Sacramento daily record-union., 1882-05-10
AL EVIDENCE IN MURDER CASES

For while it is the fact that the code of
California contains nothing to warrant the
admission OF the kind of evidence which
Judge benson excluded, 1t is equally true
that many Judges have admitted such tes-
timony, and that long line of precedents
can be shown in support of it. What
Judge benson has really done is to insist
upon a strict construction of the code in
the trial of murder cases. Instead of his
having introduced an innovation, he has
gone back to the statutory rules and
regulations, and has governed his criminal
administration by them. The vindication
of his position is easy and certain, for the
code contains no provision which can be
construed as allowing any other course
than that which he has adopted 1t is
not for his ruling that justification is
wanted, but for the rulings of those
Judges who have ignored the plain letter
of the law, and have frustrated justice by
permitting the defendants in murder cases
to go to the jury on wholly illegitimate
pleas. 1t is undeniable that the Courts
OF this State have been largely responsible
| for the scandalous failures of justice which
have occurred so frequently in this depart
ment Of the criminal law. Again and
again they have allowed counsel for the
defense to set up as justification facts
which the law does not recognize as justi.
fcation. The result has been that great
many of the most atrocious criminals
have escaped punishment, and that the
public mind has become almost hopelessly
confused on the whole subject.
The Legislature has been appealed to
repeatedly to remedy this and similar
abuses, and it has responded to the appeal.
1t has placed in the Code clear and specific
definitions of the several kinds of homi.
eide, and it has declared what shall be
allowed to appear in extenustion. 1t could
go no further than this. 1t could not CON-
pei the Courts to do their duty. But the
Courts, in too many instances, have taken
for their guide the record of precedent
usurpations of the law, and thus each fresh
infraction Of its letter and spirit has served
to fortify the morbid and dangerous
sentimentality which always seeks to find
excuses for murder. We venture the
opinion that if all the Courts of California
had taken their instructions directly from
the Code, as Judge benson did in the
Hurtado case, and had put aside those
precedents which only show how easy it is
to evade statutory definitions, human
life would have been much safer to-day,
and public opinion would have been in a
much healthier condition. But what could
the unlettered masses think when they
perceived that it was possible for murder
ers to escape by presenting pleas which the
laws know nothing of What could they
conclude but that the pernicious theory of
"higher law" was really sober truth,
acknowledged and deferred to by Judges
learned in the law:
And how could juries-at the best but
average representatives of the general in
telligence, and at the worst, las until re.
Gently carefully selected for their lack of
intelligence very much below the average,
think when evidence was freely intro.
duced tending to establish the belief that
an acquittal would be justified, on far other
grounds than those prescribed by the law?
They found that seduction was constantly
alleged as proper ground for defense.
They were told by lawyers that such dis
honor justified homicide. And at length
this loose way of treating murder went so
far that in the Schroeder case the defendant
was actually acquitted on this ground,
notwithstanding the fact that the alleged
seduction had not been proved at all.
Thus it came to such pass that mere
allegation of seduction was considered
sufficient justification for cold. blooded
murder. Such a conclusion was of course
a severe blow at the safety of society.
Virtually the acceptance of the doctrine
laid down in the Schroeder case would put
every man at the mercy of every other
man. The homicidal tendency might be
safely INDUCED when it was only necessary
to allege a bare suspicion of marital dis
honor to secure an acquittal. But how
could the jury have acquitted Schroeder in
the teeth of such ruling as Judge Den
sons! And why did not the Court in that
case make that ruling?
The law has not been changed. It was
precisely the same then as it is now, as re-
CARDS the practice in murder cases. 1t was
no more admissible to introduce evidence
of seduction in the Schroeder case than in
the Hurtado case. Yet the Court in the
former case admitted it, and in SO doing
prepared the way for one of the most
shameful defeats of Justice which has ever
occurred, even in California. There was
no law for the admission of that evidence
then, and there is none now. If the Ala
media Court relied solely upon the prece.
dents, it did wrong 1t is the law which
must guide and control Courts in criminal
cases, not the records of cases in which
the law has been ignored or defed. And
if the expression of the legislative branch
of the Government is to be accepted as the
strongest indication of public opinion, then
it must be realized that the people of Cali
fornia do not allow seduction to be pleaded
as defense in murder cases. They have
made the law, and they have not allowed
that plea. The Courts have undertaken
to interpret the law, but they have instead
set aside the will of the people. We do
not see how the Supreme Court can posi-.
bly, reach any other conclusion than that
Judge Denson's ruling is sound. To re.
verse it would be to wipe the law from the
statute.book, for it is the simple law, and
nothing else. We hope that the Court
will find no obstacles in the way of this
conclusion, for it cannot be doubted that
the enforcement of the legal definitions
and provisions regarding evidence in mur-
der cases must be frsught with the most
salutary effects in criminal practice