The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-03-31
HE'D CHANGE IT.
Justice Burch Suggests Reform
in Criminal Law.
Would Force Defendant to Tes-
tify in His Case.
DISRESPECT FOR LAW.
Attributes 1t to False Teaching
and Example.
Scholarly Address to the Kansas
County Attorneys.


in session here today advocated a
radical change in the existing law re-
lating to accused persons testifying in
courts. Judge Burch does not believe
that there is any valid reason why an
accused man should not be compelled
to testify as to all the facts relating
to any charge against him. Judge
Burch was asked to talk to the attor-
neys on 1.-The Duty to Obey the Law.
His paper was extremely interesting
to the layman, the chap who has to
do the obeying. He said in part:
Attention has been called to the
fact that laws and institutions suffer
in the estimation of the people be-
cause, having been established for
conditions now outgrown, they resist
their own improvement too long and
are inadequate to meet the needs
which social progress has evolved. A
single illustration from the criminal
law may be considered. Many gull
ty man escapes punishment, to the
confusion and humiliation of the law
and order forces, because he can not
be required to testify and because as a
corollary, his failure to testify can not
be considered to his prejudice. The
prosecution must disclose everything
to him. The names of all known, ma
terial witnesses for the state must be
Endorsed on the Indictment or in
formation at the time it is filed. The
accused then sits by until the last item
of evidence against him has been in
troduced at the trial when he springs
q story carefully prepared to suit the
exigencies of the case, or, if he
chooses, remains silent while the
court in solemn phrase instructs the
jury that he is presumed to be inno-
cent of every element of the offense
charged against him and that no in
ference can be drawn from his failure
to testify. The existing rules had
their origin in humane efforts to pro-
tect unhappy prisoners who had no
counsel, who could not testify at the
trial and who could not appeal from
star chamber practices and from the
barbarities of a penal system which is
now regarded with feelings OF horror.
At the present time there is no valid
reason why a person charged with
crime should not be obliged by law to
testify at any stage of the proceeding
precisely the same as any other wit
ness with knowledge of the facts.
I'm the Atlantic Monthly for Feb
ruary of this year Mr.. Charles E. Mott,
jr., assistant district attorney of New
York county. suggests a less radical
reform which under recent decisions
of the supreme court of the United
States. the states have power to adopt,
and that is an election to testify at the
preliminary examination or not at all.
In discussing the subject he says:
THE way of recovery from cur pres
ent condition is a long and hard one. 1t
must be through education. the only
sure means of permanent reform. AS
Emerson said: We shall ole day learn
to supersede politics by education.
What we call our root and branch re-
forms of slavery, war, gambling, in
temperance, is only indicating the
symptoms. We must begin higher up
namely, in education
This education must begin with the
| children and must be continued for
| generation after generation. That IS
| the way the Cubans and the FilipinoS
| are to be raised in the scale of civiliza-
ton. We reform the lawlessness of the
! slums by getting the children into the
| kindergarten and manual training
| schools and after so years of failure
with political methods we see that the
south must finally be rescued from
| slavery by education. In no other way
| can we create the enlargement of mind
| which sees in obedience to law an OPP
portuuity for cheerful service.
when a great orchestra assemblies,
amid the din of the tuning-up process
| one clear note is continually sounded
with which every instrument must be
| brought into harmony. If in the rem
| dition of the piece the tense strings of
any one of them should relax, the re-
suit is discord and confusion. Whatever
else a player may do, he must keep his
! instrument in tune and hold to the
keynote of the composition The key
note OF the great symphony OF our ma
tional life is obedience to law; and
every individual citizen, whatever his
race or color, whatever his poverty or
wealth, whatever station or degree,
must take and hold that tone. or mar
the whole performance.
Purposes of Government.
1.-THE end of government is the good
of mankind; and the good of mankind
means the attainment by every indiviG-
ual of all the happiness which he can
/ enjoy without diminishing the happi-
ness of his fellowInen. Not long ago
! the opinion prevailed that the least
regulation possible was the best, and
| that the free and untrammelIed pursuit
/ o his own ends by each individual
would result in the greatest general
| good. The evidence accumulated with
| in the last so years proves the COR
trary. It is not true that each man can
| be trusted to pursue his own best in
terest. Because of their ignorance too
| many people do not know what is best
for them, and because of their lack of
| will to do or lack of self restraint they
are unable to act upon knowledge when
| they possess it. Consequently the sa-
| loon, child labor, labor in mines and
mills, unsanitary tenements, tubercu-
| losis pure food, and numberless other
subjects have become social subjects.
| Personal liberty, 'inalienable rights
! and other a priori concepts not only
may be but must be over-ridden when
ever the general welfare demands it.
1.-THE question of what tends to the
highest good of the people is a ques-
ton of fact to be decided from the best
evidence obtaina.b1e. The question Is
often difficult of solution. The evidence
is usually meager. conflicting and I'M
satisfactory, and different minds are al
| ways likely to reach different con-
| illusions. Particularly legislative bodies
NAV be utterly unsuited to meet the
tremendous responsibility of declaring
! what the people shall do and what they
shall not do, but when the tribunal
which the people have appointed to make
j the decision declares the result the peo-
pie must submit until another decision
can be obtained in a peaceful, orderly,
i constitutional way.