The Montgomery advertiser., 1906-08-09
LETTERS TO THE EDITOR
WHY THE DrFFERENCE
In Number of Homicides in the Uiited
 states and England and WaIesf

Montgomery. Ala. Aug. '. 1906.
 Editor The Advertiser:
 Referring to your forceful editorial In this mornings Advertiser. comment ing on the fact disclosed by the tnves- legations of Judge Thomas that the in he number of homicides committed within It's borders, I be& to call atten- tion to the position taken by Untied States District Judge Charles F. Arni- annual meeting of the Minnesota State Bar Association. Judge Thomas is de- serving of great credit for forcing this subject upon the attention of the thinking citizens of this .s. country. ,an ana indebted to Judge Amidon for pointing out what may be one of the fruitful sources of the condition of affairs which confronts Us: The causes point ed out by Judge Thomas are perhaps fundamental and scarcely to be reach ed by legislationt The "moral unrest" and "impatient individualism," and the comparative youth of this nation, are sSRsSns ss fssaon Gees ot R Essss @s in 6s the minds of our citizenship. can alone remedy But the terribly high ratio of homicides in the United States as conn pared with othsr ti ,ht siyilssd eopnsriss, nns creased to four and one-haif times as much as 1t was in 1880, would go to show that there must be some addi- tional causes operating near the sur face of our present times. It is with a distinct shock that civilized America has read from the pen of Judge Thom- as the startling fact that the United States killed 12s out of each million people yearly, and England and Wales only ten. The question arises, Is there any marked difference in the adminis- tratiun of law In the two countries, and Is this difference significant? K..1 = AA Ax~nH tf~r. rm frequent reversals and retriais of cases in American courts on account. of err TOTS which are largely technical and which have little to do with the ques- fact, just A committee of the Ameri- can Bar Association found that new trials were granted in 46 per cent of all of the eases brought under review In the appellate courts of this eouao
 per cent of these eases the appeal turned upon pleading and practice. It is stated further that the law reports of Englaild show that new trials are 8 Ia per cent of. the cases appealed.
 The body of substantive law in the two countries is substantially the same.
 Judge Amidon answers, that there are several minor causes to which atten- tien might be directed, but that the fundamental cause Is the American when the record brought up on appeal. pre- judice or injury to the party appeal Ing will be presumed. That Is the pre- vailtng doctrine in Alabama, with some defsnded @ ifl the esss of Banks ys. Chaf- fin ffs Alabama, 246. The. rule IS somewhat quaiified in this State, and might be more accurately stated as jury Is presumed, unless such presump- tion IS atfirmatively repelled by the record. This presumption of the law
 removes the cause from the. region of
 reality and fact into the thin air of presumption and metaphysics, says
 Judge Aniidon.
 That, he says. Is the difference be-
 tween the American and English ad-
 land when case Is appealed, the qtes
 ton Is not is there. error In the pro eeedings of the trial of the court, but the question is, Is the judgment just7 And if it Is, 1t Is let alone The rec-
 ord Is looked to, to see whether in-
 jury in fact occurred from error com plained of That is, whether the er- TOT was of such a character as to pro- | duee wrong Judgment.
 will conclude by a quotation from i Judge Amidon's address, which was re- | printed In a recent number of The
 Outlook Magazine. As one who holds | our system of laws in the highest es-
 teem, submit the question he has | raised with some diffidence, but believ- Ing 1t to be an interesting one, and as containing suggestion of considerable | force, the exact value of which do not feel competent to determine: q remember reading recently a de- | cislon of the Court Of Appeals of New York in 8 murder case in which an | italian was upon trial for the most
 cold blo6ded murder of his wite The 1 Court of Appeals reviewed the eviV
 denee carefully. step by step, dernon- | strating it's absolutely conclusive Force; a- IA H.s z sE. sanity had been interposed. and one of | the errors assigned related to a hypo- l thecal question that had been asked of
 a physician. This question was not in proper form. It was the last error ex-
 amined by the Court. They sustained | the error and reversed the cause, and l wound up the opinion with that apols | ogy with which we are so familiar: cause, for the record leaves not the | slightest room for doubt of the defend- l ants guilt, but the defendant was en-
 titled to a trial by jury, and there IS
 done if this evidence had not been ad- | mitted" Well, while the Court was in
 the business of presumption, presuming
 prejudice from error, why not just | its duty? That would have been | more rational presumption than to | reach out in the region of speculation
 and presume that the jury would not | made plain, as the court itself said. be-
 yond the possibility of Q doubt, what | that duty was.
 what Is 1t that this rule that I am | considering requires of the trial court? | Not justice, but infallibllityf Now, l consider tht circumstances under which
 the trial is carried on. The primary
 duty of the trial judge Is to proceed
 withNt cause. If he stops to debate
 and Investigate all questions that will
 arise In the course of Q trial, he is
 sure to fall into error on minor points.
 He has no time for the, investigation. | He must proceed with the cause on its
 merits, giving his best judgment to
 these points as they arise; and if the appellate court, having abundant lei-
 sure to investigate the matter, finds
 as to a matter of practice or pleading | or evidence, then, unless that error causes, as the English rule puts it, a
 miscarriage of justice. the error should