The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1888-06-29
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Defects In the Criminal Practice of Montana
Editor Nc,c North West:
No one can nationally come to any other
conclusion from the article published IN the
last two issues of the NEW NORTHWEST on
the defects in the general criminal practice
of the country, than. that the criticisms
therein contained are just, Ind founded on
facts as they substantially exist in most OF
the States and Territories of the Union.
It would be unnecessary to urge the I'M
portance of an enforcement of the criminal
laws, as affecting the we'll being of the State
financially and socially, and for the safety of
life and property. Few, If any changes are
needed in our criminal laws. That is, the
laws defining what are crimes, and the char
acter and extent of the punishment for a VIC"
lation OF the same, except that as to some OF
them the punishment may be too severe, and
tend, for that reason, to cause juries to hest
tate to convict. 1t is the certainty of speedy
punishment, rather than its severity, that
most tends to the prevention of crime.
1t is the code of criminal procedure in
itself, that is, the rules prescribed by law
which govern in the trial OF the accused,
which [ claim to be defective. That is, those
rules as interpreted by the Courts, and which
Interpretation, whether right or wrong, / do
not propose to c%riticise. And I will submit
it to any fair minded lawyer, who will view
it from the standpoint of a citizen, If our
criminal code is not defective in some of its
very essential features as to what is due to
the public and just to the accused. When I
say sjust to the accused 1 do not mean a
code which forms a gauntlet of intricacies
through which the prosecution must run to
reach a conviction of the guilty, and if a
conviction is had, the verdict be set aside on
some question which should have no possible
influence on the result.
All criminal trials should be SO conducted
as to secure to the accused a fair and speedy
trial, whether he be guilty or innocent, but
the speedy trial guaranteed by the laws is
just the thing the guilty do not want, and
fight to defeat. The experience of every
criminal lawyer is that delay is an important
feature in the defense of a hard case, and
which must be had at all hazards.
I would not favor any change in the code
which would deprive a defendant of any
right of defense consistent with justice, nor
do I believe it consistent with right for
| trials to be so conducted as to render them a
mockery of justice. Such trials oftener work
an injustice to the innocent, for, as is stated
on good authority, taking the year of 1882 as
a fair nuaroOo fhara uCnra in that vnor 1870
homicides committed in the United States,
and there were 50 judicial executions, and
112 hung by vigilance committees, showing
that the Courts have a formidable rival In
melting out justice, and the itficulty is that
such tribunals are not always actuated by the
same degree of consideration for the accused
that our Courts are, and may often make
mistakes. They rave no degrees of crime in
their verdicts, and may hang a man who,
under any fair Interpretation or view of his
case, would be gnilty of a lesser degree of
crime than murder in the first degree, and so
work a fagrant~injustiee. Such is the effect
of a system of criminal trials which are but a
caockery of justice. The masses of our peo-
pie are law-abiding and forbearing, and walt
with patience to see the Courts punish crime,
O"o "AO VACS - ouSA ACPCAOCu lAllulCS
they cease to forbear, and take the law into
their own hands. Is this not a warning to
the law making power, and to those who are
charged with its execution? These results
can never he reasoned around. The only
way to obviate them is to throw aside what
ever in our code is impracticable, however
long it may nave been sanctioned BY usage
in other States. Time can never make a
wrong right.
Are there defects in our code of criminal
procedure? Let us assume that our Courts
OF dernier resort have correctly interpreted
the law, and then recur to some of our i'm
portant cases which have gone to that Court,
and follow them out to the final result, and
see if they have not smacked strongly of the
mockery of justice. Without calling names
let me cite you to the case found in the
second volume of Montana Reports,
page ITO, q United States case; also that in
the third volume, page 1877, and the one in
same volume, page $40, as three instances I
can now call to mind, and know the final
result, and which are not a tenth of the same
kind in which injustice has been done, prob
ably through the fault of our code.
1t when a case is called to be set for trial
the defendant files his affidavit for a change
of venue to some other County, unsupported
by any other fact or circumstance, setting
up that, on account of the prejudice of the
people of the County against him, he cannot
have a fair trial, and which the presiding
Judge often doubts the truth or good faith
OF, and especially in the face of the fact that
each juror is thoroughly examined as to his
qualifications to sit on the jury, and as soon
as sworn to try the case is, or should be,
locked up in capital cases, and denied access
to this prejudiced ~ public, and on this
showing the Judge grants a change of venue,
the defense has gained twenty-five points
out of a hundred in the fight. Is there no
fault with the code in this?
Then let us look at the next step in the
order of a criminal defense, the application
for continuance for the want Of testimony.
on the affidavit of the defendant. 1t is right
shat where the defendant has, in good faith,
used proper efforts to be ready for trial. and
mas failed, that an opportunity should be
given him to have his witnesses, but let me
ask my brother attorneys how often thew
ave seen this humane right grossly abused?
Dla 1t ever occur to you that If the defendant
nad TO pay for procuring the attendance of
Ills own witnesses, instead of the Count v, he
would dispense with more or less of them
winch ne Is willing to make affidavit, for
continuance, were of such vital importance?
indictments in all criminal prosecutions
form a material part, and are attacked right
anu LETT on every possible ground of techni-
ca'ltS' and if successful in having the trial
court or on appeal, hold them to be defect
,ve' another lease Of life or liberty is secured.
IN determining the suficiency of the indict.
ment for the various o%ffenses, there has been
such a contrariety of opinion expressed bv
the various Courts, there is no wonder that
prosecuting attorneys of good ability sho uld
take one view of the law and the trial court
a1oener' and thus set aside the Indictment:
aau II sustained by the trial court the appel
late court may come to another conclnsion.
reverse the judgment and thus prolonp the
case' and invariably decrease the chances of
In fact a conviction after n re-