Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-06-23
THE sUPREEg COURT AND THE
WHEELER CASE.


such workG as euideace, but he is not
equally successful in demonstrating that
their exclusion from employment in the
argument CT counsel Is demanded On
this point indeed his own citations prove
that there is a conflict of authority. Sore
spectacle writer as Bishop in his work on
Criminal Procedure, holds that while scien.
tifc books are not evidence, "yet equally
sin the Judges charge to the jury,
land the testimony Of experts, and
"even in the arguments of coun.
"sel, passages from standard books,
explained and applied to the case in con-
"troversy are, under limitations varying in
90 some degree in our different Courts, per.
Emitted to be read" 1t seems, however,
that there is room for another bubble in
this case. It was not proved during the
trial that the book which the District At
torney read from was 'standsrd work. "
Judge Mckee in his ooneurring opinion
fastens on to this omission, and appears
to base his concurrence mainly upon it,
Judge McKinstry devotes a great deal of
space to citations going to show that scien-
tific works may not be introduced in evil
dence. In reading these citations one looks
in vain, however, for a rational justifea-
ton of the rule attempted tebe established.
And yet it is somewhat Conspicuous that
such justification is needed. For where
as lawyers depend themselves for the
most part upon authority. they are here
presented as vigorously excluding from the
Courts the text. books which are often alone
competent to direct them and the Jurors
they address.
Why scientific works should be con.
sidered inadmisssble as evidence is, in fact,
aquestion which requires to be determined.
1t is, however, not the legal way to go to
the foundation of a rule, no matter how
unreasonable it may be. The legal way is
to ignore all such considerations, and to
look solely to presidents. Ii a certain
practice has ten witnesses in its favor,
and six against it, it is regarded as estab.
lished by the preponderance of precedents,
and so the process of heaping up in
stances goes on, without any regard to the
nationality of the practice itself. In this
case, however, there is evidently no such
weight of authority on the side taken by
the Supreme Court as to justify it COM
pletely. The point raised is at most a
doubtful one, and it might have been
thought by unsophisticated observers that
the Court would have hesitated to reverse
thu judgment of the lower tribunal under
such circumstances. To the aforesaid
unsophisticated citizen it simply appears
that here is man who has committed a
cruel and horrible murder. He has been
found guilty upon evidence which had
nothing to do with Brownies Medical
Jurisprudence. 1t is not alleged or
implied that the passages read from that
work by the District Attorney had any
influence upon the minds of the Jury.
There is no question as to the fact that he
strangled his sister. in-law. He himself
admits it. Yet after this rufian has lain
in jail nearly two years, he is granted a
new trial upon the ground that lawyer
read something from book which had
not been shown to be " standard" work
Such decision as this is calculated to
make plain men despair of justice through
the established processes of law. To those
who see clearly, and whose brains and not
muddled with trumpery hair. splitting
distinctions, this decision will seem to
be mere exercise of judicial pedantry,
having for its object the defeat
of justice. To assume that the due pro.
lection of human life demands such sub.
tleties and fripperies of the law is, indeed, to
insult the popular intelligence. The people
see things in broad masses. They; see
that it requires no formidable preparation
of legal processes to consummate murder ;
that homicide is very easy, in fact. But
that the moment the murder is committed
the law throws shield over the assassin,
and that all its machinery is at once set in
motion to furnish him with the means of
escape from the statutory penalties of his
crime. 1t did not take Wheeler five
minutes to strangle his sister.in.law. 1t
has taken nearly two years for the State to
get him convicted, and now all the work
has to be done over again, with the chances
heavily against second vindication of the
statute.
The press all over the country has for
years been endeavoring to repress that pop
ular Impotence with the tedious and
uncertain course of the law which more
and more tends toward the employment of
mob force to execute justice. But the
press is paralyzed by judicial decisions
such as this, for they seem to the average
intelligence neither more nor less than
proofs of the untrustwor thiness of the
Courts, and therefore Qualifications of the
barbarous methods which are in these days
so alarmingly popular. Nor can even
those who reflect more carefully than the
masses, persuade themselves that such de.
cislons are either necessary or justifable.
1t is not possible to perceive that there
was in the trial of Wheeler any error
which ought to have vitiated the proceed
ings. The point upon which the Supreme
Court has ordered new trial must be re.
garded by every candid person as essen
italy frivolous. If an error was commit
ted land this Judge McKinstry by no
means makss clear it was SO insignificant
that it should not have been recognized.
1t cannot be pretended that the defendant
had less than justice in his trial. 1t cannot
be pretended that the verdict would have
been other than it was if the medical work
referred to had not been read at all. The
decision in fact is against reason, against
public policy, dangerous in its implica-
tions, and calculated to bring the Courts
into contempt, to encourage lawlessness,
and to make thinking men despair of
their institutions.
NOT A PLATFERING DEMONSTRATION.
1t is true tina. Fowler's anti-railroad
resolution was lost in the Democratic State
Convention by vote of 22l to 1875, but it
is anything but creditable to the intelli-
gence of the minority that 1875 men should
have been found ready to indorse SO essen.
TALLY outrageous proposition. What
Fowler asked the Convention was to
pledge the candidates for judicial office