Karl Heim.

The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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tried in the Court of Sessions on a charge of murder of a particularly foul
and brutal nature. The evidence, which was partly circumstantial and
partly direct, consisted of the testimony of the woman with whom it was
alleged the deceased was carrying on an intrigue, and of members of her
household. They spoke to the accused, whom they alleged to have identi-
fied by their voices, coming to her house, seizing the victim and dragging
him out. The motive assigned was, that the prisoners themselves were
on terms of intimacy with the woman. The accused were convicted and
sentenced to death. On appeal to the High Court it was found that the
Sessions Judge had omitted to call the attention of the jury to two material
facts : namely, the presence in the woman's room of blood-marks which
had been washed oflE in the morning, and secondly her husband's absence
from home and late return on the night of the murder. An examination
of the evidence with the light of these facts left no doubt, that the murder
was committed in the house and not, as alleged by the prosecution, outside,
and that it was the work of somebody else and not of the accused persons.
The High Court accordingly set aside the conviction, and acquitted the
prisoners. But for the plenary powers possessed by the High Court, three
innocent men would have undergone the sentence of death for a crime
which could not be brought home to them.

I may remark, by the way, that a death-sentence passed by an inferior
tribunal cannot be carried into effect until confirmed by the High Court,

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Vol. Ill] This Cmminal Law Journal* 71

There are cases, however, in which the Sessions Judge may disagree
with the verdict and consider that the jury had taken a perverse view of
the evidence, or had arrived at a conclusion not warranted by the facts.

In such a contingency if he is clearly of opinion that it is necessary
for the ends of justice to submit the case to the High Court, the law
requires him to do so. In dealing with such references the court " may
exercise any of the powers which it may exercise on an appeal, and may,
after giving due weight to the opinions of the Sessions Judge and jury,
either acquit or convict the accused of any offence to which the jury
could have con\'icted upon the charge framed and placed before it."

This provision of law has been the means, in numerous instances, of
preventing grave and scandalous miscarriage of justice. I will mention
two cases by way of illustration. Both were acquittals by juries. The
first case occurred at a time when the ignorant sections of the Indian
populace were greatly agitated by the measures adopted by Government
to prevent the spread of plague. They had^jii fact, worked themselves
up into a belief, that forcible inoculation was to be resorted to. A num->
ber of coal-heavers sitting outside a shed observed a peaceable Austrian
sailor passing along the road. Taking him for a plague-doctor they set
upon him, and rounded him into the river, where they continued pelting
him with coal and brick bats until he was drowned. The culprits werg
tried in the Court of Sessions by a jury ; the evidence of identification wa^
overwhelming and conclusive, the Judge's summing up was exhaustive
and clear ; practically there was no defence. And yet the jury either from
a mistaken feeling of pity, or because the murdered man was a foreigner,
acquitted the prisoners. The Judge disagreed with the verdict and re-
ferred the case to the High Court ; the verdict was set aside, the ringleaders
were convicted of murder and sentenced to transportation for life.

In the other case, a respectable Brahman youth was found murdered
in the house of a friend, also a Brahman, where he had gone on a visit. It
appeared in evidence, that the murdered man was, on the morning of the
occurrence, seated near the wife of his host, a young girl of his village
and talking to her familiarly. This was observed by the husband. What
happened afterwards neither the wife nor the mother of the husband would
tell. But the police found the unfortunate youth hacked to death lying
weltering in his blood. It also appeared that the accused had changed and
washed his clothes and hidden them in a corner of the house ; he had also
thrown into a dense bush close by an axe which was covered with blood.
Chemical analysis proved that the spots on the clothes and the axe were
" mammalian blood." All the circumstances pointed conclusively to the
Brahman husband as the murderer of his friend ; and yet the jury acquit-
ted him. U pon a reference to the high Court the verdict was set aside.

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72 The Criminal Law Journal. [Vol. Ill

It may be said, perhaps, that such cases are not likely to arise in
England and that, therefore, we need not provide for such exceptional
powers in the English High Court. Human nature does not alter with
climate or latitude ; false testimony is not confined to any particular coun-
try, nor is the virtue of truthfulness the peculiar monopoly of one con-
tinent. The nature of criminal justice in Great Britain bears witness to
the fact that similar consequences are by no means uncommon. It is not
only to guard against occasional contingencies of this character but also,
to prevent justice miscarrying from misconception of facts, that it is sub-
mitted excessive powers should be vested in the Court of Appeal, to revise
the verdicts of juries and the findings of inferior courts.

The Indian Law reviewed, so far, relates to Sessions trials outside the
Presidency towns. In Calcutta, Madras, and Bombay there is no appeal
from the verdict of a jury. But in case of a conviction the matter can be
brought before the High Court in the exercise of what is called its " extra-
ordinary" Criminal Jurisdiction, upon a certificate of the Advocate-
General that there has been an error in the proceedings, which has caused a
miscarriage of justice.

European British subjects occupy a markedly different position from
the rest of the population ; as a rule they are exempt from the jurisdiction
of magistrates other than those of their own nationality, and whatever the
nature of the oflEence, are entitled to be tried by a jury of their own race
whenever they claim the right. In the matter of appeals also they are
differently placed.

In all cases of acquittal, outside the Presidency towns, the right of
appeal is vested in the Crown alone, and is meant to be exercised only
when there has been a miscarriage of justice so grave as would induce the
Local Government, as the custodian of public security, upon the advice of
its Law officers to interfere.

This short sketch will, I think, show that the Indian system is, irt
many respects, in advance of the English. The power of revision possess-
ed by the High Court, with the right of appeal given to the accused, pro^
vides ample safeguards against an innocent person being condemned as a
criminal upon insufficient grounds, or false testimony. The number of
cases in which the High Court in the exercise of its revisional and appel-
late jurisdiction has quashed convictions, testifies to the necessity, as well
as the importance, of the provision.

The vice of the Indian system consi-^ts in its elaboration, and in a
nervous dread that the inferior courts might allow a guilty person, on an
inadequate consideration of the facts, to escape from the clutches of the
law. With the object of preventing this eventuality the legislature has
devised an infinity of rules which are equally harassing and cumbersome.

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Vol. Ill] The Criminal Law Journal. 73'

In framing a scheme for the modification and improvement of the
English system, it would not be necessary to imitate these features of the
Indian Law which public opinion in England either would not tolerate or
would regard as an unwarrantable interference both with the discretion of
the magistrate and the liberty of the subject. But there is no reason why
in the establishment of a Court of Criminal Appeal the functions and
jurisdiction of the High Court of Judicature in India should not be kept
in view, and why they should not be accepted as models for a similar
Court in England.

In another direction, however, the Indian system is certainly in need
of improvement. At present there is no differentiation between adult and
young offenders. They are herded together in the " lock up " and brought
up for trial without distinction of age, and not uncommonly, of sex. The
result is obvious. It often debases the mind of the young culprit beyond
the possibility of reform. In the State of New York, Childern's Courts
have been in existence for years ; in England, Birmingham seems to have
been the first to take up the idea ; and both in the Unitod States and here,
these courts are regarded as a great boon to the poor creatures who come
before them, as also to the general public who are interested in the future
well-being of their young population. Twenty-eight yeans ago my sugges-
tion for the establishment of Reformatory Schools in Bengal was accepted
by Sir Ashley Eden, and a year or two later it bore fruit in practical le-
gislation. It is to be hoped that the same humanity which led to the passing
of the Reformatory Act, will insist on the establishment of ChildronV
Courts in India for the trial of young offenders. — 7. R.


By Hon. Joseph W. Folk.

I am indeed glad to meet the members of the Kentucky Bar, and
congratulate you upon the splendid results accomplished by this Associa-
tion in bringing the members together in the amicable relations so necessary
to the highest conception of the ethics of the profession. It is well to
meet occasionally in fraternal intercourse, forgetting the strenuous con-
troversies of the day, and hear discussed the ideas which have guided the
profession through all the years of civilization. These principles are sum-
med up in the language of Sydney Smith :

" Impress upon yourself the importance of your profession. Consider
that some of the greatest and most importiint interests of the world
are committed to your care. You are the preservers of freedom, the do-
fenders of weakness, the unravellers of cunning, the investigators of
artifice, the humblers of pride and the scourgers of oppression. When

* Afl<lre8s delivcral before the Kentucky State Bar Association.

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74 The Criminal Law Journal. [Vol. Ill

yon are silent, the sword leaps from its scabbard and the nations are ^ven
np to the madness of internal strife. In all difficulties men depend upon
your exercised faculties and spotless integrity, and require of you an ele-
vation above all that is mean and a spirit which will never yield when it
ought not to yield. As long as your profession retains its character for
learning, the rights of mankind will be arraigned, and as long as it retains
its character for virtuous boldness, those rights will be well defended."

The idea of the practice of law which makes it a matter of quibbling
and pettifogging is a low and perverted one ; the highest honour and in-
tegrity must mark the calling which deals with the rights and liberties of
the people. The lawyer is the medium through which the law reaches the
people and that brings the public and the law into relations with each
other. The commission is a sacred one, to be zealously guarded and exer-
cised. Jack Cade, in King Henry VI., proposed to reform England, and
cheerfully advocated the first step that all the lawyers be killed. Such a
state of society would hardly be desirable. Wherever there is liberty,
there must be law, and wherever there is law there must be lawyers.

Lawyers are necessary to civil liberty, as civil liberty rests upon law.
The lawyer owes a duty to the public which is high and sacred. The
license to practice carries with it obligations to society for above those o£
the layman. By reason of his training and his position, he is looked to
for guidance and advice and wields an influence for good or evil greater
than other men. In the early history of our government, lawyers moulded
and shaped its destinies ; they builded the foundation upon which the
superstructurcof States rest to-day ; they bore the burdens of government
and were the pillars of the young republic. It may well be questioned if
the lawyers of to-day, particularly in the large cities, as carefully fulfilled
their civic obligation as their forefathers. There was a time when the
opinion of the upper thousand American lawyers would sooner or later
become the opinion of the American people. This was so because they
exercised their full duty in public affairs, regardless of private interests.
The wave of commercialism has aflEected the legal profession along with
other callings, and now would it be safe to permit the upper thousand
American lawyers to dictate the policies of State ? Some of the most
brilliant minds in the profession are in the employ of interests antagonistic
to the welfare of the people. Legitimate combinations of capital are per-
haps a necessary incident of ad vane? 1 civilization, and to these I do not
refer, but to the pirates of the business seas that prey on the people under
the guise of corporate charters in defiance of laws. Lawful corporations
are beneficial to a community, but associations conceived in corruption and
born in bribery are inimical to the public good. Legitimate combinations
are entitled to fair treatment the same as individuals — to equal and exact
justice, no more, no less — but if a corporation cannot operate without

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Vol. ni] Thk Criminal Law JourkaL. 75

bribery or surreptitious violations of law, it were better for the people that
it be wiped out of existence. In the early days the lawyer sold his learning
alone and retained his individuality, and be it said to the credit of the
profession that is the rule now. But many eminent attorneys of highest
attainments dispose of not only their talents, but their freedom of thought
and action. Instead of these being the bulwarks of liberty and the en-
forcers or laws, they are chiefly engaged in devising means and schemes
for evading the laws ; they are the advisers of the Captain Kidds of com-
merce in avoiding the consequences of laws intended to suppress them. It
is no part of a lawyer's business to advise his client how to commit crime
nor to become a partner in iniquity. The lawyer who does so ceases to act
as such and becomes a co-conspirator. There is no sanctity in such a re-
lation and it lacks every essential professional element. If this were not
the exception rather than the rule, it would account for the fact that law-
yers seem to have lost their proud position of old as mentors of the public
conscience. Business is a good thing, honours are better still, but patriot-
ism excels them all, and without patriotism one is unworthy to be a member
of the legal profession. He is a minister of the law that emanates from
city. State and nation, and can no more practice law in the true spirit
without patriotism than can a divine teach the doctrines of a Christ for
whom he has no devotion.

One cannot be a good lawyer without being honest. Law and honesty
go together, jests to the contrary notwithstanding. Dishonesty will undo
a lawyer quicker than it will any one else. They see so much of it in
other men they should learn to abhor it. There are fewer lawyers in the
penitentiary than any other calling, not excepting ministers of the gospel.
This should be a proof of their honesty, but some are unkind enough to
say it is merely a tribute to their shrewdness. In a former House of Dele-
gates in St. Louis, twenty-four out of twenty-eight members took bribes
Tight and left. None of them were lawyers. Of the four who did not
prostitute themselves, three were lawyers. Under the laws of most of the
States only two classes of men are required to be of good moral character
— lawyers and saloon keepers. The laws go further and demand that the
saloon keeper, in addition, be a law abiding citizen, while nothing is said
about the lawyer in this regard. That is taken for granted. If lawyers
do not uphold the laws, it can hardly be expected'that others will.

In a monarachy the government is sustained by the power of the crown ;
in a republic the government rests entirely upon the laws which a majority
of the people make for themselves. If all the laws were ignored, anarchy
would be the result — there would be no government at all. When any
portion of the laws are not enforced, the government is weakened to that
extent. Laws that are not observed add just as much to good government
as sores do to the human body. Disregard of one law breeds contempt

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76 The Criminal Law Journal. [Vol. Ill

for all laws, and laws to be efiEective must be respected. There is entirely
too little respect for the majesty of the law in America. This inevitably
leads to corruption, which will, if tolerated, eat into and destroy civic life.
If a dramshop is allowed to remain open at a time the law demands it be
closed, then the gambling laws cannot be consistently enforced, then other
ofEences denounced by the law must be tolerated, then comes grafting by
ofl&cials for overlooking these violations, then legislators, imbued by the
same spirit, sell their votes for bribe money, and a reign of corruption
follows. The perpetuity of our government depends upon the manner in
which our laws are carried out. Nearly every State has laws on the sta-
tute books to which no attention is paid, and they reap the fruits by hav-
ing all laws broken. I am not an alarmist when I say, if these conditions
be tolerated, the republic itself will sooner or later fall by the props of the
law on which it rests being weakened and decayed. Americans are accus-
tomed to regard a republican form of government as a natural condition.
That government is mortal and can die is a thought so entirely foreign to
our conditions that it is folly in the minds of some to discuss it. A glance
at history does not lend encouragement to this cheerful view. Our repub-
lic, though the best, is not the first nor the oldest. We have lasted now
one hundred and twenty-nine years. Venice had a republican form of
government for 1,100 years ; Carthage, 700 years ; Athens, with various
intermissions, 900 years ; Florence, 300 ; and Rome, 500 years. These
governments have long ago passed from the stage of the world, and some
of them are little remembered. If our government were to last three cen-
turies longer and then die, it would go down into history as one of the
most splendid and shortest lived among the wrecks with which the shores
of time are strewn. What caused the downfall of these governments by
the people ? The people made laws until the laws became so many the
people began to disregard their own laws. The laws of Rome were good ;
indeed, the Justinian Code is said to be the most perfect system of laws
ever devised by man, yet Rome rotted and fell even while this code was
in operation. The laws were all right, but the hearts of the people were
not right, and the laws were not obeyed. When the laws ceased to reign
the government resting upon that foundation of law commenced to top-
ple over.

The reign of law means the rule of the people, for a majority of the
people make the laws. They register tlulr will, crystallized in the form
of statutes. We need a revival of the rule of the people. Four years ago
the laws against bribery in all of the States was considered as practically
a dead letter. Up to that time, for the fifty years preceding, there had
only been about thirty-four cases of bribery reported in the books in all the
United States. When the prosecutions were commenced in St. Louis, the
members of the House of Delegates denounced the bribery law as a "blue

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Vol. Itl] 'i'HE Criminal Law Journal. 11

law " and as a dead law because it had not been enforced before. They
argued that members of the House of Delegates, having been taking bribes
from time immemorial, they had acquired a right to do so, and it was just
as proper for them to sell their votes as for a merchant to sell his wares.
Here was a crime >yorse than any other, for bribery strikes at the founda-
tion of all law, yet the law denouncing it was not enforced. Men gave
bribes and thought nothing of it ; men took bribes and boasted of the fact;
corrupt men feasted and fattened at the public expense ; legislative halls
became dens of thieves ; laws became merchandise on the market, and all
this time the public conscience was asleep. When the revelations came
and the people saw how they had been plundered and realized that a
government by bribery was a government by the wealth of the few and not
by the people, they saw the offence in all its enormity, and from one end
of the land to the other there was a civic awakening. Now everywhere
officials are made to account at the bar of public opinion for all official
acts, and those who prostitute their trusts and sell the powers that belong
not to them but to the people are being made to answer for their offences.
And yet four years ago the bribery law was denounced as a " blue law "
by those against whom it was sought to be enforced. Every law is a blue
law if a man wants to break it. The non-enforcement of the bribery
statutes might be explained by the difficulty of securing evidence of its
violation, though a prosecuting officer working at it seriously and willing
to incur the enmities such an investigation would bring about can usually
lay bare venality of that kind if it exists. But there are other laws plain-
ly made to please the moral element, and then not enforced to please the
immoral element. The difference between a " wide open " town and a
*' closed " town is that in the former the laws are not enforced, while in
the latter the laws are observed. The gambling laws in many places are
permitted to be disregarded and the laws regulating dramshops nullified.
It has been claimed that these laws could not be enforced in large cities,
but they are enforced and faithfully observed in the large cities of Mis-
souri. In fact, Missouri is the most law-abiding State of the Union, and,
in yielding obedience to law, has set an example for other States to

There is in practically all the States a statute requiring dramshops
to close on Sunday and election days. Yet in some States it is openly
and flagrantly violated. When one enforces this law because it is the
law, the same cry is made about " blue laws " and " dead laws." It is a
law in the interest of good government . to stop the enormous amount of
crime that comes out of the dramshop on Sunday and election days.
Those interested in having the law violated set up the specious plea that
it is an interference with personal liberty. It is no more an interference
yfith liberty than the law against gambling or other laws in the nature o£

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police regulations which restrict the rights of one man when they interfere
with the rights of another. Absolute liberty to do as one pleases would
mean barbarism, for there would be no limit to the conduct of an indivi-
dual except his whims. The liberty of one would be the unrestricted
liberty of every other, and perpetual warfare would result as the wants
and desires of men come in conflict, and every man would have equal right
to take or hold what his strength or cunning could secure to him. Secu-
rity can only come from fixed rules, which the people as they become
familiar with them will habitually respect. Restrictions which seem to
the individual to be hardships are but the will of majority of the people
operating through legislative acts. Where rights are defined and regu-
lated by laws to which respect and obedience are given, any particular
law is deprived of all seeming hardship. If each man were allowed to say
what laws are good and what laws are bad and to ignore laws he con-
sidered bad, there would be no laws at all. The dramshop keeper who
violates the dramshop law calls loudly for the enforcement of the law
against the man who breaks the larceny statute by robbing his cash draw-
er. The trust magnate looks with abhorrence upon the burglar, yet thinks
he has a right to break the statute against combinations and monopolies.
The burglar detests the law breaking of the trusts and thinks they should
observe the law, but considers the law against housebreaking as an inter-
ference with his personal liberty. So it goes ; men observe the laws they

Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 10 of 91)