, 1872-11-23

1t hardly seems to be doubted, on any hand,
that the facility with which new trials can be OBJ
tanned in criminal cases is q frequent source
Of escape ofcrimina1s whom all, even the Judges
who grant the new trials, know to be guilty, and
to have been proven guilty. This implies no
charge against the correctness Of the decisions
OF the Appellate Judges, according to the prin-
ciples and rules of law applicable to the grant
ing Of new trials. It does. however, raise the
very serious question whether the principles and
rules OF law which govern the Courts il g1auting
new trials are in all respects sound and
wise, or whether in certain respects they need
lessly'favor the escape Of criminals. and there
fore need to be amended by statute. The
question which comes before an Appellate Court
on an application for new trial, or a,r,ehearing
IN any form, Of a criminal case, is not whether
the complete record Of the case does not show
that The defendant was Individually guilty. This
would be to refer to the decision Of the Court
question Of fact, which can alone be deter,
mined by the verdict Of the jury,
and such q question the Court
has'peyer hitherto decided. The question con-
aidered by the Appellate Court is. whether sin4the
trial OF the case in the Court below, an errcr
OF Law was committed. It may be in amatte,'
whichcan by.no possibility shake the force Off
other evidence which proves the defendant.
gu1tyT it may be in the erroneous admission or
rejection OF juror, or Of witness, or Of par
ticular question, when the Court above would
agree that, had the opposite ruling been+ made,
the proof Of guilt would have been Ito their
minds equally clear, yet the latter consideration
is imnaterial, as it is not for them to determine
the guilt Of the prisoner, but only the question
Of error in his trial.
The practice Of criminal lawyers lis to make,
The trial as long andas full Of doubtful rulings ;,
by the Court as possible, it being of~more value
often to have point decided against the prison.
or than in his favor. By this means several !
hundred exceptions to the rulings Of .the Courtt
below arise On the trial, and the granting Of a.
new trial depends On whether, among these !
several hundred, there is one SINGLE exception.
That is "well taken,'-ono ruling that four OIL
the seven Judges in QUE snpreme.Court may,
deem erroneous. The chances are that among
The large number Of evenly y-balanced ,rulings by
The Court in the course OF the l
trial there will be some points On |
which any ha1f-dozsn lawyers rwnuld |
7evelop difference Of opinion. And, insPeris |
Ease, the Governor holds that, where:ther,,sis |
serious disagreement OF the Supreme Court, not /
to the guilt of the prisoner, butas to whea her
IN erroneous ruling was made in trying i'm,
syen though the Court decides there was no |
srror whatever, he will remit the hanging1 and
'end the prisoner to the Penitentiry This
nay occur, therefore, though both the Supr enc
Court and the Governor are absolutely cersain
hat the prisoner Was entirely guilty Of; the
murder. /
For instance, in the cases Of Rafferty.and |
Perfect, the Supreme Court found, as errors, t,
hat the Court below denied q change Of venue,
nd that it rejected proof Of the into1ica-
ion Of the prisoner. But it might be
rue in many cases that Court
Fou1d perceive that, though change Of venue +
lad been granted, no jury in Christendom f.
hou1d have failed to convict the prisoner on the
or that, had it been proved that the +;
risoner was intoxicated, it would not have +,
hanged the nature of4ais guilt, as shown by the
vidence actually Introduced.
With all Difference to the universal tendency |
+ the Bench and Bar to regard the rules Of law I
nd Of practice as the perfection OF human rea
On, it is fair question for the decision Of our
-. II.
ehearings in criminal cases ought not {
. be satisfied that the error on {
'hich the 1ehearing is granted is 8
ne that, in view Of the whole record, involves Z