The morning call., 1893-10-29
JURIES AND JUSTICE.
A Peculiar System of Jurisprudence

The law bearing on criminal procedure
In California is regulated by code, and
that code itself is an evolution out of
the centuries of jury trials and their pre-
liminary proceedings. which have come
down to us from England and the colonies,
and from American practice after the
assertion of independence. In the practice
sof our courts the law makes wonderful
allowance for the presumed innocence of
the defendant and gives him every facility
to clear his character from the aspersions
of the Indictment. and to have a new
trial or a series of them when convicted,
LAS rule, when awaiting trial, defendant
has the advantage o. bail. This temporary
Liberty may even be allowed in cases of
murder.
: :" a defendant is not harshly treated
before his trial. He may comfort himself
with recherche banquets, sent from the
9: Palace Hotel or the MaiSon Richie, or he
may eat the Jail fare and find it whole
some and appetizing. He may see any
person who calls at the jail. His wife
NAV sometimes be his companion in the
cells. His solicitor has free access. Con-
versations are not listened to by detectives
either openly or in coDcealment. News
papers and books are admitted. Every
thing, in short, is done to enable prisoner
TO feel that he has certain prospect of
acquittal if be is innocent, and very good
chance Of getting clear if he is guilty.
At the trial the selection of q Jury is
conducted on the principle of calling many
and choosing few. 1t is a WEAKNESS to the
flesh to watch the examination of Juror
after juror on his opinions about capital
punishment or his knowledge of the case
g fhrOnuh reading
Gus other matters presumed not to be
impOnderable IN prosecuting a person
accused of crime. Out of a large venire
twelve good men are ultimately found, per-
hapS after week or more has elapsed.
A prisoner has MANY resources left to
upset a verdict. A new trial is rarely re-
fused il counsel are skillful. Exceptions
. to rulings are taken by the volume, and
shorthand notes supply some basis of evil
dence. Besides the hope of acQuittal there
;. is the not remote hope of the jury diagree-
ing. At every stage the defendants inter-
. ests are considered leniently, and with
: such cemency is the whole system ad-
justed that the accused could hardly by
ingenuity devise method of prosecution
which would better comport with their
: oton that any law which seeks TO inear-
!: eerate them must DE put TO mistaken use.
This may be all for the best Prisoners
do not as rule complain until they come
: up for sentence, but citizens who are CON-
:. PEELED by jury duty 10 think about the ways
Of law are apt to wonder at its elasticity.
Verdicts by majority are advocated by
; some TeformerS as an Improvement on the
present requirement of unanimous find
ing. 1t would not then be so easy TO hang
: a Jury or to corrupt one. A small num-
:. Der incline to the abTogatlon of the jury
system, but that would never do. Quite
:: apart from the commission of crime, there
F.: are cases Of civil right involving the sacred
:: principle Of liberty, which ii would not do
. to i'm peril by leaving trials to judges. IL
= Is facile to point out defects in our meth
: DDS of trial, but as regards juries and the
practice which hinges on resort TO them
:. as tribunal the difficulty is 10 find SUBJ
: stltule free from objection. No such sub
stitute without blemish is possible. The
Jury system is doVetaled into our GRIM
:inal Jurisprudence very tenaciously. There
are grand juries. petty juries, Coroners'
:: 1urles, and there are Jurles constituted at
=, times for special purI oses. Therefore
;: when there is much litigation in suit the
=. Sheriff has no sinecuTe IN drafting lists of
names of victims who are required to per-
':form their duty to the State under penal
:ties sufficiently heavy TO insure respect.
:. The Scotch system OF criminal jurispru-
4deDce presents remarkable contrasts 10
our m65dodS as well as TO those Of Eng
: land. AT this moment ii Is attracting
much attention on account Of trial pend
:lng in which an English gentleman OF
means Is the defendant, and the murdered
:persOn is also English, but has relations in
=" New York. This case is known as the
:; ;ArdlamOnf mystery. Mr.. Monson, \ ork-
;. shire gentleman, leased an estate in Scot
: land for shooting and residential pur-
=. poses, and Lieutenant HambrOugh.
. young lieutenant of militia, who was
wealthy and had been staying with Mr..
Monson, joined him at ArdlamOnt. One
morning the young man was found dead,
hof xuonnd tbrnnOh hoaly of
the head. Monson, who was with the de-
ceased at the time, explained that the
:: shooting was accidental, but the doc
tor who WAS summoned would not
certify to . this explanation. So the
authorities set an inquiry on foot
d: in the usual manner that has been
pursued for centuries, and Monson was
arrested and awaits trial. The public will
know little about the facts of the case un-
til the prisoner is brought face to face
with jury, and then only by the unfold
Ing of the evidence. Were such a case to
:: be brought to trial in California the ac-
Gused would have ample opportunity to
take the public into his confidence, and the
case for the prosecution would be as well
known TO the community through the
newspapers as to the prosecuting attorney
;. himself There would, in short. be no
new facts of much materiality to elicit.
That a system which appears to be con-
Quoted to a great extent in camera should
give general satisfaction is to the Califor-
nian mind probably curious Let US see
what the procedure is.
Scotch law places crime upon the proper
footing of being an injury to the state
and OF one confined to the individual, as
. is the theory 10 England, where the
private prosecutor figures so prominently,
often at his own expense. Hence in every
town of any consequence, and certainly in
every county, there is an official appointed
during good behavior, not elected, who is
called "Procurator FISCAL or in popular
,parlance Fiscal" He is virtually an
attorney chosen through the crown to
make preliminary inquiry into all crimes
and misdemeanOTs occurring within his
jurisdiction and when there is warrant
TO go further he ''pIecognosces" the wit
nesses thoroughly and has their "precogni-
tionS" made available for the prosecution
at the trial. Coroners and CoronerS' juries
are unknown in Scotland. When mur-
der occurs, the person accused is arrested,
the INQUIRY is held in secret, and only
when the case comes to trial are the facts
made known in any detail.
. In Monson's case the doctor refused TO
p certify as to the cause Of death. or rather
recalled the certificate he issued. There
unon fha loeal ProcuratOT Fiscal was noti-