THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
Costs in Criminal Cases---Constitutional Convention.---Debate in Continuation.
HOUSE OF REPRESENTATIVES.
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THURSDAY, January 22, 1873The House met 9 o'clock A. M., the prayers by Rev. Mr. Bayliss, of Roberts Park, M. E. Church of this city.
The reading of the journal of yesterday was dispensed with.
Mr. ANDERSON submitted a motion to reconsider the vote of yesterday by which the House concurred in the report of the Committee on the Judiciary for the indefinite postponement of his bill [H. R. 342] for an act to provide for the taxation of costs in criminal cases, and he said: I consider that this bill is correct in principle on this subject, and that the subject deserves the candid consideration of the House. I know of no legislation more needed than this. The present criminal laws make no provision for the payment of the costs in criminal prosecutions, unless the defendant is found guilty. This, I will say in the first place, works injustice and hardship to the witnesses, who have to attend for the State at great inconvenience and expense, and frequently without their own county; and in most cases where the State loses the case, the defendant is unable to pay them and the State will not so the service has to be rendered - is compelled to be rendered without any compensation whatever. I do think, sir, that this injustice should be remedied - should be provided against in some such way as I have proposed. But I have another objection to the present law. There is a rule in the criminal practice, that all the doubt as to the guilt of the accused shall go to his benefit. Now I undertake to say that in a great many cases - I do not say in the higher courts but in a great many cases before Justices of the Peace, it is my conviction, resulting from my own observation, that the benefit of the doubt goes not to the accused, but to those who are to get the fees - the costs - and so this good old rule of the law is subverted. To illustrate what I mean: Suppose that when the viewers are selected to go out and view any proposed route for a road, and there is a condition made and understood that these viewers shall be allowed compensation if they report favorably, and not otherwise, I presume there is no man but would say that such a condition must affect the judgment of the viewers, for they must, in order to receive their own pay render a favorable report. And if it does not go that far, at the least you would say that it places the viewers in a condition where they might make the change in the road against their own proper judgment. Where the road might be of doubtful propriety, the viewers would give themselves the benefit of the doubt. I think the; would do so in many cases. And just in this way, I think it is, that, for want of such an amendment as I propose, our criminal laws have a direct tendency to invade the right of the accused in any fair trial. Then again, it often happens that the panel for the jury do page: 367[View Page 367] not try the case, and the Sheriff summonses another. And now, in such a case - where the Sheriff has been put to a great deal of trouble and expense - where he has been compelled to send out deputies to one place or another, it is but reasonable to say that he would feel some interest about indemnifying himself,and here is the plain statute, that he gets no costs if the defendant is cleared,now is it not reasonable that in such a case the Sheriff would select from amongst his friends those whom he could rely upon for rendering a verdict favorable to his Interest in the case? - a verdict for the condemnation of the defendant, so that the Sheriff might get his fees of the State? And every witness in the case is directly interested in the same way. My impression is that the statute should be amended in this particular. The lovers of good order and the law-abiding men in every county would have no objection to being taxed for this public service, and I can see no better way than that these costs should be entailed upon the county. I merely wish this reconsideration for a deliberate vote of the House.
Mr. MILLER. Mr. Speaker, I think that the vote of the House concurring in the report of the Judiciary Committee ought tostand. The object of the bill was that where a criminal action is prosecuted and fails, and the accused is not able to pay, that the fees of Clerks, Sheriffs and witnesses in such cases shall be paid by the county. Now, it seems to me that the law ought not to be altered in this way. I undertake to say, that so far as our court costs are concerned, the amendment which the bill proposes would double the amount of the costs now necessary to carry on our judiciary system. It is true that in some cases I have heard complaints that the present law does work hardships. But the Supreme Court has decided that the Sheriff accepts his office knowing the law, and that the ordinary fees of his office are made so high, that he can afford to lose them when the State does not succeed in the prosecution - that his fees are made high enough to indemnify him. I have not heard any general complaint from any source, even from the Sheriff on account of this decision. It is generally said that the Sheriff gets ten times as much compensation in his fees as the actual amount of service would justly entitle him to. It seems to me that these temporary hardships are just like the hardships we suffer by the requisitions of the law for military service, or for working on the roads. These as a general rule work hardships equally severe, and not very unlike those to which the gentleman has referred. But a man has to suffer in this way but a few times perhaps in all his life; and I think it is better thus to suffer than to make the proposed change. Then there is this fact: if a man who is a witness in a criminal case is very poor, and is compelled to attend court out of his own county, it is common for the judge to pay the expenses out of the county funds. As to the inducement of the fee to make a witness swear hard against a defendant, I can hardly think a man could take that into consideration when he comes on the stand under the solemnities of an oath. To think otherwise must be to take a very groveling view of human natureto think that a witness could be induced to swear falsly because of his compensation of seventy-five cents or a dollar and a quarter a day - and besides all render himself liable to a prosecution for perjury. But it seems to me that such a law as this bill proposes would increase the number of prosecutions of malicious prosecutions - especially on the part of those persons who take the low view of human nature which the gentleman supposes. If such were the law, and if such a person were assured of his pay, the prosecuting witness might not be so careful about having a good cause of action. If such a man knows that when he goes before a court he will get his pay for the service, it seems to me that to make a law giving him that assurance would be an act for the encouragement of criminal prosecutions. He is encouraged, because whether the State fails or succeeds he is bound to get his compensation. And so also, I think such legislation would raise up a large class of professional jurors.
The vote was reconsidered; but the House again rejected the bill - yeas 35, nays 40.
And so the bill failed.
CONSTITUTIONAL CONVENTION.
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Mr. WALKER, from the >Judiciary Committee, reported back Mr. Heller's bill, (No. 236) providing for taking the sense of the people on the question of calling a constutional convention without recommendation.
Mr. WALKER said the committee did not feel warranted in making any recommendation. The House should determine the question for themselves.
Mr. HELLER spoke in support of the bill as follows: Mr. Speaker, there is no doubt that a majority of the members upon this floor, and also a majority of those who dispense the law throughout the enitire State, are satisfied that a change has become necessary in our organic law; or, in other words, they favor a change in the present constitution, or at least, in many important provisions of that instrument.
Now, Mr. Speaker, while I am not entirely clear as to my duty in the premises, I am page: 368[View Page 368] fully satisfied that a convention will be called, and at no distant day, regardless of what many of us may require or wish. This being the case, according to all the indications, the only question that remains to be decided is, who shall and who is the proper and rightful authority to call a convention? All power is derived from the people, and when a question of so much moment demands action it is but just that those who are most directly concerned, and whose interests are affected should be consulted, in order that the greatest number may be satisfied and our action justified.
I do not clearly see the real necessity for a call, as we all well know there is a way provided for amending the existing instrument. Tedious though it may be, I consider it the great redeeming feature of the instrument itself. If we look back behind its birth but a few years, we find that the commonwealth of Indiana was insolvent - i. e., unable to pay her just debts; unable to fulfill her contracts. The best confirmation of this assertion is the passage of the Butler Bill, and thereby obtaining a final settlement with her creditors. This not being sunicient to relieve her from embarrassment, a convention was called to frame a new constitution. The legitimate result of the labors of the able men called to do the work incumbent upon them, went into effect November 1, 1851.
Now, Mr. Speaker, a casual glance at our crippled condition before and at the time the present instrument was born into life, as compared with our growth and progress under its beneficient and benign provisions, affords such a palpable and glorious contrast that we should, at least, be slow to swap away what has made us powerful, rich and respected, for that which has not even been conceived in the womb of its maternal progenitor, and what will cost us thousands upon thousands of dollars to simply bring about the proper marital relations by which it may be conceived and brought into real life.
As I said before, the present constitution went into effect on the first day of November, 1851. How long, may I ask, did we remain upon our backs? Why, sir, in less, almost, than no time, we stood erect, proud and haughty, the peer of any of the States that repose their greatness on the bosom of the wonderful Mississippi Valley in point of credit and honor. Yes, sir, she was brought to this high financial standard in the short space of ten years; and we find that a ruinous civil war of four years duration, drawing upon her resources to the enormous amount of thousands of men and millions of money, prevailed during all that devastating period; and yet her finances remain uncrippled, her honor unstained, and with the robe of majesty encircling her gracious form.
With all this staring as squarely in the face, dare we leap unadvisedly into the jaws of what may turn out to be financial ruin, dishonor, and a weakened organic law?
But it is said by the friends of a convention, that some of its provisions need amendment; that certain parts have fallen behind the wants and requirements of the present age! Granted; but then, sir, does not the instrument itself provide for all necessary changes? They tell us the process is too slow! So much the better. No excited faction can, under this provision, change or mar the face of the instrument by a single blow, to the detriment and injury of those who provide the sinews of government. If a change is attempted, time is allowed for the sober second thought to take the place of the passions of the hour, and correct any abuse that may be attempted. Besides, by the process now provided, not one dollar of extra expense is incurred, because it is done when we are called here to transact the ordinary legislation which the business interests of the State demand; and the finality is given it at the regular election held for other purposes. If a convention is called, besides the risk to all classes in the State, the expense will amount to thousands - yes will run into hundreds of thousands of dollars! It must be remembered that not less than from four to six months time will be actually necessary to complete the labors incumbent upon the members of said convention.
But, Mr. Speaker. I am fully satisfied a convention will be called, regardless of the wishes of a respectable minority upon this floor. And here, let me say, up to the present time it has not shown itself to be a party measure. We are somewhat divided, without regard to party lines. Now, sir: with this state of facts before us, what are we to do? Squarely oppose the will of the majority, that our constituents may look to the record and discover that we have simply cast a vote in the negative? No, sir, such action is too much like the conduct of the ram that attempted to butt the engine off the track: shows excellent pluck, but desperate judgment!
I have been beaten so often politically, that "kicking against the pricks" has proved itself to be an unwise and losing game. I have learned, after long and sad experience, to accept the situation of affairs, and pursue such course in the premises as the indication of coming events present. With all this in view, my duty becomes plain. We have lived and prospered under the present constitution for twenty years; we certainly should not now be afraid to risk it for two years longer, and give the people a voice in the matter? Let them page: 369[View Page 369] say through the ballot box, yea or nay whether they are willing to pay a half million of dollars for a few slight changes in their organic law, when the same may be accomplished without price!
Mr. Speaker, I do hope this bill will pass, for my support can be lent to no other way of proceeding in this matter. We need n new Capitol building. We now have to pay the Garrett and other bonds that the people supposed canceled a quarter of a century ago! We must have new prisons, alms house and additions to some of the old ones. Extra appropriations are asked for, and extensions to the institutions of learning. The benevolent appropriations are crowding upon us thick and fast. The ordinary machinery of government must be kept in motion; all these things require an immense outlay of money. The already over taxed people are always crying for relief; without their united support all becomes weakened! Then let us be careful how we trifle with their hard earnings! It is not our right to squander their substance without their consent. They are the only ones that have either the moral or legal right to dispose of their own means!
The Constitution of 1816 gave place to the present one. The internal improvement system was cut away, and an important fundamental principle of government was thereby secured. The sad lessons of the past should be sufficient warning, that in what we are secure should be husbanded, and preserved with more than common honesty and earnestness. We should surround all that is good with impregnable safeguards, and be slow to risk all by the throw of chance! Everything is safe in the hands of the people; it is their concern, and not this small body of men collected here as their representatives only. For us to take all the responsibility, without consulting our constituents upon so grave and important a matter, looks like transcending our powers, and assuming an arrogant authority not in keeping with the institutions of freedom. Therefore I hope the House will pass this bill. No possible harm can come from such action.
The bill was then ordered to be engrossed.
