The sun. [volume] (New York [N.Y.]) 1833-1916, 1877-11-04

Il
charge has called forth Is second remark
able feature Of the Pcnge case. That crti-
cism Is not confined practically TO one class
Of society in England as in tho TroHRoRNu
/ cs-c. hui comes from prominent lawyers.
eminent physicians, and great journals. and
from clcrgymcn. authors. and noblcmen. rs
we'll a. from tho public generally. Few per
sons have questioned the good motives Of
| the Judge. and none deny that he possesses
high qualifications for his position. The
overwhelming objection il to the bias and
feeling against the prisoners manifested by
the charge. 1t is idle To say that juryncn
are not influenced by the evident opinion Of
tho Judge. where he also takes care to tell
| them that they are not to allow themselves
10 be Influenced by Il. The caution never
has any effect. So we'll i this understood
that in some Of the Western States the
Judges are prohibited 10y statute from cy
pressing any opinion on the facts when
charging jury ia criminal case.
But il has been urged by the friends of
Mr.. Justice HAWKINS that the lack OF COM
/ pletc verbatim report II his charge pre-
cludcs the possibility Of "A Judgment upon il
| which shall be fair to him. The answer Is
! that many columns are reported word for
word. and surely whore we have She exact
! language we can justly crticise it, What.
for example. We should like Ia know. can be
said in defence OF the following passage
"You are asked" he told the jury. Ito say
| that II is highly improbable in n man who
cuntemplutes so hidcuus a deed, 10 write n
| letter arousing the anger OF the person to
whom il was addressed. Gentlemen. II is
i "a xni In Nxhaf hpp flint j. fnt nd
| legitimate observation. But there is another
view which may he taken, and 1t is this:
Wh,a one ci,r Of the litter is 0ircp il, toror of
the prisoner. il js my bOUad,n duty 10 supg,st
for yo,r constitution another state Of things
bosed on ,chaf has taken place." 1t il d new
doctrine that the Judge j. to supply what
the counsel for the prosecution may have
omitted 10 say against the accused.
The same inability IT, shake OF the habits
| OF the advocate was shown in considering
the relations between Louis STANTON and
ALICE RHODES prior to HArRIEr STAUN-
ToNs removal to the country. On one oc-
CASTOR the servant found the night dress Of
ALICE RHODES in drawer in Louis STAUS-
TONS room. II was urged by counsel for
the defence that as there was no chest OF
drawers in AIICE's room. 1t might bc taken
as a matter Of no importance that the night
dress was found in the other apartment.
" But whether you will so summarily dis
miss this matter" said Mr. Justice HAw-
KINs 10 the jury, will be for your consider
alton. Whereof ALICE RHODES slept in n
different room do YOU SUPPOSE that during
the day time, when it was not worn. would
her night dress be found? l leave it to you
to consider whether it would be left ON or
under the pillow of hor own bod. or whether
it would be- taken into another room and
placed in chest of drawers In saying
this, he also left it to the British public TO
consider whether a Judge on the bench
| should not have refrained from thus making
q far more telling aud effective suggestion
against these two prisoners than any that
was made by the Acknowledgement In his
treatment OF this part OF the ease.
Although it is confidently affirmed that no
error of law was committed In the course OF
the trial. these passages and others OF like
character IN the charge Of Mr.. Justice HAw-
RIMS have drawn renewed attention To what
Is the chief weakness, and perhaps the only
serious weakness. Of the English iedicial
| systematic tendency Of the Judges To con-
'inue to be advocates after their elevation
To the bench. They are usually lawyers
| who have had long and successful career
nj the bar A. adv ocat"s they have learned
| la consider cu-e- almost exclusively with
reference To desired conclusion, which J.
precisely what they ought not 10 do ~
Judges. Tn" conclusion 10 be- drawn from
the facts oi case on trial before jury
should be- matter oi entire Indifference To-
the Judge. His care should be to have the
facts fully and fairly presented according 10
law, leaving the jury 70 draw the proper
differences nninnuenced by his opinion.
Many English Judges learn to 90 this, not
with~innding the very different hatit Of
mind inculcn,ed by their experience a. bar
r-ter,: but lately there have been some
conspicuous failures. The London Da,iy
.N,Gs frankly EXPRESSES its alarm al the
appea rance Of 1.-THE rhetorical Judge aud
advocate on the bench as a DEVELOPMENT OF
Iuodcrn sensationalism. We have had some
di-crcditable examples Of this sort ia our
own State. whore. indeed. il is not at all
rare for judges Ia speak with pride u their
ability To control Verdicts; but they have no
reason to be- proud Of power whose eXer-
else H. in fact, an lnsidious encroachmcnt
upon the purity OF jury trials.
No less worthy Of note than tine other fea-
lures of the PenSc case We have mentioned,
j. the general aud outspokcn dissent with
which the verdict of the jury has been re-
ceivcd. Where he Law has been correctly
applied in the trial of Il case, il j. certainly
the habit ofthe Anglo-SaXOn mind To accept
the finding OF IA jury a. conclusive upon the
questions Of fact involved. Here We have n
remarkable exception, arising. without
doubt. from the unsal satisfactory nature ofthe
medical testimony upon which tho jury
acted, and the dissatisfaction which the
medical profession has freely expressed with
the result.
OF course. the first question TO be deter
mined In every case OF alleged murder Is
whether any homicide at all has been com
mitted. II this question We're answered uf-
flrmatvely in the Penge case. the other
facts proved warranted a conviction of muir.
der or manslaughter under the law of Eng
land, so far, AT lea Il, a. three of the prison