Los Angeles herald., 1910-09-11
fContlnued from Page Nine)

NCOnItnucu IFOnl IaBo EhNg
of common knowledge of events and
happenings was to be excluded IN the
determination of the state of mind of
the Juror Public rumor, statements In
public journals and common notor1ety
would seem to cover almost everything
outside of personal knowledge or spe-
cial information concerning the facts.
JURY INSTRUCTIONS
instructions to juries in criminal
cases should be prepared by the judge
alone. Such a proposed amendment
failed of passage in the last session of
the legislature. The right should be
reserved to the parties to suggest
points to be covered by the charge.
Upon such request the judge should be
permitted to require the parties to for
mulate an instruction covering the pro-
posed point. But an instruction so
given should form no ground for re-
versal.
"The present law on the subject of
instructions to iurieS furnishes occasion
for the grossest forms of abuse of judi
cial process. Advantage is frequently
taken by counsel for an accused person
of the right to proposed instructions to
the Jury to attempt to lay a trap for
the court to drop into error, and to
have an argument issue from the lips
of the Judge in favor of the defendant
and against the people. In a case tried
In san Francisco some time since near
" 200 elaborate instructions were pro-
posed, containing in the neighborhood
of $4,000 words. 1t is not difficult,
therefore, to understand why instruc-
tions shrewdly presented in every con-
ceivable form on the same subject shall,
in the present rule on appeal, furnish
grounds for reversal There is hardly
any phase of a jury trial which i'm
presses the jurors less than the instruc-
tions from the court when they come IN
so many forms and at such length. A
multiplicity of instructions tends to
confuse rather than enlighten the ju-
rors. and in the interests of justice this
abuse of judicial process should be cor
rected.
JUSTICE BLOCKED
"IJnder the law as it now stands per-
sons may, as a matter of right, de-
mand severance from each other in the
trial of the general issue. With the
present complicated machinery of the
law. the execise of this right by the
defendants in case that call for pro-
tracted trials leads almost to a prac-
tical blocking of the wheels OF justice
Persons Jointly accused should, IN the
discretion of the court, be Jointly trled;
1t Is an impeachment of the efficacy OF
the jury system to provide for sever
ance upon the thory that the jury Will
not discriminate between defendants
upon whom guilt bears from those
against whom there is not sunlclenE
evidence to warrant conviction.
"There should be a statutory detnl-
ton of the presumption of innocence
and the doctrine of reasonable DOUBT
and none other should ever be given 10
the jury.
"The doctrine of reasonable doubt
should attach only to the trial OF the
general issue In all other matters the
people should only be required TO es-
tablish q fact by a preponderance OF
the evidence, and 1t should be PLAINLY
provided that a defendant must estab-
iish any fact in his favor by the same
degree of proof.
"The absence of dehnlte rule III
these matteres gives rise to uncer-
taintv In the law and occasions anxiety
in the mind Of the trial judge When
such questions are raised.
1.-THE rule found in the decisions that
the presumption of innocence is the
only presumption in a criminal case
should be modified. The dlsputaple
presumptions enumerated in the statute
represent the experience of mankind
ana thew should serve as evidence for
either side unless controverted. Inc
burden of proof to establish the charge
should. however, always rest on the
people, and the jury should pe con-
Vinced beyond a reasonable doubt De-
fore finding the defendant guilty. In
bigamy. for instance, the presumption
of Innocence casts upon the people the
burden of negativing the proposition
that the first marriage had not been
dissolved at the time of the second
marriage. This is sometimes very df-
fcult to show. All such matters rest
unon the defendant to prove. 1t is not
always clear that the rule requiring
party having peculiar knowledge OF a
fact to assume the burden should be
followed in a criminal case.
AMENDED LIMITATIONS
"The statute Of limitations should be
amended so that the time when the al
legged criminal act is being prosecuted
in any form should not be reckoned
against the people. 1t sometimes hap
mems that the alleged criminal act Is
charged under the wrong form OF Of
fense. SO long as the people are dill
gent in the effort to bring defen-
dant to Justice the time should not
count in his favor. The people should
not he penalized because of the errors
of officers, nor should the time run
against the people when the derehdant
is absent from or hiding in the state.
the Judge may be disqualified on the
ground of prejudice should be abol-
ished. 1t is seen in practice that ad-
vantage is taken of this law to render
judicial proceedings ineffective without
regard to the mental attitude OF the
iudge toward the party urging the
disqualification. 1t tends to scandallze
judicial proceedings and break down
the respect which the people should
have for their courts. 1t tends TO
weaken the authority of courts 1t is
direct menace to the proper admin
istration of justice. If the people are
careful in the selection of their judges
it will not be likely that one would SIT
III a case who was not in a proper
frame of mind to act. The present law
leads to manipulations of all kinds IN
order to effectuate through the me-
dunn of judicial proceedings purposes
to which the law should not give coun-
tenance It Is conceivable, of course,
that a disqualified judicial ofncer mlght
sit in a case, but this would rarely
happen. 1t would be better in the
interest of justice that there should
be an occasional hardship on litigants
than that the whole system should be
weakened. No system Of government
can be devised that will obviate the
imperfections and limitations of man
kind. A great judge has declared:
mo system Of judicature can be
suggested in which occasional failure
to insure complete justice may not
arise
JUDGE ON TRIAL
"If a Judge cannot be trusted to act
according to law, then this form Of
government is a failure. When a judge
is thus attacked it tends to drag the
oOI1rt into the StrIfa Of lifipa tiOn 10