Page:The Green Bag (1889–1914), Volume 22.pdf/726

 692

The Green Bag

of the prosecuting attorney attempting to prove, or being required to prove, that the pistol with which the homicidal act was committed, was discharged and that the bullet left said pistol by reason of the force of the gunpowder aforesaid, nor that the ball struck against the body of the deceased, and, by reason of the force of the gunpowder, and

"Fourth. Another serious defect in our criminal code is the abuse of the law on the subject of continuanoes, and on the subject of change of venue. It often;happens, indeed in some counties it is the practice, for the

defendant in a criminal case, who is out on bail and who is interested in dodging a. trial,

by reason of it being shot out of the pistol aforesaid, penetrated the body of the deceased. Neither is any prosecuting attorney ever required to! prove that the grand jurors that returned the indictment were duly im

to procure as many oontinuances from the regular judge as possible, and when his last application for a continuance is overruled, to ask for a change of venue on account of the prejudice of the judge, and thereby secure another delay. After the new judge is called

paneled, charged and sworn, although the

in, another delay is asked for on the ground

indictment must contain that allegation in two places; nor is he required to prove that the man whose name is attached to the in dictment, as prosecuting attorney, was in truth and in fact the duly qualiﬁed prosecut ing attorney, nor that the man who signs as foreman was in truth the foreman of said grand jury. . ..

that the defendant has just then discovered that the inhabitants of the county are so prejudiced against him that he cannot have a fair and impartial trial. . . . "Fifth. Every defendant is entitled to lcnow what is the charge pending against him. But it has been held by our courts of last resort that the record of the circuit court must show that the defendant has been arraigned, or must show that he has waived formal arraignment, and that the failure of the record to so show is error, and may be taken advantage for the ﬁrst time in the higher court, (State v. Sanders, 53 M0.

"Second. In the case of State v. M'iller (162 M0. 253) our Supreme Court held that the

wife of David Miller was improperly convicted of conveying weapons to her husband, who was a prisoner in jail. . . . The wife was indicted, tried and convicted,. . . but her

case was reversed by the Supreme Court on the ground that she being the wife of David Miller was under his inﬂuence, and acted under compulsion of her husband, and was therefore

not responsible for any crime that she was thereby compelled to commit. . . . In this day and age, when women have more rights than men, when a woman can contract and

be contracted with, can sue and be sued, and when the woman is so many times the head of the household, it is difficult for lawyers, as well as laymen, to understand how a Woman

could act under compulsion of her husband, when he was in as helpless a condition as he could well be, and she was living in a house

some three-fourths of a mile away from the jail. . . . “Third. Our law is too strict in requiring petit jurors to return the verdict in legal form. Where there are several degrees of the offense, I admit that the jury should state the degree of which they intend to convict the defendant. But where there is only one degree, only one count in the indictment, and the jury are not concerned with any other case against the defendant, it does seem to me that our

law is too strict in the matter of requiring the verdict to be so technical. . ..

234.) . ..

“Sixth. Our statutory requirement for the qualiﬁcations of jurors is unreasonable and is in conﬂict with the original theory upon which jurors are selected. Law writers tell us that originally twelve men of the county were selected to try a defendant because of their acquaintance with the defendant and all of the circumstances con nected with his case. Now, jurors must know nothing about the case, and our law is fast going in the direction of requiring jurors never to have read or heard of the case before. . . . "As stated, the law on the subject of con

tinuances has been abused more than any statute, perhaps, on our statute books. A defendant should not be allowed to use that law as a trial dodger, as too often occurs. If the state is required to give the defendant a speedy trial, the defendant should be re quired to submit to a speedy trial. No good can result from long delays, that is, no good to the state, but the defendant hopes, by reason of said delays, to receive beneﬁt, and

always does receive beneﬁt thereby. A military gentleman once said to me: ‘I believe that there is more substantial justice