The Miller press. [volume] (Miller, S.D.) 190?-current, 1911-02-09
CRIMINAL AT BAR.
GILL RELATING TO DEFENDANTS
AS WITNESSES NOT LIKED
BY ONE JUDICIARY
INNOCENT in EYES OF LAW
Several Well Known Cases are Cited
to Point Out Evils of Statute
Now in Force and as
Interpreted

erre-Thege will likely Ue a merr.
debate when the bill relating 70 de
PENDANTS charged with crime being Wit
nesses, is reported from the commit
tee en- judiciary of the house. The
bill was introduced in the house by
Representative Whiting and Senator
NOrbeck put the measure in the sem
has already reported the bill unfa-
vorably and the house committee is
prepared to follow suit, but minority
reports will force a fight on the floor
All American criminal law is base !
on tNe assumption that a person is
innocent until proven guilty. Fol ow-
ing OIL this line L present statutes
state that a defendants refusal or
failure to testify in his W behalf
shall not create any PRESUMPTION
against him. The proposed law would
amend that section Of the code OF
civil procedure regarding the fai'-
GTe of n defendant to go upon the
stand and grant the states attorney
lllt plINllSSt Vi 'tlIIIthIllS upOu II
in bis argument in the same manner
as if the proceeding We're a civil &C
ton.
The supreme and circuit courts
have held on several occasions that
the mere allusion BY the states at
torney to the fact hat the defend
ant has not taFen the sand. IS emf
Scent ground for q new trial. TIE
case of the state versus Darlington
will serve as an illustration. That was
a murder case in Minrehaha county
and an examination OF the record dis
closes that the defendant was clearly
guilty of the crime. The states at
torney in his address To the Jury SaiH
at is not against the defendant tia
he did not go on the stand. because
he was not compelled to" and Caring
ton was convicted. The case was ap-
pealed to the supreme court and q
new trial granted on the ground th"t
the prosecuting alto ney had violHtcd
the statute in referring to Garrin1-
tons failure to testify. At the secon'
trial he was found guilty and s%cnten"-
ed to the penitentiarv. where he is
! sti'l serving sentence. The re"ent case
VI lIc Sldlc dFdlhNN l. III INuu NON
| charged with tire murder Of her eerv.
ant Agnes Polreis. is sti'l fresh in TIE
minds OF the peonle. A new trial was
granted on a techniCality OF this ma
ture.
Friends Of the bill do not wish to
be put in the light OF crit'cising the
| supreme court upon its decisions in
these cases. They claim the fault is In
the statute and they are seeking to
amend it. The author Of the hf
claims that the statute or rather the
Interpretation placed upon 1t, as a mat
ter Of fact, allows a defendant who
has been proven guilty bevond any
doubt whatever. to secure a new trial
merely because some indirect allus'on
nav have been inadvertently maze,
TO the fact that the defendant did no.
go upon the stand.
Persons pushing the bill also calm
that if this statute had been as 1t is
sought to have it amended, that the
| famous case OF the state against Car
rington. would not have been sent
back for a new trial and the state
thus saved thousands Of dollars. While
only three cases have been passed
upon by the supreme co"rt ire cir
cult courts have been compelled under
the statutes to grant many new trials
and usually when new trials are
granted there are DELAYS OF months
and sometimes years. When a case
then comes UP for retrial many of the
important witnesses cannot be a"a'n
secured and a large proportion or the
defendants escape that in fact are
guilty.
On the other hand it is 81 old adage
in law that it is better to let a dozen
guilty parties escape than to convict
one that is innocent 1t is an au-
mitted fact that there are many In
nocent persons, who for one reason
or another, would appear at a disad.
vantage on the witness stand and
comment upon their failure to do so
bv the prosecuting attorney, might
wreck tfeir opportunity to gain free
dom. This would be an inf 'n9ement
upon their constitutional rights and
the bill will be bitterly fought on this
point. The lawyers of both house,
are divided REGARDING the merits OF
tbe bill, though a majority or them
seem to think that such a statute
would be dangerous in'sm"ch as II
places in jeorardy the the chances OF
victory of manv innocent persons &C
cused of crimes.
The constitutionality of the Whit
ing bill has been so continuously ras.
ed. it is now considered doubtful II
the measure will ever be repo ted from
the committee. Section .. Article 6 OF
the constitution says:
mo person shall be compelled In
any criminal case to give evidence
against himself"
II is contended that the supreme
court would throw out the proposed
legislation, on its Interpretation OF this
article.