The Evansville journal. [volume] (Evansville, Ind.) 1866-1870, 1869-01-11

thereto, aud then have entrusted these
blanks to partisan friends, who were
duly appointed deputy clerks, and
these deputies, on the day of election
appeared in the different townships
aud issued the certificates to such for
eigners, of the proper political affilia-
tons, as might appear before the Den
uty, and rake the oath of Intention.
| recommend that this publis indie
cency be prohibited by proper penal
ties; and that 1t shall be made unlaw-
iul for any Clerk, either personally or
by Deputy, TO take the declaration of
any foreigner to become a citizen. or
issue certificate thereof at any other
place than the Clerk office or the
Court House, when the Court is la
session.
Our Bill of Rights requires that
Justice shall be administered speedily
and without delay. and the public, as
well as persons accused of crime, have
a right to insist on the enforcement of
this requirement There is a growing
conviction, however, not only with
the mass of the people, but among
many of our best lawyers and Judges,
that there are serious omissions and
defects in our legislation In respect to
the practice of the courts in criminal
prosecutions. The facility with which
c0ntlnuances and changes of venue
can be obtained on false afidayits.
with view to delay merely, until the
evidence relied upon by the State is
no longer attainable, is begetting a
distruet in the administration of the
penal laws, aud made an excuse for a
resort to summary punishment by mob
violence, disyraceful to the State, and
which if tolerated, must ultimately
become subversive of all law.
As the law now stands, as long as a
defendant in a criminal prosecution
will continue to make affidavits tech
nically sufficient, however untruthful,
the Court, although satisfied that no
real grounds of delay exist, must
grant the application or run the risk
of a reversal of the case on appeal,
upon the ground that the application
was Improperly refused. Under such
a practice, the skill of the lawyer in
preparing the affidavit, and not the
truthfulness of the statements of the
affant, becomes the ground OF judi
ciaI action.
I respectfully recommend that it
be provided By proper legislation that
whenever application is made for a
continuance in criminal case, found
ed on affidavit, setting forth as the
basis of the application the absence
of witnesses whose testimony is ma
terial to the defense, that the Court
may, of its own motion, or at the in
stance of the prosecutor. to test the
merits OF the application, require the
accused to submit TO an oral cross ex-
animation in open Court as to the
matters set forth In the affidavit as
the grounds of the continuance; and
also providing that If the accused
declines to submit to such cross ex-
animation, the Court shall refuse the
application. I would also provide
that the Court may, in its discre
ton, receive counter afidavits or
oral testimony tending to dis
prove the statements relied. on
as the grounds of continuance,
and that no judgment of conviction
shall be reversed because of refusal
TO grant a continuance, unless the re-
fusal, upon all the evidence adduced
upon the question shall manifest a
palpable abuse of discretion on the
part of the lower Court. Also, that,
when an affidavit is filed for contin
uanee on the ground of the absence
Of the witness. if the prosecutor will
admit that the witness would, if pres
emit, swear to the material and ree-
want mater stated 10 the affidavit,
then such matters may be read as eVi-
Il 1, i In fsFo
but the cause shall not be continued
because OF the absence Of such wit
ness. : further recommend that In
such cases, it shall BIS made compe-
tent for the State to prove the bad
reputation of the W itnesss named IN
the affidavit just as if he had been
personally examined as a witness on
trial.
L further recommend that provision
be made by law that where an appli
cation is made for a change of venue
on account of any objections the ac
cused may make to the Judge Of the
Court, that some other Judge, or any
attorney of the Court
may be substituted TO preside at the
trial, to the end that 20 continuance
of the cause may be occasioned by the
granting of the application. The rule
of practice introduced into the Code
of 1852, which gives the defendants
counsel the right to make the con-
argument to the jury, is an
innovation upon the well esta bllshed
principle that the party upon whom
the burden of proof rests should be
permitted to open and close the
discussion. The practical operation
of the rule is not believed to be COM
ducive to the ends of justice. When
it is considered that our Prosecuting
and District Attorneys are so made
quateiy compensated, and are there
fore not generally men of the largest
experience, and that the defendant,
if he be possessed of means, can al
ways secure in his defense the best
talents aud ripest experience of the
profession, it seems To be clear that
the State should not be placed under
disadvantages in relation to the con-
duct Of the argument of causes which
are not imposed upon other lltigant IS.
[ therefore recommend that the rule
of practice above alluded to be abro-
gated, and that the practice as it
stood prior TO the adoption OF the
Code of 1852 be restored.
COURTS.
The organization aud jurisdiction
of the courts is subject which
should receive your careful consid-
Grafton. In the larger counties, the
criminal prosecutions occupy so
much of the time of the courts that
it almost amounts to a denial of
justice to litigants In civil cases.
This was, to some extent, relieved
in the four most populous counties of
the State, by the establishment of a
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