The sun., 1906-12-05
The President and the judiciary.

Those portions OF the Presidents mes
sage which relate to the judicial Depart
ment of the United States Government
contain several interesting and impor-.
tant recommendations. Many of these
are emlnently sound, but some of his
views will require modification before
they can wisely be carried into effect by
the enactment of legislation upon the
subjects treated.
With the recommendation that the
Government should be allowed a right
of appeal on questions of law in Grim
inal cases we heartily concur. Ofcourse,
If the defendant in a criminal prosecu-
tion has been acquitted by jury it is
impossible to establish any system of re-
viewing the judgment which will entitle
theGovernment to place the accused upon
trial second time. To do this would be
10 put him twice in jeopardy, in violation
of Article V. of the amendments to the
Constitution Of the United States. There
is every reason however, why the Gov
ernment should have the right of appeal
in criminal cases in order to secure
review of the rulings of the court adverse
to the prosecution upon pure questions
of law, wherever this can be done with
out interfering with verdict of acquittal.
Such review, for example, is permitted
in this State, where the defendant in a
criminal case has demurred to the indict-
ment and the demurrer has been sus-
tanned. Such a decision is in effect a
judicial declaration that the indictment
does not state facts sufficient 10 consti-
tute a crime and therefore that the
defendant cannot be called upon to stand
trial hereunder. So also in this State
the people may appeal from an order OF
the trial court arresting the judgment
after a conviction. In neither of these
cases can the decision upon the appeal
result in putting the defendant in jeop-
ardy a second time-that is, in sub
mitting his case second time to the
consideration. of a jury. Where the
demurrer is upheld in the trial court it
prevents any trial by jury and where the
trial court arrests the judgment after
conviction the only result of a decision
in favor OF the people upon the appeal
holding that the judgment was errone-
ously arrested as matter Of law is TO
affirm the correctness of the conviction.
In the District of Columbia the code
enacted by Congress for the regulation
OF procedure in the courts already pro-
vides that in all criminal prosecutions
the Government shall have the same
right Of appeal as that which is given to
the defendant, provided that If on such
appeal it shall be found that there was
error in the rulings of the court during
the trial verdict in favor Of the defend
ant shall never be set aside. The Presi-
dent wants Congress to enact a similar
law applicable TO criminal prosecutions
in the Federal courts throughout the
Union. Whether the form of the enact
ment designed to give the Government
this right Of appeal is as good in the Dis
trict of Columbia as that which is con-
tanned in the New York Code OF Criminal
Procedure may be doubted: but that the
Presidents idea on the subject is sub
stantially right and should be made
objective by appropriate legislation there
Gan be no doubt. It is only by such an
emendment to the existing law that the
Government can be enabled to review
IN criminal cases such decisions in the
lower courts as may adjudge acts Of
Congress TO be unconstitutional.
A cognate topic, of which the Presi-
dent treats at considerable length, is the
tendency in the Federal courts OF appeal
TO set aside the judgments of the trial
onurSs on technicalities unconnected with
the merits OF the case under considera-
ton. That such a tendency exists in
some State jurisdictions, notably in
the South and Southwest, cannot be
denied; but we were not aware that il
was common in the Federal appellate
tribunals. President ROOSEVELT would
counteract ii by law worded as follows:
NO judgment shall be set ss,de or new trial
granted In any clvii criminal. ON the ground
n mlsdIYsctlon Of the jury Or the improper sdms-