The Jersey City news., 1892-02-10
Is It a Federal Question?

Mr.. G.. j. Peshall has succeeded IN
Great ing very grave doubt as to the
validity of the statute under which
Edward w. Hallinger was condemned
to death. Numerous good lawyers
have come around to his view that
the trial of q case without jury is
unconstitutional even under waiver
of right by the accused. That the
proceedings before Judge Knapp
were in the nature of trial cannot
be doubted. The Judge enquired as
to whether Hallinger was guilty OF a
crime, and if SO what crime. he
heard evidence and listened to the
plea of counsel. He then found YER
dict and gave Judgment on it. Ii
all that is not trial, what is it?
In the absence of Hallinger's waiver
of right to jury trial. involved in his
plea, of course such a system OF judg-
ment would be admittedly illegal.
The only question then is as to
whether Hallinger's waiver is good in
law. The Federal constitution by no
means makes trial by jury compulsory.
1t simply saws ''the accused shall enjoy
the right to speedy and public trial
by an impartial jury" In other
words the State cannot deprive him
OF such right. But the terms OF the
Constitution as we quote them very
clearly leave the way open for the
surrender of the right voluntarily by
the accused. Such course in
minor causes is of daily occurrence
in the lower sessions courts OF this
and almost every other State. The
accused is simply asked if he elects to
go before jury or bench of judges,
and If he chooses the latter course, no
body questions the legal propriety OF
the proceeding founded on his waiver
of the jury right.
The question remains:-Is waiver,
which is valid in minor cases, invalid
where the life of the accused is at
stake? This may possibly be the case
in this State on account of the
very wording Of the controverted
statute; but it is not SO under
the common law, for numerous exc
cutions have taken place under pleas
of guilty We believe the Bloody
Assizes furnish some historical ex-
amples. But in these cases. the ac-
cused plead guilty to definite capi-
tai charges. The New Jersey statute
expressly takes the ground that man
cannon plead guilty to capital charge
at all. The moment he attempts
to do so, the law steps in
and says, mo you cannot
do that. The State will take
your attempt as a waiver OF your
right to be tried in the ordinary way,
but the State will try you all the same
and find out whether you deserve to
to be hanged or not. The State will
not let you hang yourself by your
own act, but it will utilize your act to
hang you in way to suit ITSELF"
1t may be doubted whether this Is a
valid principle of procedure. But
again there is a doubt as to which
Constitution is violated, the Federal
or the State. II the right of trial by
jury is conserved, so far as the
Federal Instrument is concerned; it
may be doubted whether the State
Constitution is not offended. The
latter is at once broader and vaguer
in its provisions. 1t says, THE right
of a trial by jury shall remain invio-
late," and these words certainly
render the Hallinger statute very
questionable.
In view of all the difficulty and
doubt created by the present system,
1t would seem TO be wise in the Leg
islature to at once pass bill repeal
ing the present law, and providing
that in capital cases plea of not
guilty shall always be entered, and a
regular jury trial shall be held.
Electrical Execution and Its Moral
Effects.
The New York newspapers yester-
day commented on the electric execu-
tion system with an extraordinary
lack Of appreciation of the true issues
involved. Here are some of the say
ings. The Herald says
The new system is not only more humane
than nanging-it is more decent more In ac-