THE
BREVIER LEGISLATIVE REPORTS.
THIRTEENTH VOLUME.
INDIANA LEGISLATURE.
HOUSE OF REPRESENTATIVES.
TUESDAY, December 3, 1872.The House met at nine o'clock a. m.
Prayers by the Rev. Chas. H. Raymond.
Mr. SATTERWHITE moved to dispense with reading the journal of yesterday, but, Mr. BUTTERWORTH objecting, it was read and approved.
MEMORY OF MR. GREELEY.
Mr. HARDESTY. Mr. Speaker: As every member of the House has heard with regret of the death of the Honorable Horace Greeley, and as Mr. Greeley at the late Presidential election received nearly three millions of the votea of the American people, and as his name has been so honorably connected with the history of the country, I ask leave to offer the following:
WHEREAS, It is with deep regret that the House of Representatives of the General Assembly of the State of Indiana has heard of the death of Horace Greeley, the journalist, philosopher, and philanthropist; therefore,
RESOLVED, That in his death the nation has lost one of its foremostmen, journalism its chieftain, philanthropy a devotee, science a practical worker, and the millions of toiling people of America a fast friend.
RESOLVED, That as a mark of appreciation of the genius of the man when living, and respect to his memory now that he has gone to his rest, this preamble and resolutions be spread upon the journals of the House.
On motion of Mr. RUMSEY, the matter was referred to a special committee, viz.: Messrs. Rumsey, Hardesty, Cauthorn, Buskirk, and Richardson.
A message from the Governor by the hand of John M. Commons, his Private Secretary, was now received, transmitting the annual report of the Trustees and Superintendent of the Institution for the Education of the Deaf and Dumb.
THE CANAL BOND QUESTION.
Also, a message from the Governor in relation to the unsurrendered Internal Improvement Bonds. It is as follows: [See Appendix, p. 21.]
REPORTS FROM COMMITTEES--DRAINAGE.
Mr. BUTTERWORTH, from theCornmittee on Swamp Lands, returned Mr. Martin's bill [H. R. 76] to amend the act of March 11, 1867, to enable the owners of wet lands to drain and reclaim them where the same can be done without affecting the rights of others, with amendments. In section 6 for "Common Pleas" insert "Circuit or Common Pleas Court." Add the following: "Sec. 8. When the assessors have presented the benefits or damages to any tract of land and have made an error therein, such error may be amended on trial in court, the said error being alleged in the complaint and proved on the trial;" and so amended the committee recommend the passage of the bill.
The amendments were adopted.
Mr. BUTTERWORTH. This bill was most heartily endorsed by every member of the Swamp Lands Committee. It is an amendment to the act of 1867--not the Kankakee swindle. It is what is called "the one man Drainage Law." The amendments are important. They were introduced by bill into the Legislature two years11 page: 162[View Page 162]ago, but failed on account of the breaking up. They afford legal facilities for improvements four or five miles long.
Mr. HELLER. It is difficult to grasp all the provisions of so long a bill, and I move that 200 copies be printed.
Mr. JOHNSON. The Committee on the Judiciary have now under consideration the bill of the gentleman from St. Joseph [Mr. Butterworth] to repeal the Kankakee Drainage Law; and as this bill will in some measure be a substitute for that law, it strikes me that it should go to the committee where the other is. The Judiciary Committee may offer amendments to it, and therefore they should have it before it is printed. The Committee would like to examine them together.
Mr. BUSKIRK opposed printing. The amendments are very brief, and the law of 1867 we can read for ourselves. Whilst it might be well enough to print the amendments, I see no necessity for printing the bill at large. I think, also, that the bill should go to the Judiciary Committee. In the statute of 1852, concerning drains, it is provided that the question of public utility in any proposed work shall be triable by jury, and I believe that this provision is not in either of the statutes of 1867 or 1869. Now I think that a provision of this kind ought to be incorporated into this act.
Mr. GREGORY. The gentlemen from Marion (Mr. Johnson) is mistaken. This bill is in no sense a substitute for the Kankakee drainage law. That provides for drainage by corporations; this does not. It is the one-man drainage law. It answers a different purpose--goes to a different object.
Mr. BUSKIRK. It proposes to take another man's land. It touches the doctrine of eminent domain, and therefore I think it ought to go to the Judiciary Committee.
The bill was laid on the table and ordered to be printed--affirmative 39, negative 30.
COAL MINES REGULATIONS.
Mr. GIFFORD, from the select committee thereon, returned his bill [H. R. 83] to provide for the health and safety of persons employed in the coal mines, with amendments, recommending passage.
The bill and amendments were referred to the Committee on the Judiciary.
Mr. WILSON, from the Committee on Insurance, returned Mr. Kimball's bill [H. R. 36] to amend the charter of the Franklin Insurance Company, with an amendment striking out the third section, changing name and increasing the capital stock.
The amendment was adopted and so the bill was ordered to be engrossed.
OLD STATE BONDS--LIABILITY.
Mr. GREGORY submitted the following:
RESOLVED, That the Attorney General be requested to submit to the House his written opinion upon the following propositions, to wit:
FIRST. What additional liability either moral, legal or equitable, if any, would the State incur as to the outstanding Internal Improvement bonds by paying the judgment of John W. Garrett, recently recovered in the Cass Circuit Court, against the Trustees of the Wabash and Erie Canal?
SECOND. In what position as to the payment of the bonds included in the Butler bills would this State be placed if she permitted the Wabash and Erie canal and other internal improvements upon the Garrett judgment as a lien to be sold to satisfy the judgment of John W. Garrett recently recovered in the Cass Circuit Court against the Trustees of the Wabash and Erie canal?
Mr. KIMBALL. It is unnecessary to call for that information, the Governor having already been called on for his opinion in the same matter by the gentleman from Knox. He made an ineffectual motion to lay the resolution on the table.
Mr. GREGORY. I understand that the resolution of the gentleman from Knox (Mr. Cauthorn) relates only to the history of legislation on this question. The information sought in this resolution, is intended to place the House in a better position to act upon the bill introduced by the gentleman from Marion county (Mr. Kimball) to pay the Garrett judgment.
Mr. WOOLLEN, for that very reason, was opposed to the resolution. The gentleman from White (Mr. Gregory) is a lawyer, and I think it unnecessary to ask the Attorney General to give his opinion in a matter that we ought to examine for ourselves--rather let gentlemen go into the facts and the law and make up their own opinion. Besides, we have already the opinion of the Governor, and of such lawyers as Hendricks, Hord and Hendricks. But let us not seek for other men's opinions and undertake to hold them responsible for our own acts; but let us act on our own intelligence.
Mr. KIMBALL saw no necessity for calling for further information in this matter from the Attorney General or anybody else. This question has been discussed for the last twenty years. On every platform in the State it has had the maturest consideration, and the House should not waste time on it. There is a bill before the House to pay that Garrett judgment, and delays are dangerous: for if the time (Dec. 27th) passes by withou paying it, then will come the process for page: 163[View Page 163]the sale of the canal property. Gentlemen should act on their own judgment in this matter. I understand Democrats and Republicans here are prepared and ready vote for this bill, and against every proposition that may be brought against it.
Mr. RICHARDSON. I am prepared for this question, though I was not when I first took my seat here. I am ready to go upon the record; and therefore opposed to the delay that this resolution contemplates.
Mr. GREGORY proposed to vote intelligenty and to be thoroughly advised in this matter. The reason I introduced this matter is, that, when I talk with the politicians about these questions, I find that they disagree, predicating their opinions on different statements of facts. I do not propose to act upon the Attorney General's opinion, but I seek for advice upon a question of much gravity and importance. As to the bill pending in the House [Mr. Kimball's] there is question as to its propriety, because there are still some of these old bonds outstanding, and their number and amount is unknown. There are loopholes in the bill--occasions for quibble.--There is yet something hidden in this matter which we have a right to know.
Mr. KIMBALL. There was no loophole in the bill wherein a quibble could come anyway. It is to provide for that portion of the 191 bonds which are a lien on the canal. It should go to the Committee on Ways and Means be returned early to the House.
Mr. SHIRLEY said the question had left the domain of politics, and was now only a legal one. He doubted if any lawyer in the House could say he saw his way clearly through it. He favored the resolution because he wanted all the information he could get.
Mr. HELLER could not understand why any gentleman should try to suppress investigation. He was not clear as to his duty in the case. If compelled to vote without further light he would feel impelled to vote against the payment of any bonds.
Mr. BUSKIRK, though a lawyer, was not prepared to vote upon the pending bill. The gentleman from Marion, as a partisan, might be prepared to do so, but he was not prepared to treat it in that way. He favored the resolution.
Mr. JOHNSON. Gentlemen have not been careful observers of events. The Governor has been at much pains in two of his messages to discuss this question in its legal aspects, and he has submitted the question to that distinguished legal firm, Hendricks, Hord & Hendricks, and they have given their opinion corroborating that of the Governor, that the State is liable for these outstanding bonds; and that unless they are paid they will become a lien upon the canal and compel its sequestration ; and thereby the State will become liable, responsible for the payment of the surrendered bonds, amounting to many millions. Referring to the Cass Circuit Court judgment for Garrett, he thought that when a court had rendered judgment upon case, the opinion of a lawyer would not be worth anything.
Mr. CAUTHORN raised the point of order that the discussion was taking a range not warranted by the resolution.
The point was sustained.
The question being upon the adoption of the resolution, the yeas and nays were ordered, resulting--yeas 47, nays 33, as follows:
YEAS--Messrs. Baker, Blocher, Branham, Buskirk, Butts, Cauthorn, Claypool, Cline, Coffman, Durham, Eaton, Edwards, of Lawrence; Ellsworth, Given, Goble, Goudie, Gregory, Hatch, Heller, Henderson, Hedrick, Hoyer, Isenhower, Jones, Martin, Miller, McConnell, Offutt, Peed, Pfrimmer, Rudder, Reno, Riggs, Satterwhite, Schmuck, Shirley, Smith, Strange, Teeter, Tulley, Walker, Willard, Wesner, Wynn and Mr. Speaker--47.
NAYS--Messrs. Auderson, Barker, Baxter, Butterworth, Broadus, Clark, Cobb, Cole, Cogwill, Crumpacker, Furnas, Gifford, Gronendyke, Hollingsworth, Johnson, Kimball, King, Kirkpatrick, Lenfesty, Mullett, North, Odle, Ogden, Reeves, Richardson, Rumsey, Scott, Spellman, Tingley, Wilson of Jay, Wolflin, Woollen, Wood and Woodard--33.
So the resolution was adopted.
The Speaker now took up the call of the House by counties and districts for--
NEW PROPOSITIONS.
Mr. WESNER, a bill [H. R. 156] to amend sections 4, 9, 10, 11, and 12 of the Liquor License Act.
It was referred to the Committee on Rights and Privileges.
Mr. RICHARDSON, a bill [H. R. 157] to authorize the refunding of taxes collected in several counties for the years 1869-70. [On account of increase of assessments.]
It was referred to the Judiciary Committee.
By Mr. OFFUTT, a bill [H. R. 158] declaring all railroad companies common carriers, regulating passenger fare and the tariff of freight, requiring them to receive and discharge freight and passengers at all their stations, and prescribing penalties.
It was referred to the Judiciary Committee.
The message of the Governor transmitting information, this morning, in answer page: 164[View Page 164]to the resolution of inquiry touching the question of the unsurrendered internal improvement bonds, was taken up, and, on motion of Mr. Branham, one thousand copies were ordered to be printed.
ORDERS OF THE DAY.
On motion of Mr. BRANHAM, the House took up the orders of the day. The Speaker laid before the House the message of the Governor transmitting the Annual Report of the Trustees and Superintendent of the Institution for the Deaf and Dumb, recommending the adoption of a concurrent resolution for printing 5,000 copies.
Mr. KING. Provision for the printing is already made by law.
The SPEAKER laid before the House a communication from the Governor transmitting the report or the Treasurer of State for the fiscal year ending October 31, 1872.
It was ordered to be printed.
The Common Pleas Court bill [S. 8] was read the first time.
On motion of Mr. MILLER, Mr. Kimball's bill [H. R. 129] to protect the Wabash and Erie Canal, and the tolls and revenues thereof, from sale or sequestration for the satisfaction of unsurrendered bonds, was taken up and referred to the Committee on Ways and Means.
HOUSE OF REFUGE.
Mr. Baxter's bill [H. R. 92] to amend the act of March 8, 1867, to establish a House of Refuge, and repealing section 11 of said act, was takau up on the final reading.
Mr. BAXTER. The principal feature of the bill is to make the age of admission 16 years instead of 18 years, and to obviate the difficulty which has invited and brought in persons 22 and 23 years of age, instead of mere youths, which is to defeat the object of the House of Refuge. Another provision is that the money shall be paid by the State Treasurer into the hands of the Treasurer of that institution, as it comes into his possession. Another feature is that parents, etc, are allowed to introduce inmates in certain cases by paying their expenses.
It was finally passed the House of Representatives--yeas, 92; nays, 3.
EXEMPTION LAWS.
Mr. Shirley's bill [H. R. 30] to so amend the 445th section of the practice act so as to reduce the restriction of the sale of property under execution to one-half the appraised value, was rejected on the third reading, by yeas, 27; nays, 57.
CITY IMPROVEMENTS.
Mr. Branham's bill [H. R. 71] to amend section 60 of the city corporation act of March 14, 1867, authorizing cities on petition to extend aid to other than railroad enterprises, was taken up on the final reading.
Mr. WALKER. This is the bill that failed the other day, for want of a few votes, to get the constitutional majority. Gentlemen who have heretofore been against it, it seems did not understand it. I therefore desire to make this statement. It introduces no new principle of law. It is an exact copy of section sixty of the act already in force, and it amends that by giving to city councils authority, on petition, to aid in the construction of public improvements, building or works of public utility of permanent value to the city, in cases where a majority of the freeholders petition for them. It neither adds to nor takes from the legal provisions for city aid to railroads and macadamized roads. It can in no way affect non residents of the cities. It can not reach to thecountry. Neither the old law nor this admit of this aid on a majority of the citizens or tax-payers, but it must be upon petition of a majority of the freeholders. In behalf of the people where I reside. I ask for this bill the cordial support of the House.
The bill finally passed the House of Representatives--yeas 69, nays 16.
Mr. Johnson's bill [H. R. 137] to amend the criminal practice act of June 17,1852, was considered, and ordered to be engrossed.
Messrs. Brett, Hedrick and Given presented claims, and Mr. Hatch presented the petition of citizens of Newton county, for the repeal of the Kankakee drainage law, which were referred, under the rule.
The House took a recess till two o'clock p. m.
AFTERNOON SESSION.
The SPEAKER resumed the chair at 2 o'clock p. m., and took up the special order of the day, viz: Mr. Wilson of Ripley's Mileage and Per Diem bill [H.R.73.]
Mr. BUTTERWORTH, on whose motion the special order had been made, in view of the sparse attendance of members, moved that the bill be referred to the Committee on Ways and Means.
It was so ordered.
The SPEAKER then returned to the call of the roll for
page: 165[View Page 165]NEW PROPOSITIONS.
Mr. WALKER introduced a bill [H. R. 159] to regulate the practice of dentistry in the State of Indiana. Dentist to hold a diploma, or a certificate of qualification from the State Dental Association. Penalty, $10 to $200.]
It was referred to the Judiciary Committee.
Mr. CAUTHORN, a bill [H. R. 61] to abolish the Court of Common Pleas in the State, and establish a Probate Court in each county; to provide for the judges thereof, their compensrtion, and the transfer of business to the Circuit and Probate Courts.
It was referred to the Committee on the Judiciary
CORRECTION ON CITY TAX LISTS.
Mr. CAUTHORN introduced a bill [H. R. 162] for an act to authorize cities to correct erroneous listings in the description or assessment of real estate liable for city taxes, and when corrected to collect all taxes due thereon, and to authorize them in to order the correction of false and fraudulent lists of property or the value thereof. He explained the provisions of the bill at length. It gives the city authority, where real estate has been iricorrectly listed or described, to change and correct it. The second section is to enable cities to correct erroneous or fraudulent listings by taxpayers--I will move for a suspension of the rules and restrictions that it may be at once put upon its passage.
The restrictions were suspended and the bill was finally passed the House of Represervatives; yeas, 72; nays, 2.
EMPYRICISM IN MBDICINE.
The SPEAKER announced the consideration on the third reading of Mr. Satterwhite's bill [H. R. 101] for protection from empyricism, and to elevate the medical profession.
Mr. WOODARD objected to the bill because he desired the largest liberty to employ any physician of his own choosing. It requires practice to make a good doctor. Practice makes a good doctor--better than theory.
Mr. WILLARD had conferred with physicians, and the fault they find with it is that it does not do enough. It is well known that any man to-day can send to various medical colleges and secure a diploma for $10. This bill shuts out those who have studied under a physician but are without a diploma. We want a bill that shall establish a medieal board in each county, before whom physicians shall be able to stand an examination. The diploma system has been proved to be a fraud. I shall oppose this bill, in hopes of finding a better one.
Mr. GIFFORD. The gentleman (Mr. Woodard) thinks it not necessary for a physician to be a professional man. That may be true : but the bill provides that a man qualified by practice shall be admitted to practice. Many good physicians never had a diploma. So far as this bill is concerned, I believe it covers all the ground, and I shall support it.
Mr. BUSKIRK. For my part, I claim it as an inalienable right, if I prefer some old woman to doctor me, if I find that she does me more good than the city physician--if I so decide on my own responsibility, I claim the right to employ her. I believe with Oliver Holmes, that if all the medicine were thrown into the sea, it would be better for men, but death to the fish. [Laughter.] I believe in homoeopathy and hydropathy, and all the pathies, and I shall vote against exclusive privileges in medicine.
Mr. BUTTERWORTH. I think I shall vote against the bill, but I wish to remove the impression that it is in the interests of the allopathic school. It provides that no man shall practice without a diploma or a certificate. It places all the pathies on an equality. The object of the bill is simply to require of every man who pretends to be a doctor that he shall understand what he professes. My objection to the bill is this: It would throw out those mothers-in-Israel who practice obstetrics.
Mr. WALKER would support the bill. It was mild in form--directed against no particular school--but it would label the poisoner, as the law does now the poison. It will reach the scores of empyrics and quacks who are going out everywhere in the State, to whose story the suffering people will listen, pay their last dollar and receive no benefit. The school teacher must have the certificate of qualification, and should we not require of the physician having the care of our health that he also shall give assurance of qualification? If it would be more satisfactory to the gentleman from Gibson [Mr. Buskirk] let the provisions of the bill be so changed as to give him a midwife. I would not divorce him from his inalienable rights. Our county medical societies ramify every county in the State, and if the emulous doctors have not the requisite knowledge of books, let them be remanded to them till they shall be qualified for their responsible work.
page: 166[View Page 166]Mr. RICHARDSON felt very little interest in the bill, but discovered that gentlemen were considering it under a misapprehension. It was not in the interests of physicians, but of the people. Medical men would hear him out in this statement. Their indifference to the bill is because it does not go far enough to secure the required protection. Do gentlemen fear that some old lady, or some particular friend may not be permitted to practice medicine? Why does the gentleman from Gibson claim the right to employ his own physician, so long as the Constitution of the State does not allow him to employ a lawyer who has not a good moral character?
Mr. HATCH. This bill is for the protection of the people. Physicians do not need protection. I support the bill because graduates of every school having certificates of the county medical society, would by its provisions be admitted to practice--giving every medical school credit for sound instruction in anatomy and physiology--the groundwork in the practice of medicine.
Mr. SATTERWHITE introduced this bill, though not of the medical profession. He had consulted a number of physicians as to its provisions, and some had submitted a few suggestions, amounting to nothing It was similar to the law of the State of Ohio, which seems to work well there. It is more in the interests of the people than of the profession, and I think it may be at least a stepping stone to something better.
Mr. MELLETT. I feel very much disposed to protect myself from quacks, but I question whether this bill will do it. The tests which it proposes for a physician are three: First--a diploma from a medical college, which, although not conclusive evidence of a physician's fitness, it is in that direction. Next--a certificate from a medical board. And the third test is the pandora's box that lets out all the evils; it requires that he shall have one of the two certificates mentioned, or he shall have been a practicing physician for ten years. I should prefer that it read one year instead of ten, for the quack of one year is not as bad as the quack of ten years.
The bill failed on the final reading--yeas 40, nays 36--for lack of the constitutional majority.
CHANGE OF VENUE.
Mr. Offutt's bill [H. R. 104] to amend the seventy-eighth section of the criminal practice and procedure act of June 17, 1852 (taking away the discretion of the judge as to the change of venue upon affidavit of prejudice in criminal causes), was taken up in order on the third reading.
Mr. OFFUTT. We have been reminded time and again that all members of this body are not lawyers; and perhaps all do not understand the purpose and object of this proposed change or amendment of the law as it now stands. This bill proposes to place the criminal and civil law on the question of a change of venue on the same footing. The law now provides that changes of venue in civil cases shall be granted by the judge upon proper evidence, setting forth the fact of the existence of undue prejudice or excitement; the criminal law leaves it discretionary with the judge in such cases, to grant or refuse the change. This bill proposes to amend the law so as to make it absoluteso as to take away the discretionary power of the judge, as it is now done in civil cases. I think that in cases where a man's life or liberty is involved, he ought to have a change of venue quite as readily as where his property only is concerned. And as the House has already voted to refuse to go back and give the judge his discretion as to a change of venue in civil cases, it would seem that it ought to be ready to support this bill.
Mr. MILLER considered that much the larger portion of the affidavits for a change of venue in criminal cases, are either founded in perjury or in a misapprension of the parties. It seems to me that it is always possible, in any ordinaay case, to get an unprejudiced jury, and the constitution requires trial by a jury of peers. And when you come to apply the law, as it is here proposed to be amended, you will give to nine-tenths of the criminals the means to prevent a trial. It would become a part of the practice to change the venue. Nearly every criminal wants timetime for witnesses to die or move away; and the result would be the avoidance of trial. Another objection to the bill would be the immense expense which it would devolve upon the officers of the court and the State, in the service of process and the continued application for allowance of witnesses. I think the whole policy of the bill is in the interests of the criminal.
Mr. WILSON of Ripley. I hope this bill will pass. The State has no interest in punishment unless the party is guilty. The Constitution credits the presumption of innocence and grants the right of an impartial trial. It has been remarked that in civil cases, where there is nothing but the question of the right of property, the judge has not the discretion to refuse a page: 167[View Page 167]change of venue, whilst in criminal cases, where life and liberty are in the issue, the discretion is with the judge. I have seen in many cases where the change has not been granted, that it has been because the court itself partook of the local prejudice. We ought to afford and secure to every citizen a fair trial; and we ought not to repose on the judgment of any one man to say whether there is or is not undue or unsafe prejudice or excitement. If we were to proceed upon the ground that every man charged with crime is guilty, I could see the force of the gentleman from Decatur's argument. There has been a bill introduced here [Mr. Lenfesty's] to make the civil practice conform to the criminal in changes of venue; and the Judiciary Committee reported for its indefinite postponement, because they considered that the judge should not have the discretion to refuse. I repeat my observation that whenever this discretion has been used, it has been uniformly against the prisoner; and but for the prejudice of the judge the change of venue would have been granted. The judge is but a man--having the passions and impulses of a man--partaking of the feelings and preposessions of the people, and controled by the same prejudices.
Mr. SHUTT considered that the changes of venue result in the avoidance of justice, and certainly in much expense and vexation without pay. I think the criminal ought to get justice at home. There isdanger of too much sympathy for him.
Mr. COBB also considered the danger of too much sympathy for the criminal. If this recommendation of the Judiciary Committee is right--and I think it is--then had we not better leave the law as it is? because witnesses and others have to attend these trials, by order of court at a great distance, and receive no pay; and I do not question, that in many cases, where these changes of venue would be made, criminals that .would escape by them would be those who are guilty of the most heinous crimes. And if this be so, I think we ought not to increase the facilities for a change of venue. Now we have in various parts of the country parties organizing vigilance committees and lynch law. This of course, is all wrong; but it has its origin in the want of wisdom and vigilance in the law-making power. It seems to me that instead of making it more easy for the crimial to escape, we ought to frame the laws to make it more difficult for him to escape. It seems to me that the presumption of innocence till the prisoner is proved guilty is enough. I believe that experience teaches us that in nine cases out of ten the ends of justice in these cases do not require either continuance or change, and the judges generally recognize this doctrine. It seems to me that this bill ought not to pass--that we have gone far enough in that direction. Reaction may be good; but we should be guarded and careful not to go to far in reactionary measures.
Mr. OFFUTT. I have but a few words to add in support of this measure. Gentlemen have presented what might seem to be very good reasoning; but this is not a question of dollars and cents; it is a question of right and wrong. If it be right that the law should be amended in this respect, the question of the additional expense should not be taken into consideration. It has been said by one gentleman that criminal cases should be tried by a jury of peers, and he urges therefore that the bill should not pass. Now, I understand that by the Constitution of the State the jury is made judge of the law and the testimony. Still there is not a Judge but will lay down the law. But it is said that the criminal will change the venue till he wears out the patience of the Prosecuting Attorney, and till the witnesses either die or remove away, and thus the criminal will escape. But the gentleman has forgotten that the law only tolerates the change of venue, and I undertake to say that the objection raised by the gentleman is not such an objection as should have weight in determining whether this bill is right or wrong. It has been well remarked by the gentleman from Ripley, that where a man's life is involved, his rights should be as well secured as they are in cases where only his property is at stake. [He read from the statute the provisions with reference to the change of venue in the civil and in the criminal practice.] So we see that in civil cases it makes it imperative on the Judge to grant the change on the proper application; but when it comes to cases involving life and liberty then you will trust the Judge, arid give him the discretionalthough the affidavit may be filed in truth, he has it in his power to say to the prisoner: "Sir, you shall be tried before me, whether you are guilty or, innocent" I say it in all candor and seriousness, this law is wrong; and that where a man's life or liberty is at stake, and where undue prejudice or excitement exists, he ought to be tried by impartial triers. My experience is, that where the Judge is impartial he will seldom refuse to grant the change. I think the bill is eminently page: 168[View Page 168]just and in the spirit of the Constitution, I say, sir, be a man guilty or innocent, he is entitled to a fair trial, to be tried by impartial triers, and in a county and by a jury that is not prejudiced or biassed against him. I think the bill ought to commend itself at once to the judgment of the House, and especially to the legal profession.
Mr. WALKER. As to the analogy between civil and criminal cases; ordinarily in civil cases they have no notoriety in the counry--they are not spoken of enough to prejudice men's minds so as to authorize a change of venue. Yet the State makes it imperative, takes the discretion of denial away from the court. Criminal cases, on the contrary, have notoriety; and the law is to provide against the too easy change of the venue in those cases that necessarily have notoriety, and are of such a character as necessarily to divide the minds of the citizens. I will not vote to retard the execution of the criminal laws; I would be in favor of its more rigorous administration. I would be in favor of giving the State the right to close the pleadings--the old principal of law. I would not be understood as voting for liberality in this direction by my vote on this bill; but this is the consideration: a criminal should have as fair a hearing as he can have in a civil case. My observation has been that some of our popular judges sometimes desire the notoriety of trying a celebrated case; but I simply wanted to draw a distinction between the notoriety of civil and criminal cases.
Mr. LENFESTY. I am Interested in the defeat of this bill. It has been urged as one reason why this bill should pass, that as to a change of venue in civil cases the judge has no discretion. I introduced a bill to give him that discretion, and it was reported against. It is well understood that the administration of justice in our criminal practice is very expensive, and if this bill should pass I apprehend that it would increase the expense of the administration of justice three times over. What would be the result? Why, in every case, even where a boy might trespass on a neighbor's grounds, he may go into court, and there, by filing his affidavit--no matter what the pretense--he may take a change of venue to onother county.
Mr. OFFUTT. In cases of misdemeanor the defendant pays the costs. The gentleman's presumption of perjury is unfounded.
Mr. LENFESTY. I think that I am supported in the assertion that whenever the criminal requires a change of venue, he will not hesitate about the oath. The ends of justice are not so often defeated in the home trials. But I can call to mind cases where justice has been defeated by changes of the venue, and they open a door to perjury, and make a large bill of expenses. And hence, also, I believe that the bill I introduced should have been passed. For where property is destroyed by the railroads they pay no attention to the first trial, and appeal the case to some other court. [Cries of "order, order!" The SPEAKER. The gentleman from Grant will proceed.] I propose to show that instead of taking away the discretion of the judge in criminal cases, it should be exercised in civil as well as criminal cases, and I simply call attention to the fact that where stock is killed by the railroad, the farmer is virtually cheated out of his stock by not being able to follow the railroad company in their changes of venue.
The bill was rejected--yeas, 10; nays, 68.
IMPROVEMENT OF THE PUBLIC REVENUES.
Mr. KIMBALL presented a preamble and resolution requesting the Auditor of State to communicate to the House his suggestions for the improvement of the public revenues.
It was adopted.
Mr. WYNN submitted a resolution for an order (which was adopted) that the Secretary of State furnish a price list of the articles of stationery furnished to members of this House.
Mr. BRANHAM, on account of pressing business before the committees, moved for the adjournment.
Mr. WOODARD submitted a resolution (which was adopted) that a committee of five be appointed by the Speaker whose duty it shall be to inquire what legislation, if any, is necessary to protect the people of the State from oppressive taxation by counties and townships; and report by bill or otherwise.
The SPEAKER That committee will consist of the gentleman and others--five members of the Committee on Ways and Means.
Mr. MELLETT presented the petition of 378 citizens of Delaware county protesting against aiding the State Univerity to establish a Medical College, on the ground that it will be sectarian--controlled by one school.
The House then adjourned.
