AFTERNOON SESSION.
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.
SHEEP PROTECTION.
Mr. VAN VORHIS called up the motion to reconsider the vote of this morning by which the Senate receded from its amendment to the dog law. [H. R. 36.] That vote was hastily taken, and the vote ought to be reconsidered.
The motion was agreed to.
Mr. VAN VORHIS moved that the Senate adhere to its amendments, and requested a Committee of Free Conference.
Mr. BROWN opposed adhering to these amendments, as this bill undertakes to make a distinction as to property, making it larceny to steal a dog with a tag, while it is not larceny to steal a dog without a tag, under this bill. The law recognizes the stealing of any dog as larceny. If there be an amendment offered making it larceny to steal the tag, he would not object.
Mr. VAN VORHIS desired a Committee of Conference should settle that.
The motion was agreed to, and the Lieutenant Governor appointed as said Committee Messs. Van Vorhis and Brown.
CIVIL CODE.
The consideration of the bill H. R. 367 was resumed.
Mr. BROWN--If Section 70 remains, it will defeat the constitutional protection, which provides that a person shall be put in jeopardy but once in regard to the same thing. He moved to amend so as to obviate that objection.
The amendment was agreed to.
Mr. TRAYLOR, being satisfied this section ought not to be in the bill, moved to strike it out.
Mr. MENZIES thought the section as amended should remain, In justice to border Counties. It may operate as a hardship in individual cases, but that is better than that criminals should escape on account of the opinion of the Justice.
The motion was rejected.
Mr. COMSTOCK moved ineffectually to amend Section 71 so as to deprive cities of the right prosecute for assault and battery, or for being found in a state of intoxication.
On motion by Mr. VIEHE, Section 71 was amended so where a party is convicted under a State law that shall be a bar to prosecutions under any other law.
Mr. COFFEY--If the Legislature has power to enact such a law, there is no reason why it should not embrace violations of ordinancesof incorporated towns.
On motion by Mr. BELL, Section 71 was re- ferred to a Select Committee of three. page: 128[View Page 128] The PRESIDING OFFICER pro tem. [Mr. Langdon in the Chair] made said Committee to consist of Messrs. Bell, Menzies and Chapman.
The Committee's amendment to Section 79, to reduce the number of Grand Jurors to six, being read--
Mr. BROWN thought the Grand Jury ought to consist of twelve members. Six find more indictments than twelve, and it ought to be composed of a sufficient number to represent each and every part of the County, so as to guarantee a sure protection against an improper finding of criminal indictments. The Grand Jury was originally twenty-fonr [A voice--36] thirty-six, it is said. It is twenty-four in the Federal Courts.
Mr. COMSTOCK'S observation as to the practical working of the law reducing the number of Jurors, is that findings for violations have been just as satisfactory as when the Jury was composed of twelve. The law is as fairly investigated by a Grand Jury of six as by twelve. The law fixing the number at six has generally been satisfactory.
Mr. BELL, from motives of economy, would have to favor a reduction, though the operations of the law reducing the number have not been altogether satisfactory. On principle he favored twelve, but as a matter of economy, in Counties where there are Criminal Courts, he should vote for six, against his convictions.
Mr. MENZIES, in Committee, reserved the right to oppose this amendment in open Senate.
The Committee amendment striking out twelve and inserting six in lieu was concurred in by yeas, 31; nays, 5.
On motion by Mr. BROWN, Section 89 was amended by inserting Clause 10, disqualifying any person from serving on a Grand Jury who has sought the position.
Mr. WILSON moved to amend Section 98 so as to make the duty of witnesses before the Grand Jury to answer any question touching any charge then pending before the Grand Jury; so the witness shall not be compelled to swear to give testimony or answer any question that may be asked.
The amendment was rejected--yeas, 8; nays, 28.
Mr. URMSTON moved as a substitute for Section 93 that the Grand Jury shall weigh all the evidence presented to it.
Mr. COMSTOCK preferred the section to stand as it is.
The substitute was rejected.
Mr. BROWN would like to see Section 93 amended so the Grand Jury shall not hear evidence for the defendant. The Grand Jury has jurisdiction over the Jails of the County, and he moved to amend Section 101 so that it shall have free access to the public Prisons in term time. He opposed the clause in this section grantng the Grand Jury free access at all reasonable times to public records or to County Poor Houses, inasmuch as it has no power to act in the cases. He was opposed to enlarging the powers of the Grand Jury, making it an Investigating Committee--despoil it entirely if that is to be its especial functions.
Mr. WILSON insisted that by ocular demonstration the Grand Jury can ascertain facts which can not be obtained in any other way. It can do no harm if it does no good to allow the section to remain as it is.
The substituted was adopted with an amendment proposed by Mr. COMSTOCK, including County Poor Houses.
Mr. BROWN moved to amend Section 93 as indicated in the beginning of his last speech.
Mr. GARRIGUS thought it a strang thing that the Grand Jury should be allowed to assort testimony, and if a witness should attempt to say anything to do away with the charge, he should be stopped under this amendment. The Grand Jury is a bad enough institution anywhere, but to tie them down so the shall not hear any evidence for the defendant is simply shameful.
Mr. BROWN was as anxious as any one to throw safeguards around the citizen, but the safety of the great body of the public lies higher than the protection of the individual. It is a denial of all that has gone before to say a defendant's defense shall be heard in the Grand Jury room. Let it be said the defendant can send witnesses to the Grand Jury room and in nine tenths of the cases where trials and convictions ought to follow the party will be set loose to prey upon the people at large.
Mr. GARRIGUS insisted if the amendment prevails the section would contain contradictory terms. He would not make a trial Court of the Grand Jury; but he opposed the amendment.
Mr. MENZIES made an ineffectual motion to strike out the section, being willing to leave this matter to the Courts of the country.
The amendment was agreed to--yeas, 22; nays, 12.
The Senate adjourned till 9:30 to-morrow.
