Page:Address of Frederick V. Holman at Oregon Bar Association annual meeting.djvu/49

 case to the Supreme Court," but the limitation is "Provided, that nothing in this section shall be construed to authorize the Supreme Court to find the defendant in a criminal case guilty of an offense for which a greater penalty is provided than that of which the accused was convicted in the lower Court."

Mark the words, the offense "of which the accused was convicted in the lower Court," not the offense nor crime for which he was indicted nor for which he was tried! If the accused, in a lower Court, is convicted of a crime for which he was not indicted nor tried, of course an appeal will lie. But the Supreme Court may find him guilty of an offense, without indictment, the only limitation being that the Supreme Court cannot "find the defendant * * * guilty of an offense for which a greater penalty is provided than that of which the accused was convicted in the lower Court." This is made plainer, and is accentuated, by the following provision of Section 5 of said amendment, viz: "No person shall be charged in any Circuit Court with the commission of any crime or misdemeanor defined or made punishable by any of the laws of this State, except upon indictment found by a grand jury." By a necessary implication, this provision does not apply to the Supreme Court, which on appeal may find the accused guilty of another crime or offense, but not one "for which a greater penalty is provided than that of which the accused was convicted in the lower Court." The accused may be indicted in a Circuit Court for murder, and convicted of rape or arson by the Supreme Court; indicted for burglary, and convicted on appeal of mayhem; indicted for forgery, and found guilty of obtaining money on false pretenses! And may thus be convicted of a crime for which he was not given a right to make a defense. If Circuit Courts are abolished by law, can persons be tried for criminal offenses without indictments? Indictments are only necessary in Circuit Courts.

Certainly the proposers of this amendment knew little of, or cared nothing for the history of the English people. They ignored the examples of history. Of how, for centuries, the English people struggled against oppression and tyranny, and for the right of a fair and legal trial by a trial jury in civil and criminal cases, and in all felonies upon an indictment found by a grand jury; of how they were triumphant in