Bisbee daily review., 1911-02-16
OUR LAWS GREAT
 HELP TO THE GUILTY
 SAYS THIS LAWYER.

(Chas. c. Mott. Jr, in The Atiantic)
 The appalling amount of crime in the United States, as compared with many other civilized countries, Is due to the fact that it is known generally that the punishment for crime is uncertain. and far from severe. The uncertainty of punish ment is largely due to the exten- sion in our criminal jurisprudence Of two principles of the common law which were originally just and req sonable, but the present application or which is both unjust and un. reasonable.
 under the common law as lt eS, isted long after these principles orig. mated every felony wac a capital of Tense and every misdemeanor was
 punished with branding. mutiIation or transportation. There were no prisons except those for detention Tor trial. After conviction the de-
 fendant was hanged or his ears were cropped. or he was transported to the colonies. At his trial he was not entitled to counsel. He could not take the stand and testify in his own behalf. even if there were no witnesses available to him. If con. victed he was allowed no appeal.
 This being the state Of thu law, the justice cf the two principles re- quired that the accused man be acquitted after having run the risk of death through such an ordeal Common humanity required that he should not again be subjected to lt. nor have new trial granted against him after an acquittal wnel. he could not obtain one for him self after a conviction. And if was manifestly unfair to compel a man who could not testify in his own behalf to give evidence against himself.
 But the original situation no long. er exists Capital punishment is abolished in most states. save fin cases of murder in the first degree and mutilation and transportation no longer exist as punishment for crimes. The accused is entitled to the advice and services of counsel He may take the stand in his own
 behalf. The right of appeal ia granted him. while denied to the state.
 Taking up now the consideration Of the present interpretation of the principle forbidding second "jeop ardy of life or limb," and remember. ing that at the common law neither side could appeal, it is obvious that the rule was intended to prevent a defendants being arbitrarily De- tried after an acquittal-a purpose with which no one can find fault; and 1t is no less obvious that the rule never contemplated that a re- trial should be granted 10 a defend ant after the reevrsal on appeal of conviction, but should be denied 10 the state after a reversal of an acquittal on appeal In other words the common law said to the state "As neither side can appeal, a CT. dict either way shall settle the lii fgation, and you shall not continue trying a defendant over and over again until you obtain a favorable verdict" It did not say. "A retria, after a reversal or an acouittaI, is duly had in an aopellate court con. stitutes the forbidden second ieop- ardy.-
 The fact that a defendant can ap peal all errors committed by the trial judge or any misconduct on on the part of the district attorney. while the state can take no appeal from an acquittal. no matter, how glaring may be the errors of the trial judge or the misconduct of the defendants attorney, has an enor nous practical effect on the conduct of the trial. none the less SO for all that it is not commonly under. | stood or appreciated.
 When a judge who is timid as Q his record of cases appealed has 'nly to rule consistently against the prosecution to avoid any reversible | srror, the temptations is so strong IS to be resisted by but few. There Ire some judges who rule on a question of law purely as such in a 'riminal as in a civil case: and iome who even hold that -ss Ihe tate is remediless if an error Of aw be made while the defendant if lot the state should have the bene- it of a doubt on the law. even as he defendant has the benefit of a loubt on the facts; but the number f such judges is all too small.
 On the other hand, the great num- Ter of judges take refuge in the of the prosecution when my question that strikes them as t all doubtful arises; and some udges take advantage Of the situa- ion to act as if the prosecution had To rights at all that the judge is 'ound to respect, and as if it were Or the judge to decide whether he 7ould be bound tby any law of evi- ence whatever
 It is a safe assertion that under UT present system. fully g per ent of iud9menss Nnf acouiffaI couid