Page:The Green Bag (1889–1914), Volume 21.pdf/608

 A Letter on the Improvement of Procedure on bringing up the entire record, so that even to the present time it has been practically im possible to complete the bill of exceptions. Other cases illustrate this difficulty in a more marked manner. I found one indict ment on which the trial commenced on Sep tember 23, and ended on October 3, 1902. The entire record came up, and the stenogra pher's notes were so voluminous that, principally on account of the delay in taking them off, the bill of exceptions was not filed until October 17, 1903. I found another indictment where the trial occupied about two months, ending March 19, 1903. A motion for a new trial intervened; but the record was so voluminous that, largely, if not principally for the same reason, the bill of exceptions was delayed until August 10, 1906. The stenographer's notes covered practically four thousand pages of typewritten matter. Each was in a court which moved ordinarily with promptness, and yet each was a case of "getting behind." On the other hand, by the provisions of the Criminal Appeals Act in England, these cases would probably have gone up on the judge's notes, and would have been brief affairs compared with such sten ographers' notes as I have referred to, and such as may be found in many cases. Con sider what would be the progress of appeals if the propositions to revise the entire record and reach a general conclusion thereon, to which we have referred, were adopted, so that the trial courts were always, or generally, required to await voluminous stenographers' notes before certifying up the case! While this class of legislation may be practical and welcome in England for the reasons we have shown, the advantage of its adoption here would be very doubtful. It would substitute for trial according to law, to which our people are accustomed, a quasi discretion of the judges. In addition are the differences in certain methods of practice which the people of the United States have never adopted, and apparently never will adopt. In England the trial commences with a brief to the barrister, which cuts a channel through which the case is to flow, and which renders it improbable that it will overrun the banks; and while, also, in England the close of the litigation would still be confined within the compara tively narrow limits of the judge's notes, the end here would be in a flood of an indefinite extent. The compact opinion of Master of the Rolls jessel, in Earl De La Warr v. Miles, 19 Ch. D.

575

80, illustrates pretty thoroughly the practice in the English courts with reference to the short notes of the trial judge, and the strong inclination there not to make use of the notes of the shorthand reporter. It also illustrates very effectually one leading reason why, in England, the simplicity both of procedure and of the issues on appeal contrasts so strongly with analogous matters with us. Nevertheless, it would be impossible to induce courts and counsel in the United States to turn back to a practice which involved so much labor on the part of both, and also so much opportunity for claims of incompleteness in the record, as did the methods in vogue before the modern stenographer was known. It seems, therefore, inevitable that there is necessity in our procedure that methods should be found by which in stances of sending up of cases on the full records should be diminished rather than increased. In a trial before me at the Circuit at Boston in May, 1907, in which one of the United States marines was arraigned for murder at Guantanamo, the procedure was quite as expe ditious as that described in your September number with reference to the trial of Dhinagri, the East Indian student charged with murder ing Sir W. Curzon Wyllie. In the trial in the Circuit Court, there were serious dangers of technical difficulties arising from the locality of the offense. There were also circumstances which indicated the necessity of examining into the condition of the accused with refer ence to his mental responsibility from the point of the criminal law. There were also circumstances which led the jury to reduce the penalty to imprisonment for life, which reduc tion received the approval of the court. The trial involved a plea of not guilty, a complete development of proofs as to every fact necessary to sustain the charge, and a consideration by the jury of something more than an hour; and yet the whole was concluded within five hours, and in such a manner that everybody was satisfied, not only that the law was fully regarded, but that justice was done. All the punctilios and niceties required in federal procedure with reference to capital offenses were observed; and yet it was plain that the system was not at fault, because the whole was completed in so brief a time. It will be asked, how was this brought about? It was accomplished simply because the court had the assistance on each side of competent