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witnesses into court, and every right which the Constitution and Bill of Rights entitle him to. To say that such a discretion may be abused, is no argument against its use, because every power with which a court is endowed may be subject to abuse.
4. We would have every nisi prius judge who presides in the trial of a criminal case, invested with the absolute power of controlling the examination of jurors and impanelling the same, and not allow the attorneys in any case to control this matter. Of all the abuses of the present day in the trial of criminal cases, especially capital cases, the abuse of privilege with which an attorney at law is invested, is the greatest. Those who understand this matter know that their main object is to educate the jury to their theory of the case, and to pledge them in advance to act in their behalf. The vast interests of the public are no concern of theirs. They are there to win, and to win at all hazards, and under all circumstances, whether their client is innocent or guilty of the crime with which he stands charged.
5. In order to have a jury trial, as known and understood by the common law, we would allow a judge to take some part in it. In other words we would make it a trial by judge and jury, and when the evidence is all in and counsel has addressed the jury, we would then have the judge take his appropriate place in this great drama, and would have him sum up the case and analyze the evidence. We would have him state the issues, and explain to the jury the relation of the several parts of the case, and the rules of law by which they are governed. We would have him fulfill the high mission which society has appointed for him, and see to it that justice is done between the prisoner at the bar and the people of the State. Let him so execute his office that the jury may, in the language of the oath which has come down to us from three centuries' use, “well and truly try and a true deliverance make between the people of the State, and the prisoner at the bar, so help them God.”
6. The law in regard to charging an habitual criminal in an indictment, ought to be so changed, that if the direct statement and averment is made in the indictment that said party
is charged as an habitual criminal, it shall be sufficient. The provisions of the New York Code upon this subject, are well worth considering.
7. The law making juries judges of the law and the facts should be repealed. Almost every one that has given this subject any attention, agrees that it is absurd and should no longer be continued. As Chief-Justice Shaw said in the case of the Commonwealth v. Auther, “In my judgment, the true glory and excellence of the trial by jury is, that the power of deciding fact and law is wisely divided ; that the authority to decide questions of law is placed in a body well qualified by a suitable course of training to decide all questions of law, and another body well qualified for the duty, is charged with deciding questions of fact definitely; and while each within its own sphere performs the duty intrusted to it, such trial affords the best possible security for a safe administration of justice and the security of public and private rights.”
In the case of United States v. Battiste, 2 Sumner, 243, Mr. Justice Story says:
“My opinion is that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case tried upon the general issue. In each of these cases their verdict, when general, is necessarily compounded of law and fact and includes both. In each they must necessarily determine the law as well as the fact. In each they have the physical power to disregard the law as laid down to them by the court. But I deny that in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure."
8. The distinction between misdemeanors and felonies should be more clearly defined, and it should be declared in unmistakable terms that all persons who occupy any fiduciary relation, office of trust or emolument, and who enter into any conspiracy to defraud the public, shall upon conviction be declared guilty of felony, and punished by imprisonment in the penitentiary, not less than one nor more than twenty years. In such cases, and in fact in all criminal cases, writs of error should be taken directly to the Supreme Court, and nowhere else. To take any criminal case to the appellate court, where, if the case is reversed the State has no right of appeal or right
of review, is the very height of injustice.
If a writ of error is allowed in any criminal case from the criminal court of Cook County to the appellate court, then the same right should in case of a reversal be allowed the State to the Supreme Court. But we submit that as the only final judgment or conclusion can be reached in the Supreme Court, the case should be taken to the Supreme Court in the very first instance and nowhere else.
Finally, some additional restrictions should be provided in regard to the uses and abuses of the writ of habeas corpus. Writs of habeas corpus were never meant to be used as writs of error—but no sooner does one judge decide a question or sentence a prisoner who has been tried and convicted by a jury, than some other judge of concurrent jurisdiction issues a writ of habeas corpus to review his action, and if he should happen not to agree with the brother, he forthwith declares that “manifest error hath intervened,” and releases the prisoner from jail and sets him free.
The most common use to which this writ is now being applied, is to get persons out of the bridewell because the commitment does not recite all the proceedings of the court and the judgment, and to release fraudulent debtors from jail because the attorney of the creditor pays his board bill, or because the the sheriff receives his pay for dieting the refractory prisoner, in advance-and the reason assigned -is because the judge is opposed to imprisonment for debt, and everything is to be construed in favorem vite. All these reasons may be good, but we never heard of any one being imprisoned for debt in the State of Illinois, and never heard that the doctrine of "in favorem vitæ" applied to either torts or frauds. It is the settled law of this country that where a court bas jurisdiction of the parties and subject matter, a writ of habeas corpus cannot be made use of to release a person who is wrongfully convicted, and the judgment cannot be questioned collaterally.-(Ex parte Watkins, 3 Pet. 193; Ex parte Crouch, 112 U. S. 178; Ex parte Carll, 106 U. S. 521; Ex parte Virginia, 100 U. S. 339; State v. Towle, 42 N. H. 540; Ex parte Hartman, 44 Cal. 32.)
AMENDMENTS TO THE CRIMINAL CODE.- We would amend thé Criminal Code as follows:
PUNISHMENT BY FINE.—The Statute in regard to fines inflicted by way of punishment as provided in the Criminal Code, should not be avoided by allowing the defendant to schedule out of jail. When a person has been convicted of a misdemeanor there should be no premium offered for his depravity, and he should not be awarded immunity simply because he has not a bank account to draw on, to atone for the wrongs that he may have committed. The criminal code contains several provisions relating to this matter. They are, Sections 448, 452 and 455 of the criminal code, as they appear in Cothran's edition of the statutes.
1. Fines may be fixed by a jury. (See Sec. 445 of the criminal code.)
2. Fines may be imposed by a court.
3. Persons who are convicted and fined in either way may, by virtue of 448, be committed to a workhouse; or by Sec. 452, committed to the jail, there to remain until the fine and costs are fully paid, or he is discharged according to law. By Sec. 168 b. p. 479 of Cothran's statutes, the culprit may work out his fine in the workbouse, or on the streets of public roads, etc., "at the rate of $1.50 per day.”
4. But by Sec. 455, it is provided that whenever it shall be made to appear satisfactorily to the court, after all legal means have been exhausted, that any person who is confined in jail for any fine or costs of prosecution, for any criminal offence, has no estate wherewith to pay such fine and costs or costs only, it shall be the duty of the court to discharge him from further imprisonment for such fine and costs, which discharge shall operate as a complete release of such fine and costs, etc.
No such conflicting provisions ought to exist; and it ought to be clearly declared that no person who has been convicted of any misdemeanor or criminal offense and fined, shall be allowed to be discharged under Sec. 455, but shall work out the same at $1.50 a day.
Another thing. In counties where there is a city work
house or city bridewell where work is performed, and the counties, as in Cook County, make arrangements by which persons found guilty of petty larceny and all sorts of misdemeanors are sent there to be kept at so much per capita, can a court order a persou who has been fined, to be sent to the bridewell or workhouse or to the county jail? It will require judicial construction to solve the doubt.
These statutes ought to be made perfectly clear, so that there could be no room for doubt. There are several other matters which require attention, but we will refer to only a few.
1. Length of time in which a person charged with crime should be kept in jail before trial.
2. No law against forging decree of divorce.
4. Amend the law as to the proof of former conviction of a person charged with a second offense.
5. Evidence of de facto corporation in certain cases.
1. It is provided by Sec. 438 of the criminal code, Cothran's edition, that “Any person committed for a criminal or supposed criminal matter, and not admitted to bail, and not tried at or before the second term of the court having jurisdiction of the offense, shall be set at liberty by the court unless the delay shall happen on the application of the prisoner. If such court at the second term, shall be satisfied that due exertions have been made to procure the evidence for and on behalf of the people, and there are reasonable grounds to believe that such evidence may be procured at the third term, it shall have power to continue such case till the third term.” Vow take the case of counties where there is a term of court every month, as in Cook County, and an indictment is found, say, at the November term, during the last week, and the December term commences in a week after the indictment found, and expires without the possibility of its being reached for trial, owing to the immense business on hand. By the strict letter of the statute, there being no exception in it, a defendant can come into court and demand his discharge.
The State may have all its witnesses there, but be unable to