The Nevada journal., 1857-11-13

C@Se ~ batier.-Ihe supreme court
on the 9th inst filed its decision in the
above case, affirming the judgment of
the Court below, and fixing the day for
the execution of the judgment on tie
18th of December next. AS this case is
one of great interest to the community,
we may be INDUCED in few reflections
upon it, suggested by the record. What
ever may be the justice of the verdict of
the jury, or however strong the preju-
dice existing in Sierra against the fated
youth, whose days are now dwindled to
so little space, it seems to us that the
Supreme Court in its decision upon points
of law, that alone challenged its decis-
ion, has laid down rules which if ad-
hered tt hereafter, must peril the lives
of the innocent. The Supreme Court
decides that a grand jury of twelve men
only need to be empannel'edi in any case,
if the twelve agree. to find bill gainst
prisoner and cannot perceive how the
prisoner can be injured by the absense
of the others. 1t strikes us that when
the Legislature has prescribed that the
jury shall consist of seventeen, that the
Supreme Court are simply legislating
are going away from their duty-when
they allow less number to be statu-
tory grand jury. The statute has fixed
the number, and if from any cause the
number shall be reduced below seven
teen, the Court shall order the Sheriff to
summon enough to complete the panel.
tSee comp. laws, p. 354, Secs. 9-lO)
All this the Supreme Court overrule,
simply because they "cannot perceive
what injury the prisoner suffers if the
panel is not completed! 1t is well
known that the larger the body of men,
the more likelihood there is that some
of them may be men of superior intelli-
gence, able to sift tesmony, and give the
prisoner the benefit of points in his favor.
But whether the advantage is in favor
of the prisoner or the State, the Court
had no right to declare that legal
grand jury which did not conform to the
plain acquisitions of the statute
The Supreme Court next overrule
that ancient and never before doubted
principle of the common law, that all
amendments are III favor Of Innocence
all Prescriptions in favor Of the prisoner.
Referring to the question objected to by
prisoners counsel, the answer to which
brought out the fact that Butler was a
gambler-the Court says eff we can con-
ceiUe of a state of the case when such a
question would be proper, we are COM
PEELED to presume that it existed in this
case" We take it such language is
strange in the mouth of high appellate
tribunal. 1t strikes us that when a
question is prima .facie improper, it de-
wolves on the prosecution to show that
it was, under the circumstances, pro-
per, and in default of showing this, the
presumption is all in favor of the pris-
oner. In civil cases the presumption is
in favor of the correctness of the Court,
but in criminal cases the rule is revers-
ed, and all Prescriptions are in favor of
the accused Will it be contended that
the salutary rule of the statute that the
prisoner is to have the benefit of a
doubt, applies only to the decision OF
.juries Or is not the intent of the law,
as it was of the common lew, that this
intendment should be the guide of all
tribunals that passed upon his case No
more hideous rule could be established
than that every doubt, or any, should
be construed against the accused. The
only judge that ever laid down and act
ed on such rule, before this decision
was Jeffreys, when he deluged England
with the blood of political prisoners.
No lawyer need be told that the books
are full of authority that no question af
fecting the prisoners character, bust
ness, habits, belief, standing in society
or toibles, shall be called out by the
prosecution, unless the defendant frs
put his character in issue. There is III
dissenting opinion in this matter.
man cannot be proved or inferred to be
a murderer, because he is algambler-i
thief because he has committed a rape
The prisoner Butler. may have been {
murderer as well as a gambler. but he
was not murderer because he was {
gambler, and proving that he was 1
gambler could only raise prejudice il
the mind of the jury against him, while
affording no legal inference that he wa
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