New-York tribune., 1903-02-11

crime II Gardiner had not been defended by a
remarkable advocate, the police constables pre-
ton of guilt would have carried conviction
and tie death penalty. The requirement OF
unanimity in TIE verdict was a safeguard
against the zeal and overconfdence of the
police
The Scotch verdict of mot proven is also
recommended by some controversiasts as
convenient substitute for majority verdict
and q desirable alternative for disa greement-
The PeasenhaH case could readily have been
ended by negative verdict of that sort; bat
il would not have satisfied the ends Of justice.
ca rdiner would have gone back 70 the Sunolk
village and the Primitive Methodist chapel an
object Of suspicion and reproach. The com
promise. which enabled the jury to evade the
responsibility Of pronouncing him either guilty
or not guilty would have left all the issues OF
the evidence open 10 local debate and would
have branded him 10 the ED of his life as a
suspected murderer. Without reference to the
general operation of the characteristic Scotch
verdict. it may be forciby contended that II
is fortunate that the principle is not applica-
bic to murder cases and divorce practice in
England. Juries would find it too convenient
10 adopt the middle course, and to avoid pass
ing decisive judgments in disputed capital
cases and domestic scandals; and the courts
would constantly be leaving important cases
unsettled and regulations under cloud. The
Scotch verdict at the end OF murder trial
would invalidate the elementary principle OF
law that prisoner is 70 be considered innocent
until his guilt is proved. II carries with il the
Implication that neither his innocence nor the
charge against him has been nroved. and leaves
him a moral leper tainted with suspicion and
disgrace.
Why cannot the Scotch procedure be en-
ployed by the prosecuting authorities them
selves when they have twice failed to secure
conviction in a murder use? IF they were to
release Gardiner and quash the indictment
against him, they would themselves render a
verdict Of not proven: but it would be more
decisive than III negative judgment of jury
that a case had not been made out by either
side. It would involve an admission that the
chain OF evidence upon which they depended
had broken down under strain. and that the
prisoner, who had been placed st terrible
disadvantage in the preliminary proceedings,
was entitled to the presumption of innocence
when the case against him could not be proved.
This course is favored by many we'll known
lawyers in such an emergency as the Gardiner
case. where there have been two disagreements
CT the jury. The defence has been completely
disclosed in the two trials. and the prosecution
has known how 70 meet :. The prisoner. on
the other hand, is dependent upon public sub
scription for the costs Of his defence, and is not
in position TO maintain unequal contest
with the prosecuting authorities. While he and
his wife have twice endured the strain Of cross
examination with remarkable self-possession,
their poverty, misfortunes and sufferings have
reduced them TO a pitiable condition. If the
wife dies before third trial can be brought
on the case for the defence would collapse, for
it is her positive. mistaken testimony respect
ing her husbands conduct during the night of
the murder that enables the prisoner 20 face
any jury with air Of confidence These and
other considerations have induced many rlerci-
full spectators OF an anomalous case 20 enter
tain the hope that the third trial may be dis
Pensed with and that the prosecuting authori-
ties viii themselves render the Scotch verdict,
not proven I N F.