Los Angeles herald., 1910-09-11

Not since Senator LaFollette of Wis
consin spoke q year ago has such q
crowd gathered at the City club as the
one that yesterday heard Judge w. +
Lawlor of San Francisco deliver a
thoughtful address on Needed Re
froms in the Criminal Law" Judge
Lawlor Is one of the progressive men
of the country who are dear to the
hearts of the City club, and they greet
ed him with an ovation when he rose
to speak yesterday that lasted nearly
five minutes.
In introducing Judge Lawlor Presi-
dent Finlayson told how fearless ne
had been in presiding at the graft
trials in San Francisco, and how his
decisions in those cases had brought
on him the wrath of the special inter-
ests of San Francisco, but with 1t had
come the high esteem of the people.
Judge Lawlor is asking the people for
election to the supreme bench on the
Democratic ticket.
Judge Lawlor said:
st appreciate the distinction con-
veyed bv the invitation to address the
City club of Los Angeles on Needed
Reform in the Criminal Law The
subject chosen by the club is one or
absorbing interest to the state and
calls for the serious consideration or
all citizens, and I have persuaded my
self that 1t is one upon which am at
liberty to publicly express my personal
views.
"The subject will be considered with
special reference to the original Jurls-
diction of the superior court and the
appellate authority of the supreme
court and the district courts Of appeal
in criminal cases.
"I am convinced that a genuine re-
form in the criminal law Will require
the amendment of the constitution, Tor
one of the causes responsible for the
present state of the law Is the inter-
pretation which the courts have felt
called upon to give to the organic law
in criminal matters.
FROM THE PEOPLE
"The constitution comes directly
from the people In their aggregate ca
pacity. So far as the criminal law Is
concerned, 1t is designed to declare the
fundamental rights of the Individual.
The people should be vigilant in the
exercise of the power which is inherent
in them. 1 quote from the const1tu-
ton:
"'All political power is inherent in
the people. Government Is instituted for
the protection, security and benefit OF
the people, and they have the right
to alter or reform the same whenever
the public good may require II.
'.It Is one Of the theories of this
form of government that the funda-
mental law will be construed and ap-
piled in accordance with the principles
of liberty and justice. 1t is the charter
of the peoples rights, the source of, as
we'll as the limitation on the power OF
the three departments of government.
1t is upon the theory that the Ian
guage of a constitution is construed
according to its ordinary use and
meaning. There should, therefore, be
approximate harmony between the pro-
visions of the constitution and the de-
cisions of the courts Hereunder. Is
this fundamental object realized?
COMMON LAW
"The law of this state is founded on
the common law of England and,
where the rule has not been abrogated
by the constitution or by statutory en-
actment, the common law is the rule
Of decision. The political code pro-
vides;
1.-The common law of England, so
far as It Is not repugnant to or incon-
sistent with the constitution of the
United States or the constitution or
laws of this state. is the rule of de-
cision in all the courts Of this state
THE time has come when the con-
stitution should express in precise
terms every fundamental right in
volved in the administration of the
criminal law and declare that all
rights not so declared shall be the
subject of statutory control. The con-
stitution provides:
1.-The right of trial by jury shall be
secured to all and remain, inviolable.'
This language is too general, The
provision should be moregs gspHclfic. 1t
has been held that this language brings
into the body of our criminal law the
common law right of trial by jury,
with all the traditional features and
incidents of that important right. 1t
would be more in keeping with popu
lar self-government If the constitution
defined In precise and plain terms
what is meant by this provision. here
is a growing opinion against the rule
of the common law requiring a unani~ |
nous verdict in criminal cases. The |
subject has been recently discussed in
this state in connection with certain
proposed changes in the criminal law, |
and the preponderance Of opinion IA
Vored a vote of nine to convict, except |
in capital verdicts, which, 1t is gem
orally agreed, should be unanimous, |
Should not the IL of the people today |
be expressed on this question?
BIAS AND PREJUDICE
"This provision is frequently quoted |
In support of decisions gdealing with |
the bias and prejudice Of Jurors At |
common law the expression of an un- |
qualified opinion by a person con-
cerning the merits OF q case consti-
tuted Implied or legal bias, and be- |
cause of this rule the decisions have
given an. exceedingly narrow construc-
tion to statutes on this subject in de-
rogation of the common law rule. This
subject will be further touched upon
when the statute bearing on the bias
and prejudice of jurors Is considered.
The constitution should expressly pro-
vide that the qualifications of Jurors
be prescribed by the legislature.
"In common, law the accused could
not be denied a trial in the Vicinage.
In this state he is entitled to change
of venue. To meet the changed con-
ditions the constitution should pro-
vide that the people as we'll as the del
fendant shall be entitled to a change
Of venue in a proper case.
"The provision that a person shall /
not be twice put in jeopardy for the
same offense should be amended so i
that it will not apply to the case of
a mistfial or the retrial of-the action
HISTORY OF RULE
"The history Of the rule. of once in
Jeopardy is an apt illustration of the
effect OF the refinements of decisions
upon the real purpose and scope of
a fundamental right. Like nearly all
rules of law affecting liberty, the rule
of once in jeopardy was adopted to
prevent the oppression of the individ-