Omaha daily bee., 1909-04-04
GEN. TECHNICALITY ON BENCH
Lengths to which judges Go In seek
inE LOOpholes In the
Law.

In Tacoma. Wash, Salvador Paeano
keers a fruitstsnd. He was charged in
1899 with murder in the first degree. be
cause he was a foreigner and believed TO
be OF a vindictive race. feeling against him
ran high. lie was convicted on the Him
siest evidence. One OF the facts proved
that Pagano had cut a piece Of cloth out
Of his vest. Pagano. in his defense, in
nocently pointed to his pantaloons. to
which garment he had removed an un-
necessary bit Of waistcoat to make a neces-
sary bit OF pantaloons. The piece of cloth
was supposed to have contained blood.
though it was never proved. Pagano's law
yer was a day or two late in filing his
statement on motion for a new trial. He
explained to the court that Pagsno was so
poor that he had been unable to raise the
money to prosecute his appeal sooner. The
supreme court ssid they we're sorry. but
Pagano would have to hang-this was q
case where he could not afford to be late.
Meanwhile public sentiment had changed.
It was discovered that another, not
Pagano. was most likely the guilty person.
The legislature was in session. and a spe-
cial law, clumsily drawn, was hastily
passed 10 try to fit Pagano's case. The
supreme court being after all human, hav-
ing taken note OF these things, the law
yers got together and agreed to waive all
technicalities. and the case was submitted
to the supreme court-irregularly. but sub
mitted. nevertheless. That court 9th
washington State Reports, D. 549) wrote
an opinion in favor OF Pagano's innocence
on the evidence which II would DO any
one good to read. 1t is SO in contrast with
the one written the year before. when.
with the same record before them, they
decided to let Pagano hang. OF course the
statutory time within which an appeal may
be perfected is held by the courts to be
jurisdictional; that is to say. that II the
time is allowed TO so by, the court loses
all power TO pass upon the case. But here
Is an instance where, under the spur OF
public sentiment. the court awoke to a
realization OF the fact that human life
and liberty, and not red tape, we're; after
all, at the bottom Of civilization.
This same red tape which so often defeats
Justice in criminal cases operates in hun
dreds Of civil cases to the abuse OF justice.
I have In mind a citizen Of one OF our west
ern states who had a case involving $780,
900, 900 worth of property. He lost 1t in the
lower court through a judicial ruling which,,
in another case, was afterward reversed by
the supreme court; but he lost his appeal
and his property because his lawyers failed
to comply with the rules of the supreme
court in the preparation OF their bill OF ex-
ceptions; that is to say, they did not set
out the points of the case In the particular
manner required by the rules of court last
promulgated. This case is found in the
published reports. That court had licensed
those lawyers; their fault was not the fault
of the client, who had done his share when
he employed three lawyers coming to him
with credentials from the very court to
which his appeal was directed. Those law
yers are still practicinS law; they were
not even fined or reprimanded; but the in
nooent. plundered client Is working for day
wages, all he had swept away by a rule OF
court which favored the mental Incidence
Of the Judges. but which touched no point
Of his controversy.
In Seattle last year a man was charged
with and tried for practicinR dentistry
without a license. Each particular piece of
evidence necessary 10 make out the case on
the part Of the state was proved, except
that the prosecutor. Having procured the
prosecuting witness TO exhibit his botched
tooth to the jury, either. forgot or didn't
think It was necessary to ask the witness
II II was a natural or an artificial tooth.
and so lost his case. 1t seems the statute
made II a misdemanor to mend a human
tooth for a fee without a license. Now
the sensible presumption-the presumption
that men or judges would naturally indulge
In II they had not become imbued with the
passion of peerlng for loopholes-would be
that the tooth was natural and not artifi-
cial. But il we presumed that, the law
would cease to be an exact science, and
many gaping spectators on the back
benches would be deprived of the joy of
watching TO see which lawyer came out
winner in the match OF wits.-Collier's
WAakly