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idea is that he had the intent to commit the crime, then why not find him guilty of the crime and confine him where men who are guilty belong, which is not in the asylum but in the jail?

I know there are men now who maintain, and it seems to me that is at the basis of the New York idea, that any man who kills another is a menace to society, that it is perfectly immaterial from the view point of the safety of society whether he is insane or whether he is sane. I can understand that perfectly well, and there are some who maintain logically, and are willing to stand on that position, that therefore an insane man should be hung just as well as a sane man. Why not? He is just as much a menace to society as a sane man; probably more. Therefore, since the idea of punishment is being eliminated from the law and we do not hang a man to punish him, but we hang a man or put him in the penitentiary for the purpose of protecting society from him; since society is just as much in danger of that man whether he is sane or insane, therefore hang him just as you would a sane man because the menace to society is just the same. That is a practical logical position, but it seems to me the position of the English statute and of the proposed New York statute starts out with one assumption and then is afraid to follow the logic of its own terms and then backwaters towards the end. If this man is such a menace, why not hang him? Why not put him in the penitentiary for life; why shut him up in an insane asylum? Furthermore, the proposed statute of New York and the pamphlets that were issued by the committee in support of it, and indeed it seems to me the remarks of the gentleman from New York on the statute this morning, makes up the question or the two questions which must be kept separate it seems to me in any rational code of law, namely, the difference between doing an act and committing a crime.

The gentleman said a man who commits murder is a menace to society whether he is sane or insane; but that is not the point. The point that this Association takes is that a man does not commit murder who kills a man if he was insane when he did it. That is the point, and it is a point which it seems to me in all of the arguments of the committee from New York they have

never seemed to recognize. They speak of a man committing a crime who was insane, but the man who was insane when he did the act, does not commit a crime. That is the very point. Through our whole codes of criminal law [and that has been true in England, not for 30 years, but for 500 years] to commit a crime there must be an act and there must be that thing called the guilty mind. I am speaking generally, I know there are some exceptions to it, but generally speaking that is true.

The other point is that your insane man has done an act, it is true, but not having the evil mind. That is the theory I mean. If you assume that he did have the evil mind then of course he has committed a crime and should be hung instead of being put in a penitentiary, but assuming he has not the evil mind he has only done an act and not committed a crime. It is the same with a man who kills another person by accident. We do not speak of him as having committed a crime, at least it seems to me we should not; we say he never committed any crime at all, he did an act, it is true, he killed somebody, but not having the intention to kill him, or not having the evil mind he is not guilty.

Waiving the point as to whether a really insane man can intend to kill, even assume that he can, even then does it follow he should be incarcerated? Take a child under seven years of age who kills somebody and intends to kill. Our law for 500 years has said that that child cannot be put in the penitentiary or in the insane asylum, either one. Why? According to the proposition here he did the act, he killed somebody, and he intended to kill him, and according to the New York theory therefore he should be punished; he is a menace; and yet our law has never punished such a person. They have said though he had the intent to kill yet he was an irresponsible person; he did not have the evil mind which was necessary.

Now I maintain that the insane man is in the same category. He may have intended to kill, it is true, but he did not have the evil mind which added to the killing would be necessary to make him responsible. A man wakes up in the night thinking burglars are in the house, and he mistakes his servant for a burglar and shoots. Our law has always said the person is excusable, the

murder was a reasonable one; yet he had the intent to kill and he did kill. Therefore again if all that is necessary to punish a man is the killing and the intent to kill, that man should be hanged likewise, because he had both of those things.

THE CHAIRMAN: The next subject is the report of the special committee on a draft of a code of criminal procedure, which will be presented by Professor Mikell of the University of Pennsylvania.

PROF. MIKELL: This committee is not ready to make a formal report as yet, and therefore no report was prepared of the deliberations of this committee because unfortunately they could not get their report through in time to have it printed. Therefore it has seemed to the committee that it would be a mistake to make a formal report now. The idea has been naturally to frame a statute or propose a statute or bill simplifying the law of indictment, to take out as far as possible all of the technicalities so-called with which the law is now conversant. It must, however, be admitted that any code of criminal procedure must be framed with these two ideas in view; first as an indictment to convict persons who have committed crime; that is very necessary; but it is equally necessary that your criminal procedure should protect the man who is accused of crime, who did not in fact commit it. It is very bad that a number of men who have committed crime should escape. It would be infinitely worse if the innocent man through your code of criminal procedure was liable to be convicted in any great numbers at all. No man would be free and you could not live under such a code. Therefore we have got to protect the man who is innocent. The first problem that is to be met in framing a code of indictments is to so balance those two things as not to have these safeguards which would enable the guilty man to screen himself behind them, but at the same time to have sufficient safeguard to protect the man who really has not committed a crime but who may be indicted for it.

It is constantly assumed, it seems to me, in these discussions that most people who are indicted or who have gotten off on technicalities were guilty. I protest that that does not at all follow.

Statistics will show that of the number of indictments which are not quashed, but go to the jury, a very large proportion of acquittals result on the merits of the trial before the jury. What right have we to assume that if an indictment was quashed a guilty man escaped? I protest that there is no such assumption necessary.

The committee therefore has tried in its draft of a bill to keep those two things in view as far as possible, and to frame it so as to take out all unnecessary elements, to give a man sufficient information to notify him of his crime and to protect the innocent man, and at the same time not to allow a refuge for the person who is properly convicted. The committee-I might say this much more-the committee have tried to reach that in large measure by the introduction of the bill of particulars. I might say that practically the indictment does nothing more than say that A killed C, or A stole from S something, and so there will be as little as possible to misstate, and as little as possible therefore to quash the indictment for, but to provide very fully that if a person accused needs more information than that, for the purpose of making his defence, he is entitled as a right to a bill of particulars setting out the amount of property he is alleged to have stolen or the circumstances under which the killing was done, so that he is safeguarded in all of his proper defences, and at the same time by making the bill of particulars freely amendable on the trial. That of course is only one little step in the whole plan of the bill. The committee expects to have the bill in final shape, printed and copies distributed before the next meeting, so that we can have a full discussion of it at that time.

Mr. MacChesney moved that a committee be created to take up the subject of a proper classification of crimes under our criminal law, and the President was authorized to appoint a committee to take up this subject.

Mr. Justice Norcross of the Supreme Court of Nevada then spoke in part as follows:

There was a portion of the address of Mr. Storey yesterday which it seems to me would be a subject specially to be considered

by the Committee on Uniform Procedure. It goes to a question which undoubtedly would require constitutional amendments in most of the states of the union, and that is the question as to the defendant under our present law not being compelled to become a witness against himself. I had occasion to consider that question some time ago in an article which I contributed to the Yale Law Journal. The subject was not new of course with myself but it has been presented in a number of articles. I believe that so far as procedure is concerned there is no one thing that would be as beneficial to the matter of prompt and just determination of criminal cases as the removal of that provision in our constitution.

When I first considered the matter it seemed to me it was one of the things that had come down in our jurisprudence that was necessary to the protection of the individual, but the reason upon which that rule was established in our constitutions and laws long ago ceased to exist, and the reason having ceased to exist the rule itself should cease to exist. As stated by Mr. Storey the only effect of that rule is in many cases to prevent the convictions of the guilty. It is a protection to the guilty and not to the innocent, and I, so far as procedure is concerned, think there is no one thing that a body of this kind could do that would be of more ultimate benefit in criminal jurisprudence than the abolition of this provision of our constitutional guarantees.

I have had the fortune to touch the great crime problem from several points of view. I have changed my early views very materially from the experience which I have had as a member of the Board of Pardons of my state, which I have served on now for nearly ten years, and I mention this now with reference to the matter of procedure. I believe the public at large consider that the great fault with our administration of the criminal law is due to our procedure. In my judgment the question of procedure is the least of the difficulties in the administration of the criminal law. The reason that we have such widespread crime and the reason in which we practically accomplish nothing in the way of substantial result in dealing with the great problem of crime is because we are not making any serious attempt to reach the origin of crime, and we are not making any serious attempt,

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