Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1915-01-12

was pEeJUulClhl. ~ uOeS not make any
difference how co'Sclusively and abid-
ingly satisfied the supreme court may
be that the judgment on the whole
case was right. yet prejudice is pre-
sumed. because of the error. the case
Is reversed and back 1t goes for q re-
trial. 1t Is upon the theory that 1t
cannot be known what the jury might
have done II the error had not been
made. So. Notwithstanding the con-
viction that the verdict was right. 1t
goes back to take the chance Of some
other error being committed and an
other jury bringing in verdict that
Is wrong. While the courts are fall
lible and very liable to err the Jury
Is practically infallibly. their verdict
almost unimpeachable and establishes
the fate Of the littgants as firmly and
immovably as the rocks of Gibraltar.
Aside from chancery cases the SUI
,preme court Is . court for correction
Of errors. AS errors are always pre-
sumed to be prejudicial, the astute
lawyer often makes every effort to
sget error into the record" II he can
succeed and the result of the trial is
not to his liking he can appeal with
every presumption in his favor. The
error Is presumed to be prejudicial to
his client. 1t may be, but 1t ought
not to be conclusively presumed SO.
The contest in the appellate court
centers around the question as to
whether or not there was error and
the substantial rights Of the parties
may not be involved at all. When you
get at the bottom fact about the mat
ter the rule under consideration does
not require of the trial court justice
but infallibility. This whole thing ap-
pears to me to be wrong. II the court
on the whole case is satisfied that the
judgment is just, the one that ought
to have been rendered, they ought to
let 1t alone Notwithstanding the error
and litigation should end.
The time sometimes taken for the
selection OF q jury is a cause of delay
useless expense, absurd. farcical. The
grounds of challenge for cause are
given by statute. A few questions In
few minutes are sufficient to de-
termine a jurors qualifications and
the court should be given authority
to control and limit the examination
or. better still, he should have the
authority to examine and pass upon
the qualifications of jurors for the
trial OF the cause
l again repeat what said two years
ago that the time for taking appeals
should be greatly shortened. l see nc
reason why the law should make the
procedure Of cause through the
courts interminable.
The law forbidding counsel to COM
ment on the fact that the defendant
in criminal case declines to become
witness In his own behalf and give
such explanation as he can of the facts
produced tending to establish his guilt
should be repealed. 1t is entirely just
to him to suppose that II he could
explain he would do 80.
While I am speaking OF laws and
i what it seems to me ought to be done
desire to say just word about the
law enacted by the last general as.
sembly providing for the. non-partisar
nomination and election Of judges.
believe 1t ought to be repealed: g
Treatment OF Criminals.
To my mind our method of treat
ment OF those convicted OF many OF
the crimes under our statute has been
absurd and without Justification from
man or the state. am aware that
there are wide differences of opinion
upon the question OF the treatment OF
those who have violated the criminal
law. There never ought to be such q
thing as even a thought of punishment
as retribution. Yet there is, when
you get to the center of our theory OF
punishment. that thought running
through it. The thought of punish
ment as deterrent to others. think
is thing to be dismissed also because
the experience of the world has shown
that 1t does not deter,-that the pro-
portion of crimes to population does
not decrease but rather increases
Then there is something of the aveng-
ing spirit underlying the thought. In
some cases, it seems to me. the
sentence OF the law Is out of all pro-
portion to the gravity of the offense
And. as an ultimate question. what
good can come, in very many cases. to
either the culprit or to society. by a
commitment to jail or the peniten-
tiary? How many scores Of cases does
every man know of as coming un-
der his own observation. where not
only no good came to either but posi-
tive harm to both. l cannot view II
in any other way than that every man
ought to see the absurdity. the use
lessness. the wrong done both to the
prisoner and to society. in leading a
young man. and older ones as we'll
Perhaps in an hour of temptation,
or under stress Of circumstances. as
inability to get work and little chill
dren and wife cold and hungry. they
have committed an infraction OF the
law. What hope or chance is there
for man in jail or penitentiary
am not now speaking Of the habitual
criminal. the outlaw. the man danger
GUS to be at large. but am speaking
OF the large number of men whom we
daily see walking out of our court
rooms destined to imprisonment.
Taken from their families. perhaps.
who need every possible help they
can give them. iniiicting q wrong upon
them personally and upon society as