The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1907-07-13

4 SSo-celleu 'unwritten law, w W
forcementf often involved the violation
ct the oaths of jurors and the plea OF
emotional or temporary insanity as q
pretcXt and subtcrfuge. suggesle1
Vice Nv obtaining the views Of Law
| yers, iudgesnnd newspapers IN Virginia
as to the best form In which statute
might .s be drawn to obviate these evils rs
1 jurors II. that class of cases the
Judges OF the provocn ton upon which
1he accused had acted Your paper
naa not anrear to appr1XNe nat o 5ns
papers III virginin and 9. good many ny
as far nortli as New York as Tar
south us Alabama and as far west rs
Oklahoma, printed editorials APPROX
Ing the suggestion with more, or less
! warmth Also there were perhaps an
equal number OF dissenting opinions IN
the rress both in and out of the state.
In an article published III the New
York Independent of April 20. 1907, ana
4 republished in the Virginia Law Reg
lister for June, 1907, / repeated the n.
communication to The Times Dispatch.
following language:
The whole after of justification Is
/ now extra illegal and can be introduced
only through some subterfugc such
es q fictitious plea of temporary or
emotional insanity. Therefore the
scope Of such testimony Is not limited
1 - NuSG93 ia WlllNil lIlt plONV'dtioh Nt.''
real. Under the insanity plea the only
| relevant inquiry is whether such n
story was told the accused. The state
cannot SHOW the untruthfulnesss Of the
story itself. BY this method the jury
may be RECALLED with many weird and
fantastic tales. which they must tech
ideally consider only as bearing upon
.i sanity Of the accused, but which
| tney really consider as bearing upon
| The provocat ton.
If, however. the provocation were
a matter which might be lawfully con-
| sidered the State would be permitted
| tlon existed The court might instruct
| the jury as to the necessity of the
complete proof by the defense, of the
reality of the provocation and the
States attorney would have the oppor-
unity IN his closing address to APP
peal to the jury not to abuse the dis
ctretion which has been invested in
,,..,n to judge o. tho sonuineness ard
not this latter method circunlscribe the
activities, of spellbindng attorneys
Tor the defense, who, under the guise
OF discussing the effect OF some event
or narrative upon the mind of the
accused, in reality infame the minds
OF the jury by portraying the enor-
mi ,Ei OF the ,provocation? 2"
rms article was In the hands of the
publishers before Judge Loving killed
ESTES. and was published three days
AFTER that event, but, strange to say.
me me press Of Virginia did not seem to
| realize the seriousness Of that phase
OF the law until the Loving case fur
rlshed a vivid example. Immediately
tnere was a tremendous output of edi-
IoriaI protest from a large number Of
papers in Virginia and elsewhere. In
your editorial of July 1st you begin
| " saying: The acquittal of Judge
LOVING Is enough to alarm the State
ana close by. saying: I'VE are carry
ing the unwritten law doctrine ofirrc-
sponsibility to absurd and dangerous
! extremes. Public sentiment must be
aroused and crystallized and there
must pc radical revision of the crimi-
nal , law by the next Legislature"
| The time seems opportune for again
reminding The Times dispatch and
others who may be interested In the
supJect that the reform of our criMi-
nal laws cannot be accomplished by
mere clamor, or by the sweeping con-
demnation Of existing conditions. If
any reformation is to be had 1t must
zone ~ painstaking care in framing
!, me theory that men take the law
into their own hands only in those
cases in which the punishment is light
breaks down in the very first case to
winch we attempt to apply it. Judge
Loving killed Estes for an offcnso
which. If proven in a prosecution OF
Estes would have condemned him to
aeath. Furthermore the suggested
llan would provide no remedy for such
cases nor for that large number OF
cases which arise out Of the invaslo
OF marital rights ~
The fact is that there are certain
cffenses which, when committed un
der certain conditions, constitute what
! the average man regards as sutficient
reason for homicide. Why should not
ne me law aNa recognize the fundamenta
within which this provocation may bt
considered? In that way only, i
seems to me, will we abolish the shan
plea or emotional Insanity, democrat
to the PUBLIC at large. The defens,
OF insanity, which is a very propel
and valid defense in some cases, il
n oeing r. reg ,hal put forward in al
sion. Yet it affords the only loop
hole by which juries may do what the,
: consider substantial Justice without
ia grant and shameless violation O
their oaths; and therefore is tolerate
by courts, by juries. by attorneys, an,
to large extent by the public. I
1uries were made the Judges Of tn
provocauon, and If the provocatlol
I certainly be rid Of the greatest evi
incident to the present state OF tn
law.
of insanity is a bona fide plea Can
h undoubtedly. there are many sue
J; cases. it might be. well to require
9 TO be plead specially, and, in case O
g aSHulttdl, 10 require inc accused to b
( incarcerated for certain period, a
least in one Of the State hospital.
for thorough examination, and. II nee
essary, for treatment. In that wa
i true insanity could be distinguish
i from the false. Possibly also, counst
n would then hesitate to interpose tn
plea in cases where there was no sub
9 stantial evidence to sustain it,
u cases in which there was such evidenc
1t would be no hardship to require tn
accused to submit to n thoroug
course Of examination and treatmcn
/ When it is shown that n man is IRE
[, sponsble for some of his violent act
q the public has a right to know whetf
or ne Is likely to commit other act
Of like kind and to know the full e.
tent Of his lrresp possibility.
. 1t might be helpful also to redut
ID the minimum punishment for mar
a. slaughter to fine or Imprisonment.
both, in the discretion Of the jur
Perhaps, In such cases the iurics migl
be willing to impose slight punisl
&c ment when they would be entirely III
IN willing to send the accused to II
" penitentiary. Perhaps, also, that 20
tx tion of the public which Is shockt
ia and alarmed at an acquittal In sue
cases might beat least partially sati
fled by a small fine or brief confn
ment of the accused In jail.
ha Iaro frn