The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1888-06-15
CRIMINAL LAW PRACTICE
, As.txe Sermon to the Judges OF Appeal

S1Rs: In earlier days your
predecessors across the water, In that lano
whence our common law came, USED on tno
Sunday before the opening Of the assize 10
attend in great state the city cathedral ana
listen to a sermon upon the needs of law and
the beauty of Justice. I ask you to spare q
moment to listen to my assize sermon, ana 10
pardon me if I point out to you the error OF
your ways. You must know, you surely can
not be ignorant of the fact, that the people
are beginning to lose that old respect which
has been theirs so long for things Judicial.
They see that the jails are getting more
crowded each year. Thew see that murder IS
becoming a common pastime, and they are
asking why it is that crime is increasing, and
that criminals are going unpublished. They
are laying the blame at your door. They are
saying: "What are our criminal courts for, If
not to punish crime, and if they cannot pun
ish crime what is the use of them?" They
are becoming so convinced of this that when
ever a crime which particularly shocks their
sensibilities is committed they do not wait
for your slow and uncertain methods, but
they constitute themselves a court whose
code knows no technicalities, whose DEGREES
are not appealable, and whose orders are
promptly carried out under the nearest tree.
And, pardon me, Honorable Sirs, for saying
that the people have much good reason for
their opinion.
said that the peoples tribunal Il mean the
one over which Judge Lynch presides; and
he is fast becoming a very formidable :ival
of yours, allowed no appeal from its DEGREES.
They rightly reason that if a man is guilty,
the quicker he is punished the better, and
that one court is as we'll able to determine
whether a man is guilty or innocent as a
dozen courts would be. They are correct in
this view of the matter. 1t is this multiple
cation of courts that renders justice so slow.
Here in this State-and in nearly all the
other States it is about the same-there are
three grades of courts, the Trial Court, the
Court of Appeals and the Supreme Court.
Through these three tribunals every capital
case is made to pass. In only one of them
as you we'll know, Honorable Sirs, for you
see it every day-is the guilt or innocence of
the prisoner ordinarily the subject of exam
nation; the time and learning of the last
two being taken up in examining the ma
chinery of the first. This right Of appeal is
unlimited. It matters not that on the trial
the proof against the prisoner was clear and
incontrovertible; that to the minds of judge,
jury, and spectators. the correct verdict had
been arrived at beyond the shadow of a
doubt-he is allowed to appeal even though
there is nothing to appeal about, and to in.
vent reasons which everybody knows do not
exist. In every other place where the COM
mon law is in force, except the States of
this Union where this unlimited right of
appeal is allowed, the judge would say to the
prisoner in such a case asking an appeal:
"You have had a fair and impartial trial,
every step in which has been taken in &C.
cordance with legal rules. No question of
doubt or difficulty has arisen, and I must,
therefore, refuse to entertain so %groundless
an application" But, under the happy
system which prevails in this and ether
States, the prisoner takes the case out of the
judges hands without asking his permission
or requiring it. The curious result follows
that the moment the prisoner is found
guilty of the crime charged, he, and the
Judge before whom he was tried, exchange
places. Hitherto the case has been: The
State VS.. John Smith, murder. But the case
which goes to you, Honorable Gentlemen of
the Appellate Courts, should really be en-
titled: John Smith vs.. The Trial Judge, mis-
takes in conducting proceedings in Court.
John Smith, convicted of a foul and brutal
murder by a jury of his countrymen, goes to
you, Honorable Sirs with alacrity and hope.
If the Trial Judge, who is defendant now,
cannot show you, Honorable Sirs, that he
made no mistake in the long trial which re-
suited in John Smiths conviction, the latter
knows that the chances are nine to one that
he will never be punished. And the chances
are many that the trial judge did make a few
errors, even though they did not affect the
verdict, which latter circumstance you know
we'll, o Honorable Gentlemen of the Appel
late Courts, is always an immaterial matter
to you.
The chances are many that he did make a
few errors, when we consider the difficult
position which a trial judge occupies. Sit
ting day after day in the midst of a contest,
every turn of which he must watch, he has,
after reaching this position, but little leisure
for any systematic study of the law, and this,
therefore, almost altogether he must have
accomplished before his elevation to the
bench. Below him he sees men a great part
of whose daily labor consists in investigating
the thousands of technicalities which gener-
atoms of judges before him nave evolved.
At every stage of the cause, scores of times
in a single case or day, he is called upon to
decide questions of practice, of evidence, of
construction of documents or statutes, of diff
icult legal principles, many of which are
presented to him for the first time in his
experience as a judge or as a student. His
rulings must be as rapid as the points made
are numerous, for the trial must not come to
a standstill. In a capital case, where each
point is contested by active and acute coun-
sci, he will, probably, when the trial is con-
cluded, have made as many as fifty different
rulings connected only remotely with the
main issue, between the empaneling of the
jury and the passing of the sentence. The
next day he is in the middle of another case
involving points equally technical and irrel-
evant, equally difficult and numerous, all to
be decided in the same manner. Meanwhile
the prisoner has been taken back to his cell,
and there is for a time an apparent calm.
His counsel are preparing an appeal. They
are ransacking the thousands of %adjudicated
cases which the law reports of England and
America contain, in an endeavor to find
some prior case in which another Judge has
decided some one of the fifty points in a diff
ferent way; and they will have poor luck if,
away back in the time of Jeffreys, or the
other day in England, Or in the backwoods
OF Maine, or in the swamps of Louisiana,
they do not find what they seek.
Perhaps you will tell me, o Honorable
Gentlemen of the Appellate Courts, that you
did not make the law which has created 10
many grades of courts, nor the law which
allows this unlimited right of appeal. You
are right; the people did that, and their re-
sponslbility is greater in this respect than
yours. Yet tell me, o Honorable Sirs. do
you not very often, even when it is a red
handed murderer that asks it, grant a crimi-
nal a writ which you call a supcysedeas. !
which puts off his punishment till he can
make his appeal, and without which he
would be punished at once? Are you Obliged !
to do this, or is it not a question for vour
discretion? And do you not, as a rule, exer-
else that discretion for the benefit of the
criminal and the postDonement IF ;pe+;ooo