Page images


Now, in regard to appeals in criminal cases, I think these provisions are all right in view of the fact that the laws here could provide, as in Missouri, that there is no appeal allowed upon questions of fact, but appeals are allowed from questions of law. Now, it is said that it would be dangerous to allow that,-it does not seem so to me, but it is simply, criminals are turned loose by mistakes made of the trial Judge and it is to correct those mistakes and not turn the criminal loose and let him prey upon society again that the appeal should be allowed to the State. I think it is a good provision and ought to be adopted; it is the law of Missouri and as the Judge says, it is the law of Indiana and of several other States.

JUDGE SCHAEFER: The Commission met in our county and we had the pleasure of meeting with them and making some suggestions, but since their meeting at Belvidere some matters have occurred to me that I would like to suggest before this meeting. In the main, I concur with the recommendations of the Commission, and I would like to say a few words in regard to this question of appeal in criminal cases in behalf of the people. I know that it is necessary in some instances to have this right of appeal to obtain a construction of the statute by the Supreme Court or to get the construction of the Supreme Court concerning a principle of law. Unless this right of appeal is given to the people there is no way of having certain questions reviewed. I speak from experience of eight years as State's Attorney of our county. We had a Circuit Judge who was the soul of honor, who would not knowingly commit an error, yet he maintained the idea that under the constitution a person charged with crime had a right to meet his witnesses face to face. It would occur that the defendant would make a motion for a continuance and the State's Attorney would come forward and say, I will admit the truth of the affidavit, or I will admit that the wit. nesses would swear to what is contained in the affidavit, or I


will admit the absolute truth of the affidavit, yet this Judge would grant the continuance upon the constitutional provision, as he claimed, that the defendant had a right to meet his witnesses face to face, and the State had no right and we had no way to have this matter declared upon by the Supreme Court.

For another instance, a Circuit Judge takes the position that a certain criminal act is unconstitutional, the indictment is quashed, there is no way of having it reviewed. And even though there may be some inconvenience to the Supreme Court or the reviewing court by not having the matter presented by the other side, still I think the good that will arise from having the appeal on behalf of the people will more than compensate for it.

There is another matter I want to bring before this meeting that is not mentioned in this report and that is the cumbersome proceeding in ejectment. Under the present system each side has the right of a new trial under the statute. I happened to be interested in a case in which all the new trials that could be obtained were taken, and the case pended in court for ten years, and even after the Supreme Court had decided the case the other side applied for a new trial, obtained it and went up to the Supreme Court the second time. It seems to me that this procedure could be benefited by simply requiring the plaintiff to file a declaration and with that declaration to derain his title and then require the defendant to put in his defense and derain his title, so they will have full knowledge on both sides of what they claim and cut off the new trial under the statute.

There is another matter, I do not know whether it has come up in the experience of any of you gentlemen, but we have come across it in our county, under the statute of 1893 the legislature gave to every person that is tried for a misdemeanor under the criminal code or under a charge for the violation of a municipal ordinance, the right of a trial by


jury unless waived by him in writing, and there is no provision for the payment of that jury. In other cases before a Justice of the Peace the party demanding the jury pays the fees of the jury. Now here the defendant is either compelled to advance the jury fee or the jurors in case they decide in favor of the defendant are bound to do without their compen. sation, and it seems to me this act is not complete unless there is a further provision that in criminal cases for misdemeanor the Justice of the Peace should have the right to issue a warrant for the jury fees payable from the County Treasury and for the violation of ordinances that he issue warrants for the payment of the jury fees upon the City Treasury. We had a jury down there that refused to return a verdict, and they have established that precedent now, either the defendant is bound to furnish the jury fee, or the jury sit there and will not return their verdict, and it becomes a farce, a travesty upon justice, and it seems to me there ought to be an amendment in the legislature to that effect.

Mr. Moses: Do you not think it best to repeal the act entirely?

MR. KREMER: I want to commend the Commission for the work it has done. I do not quite like the aversion the speaker manifested to a code, and I do not quite like the way he emphasized the matters which were thrown out because they resembled the code or were taken from the code, because I am one of the few perhaps very young men who believe that the changes and the progress that have been made along the lines of pleading and practice have been toward a code and not toward the more antiquated system which has many many years ago been abolished where it originated. Of course our practice, the poor, old,, wretched, crippled thing, patched up by legislatures and commissions, is a thing that we can work by and if it is not it is a curiosity and we ought to keep it as an antiquity and a curiosity. It has been im proved, patched, fixed and repaired so that it will answer al


most any purpose that a live and more lively animal would. Just think of such a thing as abolishing the general issue; of actually letting the plaintiff know what your defense is; such a sin! such a crime! such an opening up of the sleeve and letting go of the many things that you may have up there under the general issue. Conceive of the temerity of a being that would do that, he must have been nursed upon a cold bottle rather than have been taken his nourishment from the mother's milk of the common law. I some time ago made a covert assault upon this Commission by suggesting a radical change in our pleadings and practice, but I was met with the remark that we are not making very many radical changes. And I see that none have been made. A few patches have been put on, but it reminds me of a story which I will tell you, and that is all I will have to say. The Commission is very much in the condition of the Irishman who was seen with a gun; that is a rare combination, an Irishman and a gun, but this was such a combination. A man walked up to him and the following colloquy took place:

"What are you doing with that thing?"
"I am out hunting.”
"Is it loaded ?"
“Yes, it's loaded."
"What are you trying to shoot with it?"
"Birds, of course."
“Why don't you shoot them then?"
“There ain't any."
"Yes; there's one on that fence."
"Well, it's too far away."
"O blaze away any how."
“What! and strain the gun?" (Laughter).

JUDGE BRADWELL: I tell you what it is, the world mores. It was but a few days ago when Judge Gross, you know, got up with all the fury in the world and waged war terrifically upon the code; and now what do they do, they come in here and recommend to this Association that they shall recommend


that the summons shall not be returned at the return day of the term, but shall be returned in so many days; the defendant shall answer within so many days after service, not at a particular term. Why, I remember in 1874, when this same proposition was introduced in the Legislature of this State, I was for it first, last and always, and being a reformer, I ain for it now, and I am so glad to see that my friend Judge Gross is converted. And I tell you that I believe if we can adopt

I this and have it so that a summons may be returnable in say ten days after it is issued and served, and that he shall answer it within so many days after he gets service and then the thing shall go right along without regard to term, a great reform will be accomplished and that business can be disposed of much quicker than it is otherwise. And first, last and always I have so struggled with Judge Gross that I do not know what

to say.

JUDGE Gross: Judge, on that proposition, I am with you all over.

JUDGE BRADWELL: I more that we adjourn.

JUDGE GROSS: Before that motion is put I want to say that I am pleased, I have accomplished at least a part of what I had in mind; this report has called out discussion, I am delighted to hear it. Some suggestions have been made here this afternoon for which I am grateful to the members of the bar. Gentlemen, this discussion that has been had this afternoon, while very much shorter than I would have been glad to have seen, will not be without fruit, and I want to say for myself, and I have no doubt my associates will agree with me, that we owe you our acknowledgment for the expression of your views this afternoon.

Mr. Riggs: I want to move the adoption of this resolution: "Resolved, that this Association hereby tenders its thanks to the retiring President for his faithful services and for the able annual address delivered by him at the present meeting.”

« PreviousContinue »