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the condition where an indictment is looked upon, so far as the lower
court is concerned, as of very little importance. Noth withstanding the
plain and easy way of drawing a good indictment, we shall find ourselves
trying men upon defective indictments.

There is certainly no reason why the attorney for the defendant
should call attention to the defects in the indictment. There will be
every reason in this law why he should not call attention to a fatal de-
fect in the indictment. And we say, that by bringing the law of the
State of Iowa into that condition where the main reason for drawing a
good indictment is removed, the attorney for the defendant to merely al-
low the fatal defect to go unnoticed, will lay on the Supreme Court the
burden, on its own motion, of recognizing the fatal defect in an indict-
ment drawn under such a system, and liberating criminals who are con-
victed on the evidence. Therefore I say, in the Interest of justice and
conviction of criminals, I shall oppose the resolution. I believe we
should retain the law in a condition where reasonable scholarship on the
part of the prosecuting officers and reasooable efficiency is required.
A.nd I believe the solution itself will, instead of operating in the direc-
tion designed by the committee introducing it, have exactly the opposite
effect. ^

(Cries of question, question!)

Mr. Markley: Mr. Chairman, it would seem to me that this reso-
lution is subject to another serious objection that has not been mentioned,
I believe, in this discussion, if I understand it: Why reasons that are
now urged under the motion in arrest of judgment may not be urged
after the conviction, in case this resolution is passed and in case the same
should be enacted into law? If that is true, it seems to me that it in-
fringes upon the constitutional right of the defendant to a trial by jury,
in this way: If the indictment does not charge those essential facts nec-
essary to be proved, and necessary to constitute the crime which the law
now requires shall be set out in the indictment, and the defendant is out
upon trial under that indictment, atad if after conviction he cannot raise
the question in arrest of judgment because it appeared on the indictment,
and if in any way he seeks to raise the question as to whether or not the
evidence before the Court has been sufficient to constitute the crime for
which he has been on trial, does it not leave it to the judge of the Court
whether or not he has been convicted of a crime? If the indictment itself
does not contain the essential elements of the crime; if, as I understand
the gentleman on the other side, when the objection is made after convic-
tion — if the state then shows that the evidence has been sufficient, that no
relief should obtain, does it not then pass to the judge to say whether
or not the evidence has been sufficient to remove all reasonable doubt of
his innocence? It seems to me in that respect this proposed resolution
is subject to serious objection.

Moreover, I want to say in answer to the remarks of the Attorney
General, that it frequently happens that the public mind is controlled by
some moral question or some question that has unduly excited the public

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72 Iowa State Bar association.

mind, and Id such cases men do not always receive, either at the hands
of juries or at the hands of Courts, that fairness of judgment that they
are entitled to, and that under other circumstances they would receive.
I ha^e in mind now, and I think the Attorney General will hear it in
mind, a case where a man was charged with selling intoxicating liquors,
and where liquors were seized by an officer who came into his hotel and
cook whiskey and alcohol. No contention was made that the man sold
intoxicating liquors or kept them for sale. But the law, in its zeal to
suppress the sale of intoxicating liquors, had created a presumption
that a person who had liquors in bis possession in such a place had them
there for the purpose of illegal sale. That defendant, exercising his
condtitutional right of trying his own case, being assured of his own in-
nocence, undertook to defend himself. The County Attorney introduced
the liquor in evidence and called the officer and showed by him that he
found it in the hot;el, and rested his case. The defendant, believing in
the justice of the law and believing that he had nothing to fear in a case
of that kind, went on the stand and told his story in a somewhat defec-
tive way and submitted his case and was convicted. Now, in a case of
chat kind it would readily appear to any honest man that the' defendant
should be permitted, when the condition he was in was brought to the
attenti«>n of an attorney employed by him, to urge against that convic-
tion every reason that he could find in the record; and if the indictment
in thai case was defective, he had a right to urge that reason because he
was an innocent man. He had not in fact violated the law. So, Mr.
President, it seems to me there are a great many objections why this in-
novation should not be made. There are good reasons which give rise
to a law on this subject; there should be overwhelming reasons why the
settled policy of the law for years should not be overthrown.

(Cries of question, question!)

Mr. Mullen: Mr. Chairman, I had not intended to take part in
this argument, but I am firmly convinced that the resolution should not
pass. In the first place, that law has been on the statute books and
existed, as I now recollect it, for over forty years; we should certainly
be very slow to make haste to overthrow a statute that has stood ou the
books of Iowa for that length of time, unless there are most patent reas-
ons why the change should be made.

It has been my understandinsr, and I believe it is the understanding
of the gentlemen who are present, that there should be two things that
are necessary to every legal conviction. The first is that there must be
a legal indictment, and one that charges a crime which is fixed by stat-
ute. And the other is that there must be evidence to support that in-
dictment, to the allegations of which he has plead. Now, my friends on
the other side of this question suggest it makes no difference what kind
of an indictment there is; that the man is convicted simply because of
the evidence. It seems to me it is stepping outside the well known rules
of jurisprudence in this state in criminal matters. The evidence of his
conviction must be confined strictly to the allegations of the indictment,
and no evidence outside of those allegations is admissible.

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Iowa State Bab Association. 73

Now, if the prosecutors and attorneys and otherfi In this room wei e
infallible, or judges were infallible, it is quite possible there would be no
discussion of this question, and a resolution such as is offered here might
not do any harm. But we all know that lawyers and jud fifes alike are
fallible and mistakes are made by the very best of us. That reminds
me of a saying of Lord Campbell, an Encrlish Chief Justice, in which he
said if 99 cases out of 100 that were decided at the highest Court in Eng-
and had been decided exactly opposite to the manner in which they
were decided, that equal reasons and cogent arguments would have been
given for the decision, and the judges would have lost nothing either in
reputation for ability or integrity!

Now supposing that the County Attorney, in framing his indictment,
makes an error. It is a bad indictment; he does not know it. It is pre-
sented to the judge, possibly for advice, if that would be permissible,
and he fails to discover that error. It is expected that the man who
comes to defend the defendant knows more than the Court and the pro-
secuting attorney, and that he must discover it? It is entirely over-
looked, the man is put on trial on a bad indictment, and the jury brings
in a verdict of guilty against him. I want to ask my friends on the
other side of this question whether any one of them would be willing to
stand up here and say that they would want that man to take the con-
sequence of that conviction and a term in the penitentiary when there
had been a mistake in the indictment not discovered by anyone, and a
oonvlction had upon a bad indictment? What should be done? There
is only one thing that should be done in the name of common sense and
justice— that when that mistake is discovered the Court and lawyers, not
only for the defense but the prosecution, should remedy it at once,
and place the defendant where he stood before he was convicted by the
jury. It is not my understanding of public prosecutors that their sole
duty is to convict men. It seems to me it is just as important a part of
their office to see that no innocent man is convicted as it is to see that no
guilty man escapes. With these views, it seems to me that the Bar
Association should not recommend the adoption of these resolutions.

(Cries of question, question, question!)

Mb., Crosby: Gentlemen, you have heard the recommendation of
the committee. You that favor its adoption say Aye. Those opposed
say No.

Call for a division.

Mr. Crosby: You that favor the resolution please rise.

There are 35.

You that are opposed to the resolution please rise.

There are 40, and the resolution is lost.

Mr. Blanch ard: Mr. Chairman, I offer the following resolution:

''Resolved, That the thanks of this Association are hereby tendered
to the Bar of Sioux City for the cordial and loyal manner in which it has
been entertained and provided for at this annual meeting."

Resolution seconded.

Mr. Quick: I move as an amendment that there be included in it

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4 Iowa State Bar Association.

the thanks of the Association to the Sioux City Boat Club and the River-
side Boat Club for the use of their grounds.

Motion seconded.

^ Motion put and carried unanimously.

Mb. Mullen: I desire to offer a motion; that is, that the thanks of
the Iowa State Bar Association be tendered to our able presiding officer,
James O. Crosby.

Mr. Crosby: You are too late; that is a back number. It has been
done long ago.

Mb. Haines: Mr. Chairman, I move we adjourn.

Motion seconded.

Motion put and carried, and session adjourned.

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loWa State Bar /\ssociatior\,




The Bench in its Relation to the Bar George H. Carr, Des Moines

The Ehitch Lawyer Fred Heinz, Davenport

The ('ountry Lawyer George C. Soott, Le Mars

The Last Guess D. C. Chase, Webster City

The Lawyer and the Legislator C. W. Mullan, Waterloo

Uncle Sam's Flogging Machine Cato Sells, Vinton

The Irish Lawyer in the Fight for Liberty P. E. C. Lally, Denison

The Public Kodac (Third and Last Call) Shirley Gilliland, Glenwood

The Local Bar W. H. Farnsworth, Sioux City

Mr. Crosby: Gentlemen of the Association: We are honored to-
night by the presence of Hon. Adlai E. Stevenson, former Vice-Presi-
dent of the United States, whom I take great pleasure in introducing to


Mr. President, Gentlemen of the Bar: I count myself indeed fortu-
nate in being a visitor in Sioux City at a time of the annual meeting of
the Iowa State Bar Association. I return my thanks to the distinguished

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76 Iowa State Bar Association.

geotleman through whose courtesy tome I am indebted for the privilege
of meeting with you tonight. It is always a privilege and pleasure to
meet with lawyers. I have somewhere read that when two Koman aug-
ers met each other on the streets they always smiled. If one-half or
one-tenth that is said about lawyers be true, they may well smile when
they meet in the court house or at the banquet board.

My name does not appear in this list as one of the speakers of
the evening. I am here only by grace, and I said to my distin-
guished friend, when he requested me to make a few remarks, that I
had no speech to make, and he very kindly told me a temperance story
that he said he thought would do for an occasion of this sort, instead of a
speech. And as it is in the State of Iowa, on the occasion of a temper-
ance meeting of this kind, probably it would be very appropriate. As
my friend told me, the scene was laid in the State of Maine at the time
the Maine law was in force, when it was impossible to get anything to
drink. A poor, dilapidated- looking individual, about the middle of the
afternoon of a very hot day, in the dust and heat, pulled up in front of
the postoffice in a little town in the interior of Maine, and addressing
himself to two or three individuals who were waiting for their mail,
asked if they could tell him where he could get something to drink.
They said. No, it was impossible in Maine; they had the Maine law in
force and it was impossible to get anything to drink in Maine. He said:
**Is it possible you would let a man die for the want of something to
drink?^' They told him finally to go to the apothecary shop and see
what the chance was. He reported there, and they said he could not
get anything to drink unless he had the certificate of a doctor that it
was needed. He inquired where a doctor was to be found, and they said
half a mile down the lane. He started out through the heat and found
the doctor, and in the course of three-quarters of an hour returned and
still begged for something to drink. They a^ked him if he had a certifi-
cate from the doctor and he said, No, the doctor had refused to give him
one. They told him he could not get a drink there. He said: *' Would
you let a man die for something to drink?" The apothecary's heart
was touched, and he said the only alternative was that he had been
snake-bit. The man said: **Where can I find the snake?" And the
apothecary answered: **Down the lane near the grove there was a few
snakes left,'* and he thought by due diligence he might get a snake-bite.
He started out, and late in the evening, when the shades were lengthen-
ing on the trees, he returned more tired than before and begged them to
give him a drink. He was asked if be had been snake-bit, and he said.
No, every snake he met had engagements six months ahead for all the
bites he could furnish.

I am indebted to my friend, the President, for that story, and in the
language of Uncle Remus, I give it to you as he gave it to me.

It is a pleasure to meet the judges on an occasion of this sort, when
they are not on the bench. It is a great pleasure to meet the judges on
the level, where you can talk to them as one lawyer to another. I re-
member an incident that occurred where a young lawyer made his first

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Iowa State Bab Association. TT

appearance at the bar and had hid first case, to his utter amazement, de-
cided a&rainet him. And he was, with great enthusiasm, expressin^^ his
surprise at the decision of the Court, which resulted finally in the judfzre
fining him $10 for contempt of Court. Whereupon an old lawyer, who
sat at one corner of the bar, arotje and said: "If j'our Honor please, I
trust you will be more lenient with my friend in his enthusiasm and
zeal. He has expressed surprise at your Honor's decision, but when he
has practiced law at this bar as long as some of us have, he will not be
surprised at any decision your Honor makes."

I find, gentlemen, I am detaining you from your feast.

(Cries of go on, go on!)

I thank you again for the courteous invitation to be present to meet
with these lawyers, to look them in the face. I think I never saw a
handsomer set of men in my life. And I will keep track of the meetings
in the future of the Association, of the Bar Association, and will prob-
ably turn up about the same time next year, and enjoy the banquet and
enjoy the speeches I know we will get. Again I thank you.

Mb. Cbosby: I am glad to meet his Honor tonight, under much .
more favorable circumstances than the last time when we met. It was
at the Semi-Centennial at Burlington. A large platform had been er^t-
ed, upon which, the notables were seated, and just as I was about to prac-
tice, for the first time, the performance of trying to be a notable, down
went the platform, and my friend fell on top of Lafe Young and dislo-
cated his shoulder.

Mb. Stevenson: I want to say that is not the first tinie Ihave gone
down with a platform, either.

Mb. Cbosby: Lafe got up, feeling his dislocated shoulder, and loQk-
ing up at Mr. Stevenson, said: "This is the first time in my life I ever
supported a Pemocratic Vice-President"

The first regular toast tonight is "The Bench In Its ReUtion to
the Bar," both very important factors in our nation, and as they are to.
be treated with the importance they deserve, no small package will limit
the response; but it will come in full Car(r) load lots. It is to be responded
to by Mr. George H. Carr, of Des Moines.



Mr. Toastmaster, Brethren of the Bar: What I have to say upon
the subject is in the nature of a criticism, very largely, and when a man
oomes to criticise his foes to their faces, it behooves him not only to be
careful what he says, but how he expresses it. Hence, I hope you will
excuse me, under the circumstances, in reading what I have to say. I
yield precedence to no man in respect to the judiciary. When I entered
upon the practice of my profession I held a most exalted opinion as to the
wisdom and learning, the impartiality and uprightness of the judges.
During 20 years of contact with them my confidence in their impartiality

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78 Iowa State Bar Association.

and uprightness has been, for a moment, shaken. Candor, however,
forces from me the admission that my confidence in their wisdom and
learning has been shaken about as often as my advocacy of causes has
proven successful. However democratic in form a government may be,
great powers must, of necessity, be delegated.' To the judicial depart-
ment of our government, both state and nation, the people have delegatr
ed more power than to any other. True, the legislative department
makes laws, but few in number, and these the judges interpret and con-
strue, aDd even declare void if, in their judgment, they contravene the
provisions of the constitution. While theoretically the judges do not
make law, they declare the law governing individual conduct in the al-
most infinite variety of human affairs not governed by legislative enact-
ment. When controversies arise, when doubts as to the law exist, we eo
to the judges as the final arbiters of our rights. Our property rights,
our personal rights, all that goes to make up the sum total of our earthly
poesessions, and upon which our happiness so largely depends, hangs
upon their decision. The official conduct of other public functionaries
is, for the most part, hedged about by peremptory and precise rules, but
judges are given great latitude and practically unlimited discretion in
the performance of their duties. The power of Courts of last resort as
to M matters coming within their jurisdiction, is absolute and unlimited.
In view of the great po^er delegated to the judges by the people, with
how much of just pride may we, of the legal fraternity, from whose ranks
they have been chosen, point to the fact that rare indeed are the in-
stanced where this power has been abused.

Judges desire, above all things, to be right. They are never inten-
tionally unjust and never corrupt, but they are sometimes forgetful or
unconscious of the duty they owe to members of the bar. If this defect,
sometimes found in the judicial character, resulted in nothing worse
thiin the discomfiture of the members of the bar, it- would still be just
cause for criticism; but it does more. It impairs the usefulness of the
judges, and not infrequently results in the miscarriage of justice. Law-
yerts, perhaps, may be excused for sometimes forgetting, in their zeal for
their client's cause, that it is their province to aid the court in the ad-
ministration of justice; but there is no excuse for judges forgetting that
it is their duty to avail themselves of all the aid which counsel can give
in reaching the right conclusion. The judge who loses sight of this car-
dinal principle is likely to indulge in hasty and ill-considered judgments.
He thus falls into errors which might have been avoided if counsel had
been given a patient hearing. A wise old philosopher, learned in the
law, has said: ''Patience and gravity of hearing is an essential part of
justice, and an over-speaking judge is no well-tuned cymbal.'* However
familiar with the principles of law apparently governing the case a judge
may be, he might yet learn something from the advotcate who has given
the case much thought and careful study. Counsel may be of limited at-
tainments, voluble or prolix, or hesitating and disconnected in his utter-
ances, or illogical in his deductions, and yet' the judge who gives him a
patient hearing may, amidst much chaff, find some golden grains of truth.

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Iowa State Bar Association. T9

It not iafrequeatly occurs, upon the presentation of an issue, that
the Court informs counsel that he desires to hear from the other side.
This remark gives counsel to understand that the Court has, in advance
of argument, reached a conclusion. The fortunate counsel whom the
Court does not desire to hear feels that he has a friend at Court that will
take care of hi3 case for him, while his less fortunate brother feels that
his case is already lost and that he is to be heard simply as a matter of
courtesy. If young or timid, or lacking in combativeness, he generally
gives up without a struggle. If combative or fiilea with the courage of
his convictions, he proceeds at once to indulge in that forcible style of
reasoning commonly called ** pounding the Court." The judge, finding
the position vigorously assailed, perhaps becomes partisan in its sup-
port. That which was at first an impression becomes a conviction; or,
finding his impression was erroneous, he is forced to call for an argu;
ment which be has once rejected, thus giving opposing counsel to under-
stand that the Court is no longer wioh him; that is now his turn to in-
dulge in the ^'pounding" process. The practice grows out of a desire on
the part of the judge to expedite the business of his Court, but a judge
should never rush the business of his Court to the point where careful
deliberation is lost sight of; and, besides, very frequently the means
adopted defeats the end sought to be attained. I fear, too, that the prac-
tice is sometimes the result of a desire upon the part of the judge to
show his readiness of comprehension. Lord Bacon, speaking upon this
point,, has said: * It is no grace to a judge first to find that which he
might, in due time, have heard from the ba;r, or to show quickness of
conceit in cutting off counsel too short.*'

There is another matter to which I wish to refer, but as it is of a
somewhat delicate character, I will preface my remarks by another quo-
tation from Lord Bacon. He says: ^'But let not counsel at the bar chop
with the judge, or wind himself into handling the case anew after he
has given sentence. **

dere, in quaint, old-fashioned language, a great truth is expressed.
I know of nothing which detracts more from the dignity and judicial re-
bcrve, which to my mind is essential to our Court procedure, than the
practice of haggling with the Court after he has expressed an opinion.
Where the practice is indulged in the judges are to blame. Lawyers,
heated by the controversy or filled with zeal for their cause, will, if the
judge out of mistaken kindness permits it, push their cases to an unseem-
ly degree. This the judge should never permit. Having given an op-
portunity for full argument, and having carefully considered what has
been said and reached a conclusion, the judge ought, in a courteous but
firm manner, to give counsel to know that the case is closed. Where
full opportunity for argument has been given, counsel will take no of-
fense at an intimation from the Court that further argument is ill-timed
and out of place.

In delivering opinions judges should carefully weigh their words
and say no more than necessary. In case of the Trial Court he should
not forget that a jury is present which hangs upon his every word, and that

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80 Iowa State Bar Association.

by talking^ too much, he is liable to convey impressions that are not in-
tended, and thus do irreparable injury. In case of an appellate judge,

Online LibraryIowa State Bar AssociationAnnual proceedings → online text (page 51 of 85)