Page:The Green Bag (1889–1914), Volume 25.pdf/279

 260

The Green Bag

dispatch convey the idea of efficiency at each stage of the proceedings. Indeed as you examine the pages of the seven volumes of reports which record the decisions of the five years of the Court of Criminal Appeal you cannot help being impressed by the contrast with our criminal appeals. There is an entire absence of points of the nice techni calities of criminal pleadings and procedure. The argument of counsel in the reports discloses a refreshing frankness and directness in dealing with the merits of the case at issue. The judges freely express opinions and make comments and suggestions as the argument of counsel proceeds. In its running argument and questioning the court shows a fam iliarity with the record and a desire to cover all points presented. The issue on appeal is not narrowly whether the trial judge made any error, but whether any error in the proceedings had so far prejudiced the defendant that he should not have been convicted. The aim is to do justice to the particular defendant. The statute gives the appellate court the widest power to deal with a case, expressly providing that notwithstand ing that the point raised on appeal might be decided in favor of the appellant the appeal may be dismissed if the court consider that no substantial miscarriage of justice has actually occurred.10 While there is a due regard for past precedents and a realization that each decision is to some extent a precedent for the future, there is an entire absence of the spirit that makes of precedents a fetish. You get the impression of elasticity in the proceedings. The judgments of the court are generally given orally at the close of the argument by one of the three judges who sit; there is seldom any December 18 and 19 and a final decision rendered in the House of Lords February 26, 1912. 10 Section 4.

elaborate discussion of general prin ciples, and few authorities are cited. The opinions read as if they presupposed an entire familiarity with the criminal law, and as if the court was a sort of executive department of government exercising its discretion to approve or disapprove of the work of subordinates in accordance with elastic and practical department precedents. The Court of Criminal Appeal has the right to call for and hear additional or new evidence. They may not only affirm, reverse, or quash the order of the trial court, but they may modify the sentence. It is not uncommon to read such a judgment as "The Court reduced the sentence to four years' penal servitude with the remark that appellant must not expect much leniency if he got into trouble again." 11 With us, the realization of our am bition to create the most humane crim inal law of the world has resulted in a system of criminal jurisprudence that has overprotected the individual against the state. As a leading jurist has said, our problem is no longer the protection of the innocent man against wrongful conviction, but how to bring about the punishment of the guilty. Many of our appellate courts, in dealing with criminal appeal, lose sight that the main public concern in a criminal trial is whether the defendant is guilty or innocent. "The sole consideration of this court necessarily has been to determine whether the defendant was convicted in compliance with the laws of the state. The crime charged is one of the most heinous known to our crim inal jurisprudence. If guilty the defen dant should be punished, but it is the high and solemn duty of this Court, from which it shall not shrink, to require 11 Hudson, 5 Cr. App. R. 27S.