New-York tribune., 1906-12-28
TO PASS APPEALS BILL
SENATE F.4VORS MEASURE
Lac VIII GiUc Government Right to
Carry Up Points an Lost Cases.
Trrom Tho Tribune Bureau.l

IFrom Tho Tribune Bureau.l
Washington. Dec 27.-The President IN his
message dwelt with emphasis the necessity
OF law giving TO the government 'the right OF
appeal in criminal cases on questions OF law
making this the second recommendation Of that
notable document The President pointed out
that the House had already passed such a law.
and urged its final enactment, meaning, OF
course, action by the Senate.
That the Presidents recommendation Will re-
ceive prompt and favorable action in the upper
house is evident and there is every indication
that the desired law viii be placed on the stat
utes at an early day. The Importance OF the
hill is fully realized by the Senate leaders. and a
measure which viii correctly give effect to the
Presidents recommendation will meet with no
opposition on either side OF the Senate.
The measure passed by the House to which
The President refers did not meet with the ap-
proval Of the Senate Committee on the Judiciary
however and II was materially amended. Sen
stor Nelson was charged with the responsibility
of embodying the views OF the committee in the
amendment and making the report and he
brought in the BILL but when it was subjected to
examination on the floor Of the Senate Senator
Mallory OF Florida objected to the measure, In
so far as It gave appeal from order arresting
judgment after verdict OF guilty. There was no
time 10 debate and amend the bill, and it conse-
ouently went over. Senator spooner also doubt
IL
Nelson at this session requested that It be re-
Serred back TO the committee. there to be per-
fected. The committee has since devoted some
time TO the measure. and It will probably be
ported 10 the Senate in perfected form early In
January
DELAY NOT DANGEROUS
An impression that delay in acting on the bill,
shouls # last until after Judge lands. Of Chi
oago. hands down his decision in the rebate
cases against the Standard OIL, VIII materially
affect those cases. or prevent the government
from taking an appeal should Judge Landis's
decision prove unfavorable. appears TO have
gained some ground. but such an impression is
wholly unwarranted. Should that decision be
handed down before the pending measure be-
comes a law it would not prevent the operation
OF the new statute. so that under It the desired
appeal could be taken. The contrary impress
sion doubtless grew out OF an unintelligens con-
struction Of that clause OF the Constitution
which prohibits ex post facto laws, but, as has
been clearly defined by the Supreme Court OF the
United States. the purpose and effect OF that
clause, broadly speaking. are merely TO prevent
enactment whereby acts innocent when COM
Tnittted may be made criminal and liable to
punishment. the punishment for prohibited acts
increased, etc It does not apply to matters Of
practice which do not affect a substantial right
Such the states can regulate at pleasure and
IN such no can have vested right"
It Will be seen. therefore, that the enactment
of the bill now before the Senate Judiciary Com
mittee at any time during the present session
VIII confer on the government all right Of ap-
peal needed In the prosecution Of the Standard
oil Company or other alleged violators Of the
Hnti-rebate act.
As reported by Senator Nelson. the bill confers
cn the government the right OF appeal IN GRIM
inal cases in the following instances:
Ffrst-Trom decision or Judgment quashing
or setting aside an indictment
Second-From a decision or judgment sustain
ing demurrer 10 an indictment or any count
Third-From a decision arresting Judgment
Of conviction for insufficiency of indictment
FOurth-FEoTn decision or judgment sustain
ing special plea in bar, when the defendant
has not been put in jeopardy.
OBJECTION TO PROVISION 3.
Provisions ], and 4 have the full approval
Of the judiciary Committee. Provision 3 will
doubtless be materially modified Senator
Spooner. who IS one OF the most painstaking
and influential members OF the judiciary Com
ruittee, has declared his objection to Provi-
sion 3. On the ground that in practice il would
work grave hardship 20 the impecunious de-
fendant in a criminal case. Allowing an appeal
from a decision involving the insuf1ciency Of
indictment after conviction would. IN the
opinion OF the Senator from Wisconsin often
Involve internineble delay and prolongation Of
The Incarceration OF a defendant too poor or too
friendless 10 secure bail. To the bail
the hardship would be minimized, but to the
defendant in Jail, 10 have his stay there pro-
longed. after conviction. for probably extend
Sd period. during which the government was
conducting its appeal. presenting Its case TO
The Circuit Court OF Appeals or possibly to the
Supreme Court Of the United States, would
work hardship often wholly disproportionate
TO the offence committed. Moreover, were the
higher court TO reverse the decision of the
lower and the conviction TO stand, the defend
ant, regardless Of how long he had been de-
prived of his liberty while the appeal was pend
ing, might still be compelled 10 serve the en-
tire term of his sentence IN addition 10 the in
generation already experienced
Gtill another feature of the objection is that
ia the case OF the impecunious defendant the
court VIII provide attorney VINO must con-
Duct his case through the trial court, hut the
court cannot compel such attorney to act on an
appeal TO the Circuit Court Of Appeals or to the
Supreme Court Of the United States, and thus
the defendant might be deprived Of counsel
while the care against him being argued
hv able attorneys employed retained by the
government
II is not proposed that the clause TO which
objection is taken shall be entirely stricken
from the bill, but II is believed that il he
worded to avoid the defect suggested, and
with this accomplished the measure VIII be
porfed and promptly enacted
CHIMNEY FIRE At UNIVERSITY CLUB.