USA > California > Addresses delivered before the California Society of the Sons of the American Revolution, 1913 > Part 9
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but it would probably be the most effective reform in our procedure which could be introduced.
The salaries of the English judges are about five times the salaries of American judges occupying relative judicial positions. The Lord Chancellor receives £10,000 a year, the Lord Chief Justice £8,000 a year, the Master of Rolls £6,000 a year. The other Justices of the High Court, corresponding to our Superior Judges in jurisdiction, £5,000. In England they still maintain the distinction between the barrister and the solicitor. The solicitor is a lawyer, but he can try no cases and does not address the court. He has the clients, makes all the threats preceding litigation and little things like that, prepares a statement of the facts and briefs the case, and then employs a bar- rister to represent him and his client before the court. The barristers have no clients, except solicitors, and are not permitted to deal directly with the parties concerned. When I was there one barrister was dis- barred-not by the court, but by the General Council of the Bar- for assuming to advise a client for a fee without the interposition of a solicitor.
Of the 8,000 barristers in all England but 800 are in active practice. You see many are called, but few practice. All of them are found in the Inns of Court in London. The leading barristers are called the K. C.'s. They have the privilege of wearing silk gowns and an extra curl in their wigs. In important cases junior barristers are also em- ployed at about two-thirds the compensation of a K. C. They aid in the trial of the cause and assume charge of it in case the latter is absent. Cases are never continued because of the conflicting engage- ments of the counsel. In fact, a K. C. may have several cases on trial at the same time, and while absent from one it is in the charge of the junior barrister-sometimes much to the dissatisfaction of the solicitor and client. Each junior barrister with an income justifying it employs a younger barrister who is known as a devil, and who studies the cases and serves without compensation, often for several years. Sometimes it may happen that both the leading and junior barristers are absent from the trial, notwithstanding their fees have been paid, and the devil assumes charge of the case. It is unpro- fessional for barristers to be in their chambers during the vacation season, but "deviling" in vacation is not prohibited.
The English court rooms are rather dingy looking places. They are smaller than the average American court room, with very high walls, and lighted from above. The judge's desk is about twelve feet from the floor. The witness stand is on the same level, reached by a small
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stairway. Below the judge, about half way down, sits the clerk, called his "associate," also in wig and gown. Below the associate is the solicitors' well, where sit the solicitors in ordinary dress. The body of the room is occupied by the barristers, who sit upon raised tiers of seats. The leader sits on the front bench, where he can confer with the solicitor, and behind him, in the next tier, the junior counsel, and behind him the devil.
One reason English cases are disposed of with such dispatch is that the cases are prepared and briefed by the solicitors and are tried by trained lawyers who do nothing else and who are paid for their serv- ices regardless of the result of the litigation and who reduce the issues to very few questions of law and fact. By reason of the interchange of documents and other evidence, both sides are well acquainted with the facts to be brought out and there are few surprises in the course of trial. Leading questions are permitted, and the privilege is not often abused. Objections are seldom heard, wrangling never, and the court itself frequently takes charge of the case and brings out the evidence.
The newspapers are held to a strict account for accuracy in report- ing proceedings of the courts and are subject to fines for misstatements of the evidence. The result is that the law reports of the leading newspapers, instead of being sensational, erroneous, disjointed and fragmentary accounts, are usually accurate and complete. The reports of the London Times are often used in court for a citation of recent decisions. I spent one day in the Court of Criminal Appeals. Ten appeals were argued and submitted, and the opinions given during the day. Eight were affirmed, one reversed and one prisoner paroled. The proceedings consisted in the most instances of a statement to the court by counsel of the facts of the case and the issue of law to be decided. There are usually but one or two questions for the court's consideration. There are no written briefs and the oral arguments are concise. Upon the submission of a case the judges confer with each other a few moments and one of them, most frequently the Lord Chief Justice, delivers the opinion of the court and calls the next case. I was in a number of the trial courts, both the Chancery and the Kings Bench division. In one case I arrived as the judge was beginning his charge to the jury. It was such a complete and lucid analysis of the facts and the statement of rules of law to be applied, that it was hardly necessary for a person to have been present at the trial in order to decide it. A photographer was suing a fire insur- ance company for a loss, and the defense was that plaintiff had him- self set fire to the premises. The judge reviewed the evidence of each witness and explained to the jury its application to the case,
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leaving them to determine its weight and effect. The defense relied largely upon a telegram the plaintiff had sent his brother in Poland a day or two after the fire, which read: "Business well disposed of." Notwithstanding the elaborate charge of the court, which would have violated all of our constitutional provisions as to instruc- tions on matters of fact, the jury disagreed.
In the report of the commissioners of whom I have spoken, the prin- cipal features of the English procedure with which they were chiefly impressed were as stated in the Journal of Criminology, in substance :
The remarkable facility with which juries are selected, the dispatch with which trials are conducted, the insignificance attached to formal defects in indictments and to technical errors generally, the non-parti- san character of the prosecution, the small number of appeals taken and the low percentage of reversals, and the important part played by the judge in the conduct of the trial. The authors of the report found that in England it usually requires no longer to select a jury than is necessary to call their names; that challenges are almost unknown; that opinions of jurors based on newspaper reports or hearsay evidence do not constitute a disqualification, and that jurors are rarely examined on their voir dire, as is the common practice in America. The old and rigorous rule with regard to particularity in the framing of indict- ments has disappeared and little importance is now attached to formal defects. Comparatively few objections are raised by opposing counsel to the admission of evidence, and wrangling over questions of this kind, such as forms a common feature of important trials in this country, is almost unknown. The division of the bar into two classes has the advantage of securing trained and experienced counsel, so that trials are rapidly expedited, though it has the disadvantage of separating the prisoner from his counsel and makes necessary the payment of a double fee-one to his counsel and one to his solicitor. Both fees com- bined, however, are usually smaller than the single fee paid in America.
The English judge takes a very active part in the proceedings and directs the trial at every stage. If he is satisfied at any stage of the proceedings that the evidence presented is not sufficient to warrant a conviction, he may stop the trial and direct a verdict of acquittal. He may call and examine witnesses with a view to bringing out more clearly the facts of the case. He requires counsel to confine themselves strictly to relevant questions and does not permit wrangling over immaterial matters merely for the purpose of getting error into the record or delaying the trial. In an address to the jury he reviews the evidence in detail and expresses his opinion on the weight of the
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testimony introduced and admitted. He may comment on the failure of the accused to testify, as well as upon the character and demeanor of witnesses. In his summing up he endeavors to sift out the material evidence from the immaterial, to clear the issue of confusions into which the jury may have been misled by opposing counsel and place the material evidence before it in such a way that it is readily intel- ligible to untrained minds. This done, the jury is left to decide the case as the evidence appears to justify. Under such circumstances verdicts are quickly reached by the jury, usually without the necessity of leaving the box. Cases are expedited with remarkable dispatch and the dockets of the courts are rarely congested. Of sixteen cases which the committee saw tried in the Central Criminal Court of London, ten of which were for murder, arson or rape, only three consumed more than two hours and a half, and several were disposed of in an hour and a half. Appeals are comparatively few, though every convicted person now has the right of appeal. They are quickly dispatched, fifteen cases being disposed of by the Court of Criminal Appeal in one day during the attendance of the committee. This court, we are told, considers that its principal function is to administer "substantial justice" and it has not therefore laid stress on technicalities either for or against the defendant. While the committee found that the number of judges empowered to try indictable offenses in England is larger than is pop- ularly supposed in America, the judicial force is nevertheless small as compared with that here.
Among the recommendations of the committee which merit consid- eration are that objections to indictments should be made before evi- dence is heard, with permission to amend formal errors at once; that examinations of jurors on their voir dire should be limited; that the prosecuting attorney should be required to make an impartial presen- tation of the facts to the jury; that the practice of counsel in seeking to get error into the record should be discontinued; that new trials should never be granted for technical errors, and that the judge should be given a larger share on the conduct of the trial, such as the right to overrule technical objections, to prevent counsel from asking irrelevant questions, and to sum up the evidence and direct the jury as to the law applicable thereto.
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CONDITIONS IN CALIFORNIA.
Two years ago the Attorney General of this State tabulated the appeals in criminal cases in California for the preceding four years. He found there were 211 appeals disposed of during that period, of which 172 were affirmed and 39 were reversed, being 811/2 per cent affirmed and 181/2 per cent reversed.
Professor McMurray of the University tabulated the decisions in criminal cases from 1903 to 1907, contained in Volumes 140 to 151 of the California Reports, and 163 criminal appeals, 117 affirmed and 46 reversed, being a little larger percentage of reversals. Of those re- versed, 3 were because the indictment did not state a crime, 11 because the evidence was insufficient to show guilt, 8 because important evi- dence was improperly admitted or excluded, 10 because of errors in procedure, 14 for erroneous instructions to the jury. He says that in nearly all of the cases reversed it seems that the error may very well have been extremely prejudicial to the defendant. From 25 to 40 per cent of the appeals were in homicide cases. It is the extreme case that provokes comment and arouses the dissatisfaction with courts and their procedure. The ordinary cases, which form the average length of time, are little heard of.
There are not many cases these days like the case of State against Campbell (Mo.), where the judgment of conviction upon a clear rec- ord of guilt was set aside because the indictment recited that the crime was committed against the peace and dignity of State, whereas it should have read against the peace and dignity of the State.
But the principal complaint lies in the delay in the final disposition of criminal causes. If the punishment is not swift and sure, it lacks the retributive element necessary to inspire confidence in the courts and respect for the law. The relative value in this regard of the Amer- ican and English systems of procedure is illustrated perhaps by a comparison of the Crippen case with any of the important homicide cases in this country in the past few years, as the case of Thaw or Tucker, or in California the case of Suesser, which was dragged along for months and years through the courts before finally disposed of. We might bear in mind the recent experience in the graft prosecution, and months of effort expended in the McNamara case in merely en- deavoring to get a jury composed of men who had never heard of the case.
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Some years ago the Commonwealth Club, which has for its object the investigation and discussion of problems affecting the welfare of the State, resolved to urge upon the Legislature the necessity of some reform in the method of dealing with persons accused of crime. Com- mittees of the club had the question under investigation for a number of months, and after conferences with Judges of the Supreme Court and Judges of the Appellate Courts and the Trial Courts, and with lawyers of experience in criminal practice, made certain recommenda- tions and proposed certain specific amendments to the laws of the State and urged their adoption before the Legislature. The bills proposed were designed to accomplish in the main three results :
(1) A prompt trial of an accused person on the merits of the case.
(2) A prompt judgment in case of a verdict of guilty.
(3) A prompt hearing of the case in the Appellate Court.
To secure these results amendments were proposed to the proper codes. It was proposed :
(1) To make the Grand Jury purely an accusatory body. The de- fendant who is indicted for high crime should seek his vindica- tion before a trial jury, and should not be permitted to try the Grand Jury for having found the indictment. At the time the Grand Jury is drawn, however, of which notice should be given, there should be an opportunity given to hear and determine ob- jections to the proceedings for impanelment, or the qualifications of the jurors, but the order of the court impaneling the Grand Jury made after the hearing and determination of the objections to the qualifications of jurors should be final and not subject to review.
(2) To enlarge the number of persons who are eligible to jury duty. We sought to exclude the professional juror who wants to serve and to draft the capable citizen who does not want to serve.
(3) To get intelligent men on the trial jury by changing the rule which excludes those who have read published accounts of the case.
(4) To repeal the provisions allowing a challenge to the panel of a trial jury. It is sufficient to allow the defendant an opportunity to challenge an individual juror, but he should not be permitted to try the manner in which the juror has been summoned.
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(5) To shorten the time for securing the jury for the trial of the case by requiring the court to conduct the examinations of jurors as to their qualifications, with such assistance from coun- sel in the trial of challenges as the court may permit.
(6) To correct the abuse growing out of the right to demand instruc- tions to the jury which tend to confuse rather than to assist them in their deliberation, by providing that the instructions shall be prepared by the court after counsel has specified the points of law they wish to have covered.
(7) To bring a speedy judgment after the verdict for the excellent moral effect which would be produced.
(8) To hasten the hearing on appeal.
(9) To prevent the prosecution of appeals on points not presented to the trial court.
(10) To discourage appeals upon grounds which do not affect the sub- stantial merits of the case, by providing that the judgment shall not be reversed unless it appears to the court that an affirm- ance would result in a miscarriage of justice.
(11) To avoid the greatest cause of delay on appeals by abolishing bills of exceptions and filing a typewritten transcript of the tes- timony and proceedings.
(12) To equalize in a measure the rights of the people with those of the defendant by giving the State the right of appeal in certain cases, and allowing the same number of peremptory challenges to trial jurors as given the defendant.
These recommendations it was hoped would shorten the trial of cases and avoid the delay in the preparation of the record and the hearing of cases on appeal, and at the same time deprive the accused person of no substantial right.
The various bills designed to affect the proposed changes in the law were introduced into the Legislature of 1909. The result of our efforts before that Legislature is represented by that oval-shaped figure which marks the dividing line between positive and negative charac- ters. In fact, it was a little below zero, for one Assemblyman from San Francisco was so offended at the proposals made that he got a few amendments adopted by the Legislature which, in a sporting sense, coppered some of our bills.
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Before the Legislature of 1911 convened, and, in fact, before its members were elected or even nominated, the proposals of the club were exploited at some length in the press of the State. Both political parties, in their platforms of that year, at the instance of the Com- monwealth Club, pledged themselves, if successful, to enact legislation to make the administration of justice more speedy and certain. Many of the amendments proposed were adopted by the Legislature of 1911 and now form a part of the laws of the State.
I take the following from the May number of the Journal of the American Institute of Criminal Law, published in Chicago, concerning the legislation proposed by the Commonwealth Club and the Bar Asso- ciation of San Francisco.
"The legislature of California at its recent session devoted much of its time to a consideration of this question and enacted as many as eleven different statutes changing the penal code, each of which is de- signed to improve in some particular the existing procedure. A con- stutional amendment was also submitted to the voters providing that no judgment shall be set aside, or new trial granted, in any criminal case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. This amendment follows closely the provision of the recent act of Congress forbidding reversals by the federal courts in such cases, and is sub- stantially the same as an amendment adopted by the voters of Oregon last November.
Two other amendments to the constitution were proposed: one to permit verdicts in all except capital cases to be returned by ten jurors, and one permitting the court to comment on the failure of the accused to testify in his own behalf. Both, however, failed to receive the constitutional majority required.
Among the statutory changes made in the penal code may be men- tioned the following: An act permitting the amendment of indict- ments by the district attorney when it can be done without prejudice to the substantial rights of the defendant and provided the amend- ment does not change the offense charged; an act to facilitate the selection of grand jurors and to do away with the evil of quashing in- dictments because of the possible lack of qualifications by grand jurors; an act compelling accomplices to be witnesses or to produce
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papers, provided that the testimony or papers shall not be used in any criminal prosecution against the person so testifying; an act changing the method of taking down testimony given before the grand jury ; an act relating to the arraignment of the accused; and an act providing for substitute judges in case of the death or disability of the judge before the termination of a trial over which he is presiding.
The editor says: "The desirability of a number of the changes made by this legislation was pointed out by Justice Sloss and Judge Lawlor in their articles recently published in this Journal. Verily the movement for a better criminal procedure is making encouraging prog- ress. California is to be congratulated on this auspicious beginning."
There is still a number of desirable changes to be made which would not abridge the substantial rights of the accused persons. The law should be amended so as not to disqualify persons as jurors because they have read accounts of the alleged crime in newspapers, provided the court is satisfied that they can give an impartial hearing and the State should have same number of peremptory challenges as the ac- cused. The English system of accepting jurors who have been prop- erly summoned and have no direct interest in the case seems to work as well as ours and does not result in delay in the impanelment of juries. I observe, however, that this system has been severely criticised in an article published in a recent issue of the Journal of American Institute of Criminal Law. Jury duty should be exacted of the best citizens, but to encourage their service they should be treated with greater consideration. Where jurors are kept away from their busi- ness for months at a time it is no wonder the best man tries to shirk jury duty.
Committees of the Bar Association and the Commonwealth Club, now working in conjunction with each other, will prepare a report in the next few months proposing certain amendments to the law con- cerning the impanelment of juries which will no doubt be another step in advance in this effort for a reform of procedure.
This is a brief resume of the status of the question at the present time, indicating what progress has been made and to some extent what remains to be accomplished.
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ANGLO SAXONS IN CALIFORNIA
By JOSEPH D. REDDING, at Southern Club, San Francisco, March 21, 1913.
I have not the honor of being a member of this society, although, if modesty would permit me, I might claim to have a hereditary right to join; I trust that I may do so. I say a hereditary right, because I find, on looking through the archives of families from which I have sprung, that there are ancestors of ours who can lay claim to have taken part in building up this country. I was saying to my friend, Judge Melvin, that I have ascertained that a great-great- great uncle of mine crawled into a hole during the revolution. And then I am very glad to say he crawled out again. His name was Israel Putnam.
I was very glad to find that he had crawled out again.
When I look around this room, gentlemen, I feel a sense of pleasure, distinct from that in looking around the rooms that we gather in in this country as a rule. And that is because I see typical Americans around us here tonight. Not but what we welcome an incursion of foreign element, whether of today or yesterday, but more and more as we go through this country, we find the strain of the American in- terlarded, disintegrated, changed, diversified by foreign types. I have had more pleasure during recent years, at banquets, at dinner parties, in clubs, in getting close, with some one to whom, when I turned and asked him where he comes from, says, "I am from Vir- ginia." "I am from Massachusetts." "My father was from Vir- ginia." "My father was from Massachusetts." And I look at his face and I see an unmistakable type. It is a great pleasure to gather together and find that we can look back some generations in a country from which we and our immediate ancestors have sprung, all from similar soil.
I have often been amused when traveling abroad, to see how, in other localities, when we meet on the other side, so many claim America as their home. I remember landing in Carlsbad some fif- teen or sixteen years ago. I had been bicycling from Vienna to Prague, and finally arrived in Carlsbad; it proved to be the first of July. I saw in a shop window a great sign "Fourth of July," and then below "All good Americans will join in the Town Hall on the
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first of July, and arrange for a celebration of the Fourth." I said to myself, "Here's an opportunity. I'll meet some of my fellow citizens." So, I went to the hotel, changed my togs, and went down into the Town Hall, a dimly lighted room, and there were seventy-five or a hundred people seated on the edges of chairs. Finally a man got up at the other end of the room, knocked on the table, and said, "Vel- low Zitizens : It ees mit bleasure that we Americans have gathered here today for the burbose of zelebrating that day off ours in the great United States known as that-un-Fourth of July. Und I have great bleasure in galling on Mr. Guggenheim, from Montreal."
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