The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1911-06-15
COURT SHOULD NOT
EXPRESS OPINION
United States Tribunal Sends
Foster Case Back for
New Trial.
THOUGHT DEFENDANT GUILTY
Disagreeing jury Thercupon
Convicted Not Permitted i'll
State Courts.

That the court exceeded its power BY
making an expression OF the guilt or
the defendant. after the case had been
/ submitted to jury, and at lime
when the jury had failed to agree was
the gist OF an important and sweeping
| opinion handed down yesterday MORN
Ing in the United States Circuit Court
of Appeals. The opinion WAS prepared
| by Circuit Judge Pritchard and con
CURED in By District Judges Dayton
and Conner
The case was that of j. D. Foster.
piaintiff in error. against the United
| states, q writ of error TO the District
court at Roanoke. Va. The defendant
was charged with Illicit distillng and
ireialling. and was also charged with
assisting in the removal of liquor de-
clarcd to have been illegally manufac-
tured from the place OF distillatlon.
Al the trial before Judge II. C. Mellow
ell the jury disagreed and the court
expressed the opinion that the defend
ant was guilty. coupled with the quail
,lhcation the jury was not 10 be bound
BY any opinion OF the court. saying
that the Jurors were the sole judg es
of all questions of fact
Exceeded Powers.
The higher court held that while
Federal judge may express an opinion
as TO the guilt of a defendant. II In
doing SO proper care is exercised at
The time the charge is given TO the
jury. However, inasmuch as II ap-
peared In this case that the court eX-
pressed an opinion as to the guilt OF
the defendant after the matter had
been submitted to the jury, and at
time when tho jury had failed to agree,
The Court OF Appeals held that the
court below exceeded It's power in so
doing, and the case was reversed ana
remanded for a new trial.
From the facts In the CAGE It is
, learned that after the Judge had ex-
| pressed his opinion tho jury retired TO
Its room and in q short while return ed
verdict of guilty.
while II Is true that the learned
Judge stated to the jury that they were
not bound by any opinion he had ex-
pressed" the paper prepared BY Judge
Pritchard states, yet we cannot escape
the conclusion that had II not been
for the fact that the Judge gave IL as
his opinion that the defendants were
guilty the jury would not havo agre cd,
and there would have been a mis,rial
Once jury has retired, as In this In
stance, and upon sideration OF the
facts are unable 10 agree as TO their
! the presiding Judge as 10 the guilt OF
innocence of the defendant must nee
essarlly have q controlling influence
upon the minds of the jury, and this in
our Judgment. Is precisely what oc-
CURED In this cGse.
| Hns Weight VITA Jurors
II should be borne in mind that the
| judges Of the various State couyts In
| this circuit are NOT permitted 10 express
"a tfN 4. ba atr
| mony, nor arc they permitted TO ex-
I press an opinion as 10 the guilt OF a
defendant Our people have become
| accustomed to this system. and Jurors
always attach great Importance to any
! expression coming from the presiding
Judge. feeling, az they do, that IL is
| only in exceptional cases that he eX-
pressed an opinion as TO any matter
that may be submitted to them and
when he does they feel that they are
| hound by the same. Under these cir
\ cumstances. an expression OF opinion
from a Federal Judge in this circuit
necessarily carries more weight than
| would the opinion of n Federal Judge
| in circuit where a different rule pre-
| walls In the State courts. While the
learned Judge who heard this case be-
| low employed language that clearly
! informed the jury that they were not
J
i have made. nevertheless the circum-
| stances surrounding the trial Of this
case were such as TO impel us TO the
! conclusion that the jury was Influenced
! in large measure by the opinion or
the court. 1t may he that in many
{ instances Jurors refuse 10 hnd defend
|! ants guilty, notwithstanding the fact
| that the evidence is such as TO justify
them in doing so. and thus permit those
| who are guilty TO escape punishment
I while this is to be deplored, yet
the rule which leaves all questions of
fact to be passed upon BY the jury
should never be relaxed or modified, If
the rights and libraries OF the citizen
| are to be preserved
while the trial Judge may express
an opinion as to the weight of evi-
dence in civil cases. and as to tho guilt
of prisoner in criminal cases, yet
the greatest caution should be used
in the exercise OF this power, and the
jury should be left free and untram-
/ mcled In the determination OF DUES
tons of fact which are to be passed
upon BY them, and in no instance
should the trial Judge express an opin-
ion as TO the guilt of the defendant
after the case has been submitted to
the jury and at time when they have
failed to agree as to their verdict"