technicalities and mere matters of practice at the expense of substantive justice and an altogether too wide latitude of appeal. Notwithstanding the constitutional guarantee of "speedy" trials, the dockets of the criminal courts nearly everywhere are so congested with cases that trials cannot be reached for months and sometimes for years. It was put in evidence before the New York State Commission on the Law's Delay in 1903 that on the 1st of November of that year there were 10,000 untried jury cases on the calendar of the first department of the supreme court of that state. The court was then three years behind with its work and it required from one and a half to two years to reach a jury trial in Kings County. The clerk of the superior court of Cook County, Illinois, informed the writer in April, 1907, that there were then pending 12,653 cases before the superior court and 18,828 cases before the circuit court, the former being more than a year behind with its business and the latter about two years in arrears.

The Iroquois Theater fire case in Chicago may be cited as a typical instance of the delays in bringing cases to trial. The burning of the theater, which resulted in the loss of nearly six hundred lives, occurred on December 30, 1903. Two months thereafter the owner of the theater was indicted. The indictment was held under advisement for a period of three months by the court and finally quashed. On March 4, 1905, a new indictment was found and was held by the judge for a period of seven months and a half. Finally, in March, 1907, three years and four months after the commission of the offence charged, the case was brought to trial only to result in the release of the accused on a technicality. Such delays are not only a wrong to the accused, if he be innocent, but they always work an injury to society and often defeat the ends of justice itself. No deterrent is so powerful as swift and certain punishment. Long lapse of time between the commission of an offence and the trial induces pity, causes loss of interest on the part of the public prosecutor and not infrequently renders conviction difficult if not

impossible by the death of important witnesses, their removal from the jurisdiction of the court or from lapses of memory regarding material facts connected with the crime.

One of the most prolific sources of popular dissatisfaction with our methods of administering criminal justice is the practice of the appellate tribunals of reversing the decisions of trial courts upon technical errors and granting new trials to criminals who have already been convicted. Justice Brown hardly exaggerated the facts when, criticising the American practice of allowing appeals, almost as a matter of course, he recently remarked that the rendering of the verdict was only the beginning of the trial in serious criminal cases. The supreme court reports of all our states furnish ample evidence of the truth of Justice Brown's statement. We have reached a point where it is almost impossible to punish a criminal after a single trial, especially if he can command the service of able and ingenious counsel. Our judicial annals show that a large proportion of the criminals of this country who have been punished in recent years have had the benefit of at least two trials and convictions. It has been abundantly established by experience that postponements and new trials more often result in defeating justice than in promoting it. It is well known that after the lapse of a certain period it is almost impossible to convict the worst criminal. After the first trial the very stars in their courses seem to fight for him. Public interest languishes or becomes indifferent, the pressure of outraged opinion which operates as a powerful stimulus to the prosecuting attorney ceases, witnesses die or forget material facts, the sense of responsibility on the part of jurors diminishes as the memory of the crime recedes in the past and the case is often abandoned or the offender acquitted because public sentiment no longer seems to demand his punishment.

The doctrine of some tribunals that error in the procedure of the trial court, however trifling and immaterial, is presumed to affect prejudicially the rights of the accused and that consequently wherever such error is found it is the

right and duty of appellate courts to grant new trials, is doing more than anything else to multiply appeals, defeat the administration of justice and impair public confidence in the efficiency of the courts. Some of the instances of reversals on account of presumed prejudice arising from technical errors in the procedure of the trial court would, says Wigmore, one of the highest authorities on the law of evidence, seem incredible even in the justice of a tribe of fetish-worshipping Africans. Some of the trivial reasons that have actually been assigned by the appellate courts of our states for allowing new trials are the following: because the name of the State was abbreviated in the indictment; because the word "feloniously" was omitted from the indictment, although the evidence showed that the crime was committed with felonious intent; because the indictment merely stated that the victim "did then die" instead of stating that he "did then and there die"; because the word "maliciously" was omitted from an indictment charging the accused with arson, although it stated that the offence was committed "wilfully and feloniously"; because the indictment charged the defendant with "killing and murdering" instead of stating that he "did kill and murder" (the word "did" being held essential to a valid indictment); because the indictment charged the defendant with intent to "kill or injure" instead of to "kill and injure"; because the words "person or human being" were omitted from the indictment.

In England until 1907, when a court of criminal appeal was created, no right of appeal in criminal cases was allowed, though, of course, the decision of a lower court could be reviewed upon writs of error. The Home Office was expected to correct judicial wrong in criminal cases by means of pardons granted to persons unjustly convicted. The advantage of the right of appeal in criminal cases for a long time seemed doubtful to the English, and they were led to introduce it only after a popular clamor following the terrible miscarriage of justice in the case of the unfortunate Adolf Beck in 1904. The opponents of appeal pointed out that such a

system was expensive, cumbrous, dilatory and ineffective; asserted that it would substitute the judgment of a court with only the record before it for the judgment of twelve men who meet the witnesses face to face and hear the testimony from their own lips, and declared that it would tend greatly to diminish the sense of responsibility of jurors, since their verdict would not necessarily be final.

This view has not been without able supporters in America, though as yet the number has been small. President Taft, for example, in an address before the Yale Law School in 1905 asserted that: "If laws could be passed, either abolishing the right of criminal appeal and leaving to the pardoning power, as in England, the correction of judicial wrong; or, instead of that, if appeals must be allowed, then if a provision of law could be enacted by which no judgment of the court below should be reversed except for an error which the court, after reading the entire evidence can affirmatively say would have led to a different verdict, ninety-nine reversals out of one hundred under the present system would be avoided."

In England the judge occupies a commanding position in the trial which is wholly denied to him in America. He is not only vested with large power in the selection of juries, but is allowed to review and sum up the evidence, sift out the immaterial from the material, put the evidence before the jury in intelligible and coherent form, and, if the jurors have been confused and misled by the arguments of counsel, to set them right before giving the case into their hands. There is really no danger in this principle, since it does not in the slightest degree take away from the jury its power to determine the question of fact, but only helps it toward an intelligent decision by a sifting and clearing-up process. In America, as Judge Grosscup has remarked, the judge is practically not allowed to take part in the trial of criminal cases. His position is that of an umpire or a moderator rather than a judge in any real sense. The truth is, the Americans have gone to the extreme in exalting the function

of the jury at the expense of the judge. There is still a wide-spread disposition as in Blackstone's day to worship it as a fetish and to look upon the judge with a sort of superstitious fear, though in nearly all the states the judges are popularly elected for comparatively short terms. Many eminent American jurists, among them President Taft, have complained of the position of impotency to which American judges have been reduced and have urged the restoration to them of some of the powers which they enjoyed originally at common law and which in England they enjoy to-day.

In other respects the English methods of administering criminal justice are acknowledged to be decidedly in advance of ours. The New York State Commission on the Law's Delay reported in 1903 that it was "profoundly impressed" with the English system of procedure and asserted that the English courts from having been the most dilatory in the world have become in recent years the most expeditious. The Commission further declared that we "could not do better than adopt some of these modern methods of procedure which have been so thoroughly tested in England and have proved to work so well." The difference between the efficiency of the English and American methods of procedure is well illustrated by the Rayner and Thaw trials. In each case the facts were very similar and the plea was the same, namely, insanity. In the Rayner case the trial was started within a few days after the offence was committed, the jury was selected within an hour's time, and the trial was completed and the murderer convicted before the end of the first day. Thaw was brought to trial months after his crime was committed, and he was finally sent to an insane asylum after two trials which dragged through a period of a year and a half. Had he been convicted, appeals, reversals and new trials would have followed, and ultimately the case would in all probability have been carried to the United States Supreme Court. In any case there is no reason for believing that he would have been punished, if at all, within at least three years after committing his crime.

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