THE
BREVIER LEGISLATIVE REPORTS.
THIRTEENTH VOLUME.
INDIANA LEGISLATURE.
HOUSE OF REPRESENTATIVES.
THURSDAY, December 5, 1872.The House met and was called to order by the Speaker at 9 a. m.
On the motion of Mr. LENFESTY the reading of the journal was dispensed with.
Mr. BUTTERWORTH moved a call of House.
The motion was agreed to.
On the call seventy three members answered to their names, when, on motion of Mr. Butterworth, further proceedings under the call were dispensed with.
Mr. BILLINGSLEY asked and failed to obtain leave for the special committee on the Carroll county (Grimes) case to sit during the sesssion of the House
REPORTS FROM COMMITTEES.
Mr. KIMBALL, from the Ways and Means Committee, returned Mr, Wilson's, of Ripley, eight dollar mileage and per diem bill [H. R. 73] recommending reference to the Committe on Fees and Salaries.
The report was concurred in.
ASSESSMENT LAWS.
Mr. KIMBALL also reported, from the same committee, the matter in pamphlet print of a bill [H. R. 163] for an act to provide for a uniform assessment of property, and for the collection and return of taxes thereon.
On motion by Mr. BRANHAM it was read twice by title and referred again to the committee.
CLAIMS.
Mr. RIGGS, from the Committee on Claims, successively returned the claim of Stearns Fisher, for $52; of Julius Boetticher, for $465; of W. B. Baker, for Evening Mirror furnished; of J. G. Greenwalt, $1,500; of John Brownlee, $1,000; and Mr. Lenfesty returned the claim of the Indianapolis Commercial Company, for $78; of William B. Walters, $52; of the Guttenburg Co., $323 44, for newspapers furnished the House of Representatives, recommending the allowance thereof.
They were concurred in, and the same were referred to the Committee on Ways and Means, with instructions that they be placed in the specific appropriation bill.
Mr. COBB reported against the claim of J. C. Graham for $50, and the claim of Jeffersonville Railroad Company for $65 55.
It was concurred in.
CUSTODY OF THE PUBLIC MONEY.
Mr. MILLER, from the Committee on the Trust Fund, returned Mr. Woollen's bill [H. R. 24] to provide designated depositories for the safe keeping of the public money in the several counties, and prescribing penalties with an amendment giving power to the authorities to move such money when ihey deem fit. He said: The provisions of this bill have respect to the custody of all the public funds of the State.
Mr. BRANHAM was opposed to any change in the law for the care of public funds which contemplated their distribution among a number of depositories. The page: 178[View Page 178]correct principle was to collect only sufficient revenue to secure a fair working balance in the Treasury, and that should be kept where the law now requires it to be kept--in vaults of the Treasury. He moved to lay the whole matter on the table, but withdrew his motion at the request of Mr. Woollen, who wished to say something in defense of the bill, as its author.
Mr. WOOLLEN said the present system of keeping the public funds was wrong. It is well known that the money is not kept in the vaults of the State Treasury, as required by law; but that on the contrary it is deposited in various banks, and the public officers are drawing and pocketing the Interest thereon. It is this fact which in a large measure causes the present stringency in money. In the neighborhood of $600,000 of the public funds is held by the banks on deposit, and during the session of the Legislature they are constantly fearful least they may be called upon to pay over these deposits. This operates to lock up a large amount of currency and cause stringency.
The object of this bill is to provide that when the money comes into the hands of the public treasurer it shall go from him into the hands of the depositories, guarded by law so that it shall be safe, and that the depositories shall give a fitting compensation for it, which proceeds shall go into the pockets of the sovereigns of the country who own it. The practical working of the present law is that the proceeds of this money go into the pockets of the publfc officers. I do not know how the law against it is avoided. But so it is; these proceeds go into the hands of the State officers to the extent of $30,000 or $40,000 annually. Then I say we ought to have some good practical law on this sub ject that will meet the exigencies of the times. I would not lay my hand on a dollar of this interest that has got into the hands of the public officers under the present law. It is theirs and they have a right to it. But, clearly, the interest accumulations of the public funds should belong to those who own the public funds. I hope the motion of the gentleman will not prevail; but that he will examine the bill, and, if he finds it a good thing, vote for it.
Mr. SHIRLEY said the present system of keeping county funds was one cause of the depreciation in value of county orders. County treasurers loaned the moneys to banks and pocketed the interest, while county orders went unpaid, because there were no funds in the treasury. He regarded it as a great outrage upon the people that public officers should bank upon the public funds.
Mr. COBB objected that the bill opened a loop hole for fraud by releasing sureties. The funds were now guarded loosely enough.
Mr. WOOLLEN explained that there was, under the provisions of the bill, no release of the sureties of the officers until after the bond of the depositaries had been filed.
Messrs. BUSKIRK and BUTTS also spoke in favor of the provisions of the bill.
The amendments reported by the committee were concurred in, the bill laid upon the table and 500 copies ordered to be printed.
REPORTS FROM COMMITTEES.
Mr. COWGILL, from the Committee on Fees and Salaries, reported back Mr. Smith's bill [H. 45] to amend the act fixing the per diem of members and officers, with the recommendation that it be indefinitely postponed.
The report was concurred in.
Mr. BROADUS, from the same Commitee, reported back Mr. North's bill [H. 78], to amend the act providing for the erection of a State Prison north of the National road, with a recommendation that it be indefinitely postponed.
The report was concurred in.
Mr. KING, from the Railroad Committee, returned Mr. Cowgill's bill [H. R. 144] to provide for the crossings of railroads, recommending its passage.
It was ordered to the engrossment.
COMMON SCHOOLS.
Mr. COFFMAN, from the Committiee on County and Township Business, returned Mr. Woollen's bill [H. R. 10] to provide for the issue and sale of bonds to raise money by the civil township for school house purposes, recommending its indefinite postponement.
Mr. MELLETT moved that the bill be referred to the Committee on Education.
The SPEAKER. The motion to indefinitely postpone has the precedence.
Mr. WOOLLEN. The bill is just this: The cities and towns are authorized by law to issue bonds and borrow money for the purpose of building school houses, purchasing school grounds, etc., and some of them have gone beyond what they ought to have done, and abused their privileges; and this bill is simply to enable the townships to do what the towns and cities already have the right to do. I do not know why our fellow citizens in the page: 179[View Page 179]townships in the country should not have the right to do what we do in the cities and towns. I know of many townships where they desire to do so. This simply provides that they may issue bonds to build school houses and pay for them. I do not know why one class of our people should be deprived of privileges accorded to other classes. I would rather, it seems to me (for it would be more safe generally), put this power into the hands of the farmers than into the hands of the people of the cities and towns.
Mr. GIVAN. This bill should not be summarily disposed of. The gentleman's explanation of it commends it to my respect. I hope the report will not be concurred in, and that it will go to the Committee on Education.
Mr. MELLETT concurred heartily in the remarks of Mr. Woollen, and indicated a motion to lay the report on the table.
Mr. SHIRLEY illustrated the working of the bill by mapping a township six miles square, and a little flock of a town in one corner erecting what they call a graded school with the township credit, whilst those living a mile and a half away would get no benefit from it. The proposition was to build school houses, but the object was to build up the towns. It would work great hardships. The best way was to provide for good district school-houses and schools so that the farmers can provide education for their children at home. And if the cities and towns want school houses let them have them at their own cost. In my town, after we had taxed our people in the country to build our school house, we paid them back their money--bought the school house.
Mr. BILLINGSLY was for the printing and reference of the bill. Many country school houses needed rebuilding, and they should be permanent structures.
Mr. CLAYPOOL. The committee came to the conclusion that the people of the districts ought to build to suit themselves. With the proposed power in the hands of the Trustees they would be apt to go too far, and we found that the bill authorizes them to borrow to the extent of 10 per cent. That would mortgage too much. I am satisfied that if the bill were left to my constituents they would object to it. I would be perfectly willing that the money shouId be raised under the present school law; and, if they desired it, they could raise the amount in a very short time.
Mr. WOOLLEN. I provide in the bill that before the Trustees shall issue the bonds, they shall go before the County Commissioners and get the authority to do so.
Mr. MELLETT. The objection of the gentlemen from Morgan and Johnson can be raised on any public improvement, whatever. It will not do to take such considerations in reference to public education. I know there are difficulties about school houses--every man wants a school house at his own door. But this should not justify us in saying there shall not be a graded school in every township. It is better to have one if it is in the corner. The difficulty would not be increased by the passage of this bill. But now, if the trustee would build well, he must do ft by an evasion of the law. I would prefer he might have the power to build without evasions, and I think these evasions evince the wisdom of this proposition. This bill places it in the power of the trustee to provide suitable school houses in every district--overcoming the very objection which the gentleman raises. So far as the ten per cent. is concerned, I think that ought to be reduced.
Mr. RENO thought it better to increase the common school fund.
On motion of Mr. MELLETT, the report of the committee was laid on the table.
Mr. BILLINGSLEY moved to refer the bill to the Committee on Education.
Mr. WOOLLEN proposed to add these instructions: Provided, that before any bond shall be issued under this act, it shall be the duty of the board of county commissioners to procure the petition of two-thirds of the freeholders of the township; and that the committee strike out ten per cent. on the taxables and insert five per cent.
It was so ordered by consent, and then the bill was referred to the Committee on Education.
REPORTS FROM COMMITTEES.
Mr. OGDEN, from the Committee on Corporations, returned Mr. King's bill [H. R. 39] to amend the second section of the act of February 12, 1855, concerning voluntary associations, with amendments by way of substitute, numbered [H. R. 163] for an act to amend the seventh section of the act of February, 1867, amenadtory of the act of 1855, concerning voluntary associations.
The report was concurred in, the original bill laid on the table, and the substitute passed to the secon reading.
OHIO RIVER.
Mr. LENFESTY, from the Committee on Federal Relations, returned the joint resolution in relation to the appropriation by page: 180[View Page 180]Congress of two millions of dollars for surveys, etc., for improvement of navigation of the Ohio river, recommending its passage.
The resolution was adopted on the part of the House of Representatives: yeas, 78; nays, 14.
REPORTS FROM COMMITTEES.
Mr. WYNN returned the Senate joint resolution in relation to the improvement of the Ohio and Wabash rivers, recommending it be indefinitely postponed.
The report was concurred in.
Mr. LENFESTY returned Mr. Kimball's bill [H. R. 6] creating the Indiana Centenial Association, with amendmnts as to the membership and officers, recommending its passage.
The amendments were adopted, and the bill ordered to be engrossed.
Mr. REEVES, from the Committee on Roads and Highways, returned Mr. Glasgow's bill [H. R. 79] to amend the supervisors' act of March 1865, recommending its indefinite postponement.
The report was concurred in.
Mr, REEVES, from the Committee on Roads, returned Mr. Ellsworth's supervisors' act amendment bill [H. R. 59] recommending its passage.
It was ordered to be engrossed.
Mr. WOLFLEN, from the Committee on Statistics and Emigration, reported back Mr. Lenfesty's bill 88, to provide for the registration of births, marriages and deaths, with sundry amendments.
The amendments were adopted, and the bill was ordered to be engrossed.
Mr. GREGORY, from the special committee thereon, returned his bill [H. R. 134] to provide the times of holding Circuit Court, and the length of the terms thereof, in the counties comprising the Twelfth Sudicial Circuit, recommending its passage.
It was finally passed--yeas 89, nays 0.
Mr. MELLETT, from the Committee on Education, returned Mr. Walker's bill [H. R. 155] to provide a general system for common schools of cities, and recommending its passage.
It was ordered to be engrossed.
On motion of Mr. BRANHAM the House proceeded to the consideration of the orders of the day--business on the Speaker's table.
STATE LIABILITY--OPPINION OF THE ATTORNEY GENERAL.
The SPEAKER laid before the House a communication from the Attorney General, transmitting his opinion upon the points referred to in Mr. Gregory's resolution of inquiry touching the State's liability forthe payment of the unsurrendered canal bonds. The Attorney General is of the opinion that the State is clearly liable for the payment of these bonds, that the payment of Garrett's judgment will not increase her liability as to the other unsurrendered bonds, for the reason that the liability is already absolute, and that the State will become liable for the payment of the canal certificates should she permit the canal, its tolls and revenues to be sold in satisfaction of the Garrett judgment.
On the motion of Mr. GREGORY, the communication was laid upon the table and ordered to be printed.
GOVERNOR'S HOUSE RENT.
Mr. WOOLLEN, from, the Judiciary Committee, to whom had been referred the resolution introduced by Mr. Woollen, directing inquiry as to what legislation is necessary to enable the Governor to avail himself of the benefits of the act of February 25, 1865, granting an allowance in lieu of house rent, reported a bill [H. R. 164] providing for compensation at the rate of $5,000 per annum, from January 1, 1872, in lieu of house rent.
The bill was passed to its second reading.
THE GOVERNOR'S SALARY.
Mr. KIMBALL introduced a bill [H. R. 165] fixing the salary of the Governor at $8,000 per annum, and requiring him to provide his own house, the bill to take effect at the beginning of the term of the Governor elect.
It was passed to second reading.
INDIANAPOLIS POST OFFICE.
The bill [S. 56] granting consent of the State of Indiana to the purchase by the United States of certain grounds, not exceeding one acre, for the purpose of the erection of public buildings--a post office at Indianapolis was taken up, and under a suspension of the rules and ConstitutionaI restriction, passed the House without amendment--yeas, 92; nays, 0.
The Senate concurrent resolution providing for the printing of the report of the Deaf and Dumb Institute was taken up and passed.
Mr. MILLER submitted a resolution, which was adopted, directing chairmen of committees to report the number of clerks, etc., employed by them, the number of hours per day that they are engaged, and an outline of their duties.
Mr. BILLINGSLEY renewed his request that the special committee on the Carroll county case investigation be permitted to sit during the sessions of the House,and it was so ordered.
page: 181[View Page 181]Mr. CAUTHORN introduced a bill [H. R. 167] for an act to preserve the original manuscripts of the journals of the Senate and House.
It was referred to the Committee on the Judiciary.
Mr. WALKER, a bill [H. R. 168] to amend section 11 of the act to establish the Court of Common Pleas (for concurrent jurisdiction with the Circuit Courts and the Justices of the Peace.)
It was referred to the Committee on the Judiciary.
Mr. BAXTER introduced a joint resolution confirming the site as already selected of the Indiana Reformatory Institute for women and girls.
The rules were suspended and the joint resolution passed.
The House then on motion of Mr. HELLER, took a recess till two o'clock, p. m.
AFTERNOON SESSION.
The SPEAKER resumed the chair at two o'clock p. m., and pursued the orders of the day.
The bill [S. 8] to provide courts in the Twenty-fifth Common Pleas District was ordered to the third reading.
C. & O. R. R. TERMINUS AT MADISON.
Mr. Branham's border counties railroad aid bill [H. R. 70] was taken up and considered on the third reading.
Mr. BRANHA.M. There are probably but few counties in the State that are interested in the bill before the House, except the county of Jefferson. There is a railroad now being constructed, (the Cumberland and Ohio railroad) the northern terminus of which is at a point near Madison, which runs to Chattanooga, the railroad center of the South. The object of this bill is to enable the people of Madison to make this terminus opposite to them on the Ohio River. The advantage to Madison will be that it will place that city 100 miles nearer to Chattanooga. And I can say that our factories are sometimes almost suspended for want of shipping facilities. Our town is a manufacturing town, and there will be an outlet for us on this road. They have made an arrangement with that railroad company that if they raise a certain amount of aid they will make the terminus of their road opposite. If it is just that the people should tax themselves, there can be no objection to this bill. The bill has no other object; and if our people see proper to tax themseIves I do not think the balance of the State ought to object to it.
The bill was finally passed the House of Representatives--yeas 82, nays 1.
Mr. Walker's bill [H. R. 114] to amend the first section of the flouring mill race act of March 2, 1863, was taken up on the third reading.
Mr. WALKER. As the law now stands this right can not be given to a party unless he is desirous of erecting a mill. This bill, in addition, says he shall have the right where a mill is already erected.
The bill was finally passed the House of Representatives--yeas 81, nays 6.
Mr. WILSON of Ripley's bill [ H. R. 118] making the parties competent witnesses in certain cases involving contracts assigned to decedents, was taken up, and failed on the final reading--yeas 47, nays 38.
CRIMINAL PRACTICE.
Mr. JOHNSON'S bill [ H. R, 35] to amend section 90 of the criminal practice act--(to give the defendant's the right to testify)--was taken up on the third reading.
Mr. JOHNSON. This bill proposes to make an amendment to the criminal code so as to give the defendant in criminal actions the right to testify in his own behalf--or rather at his own request. I will say for information that this provision is copied almost verbatim from the N. Y. statutes. It accords to the defendant this right, so that the State can,t compel him to testify against himself; and so that he shall not be compelled to testify in his own behalf but he may if he chooses; and so, that if he chooses not to testify, the fact shall not be considered as a circumstance against him, and counsel shall not comment on his refusal or neglect to testify. It has not been long since parties in criminal actions were competent to testify. Since, however, the door has been opened, and parties in interest have been permitted to testify, it has been found that it ia beneficial. The jury or the court trying the case naturally desire all information they can get in regard to the facts. In erdinary transactions when we want information of a fact, we will go to the person who was present and ask him. And the Legislatures have found out that you can get the truth best from the person who knows most about it. Therefore parties in civil cases are allowed to testify against each other. That was considered an innovation, but it has proved a step taken in the direction of liberality and broader views; and it has been going on till in nearly all the States persons charged with crime are now permitted to testify in their own behalf. The hardship page: 182[View Page 182]that rests upon him in having his lips sealed may be exemplified in this way, for instance: Last night a horse wras stolen from A, and to-day the horse is found in the possession of another person. Now the law is this: If A proves that he lost his horse and found it in the possession of the defendant, the burden of proof rests on the defendant. Now it might be that some thief stole the horse and sold it to the defendant, and so he goes to the penitentiary. I think that I know of one man who went to the penitentiary, and who might have escaped if he had been allowed to testify in his own behalf. I know it will be said that this rule will facilitate the escape of guilty men. I think not. The jury, if they choose not to believe the defendant, can reject his testimony. Standing in the relation of defendant, accused of crime, the jury will scan his story closely. If the defendant has interests, they ought to be regarded, and, if guilty, he will generally be convicted on the cross-examinations. There is the celebrated Clem case, wherein Nancy E. Clem, the defendant, was twice convicted. But every one knows that over that case there still hangs the secret of the murder; and that there is but one person that can dispel that secret--and that is the woman herself. This bill is to be followed by another. Originally, this bill had two parts: one to allow the defendant to testify, and the other to require the State to close the argument These two propositions are now separated. In this bill [H. R. 35] it is proposed to give the defendant the right to testify, and in the other, the bill [H. R. 127], it is proposed that the State shall close the argument. In the one case, you open the way of escape for the innocent man; in the other, you shut off beyond a reasonable doubt the means of escape for the guilty.
The bill was finally passed the House of Representatives--yeas 61, nays 26.
THE CALUMET DAM.
A message was received from the Senate announcing the passage of a concurrent resolution reciting the difficulties encountered in the attempt to procure the removal of the Calumet dam, and the great damage done to citizens of Lake and Porter counties by reason of the overflow of their lands consequent upon the existence of said dam, and directing the Attorney General to proceed at once to Chicago, or such other place as may be necessary to ascertain the exact ground upon which the injunction restraining the removal of the dam was procured, and take such steps as may be necessary to secure the removal of the nuisance.
A message was also received from the Senate announcing the passage by that body of House Bill No. 22, providing for the completion of unfinished business of one session by the next succeeding regular or special session.
The concurrent resolution of the Senate in relation to the Calumet dam, was taken up and concurred in.
CRIMINAL PRACTICE--CLOSING ARGUMENT.
The SPEAKER announced the consid eration on the third reading of Mr. Johnson's bill [H. R. 137] to amend section of the criminal practice and procedure of June 17, 1852.
Mr. JOHNSON. I have said almost nll that I care to on this bill. It is simply a verbatim copy of the provision in regard to the opening and closing arguments in civil cases. It has long been a cardinal rule in the discussion of all questions, both in legislative bodies and before the courts, that the side of the question upon whom rests the burden of the issue shall have the opening and the closing of the argument, It has always been so at common law. It is so in criminal as well as in civil practice at common law, It is so in every civilized country in the worldit is so in every State of the Union except the State of Indiana. Indiana is the only State in the Union where the negative side is compelled to close the argument; and I think this rule in our practice has been recently denounced by one of the Judges as a barbarous rule. Now, the defendant has safeguards enough around him. In the first place he is presumed to be innocent till the contrary is proved. In the next place, the jury must be convinced beyond a reasonable doubt of his guilt. Now, not ten minutes since, the House has voted for a bill giving the defendant the right to testify in his own behalf. And with all these things in the defendant's favor, shall we continue to make this State an exception to the civilized world? In the United States Courts the government has the opening and closing argument--and in every State in the Union except Indiana. I might say that this rule in our State was gotten up originally by the criminal lawvers in behalf of what they know gjves them a successful practice. We have just given the right to testify to the defendant; that cuts off all probability of the penitentiary for an innocent man. Now, let us pass this bill, and close the way of escape for the guilty.
Mr. BUSKIRK. I desire to say a word before this bill passes. I was in favor of the last bill we passed; but I am earnestly page: 183[View Page 183]opposed to this; and I do not admit the argument in favor of this bill, because the other has or may become the law. The only view that has been taken of this important innovation on our system of practice is this: that the party closing the argument has the advantage. Now, the question is, where ought the advantage to be given? Ought it to be with the State or with the person accused? I believe that the theory of our criminal law accords the principle that all presumptions are to be in favor of the criminal. This is sound in theory and safe in practice. I believe that it is safer that ninety-nine of the guilty should escape than that one innocent person should be punished. The gentleman says that in Indiana alone the defendant has the closing argument. I believe that our Constitutional Convention of 1850-51, did a great many things of which they may be justly proud, and I believe that this provision is one of the wisest things which they recordeed to their honor. By the common law the State has the closing argument. But we may find many other unjust things in the common law of England; as that the defendant is not entitled to counsel. These things are eminently unjust. I believe that if we look over the criminal annals of Indiana, and compare them with those of other States, we will not find anything in which she will appear to any disadvantage. The right of the defendant to testify is not in point here. This is simply a question as to who shall have the closing argument; and if there is any advantage in this, I believe in giving it to the criminal.
Mr. WOOLLEN. I am only going to say a few words. It is time as the gentleman says, that the common law has grown up in this country, and we have taken what we favored--sometimes at the expense of the many. But we know that laws are made slowly and singly, for the purpose of curing some evil. But the intention of the bill is this: It is intended for the more effectual enforcement of the criminal laws of the State. They have hardly ever been rigorously enforced. We have been for sometime going back from the enforcement of the criminal laws. Now, the evil to be remedied is to prevent the escape of the criminal not to prevent the conviction of the innocent man. This Legislature has not been called upon to legislate for the purpose of saving the innocent from the penitentiary, but to bring the guilty to punishment. And, if gentlemen here will go home and inquire what has been most talked about by the people, they will find that it is this very thing--that our criminal laws have not been sufficiently enforced. Now the eulogy which the gentleman passed upon the Constitutional Convention of 1851 might be well enough deserved by that body; but I conceive that his mention of it is but moonshine, because prior to 1850 there was no complaint about the criminal laws: but the evil complained of has grown up since the law we are now seeking to repeal was placed on the statute books. Again, if the gentleman will go back prior to the Convention of 1850, he will find no beech trees ornamented with criminals. The beech tree came into favor as a part of the law we are seeking to repeal. It was since the State stepped back from the right to the closing argument that it has come to pass that justice must be enforced by vigilance committees. I say this law stands in the way of the administration of justice. Sympathy always goes out in favor of the criminal. And hence, if you permit the defendants' counsel to close--especially since we have such prosecuting attorneys as are commonly elected--the State stands but little chance in the case, and unless we prevent the stronger counsel from closing the argument on the part of the accused, no jury can convict. Now, let us make the law logical. Let us give the close of pleadings to the party that has the burden of proof, for he must make out the case beyond a doubt. Let us reserve to the State the right of the sovereign to close and say through her attorney the last word in the case.
Mr. WALKER. I think the law as it now stands is obviously indefensible by any gentleman in the State of Indiana, and that it will be attempted by none outside of the General Assembly, except, it may be, by some of our able criminal lawyers. I believe that it is the united voice of the people of Indiana that the defendant should be denied the closing argument in criminal cases. I believe that nothing can make that just which is unjust. I invite every gentleman to vote against the lawyers. I concur wdth the gentleman [Mr. Woollen] that nothing has contributed so much to encourage mob law in the State as this rule which we are seeking to repeal. Our criminal laws are loosely made--made at the bidding of a maudling liberality. The salaries paid to the prosecutors are so low that the able lawyer will not accept the office, and the result is that we have young men for prosecutors. Now comes to the assistance of the defendant his counsel--the ablest lawyers of the State--and do not lose sight of the fact that the defendant must page: 184[View Page 184]be proved guilty beyond a reasonable doubt--that no doubt must linger in the minds of the jury, and the jury must judge of the law and the facts, and still the able counsel have the closing word. We must not forget the ability of the defendant's counsel--men who have looked into the faces of hundreds of jurymen--they have proficiency in determining the faces of men, and the last argument of counsel has acquitted three-fourths of the criminals on trial in Indiana for the last ten years. It is so. There is no doubt of the fact, that more depends on the closing argument than on everything else for the criminal's acquittal. Now I can set up no claim for the wisdom of Indiana legislation above that of the civilized world. And I will repeat that this act for a rule in pleadings had its birth in the mendacity of criminal lawyers, and in an un guarded moment it was crystalized into law. This is not an aggressive step. It invites the dust of the old shelves of the law to settle down again on our statute books. I believe that this act will pass without a dissenting voice; and that it will receive the sanction of the law-abiding people of Indiana.
Mr. ANDERSON. If it is to be set down as a fact that juries are almost universally influenced by the last argument, I can't see how a just act should award the last argument to the criminal. I am not aware of the fact that the State of Indiana has gained any notoriety for looseness in her criminal trials; neither do I think she lingers behind other States in regard to a fair enforcement of the administration of justice. And although the last argument may have more influence on the jury, still I think justice should accord the close to the criminal. If the reasoning of gentlemen is good, then to give the last argument to the criminal is an important advantage; and therefore I shall certainly feel it to be my duty to vote against this bill.
Mr. WALKER. I have always been in favor of giving the criminal a fair trial; but, while I believe this, I believe that we should also be just to the people of the State. This innovation of 1850 has proved to be unwise; and I trust we will pass this bill. We have given the defendant the right to testify in his own case: and now if we should defeat this bill, we will leave the matter in an awkward position.
Mr. BUSKIRK. It was said by the gentleman last on the floor, that the mendacious propose opposition to this bill. My opposition to the bill is not so founded; but it is founded in what I conceive to be unjust in the bill itself. I have in my mind a criminal case now pending in the Circuit Court of my own county. A man by the name of Davis is charged murder. I am employed to assist in the prosecution of the case. There is also employed a certain lawyer in Evansville, who ranks, perhaps, foremost amongst the lawyers of that part of the State, and in that case I believe, if the State have the closing argument, it being a case made up on circumstantial evidence, and where the legal skill will be balanced about equally, the defendant will stand a chance to be found guilty, whether in fact he is guilty or not. I understand that the gentleman from Wayne predicates his argument on the fact that in our criminal cases the State is always represented by poor lawyers, and the defendant by able ones. Now I say that argument does not lie in the mouth of the State. But that is the main argument of the gentleman, together with this: that upon the closing argument depends, for the most part, the verdict in tihe case. Now, I agree with the gentleman from Cass (Mr. Anderson), if that proposition is true, that upon the closing argument depends the result, then the closing argument ought to be with the defendant. If there is any difference, any advantage in the case, it should be in favor of the defendant. The gentleman from Johnson (Mr. Woollen) says if the bill pass we shall have no more mob law. That is a rash assertion, to say the least; because mob law has existed as long as the civil law.
Mr. JOHNSON. I have the affirmative and ought to have the close. I have a word in answer to the gentleman from Gibson (Mr Buskirk). If my friend from Gibson is afraid that the defendant he spoke of will be convicted if the State has the close, he certainly ought to resign his employment in the case. [Laughter.] But, if he is convinced that the defendant is innocent, I will venture the assertion that, with all his eloquence, his closing speech will not convict him. But then, after the argument is all closed the court instructs the jury; and in almost every criminal case, the law is so favorable to the defendant, that the instructions of the court amount to an argument for the criminal. The law is so lenient, and the judge is so careful and merciful, that if injustice has been done by the counsel for the State, it will be corrected in the instructions of any upright court. The criminal will be in no danger; because the law makes the charge of the page: 185[View Page 185]court almost an argument for the criminal. While the gentleman from Gibson stands here in favor of the criminal, I stand up in favor of nobler clients. I stand in favor of the protection of the State and of society. Society is now in more jeopardy than any man can be. And now, in the present stage of our public morals--since the gibbet and lynching post has come into office to take the place of justice--I am inclined to take the side of society, and erect a barrier against crime; and I am prepared to say that it may, after all, be better for society that one innocent man should suffer, than that ninety-nine guilty should escape.
The bill was finally passed the House of Representatives; yeas, 75; nays, 15.
NEW PROPOSITIONS.
The SPEAKER resumed the call of the House by counties and districts for new propositions.
Mr. BOWSER submitted a resolution directing the Committee on Claims to inquire what sum, if any, is due Robert S. Taylor, growing out of the contested case of Walters vs. Taylor.
It was adopted.
Mr. WESNER introduced a bill [H. R. 169] to amend the act providing for the settlement of decedent estates.
It was referred to the Committee on the Judiciary.
Mr. BRETT introduced a bill [H. R. 170] to amend the act to revise, abridge and simplify the rules of practice, etc., in civil cases.
It was referred to the Committee on the Judiciary.
Mr. GIVEN introduced a bill [H. R. 171] prescribing the manner of selecting petit jurors for the Circuit and Common Pleas Courts.
It was referred to the Committee on the Judiciary.
Mr. BROADUS introduced a hill [H. R. 172] fixing the time for holding Courts of Common Pleas in the Sixth Judicial District.
It was referred to a special committee consisting of the members from that District.
Mr. WILLARD introduced a bill [H. R 173] to prevent empyricism, to elevate the standard of the medical profession, provide a Board of Medical Examiners, etc.
It was referred to the Committee on Rights and Privileges.
Mr. BAKER introduced a bill [H. R. 174] to amend the act for the incorporation of cities.
It was referred to the Committee on Cities and Towns.
Mr. ISENHOWER introduced a bill [H. R. 175] in relation to mortgages on real estate and the recording of the same.
It was referred to the Judiciary Committee.
Petitions on the subject of a temperance law were presented by Messrs. FURNAS and HEDRICK.
Mr. BRANHAM introduced a bill [H. 176] to prevent extortionate charges for the carrying of freight by railroad companies or other common carriers, and unjust discriminations in regard to the same.
It was referred to the Committee on the Judiciary.
Mr. WILSON, of Ripley, introduced a bill [H. R. 177] fixing the time of holding courts in the First Judicial Circuit.
It was referred to the Committee on Organization of Courts.
Mr. WILSON also introduced a bill [H. R. 178] to amend the practice act.
It was referred to the Committee on the Judiciary.
Mr. WILSON introduced a bill [H. R. 179] to amend the practice act.
It was referred to the committee on the Judiciary.
Mr. WOOD introduced a bill [H. R. 180] to abolish the grand jury system, except in certain cases.
It was referred to the Committee on Organization of Courts.
Mr. TEETER introduced a joint resolution instructing our Senators and requesting our Representatives to use all honorable means to secure the passage by Congress of an appropriation for the improvement of the harbor of Michigan City.
The joint resolution was, by consent, considered as engrossed and put upon its passage. It was adopted by yeas 73, nays 1.
THE FUNDED DEBT.
Mr. KIMBALL introduced a bill [H. R. 181] in relation to the funded debt of the State. [It provides for the discontinuance of the office of State Agent after the 10th of February, 1873, and the abolition of the Sinking Fund Commission.]
It was referred to the Committee on Ways and Means.
Mr. GLAZEBROOK introduced a bill page: 186[View Page 186][H. R. 182] declaring the procuring of abortion or miscarriage to be a felony or murder, as the case may be, &c.
It was referred to the Committee on the Judiciary.
Mr. HARDESTY introduced a bill [H. R. 183] to divide the State into thirteen Congressional Districts.
It was referred to the Committee on Elections.
The House then adjourned till to-morrow morning, nine o'clock.
