CRIMINAL CODE.
The Lieutenant Governor directed the Clerk to read the bill [H. R. 367] concerning criminal procedure, commencing at Section 65.
The Committee amendment to Section 69 concerning the presence of the defendant in cases of assault and battery.
Mr. BROWN saw no necessity for this Section 69. In the case of the State vs. George, the Supreme Court decided substantially this act of 1855 was void. He moved to strick out the section.
Mr. TRAYLOR--Very often a fraud is committed against the State by a party not letting the injure page: 127[View Page 127] party know anything about his appearance to answer.
Mr. BROWN said that statement was of no avail as a plea not to strike out this section. An aquittal or conviction brought about by fraud is of no more force or effect than a civil case decided upon fraud.
Mr. MENZIES--Something like a sham trial takes place from the fact the injured party is not present; but this section declares if he refuses to attend, the trial may go on. There may be reasons why the trial should go on, but if the injured party is confined to his bed the trial should not go on; while the one committing the offense tells his story, the defendant is not put to any hardship by this section. It is intended to correct abuses; if it is held void because the General Assembly has no right to pass such a law, that is the end of the matter.
Mr. SPANN thought this section goes too far. If a subpena is issued for the injured party and returned "not found," the trtal ought to go on. The decision of the Supreme Court is as stated by the Senator from Johnson (Mr. Brown). This section ought not to go farther than that the constable should serve the writ or make a return of "not found," and there the matter should end as between the plaintiff and defendant. He moved to refer this section to a Select Committee.
Mr. MENZIES opposed reopening this bill piecemeal all over the Senate.
Mr. BROWN insisted this Section was as meaningless as could possibly be devised. This statute puts it in the power of the person injured to defeat a trial, because the refusal of that person to attend for any other cause than sickness makes a speedy trial, or if the subpena be returned "not found" the trial must proceed whether the State is ready or not. Suppose a malicious person sues out a complaint, he may lay in bed feigning sickness for thirty days in order to reek his malice by keeping some poor devil in Jail.
Mr. CHAPMAN opposed the motion to strike out. The decision in 53 Indiana is undoubtedly correct, its only purport being in case affidavit filed for assault and battery before a Justice the judgment would be in loud plea of jurisdiction as against another prosecution for the same offense. That is not a good reason why this Section should go out. Although the statute of '55 has not been properly enforced it is a good measure and should be retained. It is intended to guard against a fraudulent exercise of judicial function.
Mr. COMSTOCK should not vote against the motion to strike out, as the injured party should have an opportunity to speak concerning the injuries inflicted upon himself. Notwithstanding this decision the statute referred to has been respected by Justices of the Peace.
Mr. WILSON was satisfied this section has been the means of allowing those deserving punishment to go free, but on the other hand with an amendment which he is prepared to propose by properly inserting the words "and can not be compe11ed to attend by attachment," it would be made a valuable section. Where the prosecuting witness has been subpened and fails to attend it is constructive contempt of Court; and where personal service is shown the Justice should issue a writ of attachment.
Mr. URMSTON understood the object of the law of 1855 to describe what a Justice should do in order that injustice shall not be done to a party injured. The Supreme Court does not hold that law a nullity or inoperative, or anything of that kind.
Mr. TRAYLOR insisted this section differed so much from the law of 1855 that the Supreme Court would not make a similar decision when reviewing it.
The motion to strike out was rejected--yeas, 10; nays, 27.
Mr. WILSON offered the amendment indicated in his remarks.
Mr. SPANN offered a substitute both for the amendment and the report of the Committee, desiring to prevent the injured party from laying himself in bed indefinitely, and thus preventing the trial. The substitute moved allows the trial to go on, unless the injured party shall appear and testify within a reasonable time.
Mr. CHAPMAN regarded the objections to the section as imaginary. Every conceivable contigency is not provided for in the statute.
Mr. BELL--If understanding he reading of the substitute, it would not do at all, for no matter how badly injured the party may be, under it the trial could go on.
Mr. URMSTON also objected to the substitute; the report of the Committee being more desirable. It provided that if the Justice does not mind the wording of the statute his judgment will be void.
The substitute was rejected.
The amendment was agreed to--yeas, 24; nays, 13.
The report, as amended, was concurred in.
Mr. VIEHE moved to strike out the last clause of the section, so it shall remain as the law of 1855.
Mr. BELL said the purpose of the last sentence was to destroy the jurisdiction of the Justice, unless the defendant is present. This would remove all manner of doubt.
The motion to strike out was rejected.
