Page:Address of Frederick V. Holman at Oregon Bar Association annual meeting.djvu/47

 guilty of an offense for which a greater penalty is provided than that of which the accused was convicted in the lower Court.

The appeal provided for in Section 3 applies to both civil and criminal cases. The words are: "Upon appeal of any case to the Supreme Court" the provisions apply. And what are the provisions upon an appeal? Either the appellant or the respondent may (and certainly the appellant always will) "have attached to the bill of exceptions the whole testimony, the instructions of the Court to- the jury, and any other matter material to the decision of the appeal." Does this include the verdict? It is immaterial. The verdict of the jury, in the Court below, is not necessarily even a guide to the Supreme Court. It must be guided by "the whole testimony, the instructions of the Court to the jury," and also "any other matter" that either the appellant or respondent may deem "material to the decision of the appeal." It may enter a judgment "after a consideration of all the matters thus submitted." If the Supreme Court decides for the respondent, it may do so, "notwithstanding any error committed during the trial" by the Court below or by the jury. It must consider whether the judgment "was such as should have been rendered in the Court below," after a review of the whole testimony, and also after considering "other matters" in the record. There may be similar action by the Supreme Court, in favor of the appellant, if "it shall be of the opinion that it can determine what judgment should have been entered in the Court below." What, then, is the value of the verdict? By this method of appeal is not trial by jury practically abolished in Oregon? And yet trial by jury has been in existence in English-speaking countries from the time of the Anglo-Saxon rule in England until the present day!

No provision is made in this amendment for sending the case back to the lower Court for re-trial. Its apparent object is to authorize the Supreme Court to make a final determination in every law case appealed, and also in criminal cases, and to direct what judgment shall be entered in the Court below. But how can the Supreme Court make such a determination when the Court below has excluded testimony which should have been admitted? Or made other rulings materially prejudicial to the rights of one of the litigants? To appeal a civil