The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-12-16
WAIVER OF EXAMINATION.

he SeiI-cOnStltut6u uelenQer OF the scOuu-
drels who changed the tally sheets uncorks
the yials of its wrath on United States Com
missioner Van Buren, for declining to permit
the defendants in the case before him TO
waive examination, and for hearing evidence
in the case. Says the Sentinel:
"His action in refusing to permit the de-
PENDANTS in the election cases to waive exam
nation is without precedent in the history of
Indiana courts. and is without the warrant of
law or the sanction of justice. If
Messrs. Coy. Bernhamer, Span and Counsel
| man were the blacklist criminals that ever
disgraced the earth, they would be entitled
to justice before the bar of justice The
Commi ssioners unparalleled action suggests
irresistibly motive. What malign
spirit of partisan deviltry has taken posses
sion of the federal Judiciary of Indianag Why
are these defendants refused the rights and
privileges granted them by the Constitution,
statute and common law, and accorded imme-
morally to men charged with crime9 Justice
grows sick in contemplating these proceed
ings."
These sentences from the Sentinels defense
of tally-sheet forgers show very desperate
cause, and very unhappy frame of mind.
1t will occur to most people that where there
is so much smoke there must be some fire,
and that the Sentinel would not raise such a
tremendous clatter if somebody were not in
danger of being caught. Honest men never
fear an investigation; it is only rascals and
their aiders, abetters and defenders who try to
smother inquiry.
Let us consider the law Of the case. The
Sentinel asserts that the Commissioners re-
fusal to accept the defendants waiver of ex-
animation, and his decision that he would
hear the evidence, was violation Of law and
justice, and an unparalleled outrage. We say
it was according to law, in the interests of
justice, and in every aspect of the case
right ruling Section 1O14 Of the Revised
Statutes, U. S., prescribing the mode of pro-
cedure before United States commissioner,
says it shall be ''agreeably to the usual mode
of process against offenders in such State y
meaning the State where the suit is brought
provides that the offender may be arrested,
and imprisoned or baied for trial before the
ing before the commissioner shall conform as
nearly as practicable to the State law Now,
what is the law of Indiana in regard to pre-
limnary examinations? Section 1923, r. S.,
1881, provides:
when the officer holding the warrant ar
rests the accused he shall take him before
the justice of the peace; and it shall be the
duty Of such justice to docket the cause as in
civil cases, AND TO HEAR THE CAUSE, and
either acquit, convict and punish, or hold to
bail the offender, or if the offeuse be not bail
able, commit him to Jail as the facts and the
law may justify"
This is the law Of Indiana governing pre-
liminary examinations. Under it a Justice Of
the peace is required 'to hear the cause"
which means TO take evidence, and upon this
evidence to shape his further action. The
Supreme Court has decided that Justice of
the peace has the power conferred on him by
the statute, no more and no less-the power
''to hear the cause" before him and to dispose
of the prisoner according to the facts brought
out. Precisely this, them is the duty of
United States commissioner in Indiana-tto
hear the cause" before him Chat is, hear evil
dence) and shape his action accordingly. 1t
Is clear as day, therefore, that it is the right,
if not the duty, Of the commissioner to take
the evidence in every case that comes before
~
By that practice all justices Of the peace were
required to take down in writing the testi-
fore them. The law of Indiana embodies the
common law doctrine.
But may q defendant waive examination
and thus estop the court from hearing the
cause? Waiver of examination is not con-
stitutional or legal right. 1t is simply an in
cident OF criminal practice which a court NAV
or may not recognize. To claim waiver of
examination as right belonging to the de-
PENDANT in all criminal cases would be to saw
that the defendant may dictate the action and
tie the hands of the court. This would place
the defendant above the court That a de-
PENDANT may waive examination without con-
sent of the court, and thereby prevent the
court from exercising its legal right, if not
its bounden duty, of "hearing the cause, is a
monstrous proposition. In the words of the
Sentinel, Justice grows sick in contemplating
such proceeding"
Aside from the common law practice, and
the statutory provision covering the case and
making it the duty of an examining court to
"hear the cause, important reasons may ex-
ist for it. The commissioner may wish to
hear the evidence to enable him to fix the
bail, although the defendant by offering to