The record-union., 1895-11-26
WAS TT AN OUTRAGE ON JUSTICE

A large number of newspapers of the
State are outspoken in condemning the
jury in the Brady case at Marysville.
The complaint is stated like this
Brady was guilty Of murder or nothing
If guilty of murder then he should suf-
fer the death penalty, and in refusing
to inf1ict it the jurors have violated
their oaths, because they all testified on
examination as to qualification and
fitness that they entertained no
prejudice against the death penalty.
Then follow in most cases Of criticism
sharp or harsh denunciation of the jur
ors, and in several cases we find the
press pronouncing the outcome Of the
trial of the train robber to be an out
rage upon justice.
The Record Union believes that
Brady was guilty of murder in the first
degree and that the penalty should
have been execution on the gallows.
Entertaining this belief, let US examine
the assault upon the jury. At the worst
the verdict fixing the penalty at i'm
prisonment for life was a mistake Of
judgment, a possible compromise; an
exhibition of misapplied mercy;
weakness. But is was not an outrage
upon justice. It does not follow that
II Brady was guilty of murder then the
penalty should have been of necessity
death. We think that our contempor-
aries entertain mistaken notions on
that point, and for these reasons:
The jury did find the defendant guilty
OF murder, and of murder in the first
degree. But the laws Of California do
r,ot make death the absolute and in
evitable penalty for murder The
Penal Code expressly declares Section
800 that every person guilty of muir
der in the first degree shall suffer death
or confinement in the State Prison for
life, at the discretion Of the jury
Formerly death alone was the penalty
for murder in this State and under that
policy it was found that many criminals
escaped punishment because juries
would not, in many cases, consent to
the infection of the extreme penalty,
though guilt was clear. After long
and spirited debate during a term of
years. in and out of the halls Of legisla-
ton, a new policy was resolved upon,
prescribing second penalty for murder
10
the discretion of the jury which Of the
two should be applied. Thus the law
was made to declare either punishment
adequate and this new policy was the
direct outcome of the public conviction
that thereby the administration Of JUS
tice would be made more certain.
So far, then, as justice is concerned.
as viewed by the law, the Brady jury
acted within the policy of the law and
to its letter and spirit. 1t did not, there
fore, outrage justice" though it exer-
cised the discretion committed TO it with
poor judgment
There are States in the Union in which
Imprisonment for life is the only pen
atty for murder in the first degree, and
in others the extreme penalty is the only
one. In the face of these examples, and
her own experience, California has pro-
vided two penalties that stand upon an
equality in the law. 1t cannot be said,
therefore, that in any case the full pen
atty has not been visited upon an Of
fender when a verdict of guilty is rem
dered and a judgment carrying it into
effect is executed.
The Brady jury outraged the senti-
ment entertained by very many people.
but assuredly they did not outrage jus
tice in the eyes of the law, and they are
not. therefore deserving the rounds of
abuse they are receiving. For error of
Judgment, for the mistaken sentiment
manifest, the jurors are open to severe
censure: but to say that they violated
their oaths," that they Ought to be
hanged" that Brady 'if not executed
should be set free" that IF not worthy