IN SENATE.
MONDAY, January 20, 1863.The Senate met at 2 o'clock p. m.
Mr. MARCH presented a memorial from a stockholder of the Branch of the Bank of the State at Lawrenceburg, complaining of mismanagement of the business thereof on the part of E. G. Burkham, President, to the injury of the community and stockholders, and in violation of the provisions of the charter, and asking the appointment of an agent to investigate the facts-- the Board of Directors of the State Bank refusing to interfere.
Mr. BROWNE, of Randolph, offered a concurrent resolution ordering the appointment of a joint committee to investigate the matters complained of by the memoralist.
On motion by Mr. CLAYPOOL it was amended so as to refer the memorial to the Committee on Banks.
REPORTS FROM COMMITTEES.
Were severally concurred in, to-wit:
Recommending that the bill [S. 11] to enable holders of notes to bring suit without requiring the payee on the note to be made a party, be laid on the table.
Messrs. CLAYPOOL, CORBIN, RAY and MARCH spoke in favor of sustaining the report and against the bill, and Mr. BROWNE of Randolph, on the opposite side of the question.
Recommending that Senate bills numbered 2, 5, and 8 (see pages 36, 37 and 44 of these Reports) be laid on the table.
COURTS IN THE TWENTIETH CIRCUIT.
Mr. BROWN, of Wells, introduced a bill [47] changing the time of holding Common Pleas Courts in the 20th Judicial Circuit district, which was under a suspension of the rules, read the third time and passed--yeas 28, nays 0.
CRIMINAL PRACTICE.
Mr. BROWNE, of Randolph, reported from the Judiciary Committee his bill [3] repealing that part of the criminal code giving to the defendant the right to close the argument before a jury.
Mr. RAY moved to indefinitely postpone the bill. He thought the practice as now existing in this State, allowing the council for the defendant to close the argument, was more in consonance with humanity and the enlightened spirit of the age than the old practice which the bill sought to restore. The time was, in the dark ages, when the criminal was not supposed to open his mouth himself, or by attorney,-- From this cruel stage we have progressed, and on this subject we should not recede.
Mr. BROWNE, of Randolph, reported from the Judiciary Committee his bill [3] repealing that part of the criminal code giving to the defendant the right to close the argument before a jury advantages under which prosecuting attorneys now labor, and urged the return to the old practice, giving the prosecution the opening and the closing arguments.-- Under the practice now, a criminal must not only be guilty, but must be desperately guilty, to be convicted. The law should not be made specialty for criminals, but to establish justice.
Mr. CORBIN did not think that the criminal had so many advantages as the Senator from Randolph had depicted. He was first indicted by a secret tribunal (the Grand Jury,) and the State had ample time to arrange and mature its case. The provision of the law as it now exist was a merciful one, and should not be repealed.
Mr. DOWNEY thought that the prosecutor should open and close the argument and he did not see that it should not prevail in criminal as In civil cases. The Christianity of the provision had beer quoted to maintain the present practice but gentlemen should remember that the great public were to be protected by the law as well as those whom the law seized as offenders. The presumption was always in favor of the criminal, and he thought that sufficient without giving him so much, and such undue advantage in the argument. He would favor the change.
Mr. RAY. Questions proposing to change a rule of law should not be passed upon hastily. The change of laws, the constant and frequent change,was a source of universal complaint. At home gentlemen might. hear it from all classes of their constituents. The Judge on the bench, the farmer, the mechanic, the merchant, the editor, all protested against the fluctuations in the laws. It was an evil and a very grave one. We are advancing in civilization, even over our ancestors on this Continent. We have passed the period when witches were tried by the ordeal of fire or water. We do not take an unfortunate woman, accused of witchcraft, and throw her into a horse-pond, as they did in pious New England, and if she swam, declare her guilty, and if she perished, pronounce her innocent. We had got beyond that point in our criminal practice, and he did not desire to go back to pious New England, or to Old England either, to mould our statutes. He spoke at length and with great force in favor of the law as it now stands.
Mr. CLAYPOOL thought that the people of Indiana were as jealous of their rights as any other people, and under the law and practice as it now stands crimi- page: 087[View Page 087] nals had a poor chance of escape. Our prison records show this. The presumption in the public mind is always against the person charged with crime, and the protecting shield of the law was often required to shield innocent parties unjustly accused of crime. His experience was that the guilty, seldom escape. Let the accused have the benefit of doubts and let them have the closing argument, and you would have convictions enough. The clemency of the law seldom relieves criminals in a virtuous community. Justice, although lame, will overtake the criminal. Temper justice with mercy. It is the theory of our Government and of our system, and it is the correct theory.
Mr. McCLURG was usually opposed to change, particularly radical changes. But this was not a radical change. It was simply a change of practice or forms of trial, and was not obnoxious to the objections urged by gentlemen on that score.-- He favored the change proposed by the bill, as it gave a greater certainty to the penal code.
Mr. MARCH, The question has been so ably argued that he did not think it necessary to do more than give the reason of his vote. He was opposed to the change. The law as it now stands, as had been well said by the gentleman from Shelby, (Mr. Ray) and the Senator from Marshall, (Mr. Corbin) was in accordance with the humanity and the Christianity of the age. The experience of jurists and of philanthropists, and of all who had directed attention to criminal jurisprudence, was, that barbarity of the law was no check to crime. Do not take a step back in civilization and in jurisprudence. This law has done credit to the State, and he saw no reason to change it.
The motion to indefinitely postpone was agreed to by yeas 22, nays 15.
