Dewey County advocate. [volume] (Timber Lake, S.D.) 1910-1913, 1911-02-10
Criminal AT BAR.
BILL RELATING TO DEFENDANTS
AS WITNESSES NOT LIKED
BY ONE JUDICIARY
INNOCENT in EYES OF Law
Several Well Known Cases are Cited
~ Point Out Evils Of Statute
Now in Force and as
Interpreted

Interpreted
Picrre-There will likely be a merr
debate when the bin relating to de
PENDANTS charged with crime being wit
nesses, is reported from the commit
tee On judiciary of the house. The
bill was introduced in the house by
Representative Whiting and Senator
Norbeck put the measure in the SEN
ate. The senate judiciary committee
has already reported the bill unfa-
yorably and the house committee is
prepared to follow suit, but minority
reports viii force fight on the floor
All American criminal law is base I
on the assumption that a person is
innocent until proven guilty. Follow
ing out this line our present statutes
state that a defendants refusal or
failure to testify in his own behalf
shall not create any presumption
against him." The proposed law would
amend that section OF the code Of
civil procedure regarding the fail
ure Of defendant to go upon the
stand and grant the states attorney
the privilege Of commenting upon II
in his argument in the same manner
as if the proceeding were civil ac-
ton.
The supreme and circuit courts
have held on several occasions that
the mere allusion by the states at
torney to the fact that the defend
ant has not taken the sand. 's snf
sfcient ground for a new trial. The
case of the state versus Darlington
will serve as an illustration. That was
murder case in Minnehaha 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 fury saih
ut is not against the defendant that
he did not go on the stand, because
he was not compelled to" and Caring
ton was convicted. The case was APP
pealed to the supreme court and .
new trial granted on the ground that
the prosecuting attorney had violated
the statute in referring to CARING
tons failure to testify. At the second
trial he was found guilty and senten"-
ed to the penitentiary. where he is
sti,l serving sentence. The recent case
of the state AGAINST Emma Kaufman.
charged with the murder Of her serv.
ant Agnes Polreis, is still fresh in the
minds of the peOple. A new tria, was
granted ON q 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
ttese cases. They claim the fault is in
the statute and they are seeking to
amend it. The author of the biz
claims that the statute or rather the
Interpretation placed upon it. as mat
ter of fact, allows defendant who
has been proven guilty beyond any
doubt whatever, to seru,e a new trial
merely because some indirect allusion
NAV have been inadvertently mare,
to the fact that the defendant did MOI
go upon the stand. =
=. Persons pushing the bill also claim
that If this statute had been as 1t is
sought to have it amended, that tire
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, the cir
cult courts have been compelled under
the statutes to grant rany 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 large proportion OF the
defendants escape that In fact are
guilty.
On the other hand It is an 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 adj
mitted fact that there are many in
nocent persons, who for one reason
or another, would appear at disad
vantage on the witness stand. and
comment upon their failure to do SO
by the. prosecuting attorney, might
wreck treir. opportunity to gain free
dom. This would be an inf 'noement
upon their constitutional rights and
the bill will be bitterly fought on this
point. The LAWYERS Of both house,
are divided reea~d'ng the merits OF
the bill, though majority OF them
seem to think that such statute
would be dangerous inasm"ch as It
places in jeorardy the the chances OF
victory Of monv innocent persons &C
cused Of crimes.
The constitutionality of the Whit
ing bill has been 30 continuously ra's
ed, It is now considered doubtful II
the measure win ever be repo' ted from
the committee. Section 8. Article 6 o
the constitution says:
mo person shall be compelled IN
any criminal case to give evidence
against himself"
= Il is contended that the supreme
court would throw out the proposed
legislation, on its interp citation Of this
article. s3
At meeting Of the school and pub