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MR. Moses: I move as a substitute that the matter be left in the hands of the Executive Committee for action.

PRESIDENT Wood: It is moved as a substitute that the matter of incorporation be left with the Executive Committee. As many as are in favor will say aye; the ayes have it, and the substitute is adopted.

PRESIDENT Wood: Is there further miscellaneous busi. ness? The Chair then will return to the program and the next is the consideration and discussion by the Association of the report of Judge Gross. That is the last on the program as fixed by the Executive Committee.

MR. DAVID: Mr. President and Gentlemen: I have one or two suggestions to make as to this report, as to what it contains as well as to what it does not contain. I will devote but a few minutes to what I have to say and that is with reference to changes in the criminal code. My attention has been called to that portion which refers to appeals from the Appellate Court to the Supreme Court, giving the Appellate Court, as the law now is, the right to determine whether or not a case should go to the Supreme Court by a certificate of im. portance in a case where its jurisdiction is final. Now I think we ought to have a statute such as is the federal statute governing the Circuit Court of Appeals, in a case where the jurisdiction of the Appellate Court is final the Appellate Court ought not to have the sole right to determine whether that question should go to the Supreme Court, but the Supreme Court should entertain a petition to remove that case from the Appellate to the Supreme Court if it thinks that it is of sufficient importance to have it go there. That is practically the statute governing the federal Circuit Court of Appeals and the United States Supreme Court. There is at least one case where the United States Circuit Court of Appeals has refused a certificate of importance in a case on the question of their jurisdiction, and the Supreme Court of the United States received it by writ of certiorari.


I want to go back to the criminal statute, the part of the report in reference to changes in the criminal code. I notice that all these changes suggested are for the benefit of the State, not having heard one suggested for the benefit of the unfortunate person charged with crime, and I want to say that it is a shame and a disgrace that in the State of Illinois today a man can be executed, the extreme penalty of the law inflicted, without the right of an appeal, whereas, if he is convicted for an assault and battery and fined one dollar, he can take his case to the Appellate Court and to the Supreme Court and have it heard as a matter of right; whereas, if the death penalty is inflicted he must apply for a supersedeas, and the court some times considers that case within half or threequarters of an hour, or a day, and denies the supersedeas and the man is hung, so that in this State today a man can be executed without having his case heard in the Supreme Court. And I do not know that there is another state in the Union that has such a statute. And furthermore, although the constitution supposes that every man shall have the full remedy of the law, you can hang a man in the State of Illinois today without giving him an opportunity to present his case to the court of review if he has no money. In the State of New York where the death penalty is to be inflicted, if the man is too poor to pay for the record the county pays for the record, or the State pays for the record, not only that, but gives him counsel to argue his case in the court of appeals and pays for it. Now, I do not say that should be done in every case, but at least in the State of Illinois, where the death penalty is to be inflicted by the trial court, a man ought to have a right to have his case considered in the highest court in the State, and not only that, but the county, where the court below is satisfied he has no means, ought to pay for it. I know in this State, in this county, within the last year, a man was executed, sentenced to death for murder and did not have money enough to get the record even for a supersedeas, and I will stake my


reputation, and I think I know a little about criminal law, that I saw an instruction given by the court below in that case which would have reversed the case in the Supreme Court, the Supreme Court having, not less than six months before, reversed a case upon a similar instruction and for no other reason.

I have no clients that have been hung and I hope I will not have any, but I want to direct attention specifically to the peculiar statute that we have here as to the death penalty, that a man has not the right to have his case heard upon the merits, but must apply for a supersedeas before he can file his writ of error and it seems that the higher the penalty or punishment, the less chance he has, the less right a man has to have his case heard, and in the case of the death penalty he ought always to have his case heard.

I also think the Appellate Court ought to have no longer jurisdiction in criminal cases, in misdemeanors; it is absurd to say that they should have it; as the statute is it gives them jurisdiction in some misdemeanors, such as conspiracy which is punishable by imprisonment. What is the use of burdening the Appellate Court with those cases,-absolutely no use at all. If the case is reversed by the Appellate Court, you do not know whether you are right or wrong. As the best illustration of that, with due deference to the Appellate Court of this District, very recently a case was decided by, as I regard it, the ablest Appellate Court we have had in this District, Windes, Adams and Sears, they reversed a case in the Criminal Court of Cook County-one of the grounds, and one of the main grounds, being that the indeterminate sentence law did not apply to misdemeanors. Somebody else in another case a few weeks after sued out a writ of habeas corpus in the Supreme Court upon the same proposition and the Supreme Court held the indeterminate sentence law did apply. You will pardon me if I say I agree with the Appellate Court of this District, but, however that may be, there was the situa


tion. There is no reason why criminal cases should go to the Appellate Court at all.

There is another suggestion and I am through. The Practice Commission reports that the jurisdiction of the trial court in criminal cases ought to be final when the fine is not more than $20 and imprisonment is not more than three months. Why, that is an absurdity. Are you going to gauge the question as to the importance of the case by the amount of the penalty? Why, it even forecloses the right to take a case up where a constitutional question is involved; there is nothing said in that report at all about taking a case up where there is a constitutional question involved, so if you are going to allow appeals at all in criminal cases, you ought to allow them in all, and the penalty should have nothing to do with it.

There is another suggestion, there ought not to be such a thing as a writ of error in criminal cases, there is no reason why the cases should not go up on appeal. Today you have a person convicted of a misdemeanor and he wants to take an appeal and the court denies an appeal, the punishment may be only $100 fine and the court can order that man to jail until he can sue out a supersedeas in the Appellate Court. Why should 'not the man give a bond to pay that fine and take his case up? There is no reason why appeals should not be heard from conviction of misdemeanors and the trial ourt in all cases ought to have the right to suspend judgment pending an application for a writ of error such as is done in a civil


MR. MECARTNEY: Nearly all the speeches I have ever made have been on the subject of practice at the bar. I feel the burden of what I think is a faulty system, and therefore I am willing to speak today. I might say, though, that the younger members of the profession appreciate the abuses almost as much as the older ones, and that is also an additional excuse why I should probably be willing to precede some of


our gray-haired brethren of ripe experience. Of course I don't mean that I am technically a spring chicken, but I feel still young

I read over the suggestions tentatively adopted by this Commission as shown in one of the advance sheets a day or two ago and I was much struck with the decision made, as I thought, in the fifty embodied in the last list, there were only three or four that are objectionable and very few that should be modified. The provision for a five dollar tax against an unsuccessful party in a dilatory motion, or demurrer, while it is not a big penalty yet will go a great way towards getting rid of a good deal of trivial practice and that will help out Cook County, especially.

The provision that one shall be allowed to plead over after pleas in abatement have been found against him I think needs to be modified. There is some wisdom in the common law ruling that pleas in abatement are usually dilatory and there should be some penalty fixed to them. It is, of course, a hardship sometimes to have them overruled, and to be forced to risk your case upon the plea in abatement, but the fact is that they are usually dilatory, they are interposed without merit, and I think that recommendation should be regarded carefully.

One thing I think objectionable is that the interest on the judgment should be reduced. If anything, I think it should be increased; it is hard enough to collect your judgment and you can not sell it as you can ordinary paper and you are entitled to it the moment it is rendered, and I think, therefore, one per cent or two per cent, I am not sure but three per cent, especially in a judgment that has become final, added to the ordinary interest would be a more healthful rate, so to speak. I do not think it should be reduced.

Another suggestion-I am not clear whether there is in the report or not, anything in regard to the homestead law in cities. In the country the homestead law is of considerable

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