THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
Notes of Hand---Criminal Prosecution to Open and Close.
IN SENATE.
TUESDAY February 18, 1873.[CONTINUED FROM PAGE 173.]
When Mr. O'BRIEN in behalf of theCommittee on Rights and Privileges returned Mr. Harveys bill [S. 241] declaring all agreements to pay attorney's fees when contained in any written evidence of in-deptedness as an addition thereto, on a contingency, usurious, illegal and void, with a recommendation that it be indefinitely pos-poned.
Mr. HARVEY said, the bill was to abolish a costom growing into use which was contrary to the spirit of our laws and founded on a false assumption.
Our courts in theory and practice were open and free to all. There was no more reason why a defaulting debtor should pay an attorney fee for the benefit of his creditor in case of suit, than that he should be made to pay five per cent each day the note passed overdue, it was simply usury in a very oppressive form leaving him liable for a very undeterminate amount.
Under the usage now a man can recover pay for collecting his own debts due him. It is reported that a costom of this kind was so abused that Life and Liberty was put up as forfeit on non payment if a note or bond but a very noted decission exposed the fallacy of the doctrine so clearly that courts since that have been loth to favor such usurious practices. It is charged that lawyers favor the costom of incorporating in notes a provision for paying atttorneys fees.
So far I have observed that lawyers get their pay anyhow and would much prefer being paid by the party for whom they do the service rather than be compelled to collect it from an unwilling debtor.
The whole costom is liable to great abuses and should be abolished before it accomplishes any further mischief.
Mr. BROWN favored the passage of the bill. He said he was opposed to the condition requiring the borrower to pay the expenses of the lender's litigation.
M. O'BRIEN said he favored the adoption the report, not becanse he was especially opposed to this bill, but because he was opposeed to all this legislation to prevent men from making such contracts as they please. The only way to prevent men from making improper or oppressive con tracts is to educate them up to the point of knowing better. It cannot be done by legislation and it is not a proper subject for legislation.
Mr. STEELE differed with the gentleman. He thought it was right and the duty of the Legislature to interfere with men when they were found making contracts which were unjust and oppressive to themselves or when other men toook advantage of their necessities to extort such contracts.
The report was not concurred in, the vote being as follows:
YEAS - Messrs. Armstrong, Beardsley, Beeson, Chapman, Collett, Daggy, Daugherty,
page: 481[View Page 481]Dwiggins, Friedley of Scott, Friedley of Lawrence, Gooding, Hough, Hubbard, O'Brien, Rhodes, Thompson and Wadge - 17.
NAYS - Messrs. Beggs, Bird, Boone, Brown, Bunyan, Carnahan, Cave, Dittemore, Fuller, Francisco, Glessner, Gregg, Hall, Harney, Haworth, Miller, Neff, Oliver, Orr, Ringo, Sarnighausen, Scott, Slater, Smith, Steele, Taylor, Williams and Winterbotham - 28.
Mr. O'BRIEN moved to refer the bill to the Judicary Committee.
Mr. SLATER moved to lay that motion on the table. The latter motion was agreed to.
THE STATE UNIVERSITY.
The bill [H. R. 56,] to authorize the appropriation of $15,000 annually out of the State Treasury for the use of Indiana University, located at Bloomington, in addition to that already allowed, the special order for 10:30 o'clock was now taken up.
The Senate seconded Mr. Scott's demand for the previous question and under the operation thereof the bill finally passed by yeas 34, nays 9.
Pending the roll-call -
Mr. HOUGH in explanation of his vote, when his name was called said: I moved to amend this bill the other day so that the appropriation to the state University, with the interest from the endowment fund, would amount to about twenty-six thousand six hundred dollars annually. That I think was all the friends of the Institution ought to ask knowing the depleted condition of our Treasury. Because of this act on my part I was thought by some to be unfriendly to the university. With the last amendment I proposed the Institution would have about twenty-six thousand six hundred dollars - a sum largely in advance of the amount ever received by this Institution in any one year. Still the friends of this Institution urged us to increase the annual fund to thirty-one thousand dollars. If our Treasury was plethoric I think it would be proper to make that appropriation, while the amount I proposed would not cripple the Institution because it would be largely in advance if any sum ever received by it heretofore. We will be under the necessity of borrowing a large amount of money, oweing to the large appropriations made by this Legislature but I don't want to go upon the record as voting in a manner that will tend to detract from the prosperity of the State University.When the roll call was completed -
The LIEUTENANT GOVERNOR announced the vote yeas 34, nays 9.
So the bill passed.
CRIMINAL PRACTICE.
[CONTINUED FROM PAGE 176, MIDDLE OF FIRST COLUMN.
The bill [H. R. 137] to amend section one hundred and three of the Practice act in reference to the order of proceedings in cases on trial before a Court or jury was read the third time. [The amendment provides that in criminal cases the Prosecuting Attorney shall have the opening and close, but he must disclose, in his opening arguments, all the points upon which he relies; and if, in his close he presents any new point or fact the defendant or his council shall have the right to reply, which shall be the last argument in the case. The case may be submitted without argument by consent of the parties. If the Prosecuting Attorney declines to make the opening argument the defendant or his counsel may present his case and the State shall have no right to reply].
Pending Mr. Friedly's (of Lawrence) motion that the bill be indefinitely postponed -
Mr. BOONE said: If it is right that the plaintiff should have the open and close in criminal cases, I never could see the reason why it is not equally right in criminal cases where the State has to make put a case beyond a reasonable doubt. My judgment is that many a criminal who is guilty and who has been proven guilty by the evidence and so shown by the instructions of the Court has been acquitted through the irresistable eloquence of gentlemen who make the defense of criminals a business. I am opposed to the indefinite postponment of this bill.
Mr. GLESSNER. I am opposed to the passage of this bill and think it ought to be indefinitely postponed. The Senator from Boone (Mr. Boone) says he can't see why it is that the same rule should not apply in criminal that applies to civil cases. In the first place there is no analogy between crimnal and civil cases, and the same rule can't apply in the trial of criminal as of civil cases. In civil cases 'tis generally a mere question of dollars and cents, and the plaintiff must make out a case by his evidence, and the defendant has the right to confront him with witnesses to testify in the case and to rebut the evidence of the plaintiff. The plaintiff has the right to close the case, aud when you come to the comparative importance of the matter it is a matter of indifference whether the verdict is right or wrong where the question is as to mere dollars and cents. But when you come to a criminal case the rule is different. The defendant is arranged before the bar of the court. The State arrays its testimony, makes out its case, and the mouth of the defendant is closed only by his counsel can he speak. The jury is empanelled to try his case with perjudices in their bosoms against the commission of crime and against the defendant before the court.
He said that criminal law is based upon page: 482[View Page 482] the principal that it is better for ninety-nine criminals to go unwhipped of justice than one innocent man should be convicted. This rule has obtained in the State of Indiana for many years and as I understand it is satisfactory and has been recognized as the proper rule, and while the mouth of the defendant is closed I think it should obtain. If the law should be changed I would be in favor of allowing the defendant to testity; and then the rule would be fair to allow the State to close the case. In that way I believe convictions would be brought about where they are not now. That is the rule in many States and it works properly and justly, and the public are satisfied with it.
This proposes not even to permit the defendant to close the argument in the case. The State has the beginning with witnesses and has the closing with witnesses, then she comes back and rebuts under this bill and finally has the last argument before the jury. 'Tis too radical an innovation upon the present rule. Nobody is asking for it, unless perhaps we may find a man who has become dispeptic on account of long practice at the bar and who has lost sympathy for mercy in a great measure.
Mr. HARNEY. In this matter the question is between the people of the State on one side, and on the other side the man they are trying for an offense against the law. The people should have just as much justice on their side as the person arrigned for trial. Since this law has been in effect - twenty years or more - it never has had a majority of the people in its favor. A majority of four-fifths, I believe, are opposed to the present law. I am well satisfied that people desiring men guilty should be punished are reproaching judges and jury because crime is on the increase, and are demanding that the present law should be changed.
Mr. BROWN. I favor the passage of this bill, not because I desire to favor convictions but because I desire to do that which judgment and consciences teaches me is right. The State of Indiana is the only State in the American Union which has the anomaly that allows the defendant to close a case. It is an innovation upon common law unwarranted by any judicial or legislative precedent, inconsistent with reason and repugnant to common sense.
To say that a party who has placed upon his shoulders the burden of the issue ought to be allowed to open and close the case would not only be contrary to reason but in violation of all history; and in 1853, I believe it was, when this changed was worked in the criminal practice it was done by some shrewd lawyers for their personal success; and from that day to this there has grown up in Indiana an opinion that the rights of the public in criminal courts are insecure. I desire that we shall perfect such legislation as shall tend to convince the public that their rights are secure and not insecure.
Mercy in the trial of criminal cases should be tempered with justice. It is legal justice which is sought to be found in the investigation of criminal cases and not that fancied mercy that takes possession of a certain class of men. The law is founded upon a rule that proposes to provide protection for the peace, happiness and security of society, the enforcement of public order, the maintenance of the public peace, the protection of life and property, and the security of the person demands that the administration of criminal justice should be such as would insure the public safety.
It seems to me that this bill is very carefully guarded so that no injustice may be done a party accused of crime; and that if the practice is changed it will work no disadvantage to an innocent man.
Mr. GREGG. There is two or three reasons why I shall vote for the postponement of the bill. It is true that in several States of this Union the prosecuting Attorney opens and closes, and if we would change the criminal code of Indiana and make it the same as that of Ohio, I might vote for such a measure. In Ohio, where the State has the opening and closing the jury finds the fact of guilt only, and the judge fixes the punishment. In some States the defendent is permitted to testify. Then, if we pass this bill, in the prosecution of a case before a Justice of the Peace the State will have the opening and closing of the case, and there the jury, the prosecutor, and the court trying the case - all their fees depend upon conviction. In the Circuit Courts, where we have a Judge to instruct the jury, I apprehend it is not very material whether the State or the defense closes the case because under the instructions of the Court justice will be apt to be done. For these reasons I am not prepared to vote to change the law.
Mr. FRIEDLEY of Lawrence. I am. very well satisfied, after hearing gentlemen who advocate this change in our law, the interests of the people at large do not demand the change. It has been very well said that the experience of the people with the law we have on the statute books is that the law is wise, and I believe the people as a general thing are satisfied with it.
It seems to me that the arguments of the friends of this bill proceeds upon two great errors, as they seem to believe that courts are simply organized to convict. They seem to believe it to be the duty of the State to so frame their laws that whenever a man is arraigned before a court charged with the commission of a crime, that conviction will be absolutel page: 483[View Page 483] certain. I do not understand that to be the policy. I believe in progress and in the law as it is on our statute book. My experience, limited as it is, is that the defendant labors under a disadvantage, and that he has no advantage over the State - under the present law. He is brought from the jail and comes before the court with a bitter, unyielding prejudice against him; - we would rather believe evil of the man than good. He is generally without property and influence, is confronted by the whole State: Then he is confronted by a numerous array of witnesses; and in many cases possibly, the witnesses are brought into court under the influence of this prejudice that exists against the defendant. Many are actuated, not by a desire to see justice done, but by motives of revenge. In the mean time you close the mouth of the defendant. If he has an explanation of the charge; if he has knowledge, or is in possession of knowledge which if it could come before the court would satisfy the jury that he is innocent, it is locked up. He is not allowed to testify. Confronted by the State and her witnesses, and all opportunity to testify on his part cut off, and yet gentlemen complain that he has a great advantage in the trial of criminal cases in Indiana. They say it is wrong to give the defendant the closing argument, because it has great power over the jury. In some cases it may and in many cases it ought to; but these gentlemen seem to think a jury in Indiana is incapable to determine the law and the evedence: and that any attorney may mislead them. I have confidence in the intelligence of the people of the State of Indiana that when an issue is being tried between the State and a criminal, they can do justice notwithstanding the appeal made in the closing argument.
If there is any great power or advantage in the closing argument, that ought to be given to the accused, because the principle upon which law proceeds is that ninety-nine guilty men should go unpunished than one innocent man should suffer. The Senator from Jackson [Mr. Brown] says that the rule should not obtain in Indiana. He says it is necessary for security and protection to society that innocent men sometime should suffer. We cannot afford to reverse the old rule;we cannot afford to say that an innocent man shall be prosecuted and probably sent to the penitentiary. I hope the bill will be indefinitely postponed.
Mr. STEELE. I desire to occupy the time of the Senate only a few minutes to answer arguments against the indefinite postponement of this bill. We should look at this subject without prejudice. We should view the man that is brought into a criminal court as an unfortunate person. We should regard him, if we regard the principles of law, as being innocent until the evidence makes him guilty. That is the humane principle upon which all our criminal codes are built. Is there not a morbid, diseased state of the public mind at this time in regard to that principle? Do they recognize this principle that every man is presumed to be innocent until the contrary is clearly proven? Does not the practice in the United States at this time show that is not true ? When a man is brought before a court of justice and confined in the county jail to await his trial do you not see it proclaimed everywhere that such and such an individual is guilty of such and such crimes and should be punished thus and thus? Is that not true? If it is true as I am now stating it, are we not drifting away from this old principle that should govern men everywhere: - that principle recognized by Blackstone, the great Bible of the legal profession - that it is far better ninety and nine guilty persons should escape than that one innocent man should suffer? I think we are drifting away from that. It is public opinion that frames the minds that are to try the criminal. It is that same public opinion of the same State that is to try the man, that furnishes the jury. It is true he may object to a certain mumber, but after that his mouth is closed. The cry of the times is for "Blood!" "more Blood !" Why is this, my friends?
I want you to look about you and see how it is. You have a State prison at Jeffersonville and another at Michigan City and you are proposing to make another. Why is it? Is it that criminals go unwhipped of justice, or is it because justice is meeted out? At Jeffersonville there are three hundred and at Michigan City we have three hundred and fifty. The law is penning the criminals up and yet the cry goes out from Jackson county "more Blood - let us have it," and if the courts will not administer justice in accordance with that cry they take and execute them without Judge and without witnesses I It is said by the gentleman from Jackson [Mr. Brown] that there is no State in the Union that allows the criminal the right to close but the State of Indiana. Is the gentleman speaking correctly in that matter? verily, not so. I have no doubt the gentleman from Jackson thought so, yet I understand it is not true and should not be taken as true.
Mr. HOUGH (interposing.) In what other States does that practice prevail?
Mr. STEELE. In the State of Iowa.
Mr. HOUGH. Any other?
Mr. STEELE. Yes sir, there are others but I do not know just what they are. I think the law is right as we have it to-day. It is said that the prisoner has the advan- page: 484[View Page 484] tage every way. Tell me gentlemen, Senators, how it is the defendant has the advantage, when he is generally without money and often without friends ? How is it that he has the ability to obtain the ablest counsel in the county and the State of Indiana has not the means of putting competent men to the work of the prosecution ? If it is so whose fault is it? I think the State has advantages enough and is asserting her right sufficiently strong at this time. The prisoner cannot testify in his own behalf like a man in a civil suit. In a matter of dollars and cents A, B, and C can testify, but when it comes to testifying in a matter in which a man's possessions, his character his life and his blood is at stake you say "no, sir, sit dumb there. You have no right to be heard; and we will have council, able and skilled in the law to close the case against you."
In addition to that, after it is all done, the popular cry of the country is that men are going unwhipped of justice: that criminals are not sent to the State's prison as often as they ought to be. Does the history of the State show that to be the case? Go to the record of the late Governor and see how many convicts he has seen proper to pardon, and you would be astonished at the cry now being made for more convictions. You see the Supreme Court continually setting aside verdicts rendered under the same cry against criminals and yet it is still insisted that there are advantages in favor of the criminal. Build your laws upon the eternal principles of truth and justice to all men, and my word for it you will be doing right.
Mr. SLATER demanded the previous question, which was seconded by the Senate, and under the operation thereof the motion to indefinitely postpone the bill was rejected by yeas 12, nays 27, as follows:
YEAS - Messrs. Chapman, Daggy, Dwiggins, Francisco, Friedley of Scott, Friedley of Lawrence, Glessner, Gregg, Orr, Slater, Smith, and Steele - 12.
NAYS - Messrs. Armstrong, Beardsley, Beeson, Bird, Boone, Brown, Carnahan, Cave, Collett, Fuller, Gooding, Hall, Harney, Haworth, Hough, Hubbard, Neff, O'Brien, Oliver, Sarnighausen, Scott, Sleeth, Taylor, Thompson, Wadge, Williams and Winterbotham - 27.
The bill was then finally passed by yeas 30, nays 13.
