Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1890-03-07
COMPLAINTS OF THE JUDGES.
SONS Views Of q Correspond, mt on In
portsnt Law Points.
10 he Editor oftls REGISTER:

| in the celebrated case OF The State rs Bd-
ker, reported in vol. 10. S f Reporter, p,
639. Judge Brannon, who framed tbs op,
inion, enters formal complaint against the
Circuit judges and members Of the bar Of
our State, for malpractice in the manner
of sending cases before the Supreme Court
on bills of exceptions. The gravamen OF
the complaint is that, where thare is q
motion for new tiial because the verdict
i, contrary to the evidence, or there is an
exception 10 the giving or refusing OF in
struc,ione, or the admission or rejection
of evidence" the prevailing practices with
said Oircnit judges and members of the
bar ia ito adopt simply the etenoerapher's
report of the evidence as whole, ard in
corporate i. into q bill OF exceptions"
Judge B. repeats some STRUCTURES made By
Judge Snyder GA W. Va. 1861 in the same
strain, and re-enfoices with some charac-
tetistic extravaganza off )lly Judge Block
ley. of Georgia.
The Circuit Courts and attorneys are
called on 10 comply with the rule rtquir-
iag the facts and not the evidence, 10 be
certfi "a. Judge Bleokley's blunt declsrs-
ton, which judge Branncn qaotes ep-
provingly, wes that, I'VE are not going TO
fish up evidence in fragments from such
muddy water" Well, if the judges of
last resort are not going to fish mp anG ex-
anime the evidence, 80 that they may be
enabled TO decide whether or not it is con-
trary TO the verdict, who shall do go for
themP The Circuit judges aud attorneys,
say Judge B. Bat, if these either can
not, or do not, and the appellate judges
will not, what then? Why, merely, blind
Justice, deserted by her servants and cup
porteIs, falls to the earth, and the last
safeguard against wrong verdicts ia pulled
down.
Asa mere matter Of fairness in the d.
vision of work between officials, ought the
work of fishing up and examining the evil
derce, aud thence ascer.aining the facts
proved, no laid upon the circuit rather
than the State judges? l, for enc, think
it ought not As things now go, our cir
cult judges are quite as hard worked ne our
appeal jndges are. Considering the rum.
Der of cases for writ Of errtr rejected on
petition, sad the number decided without
reference 10 the facts or proof, on questions
of law, the number of caees OF conflicting
testimony that would have 10 bs sifSed and
certified by the circoit judges wonld aver
age to each quite as many as the supreme
| Judges are called on to examine for them
selves. The aggregate OF judicial work re-
qnifed would, at least, be greatly increse-
ed, and much Of il, fer the reasons men
toned would be wholly nugstory.
Ara the Circuit judges any way better
situated to certify the facts proved than
the appellate judges ere to ftd them ont
from the steEosropher's evidence?
cay, 10. Not only, no; hu,. l affirm
that, upon the principles of "hands of, F"
as applied 70 the trial Judge in Jury cases,
the latter il worse situated and qualified TO
certify the facts proven than tbs appellate
Judge. The trisl judgs is lever called CD
TO certify, gave in s. case where be has al
ready decided the very case that his certi-
fcate ia wanted to settle, to-Sii, either
that the verdict is, or is not, contrary 20
the eviderce. It becomes, in such case
| ESPECIALLY lift be case Of guilt or limo.
csucs }, almost n moral certainty that be
Will certify the fscis proved Of sustairiog
or as contrary 90, the verdict, precisely in
accordsrce With what be has priori de-
cided. Is the fact that he saw and hesrj
the wispesses snd defendant and observed
the manner of their testifying and cOndrci
factor going to his qualification? II he,
aud not the jury, is TO decide the
issus Of fact-if his, and not
the iury's, impressions formed tom
such manner and cOrduct ole 10 control,
then yes to the question; but surely moth
ing could be absolutely further from the
theory Of cur systsm of jury trial. An
honest adhesion 10 the principles Of the
sacrsduess q tire jury's provinces would,
indeed, wholly bar and specially difqnsli-
" the trial judee from any act or express
ION that might, in the slightess respect,
usurp the jury's domain, or Influence the
appellate tribunals decision, however
much it might ease the labors of the high
er jndg.s. Better tbs ste1ographer's cold
ard impartial black end white OF what the
witnesses said than even the most upright
iudge's deductions theEefrom (Which every
certificate Of facts proved can only be)
particularly WHEN these are drawn and
| formulated to match and sustain dear
opiBi0n that is 90 run the gauntlet of sp.
pellate review. Besides all, il woald res
sonehly seem TO he the duty of the appel
ate Judges TO escer!sin and decide for
themselves whether the evidence ard YER
dict consist. Judicial duty done by dep
uty ia not well done.
But may no. the cirouit judges, with
the aid Of counsel, settle satisfactorily the
flcts proved? Sometimes theg may; soma.
times they cannot. Take, for example,
the very case that afforded opportunity for
Judge Brsrnon's complaint. A vital fact
in dispute in the csse was, whether the
kitchen windows were screened within,
with shawls, etand-clver, ETC., as found
after tie discovery OF the murder, ~ the
time Mrs. Swesripgsn passed them, during
her visit on the day of the murder, ct not
HOY could counsel ever be expected to
agree upon question such as that? 1t
was crucial aud decisive. II the windows
we're then so screened, Baker was I'M
donbtedly guilty; if they wers not, or
were not proved to he with all the op
portuDities of proof existing, he was un'
doubtedly not guilty. The States
counsel claimed that Mrs. Swearin-
gen proved that they were so screened ;
the defendants council claimed that che
did not 80 testify, and that If abe did, her
testimony IVES false, as fq1aIeiy contra
dicted by the oonsentiDg testimony Of sev-
eral other witnesses for the State. How,
ia ouch case, could counsel ever sgree?
How fsgrsntly urjus;, too. would it have
been TO have required the circuit judge to
certify what CaS, in fact, prOUed, in regard
to the screening? Such is bu. eiogle in
stance, and there may have been fifty other
onss equally difficult OF agreement and
settlement.
do not doubt the practicsbility and
advantage Of rule requiring certificate
of facts proved where, and TO the extent
that, there is not, or cannot fairly be dis
puted; but Judge BraBnon does not dis
tlnCuish, and, in reality, his criticism Of
the ciroait judiciary and bar is meant for
very casss in which there is conflict of
evidence and dispute "a to what is or is not
moved. 1t is the latter that constitute
the muddy water" wherein Bleckley, at
least, gives notice he is no more going to
practice the judicio-piscstOfial art.
The true measure and limit Of duty OF
our Court of Appeals in the matter of re-
view Of cases upon the ground of verdict
contrary to evidences are things hard to
uuderstsnd. The court has often tried to
define them, and tries in the cases named.
(See D. 645). Bat the definition ia not
satisfactory oDe-not even to the court
itself. TIE definition consists ia Dum-