The Washington herald. [volume] (Washington, D.C.) 1906-1939, 1907-07-01
MONDAY. JULY ]. 1907.
Law Higher Than Justice.

Judge Loving prompt acquittal by a
Virginia jury will leave an impression in
the minds Of most lay observers that
somehow justice has not been done Ad-
hitting that the trial was conducted in
seemly manner. that the technical rules
or evidence were observed and that
Judge Barksdales charge followed the
laws Of Virginia. there remains the un-
pleasant fact that the case went to the
jury without the disclosure Of the whole
truth respecting what will seem to many
persons a vital element in the tragedy.
Il Is regrettable that Judge Barksdale
should have followed the precedent Of the
malodorous Thaw case in the exclusion
Of evidence as TO the truth Of the story
that aroused the "brain-storm' in the
midst Of which Loving killed Estes: all
the more regrettablein view Of the amaz-
ing confession Of counsel for the defense
that the story, as TO its essential feature.
vas absolutely false Their plea to the
jury however, was based on the assump-
ton that it was wholly true. for other
wise there would have been little ground
for moving appeals in behalf Of the sane
uty Of the home and the purity Of
woman. In any event. these appeals were
founded on ex parte evidence which a
refinement Of the law Of evidence allows
10 go to jury without question.
We observe, however, a growing inpa-
tience with a rule Of evidence that per-
mits an uncorroborated narrative, which
the narrator has every motive to embel-
fish, to 90 to jury for the ostensibIe
purpose Of showing the mental condition
OF person who has heard the story
and has committed a crime on the as
sumption Of its truth, when the real pur-
pose Of getting the evidence into the
record is to influence the minds of the
jury fayorably TO the defendant. and that
irrespective Of its truth or falsitv Coun-
sci may argue, and judges instruct. that
such evidence is 10 be considered only as
bearing on the mental condition Of the
accused, but jurors are bound to be in
fuenced by it under the impassioned elo-
quence Of pleaders for the "unwritten
law. Of protection for the home and
family, and It Is for this purpose that it
is introduced. But how hollow such elo-
quence, and how Astounding with bathos.
II the tear-compelling tale should prove
TO be untrue-the mere invention Of an
excited Imagination or The deliberate ic-
ton Of accomplished histrionism,
Whether courts and juries should be
governed by weak sentimentalism or
sterner ideals OF justice in dealing with
homicide is becoming an acute problem.
The Thaw and Loving trials have fur
nished preCedents which laymen. II not
the legal profession, recognize as ex-
ceedingly dangerous. The Richmond
News Leader, which is not averse TO the
application Of the "unwritten law" where
the facts are clear, suggests legislation
10 provide against such conditions as
have arisen i'm the Loving case-condi-
lions which. it truly says. threaten prac-
tically 90 nulify laws against murder.
Before assuming the awful responsibility
Of taking a human life. observes that
paper. man ought TO convince himself
that the pTOv0CatiOn exists and is ade-
quate. If. under the present Virginia
statutes, man may commit murder on
the mere assertion Of a woman that she
has been the victim of indignities. with
out any inquiry whatever, with the
knowledge that a presumption Of insanity
rams in his favor, then, says the News
Leader, the law ought to be changed
So It should; and the Virginia legislature
can find no better employment at its next
session than the oyerhauling Of that por-
ton Of its criminal code relating TO homi-
eide.