohibited him from advising the jury upon questions of fact, though in some jurisdictions we still permit him to state the testimony, as well as to declare the law. But he is not to intimate any opinion upon questions of fact. His trained experience in seeing through subterfuges on the witness stand, in detecting perjuries, in perceiving the difference between an honest embarrassment and a conscious falsehood, all this is thrown away in our modern American jury trial. Twelve men, selected for their ignorance, are raked together from the body of the community, representing all trades and occupations, and in many cases no trade or occupation; and in this new and strange situation they are to pass upon the life or the fortune of a fellow man. If we were not raised under this system and wedded to it, could anything seem more fantastic to us? What is more difficult than sifting the truth where the testimony is delivered by a number of opposing witnesses? How valuable must be the experience of one who has long dealt with such matters. But we here proceed upon the conception that ignorance is better than experience-nay, even that experience is dangerous or polluted. If the judge even casually intimates an opinion upon any essential fact of the case a new trial is granted. Suppose, instead of deciding the momentous question of the life, liberty or fortune, of a human being, some lesser human office

See, for instance, Hatch vs. State, 8 Tex. App. 416, 423.

t Berry vs. State, 10 Ga., 511, 522.