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JUDGE HILLYER’S RINGING CALL
(Continued from Page 1.)
Strike Squarely at the Evil.
How can we escape the appeal that we ought to
strike squarely at these evils and find some remedy,
or what mitigation may be possible, by amendments
in criminal procedure so as to make the law effec
tive? The best way to stop lynchings is to stop the
crimes which provoke lynchings. Lynchings are a
great evil, and are.always wrong. Let us quote here
from Chief Justice Bleckley: “The larger the mob
and the more secure the immunity, the more crim
inals are lodged in the bosom of society; and each
man is no less guilty than if the crime of the whole
mob had been perpetrated by himself alone. This is
true both legally and morally. Murder is none the
less wicked because perpetrated by a crowd.”
All good men should strive against both crimes and
lynchings, and, as declared by this Convention on a
former occasion, endeavor to “amend the laws so
that both the criminal and the lyncher may know that
the law has become both willing and able to do com
plete justice in every case”.
As our remedial procedure in criminal cases now
stands, it is easy to convict a friendless negro or any
poor and friendless person, who has neither money
nor influence to employ counsel or canvass the jury
lists.
The Rich Seldom Hang.
Is anybody ever hanged who has money—plenty
of it —with which to employ counsel, canvass jury
lists and circulate petitions? The poor and friendless
are sometimes executed, but the rich and powerful
never, or almost never! Can such things be? Well,
yes, and they are; but they are not right. How long
will they continue? The answer is plain: Just so
long as the pulpit and religious press, the legal pro
fessions and good men everywhere fail to do their
duty by demanding and obtaining from the Legisla
ture the needed reforms in the law of criminal trials.
For the sake of added emphasis, let it be repeated
that the motive in this discussion is not one of ven
geance for crimes already committed. They, alas!
can not be undone nor recalled; and, as to them, we
can only give our tears and sympathy for the victim.
But the motive here is prevention of crimes that have
not yet occurred; which surely will occur, and will
continue and increase if nobody does anything about
it. The very highest motive which can animate any
good man touching such a problem is preservation of
human innocence. Every time you prevent murder
or crime you save the life or purity of the victim,
and you also ward off guilt from one who otherwise
would have rushed into the murder or other horrible
deed sometimes worse than murder. The greatest
calamity which can overtake any human being is to
commit a crime; and so the high ultimate object is
not vengeance on criminals, but to prevent crimes.
In some countries where the number of names on
the jury lists is necessarily small, it sometimes be
comes impossible to obtain a duly qualified jury in
that county, especially after one or two new trials
have been granted. In such case the venue can not
be changed, or the case removed to another county
without the prisoner’s consent. In other words, the
accused can move to change the venue, but the State
can not, with the result that the case can not be tried
at all until new jurors grow up, or move in; and so
the wheels of justice are completely blocked. We do
not say it was so intended when originally passed,
but in its practical effect was there ever such an
unreasonable obstacle in the path of justice, placed
there by a statute?
Switzerland, Sweden, England and Canada.
In well-governed countries, like Switzerland,
Sweden and England, or even Canada, they have
very little crime as compared with what occurs in
this country. For instance, in the year 1905 ten
thousand homicides in the United States, and only
325 in the British Islands —that is, England, Scotland,
Ireland and Wales. Those of us who are contending
for the amendment of our criminal administration as
in the countries named, are working in the interest
of the truest humanity.
The evils with which we are here dealing, and the
remedies needed, are confined to no part of the
United States, but crimes and lynchings have become
so general and so frequent in nearly all parts of our
common country as to form an appalling aggregate
The Golden Age for December 8, 1910.
enough to make any Christian shudder, or sadden the
heart of a patriot.
Let us quote from a declaration of this body made
on a previous occasion:
“But what shall we do about it? The answer is:
Make the law better, and make it stronger. Amend
the law. Give it more promptness, and more wisdom,
and more justice, and more certainty in its own en
forcement. Astonish the murderer and the rapist by
its quickness and its certainty. If the law will pro
tect the innocent and the good in all the States, the
innocent and the good in all the States will respect
the law. Enlarge the power of the courts. Take
away the unreasonable provisions by which so many
advantages are given to the criminal in the trials.
Give the State the right of appeal, or to have a writ
of error, just like the criminal has; and in every
criminal trial put the State and the accused upon
terms of perfect equality, so that innocent and good
people may rely on the law for protection, rather
than rush into irregular and dangerous forces under
methods of their own.”
Our judges are men of conscience, learning and
wisdom, and, as a rule, impartial. As a matter of
fact and of truth, the judge presiding over a criminal
trial is, of all other living men, best qualified to aid
in ascertaining the truth and promoting justice; and
yet this unwise statute we are attacking puts a gag
on the judge, forbidding him to even intimate, much
less express, any opinion touching the evidence or
what has been proven in the case. This gag law, or
“dummy act”, as Judge Bleckley used to call it, bad
for the innocent and good for the guilty, ought to be
repealed.
It is truly remarkable, and a fact well confirmed by
long observation and experience, how apt juries are
to do right if you give them half a chance, or when
they are not misled; but sometimes juries are misled
or overreached, and go wrong. In any contest about
property, whether it be the value of a few dollars or
a great estate, both sides are equal under the law.
Both sides have the right to except and the same
right of appeal for the one as for the other. But
when it comes to a question of innocence, then imme
diately the law of procedure, by the strangest para
dox that has ever grown up and become imbedded in
human history and civilization, the right of exception
and the right of appeal, are given in the broadest and
most liberal earnest, cheapest and most favorable
methods on the side of either real or alleged guilt,
but are absolutely denied to the side of innocence,
no matter how obvious and real.
An Antiquated Doctrine.
We firmly believe that this antiquated and illogical
doctrine that no person charged with crime shall be
twice “put in jeopardy” has had more to do with the
menacing evils that have grown up to endanger the
public peace and safety than any other one matter
or thing. A guilty person ought never to succeed in
cheating justice, or get out of jeopardy until he is
punished. And the contrary rule ought to be eradi
cated absolutely and completely. Put the prisoner
and the innocent victim upon a perfect equality. Let
the State have the right to except, and to have a new
trial, and have errors corrected, with the same
facility which the law gives to the prisoner. Do
away with technicalities as far as possible touching
either side. But, so far as they do exist, let them
apply to the guilty or the accused as well as the
State, both equally and alike.
Crimes of violence —those so alarming in the signs
of the times —are not all of this great problem. Con
sider also the crimes of perjury, and graft, and for
gery, and fraud, and bribery. Look at what recently
happened, or is happening, in Philadelphia, in Albany,
in Harrisburg, in Springfield, in Chicago, in Pitts
burg. Shames such as these latter are almost, or
entirely, unknown as yet in our own loved State, and
hardly known at all anywhere in the South. Let us
keep it so. REFORM OUR CRIMINAL PROCE
DURE, so that the law may continually warn busi
ness men, and especially public men, that, in Georgia
at least, there is no escape for the guilty; and that
HERE the way, and the only way, to keep out of
prison is by remaining innocent. Enact the reforms
now. Do not wait until the destruction comes, but
act now and thus prevent the evil.
We venture to repeat in part, and, though not in-
tended as exhaustive or complete, to particularize as
to what amendments are needed.
Give the State a Chance.
Give the State, in all criminal trials, the right to
except at every stage, and to move for a new trial,
that the prisoner has; and throughout the trial put
the State and the accused on a footing of entire
equality. This will, of course, require amendment of
the State and Federal Constitutions. Our State Con
stitution is often and readily amended. The Federal
Constitution has been amended fourteen times, and
one or more new amendments are now pending and
being voted upon by the States. This amendment
here suggested is for safety and public peace and
human happiness. So good a work should not be
defeated by obstacles even far more difficult to be
overcome than any formality in obtaining these
amendments.
Give the State the same number of strikes and
challenges, or jurors, that the prisoner has.
Give the State the same right to apply for and
obtain a change of venue that the prisoner has.
Repeal the law which forbids the judge from ex
pressing or intimating any opinion as to what has
been proven, and so as to make it his duty to sum up
the evidence, as is done in the. United States Courts.
Emancipate the judge from the thralldom under
which our State statute now places him. If the pris
oner wants to testify, let him be sworn and submit
to cross-examination like any other witness.
Let the victim in a rape case, under well-guarded
rules, testify by interrogatories, if she wants to, thus
saving her the shame of a public recital.
In all cases of crime against the habitation—the
home —and in all cases of assassination and of rape,
or attempted rape, let the jury, if the case and the
guilt are clear, when they convict a prisoner, have
the power to add to the verdict the words “without
delay”, and let that end it, unless, on motion, made
verbally and at once before the same judge who tried
the case, as is done in the Federal Courts, he grants
a new trial.
From One to Twenty Days.
Let the jury have power to fix the time of execu
tion not less than one or more than twenty days in
all cases of the classes last above stated, to take
effect unless the judge, in his discretion, grants a
supersedeas pending a writ of error.
The execution should be public or private, in the
discretion of the jury; and if the verdict be silent on
this point, then in the discretion of the judge who
tried the case.
Simplify and shorten all motions for new trial, and
allow only one motion in any case, and let it be pro
vided that no reversal shall be had, or new trial
ordered, in any criminal case, even by the Supreme
Court, and no such verdict set aside on any mere
formal error or technicality not seriously affecting
the guilt or innocence of the accused, and so that,
if, in the judgment of the reviewing court, the verdict
is right under the facts, it shall be upheld and allowed
to stand, no matter what errors or irregularities in
other respects may have crept into the proceeding.
What is above presented is with a great faith, but
in no spirit of self-assertion. Innocent and good peo
ple are suffering terrible martyrdom as matters now
stand. The business man, or the working man, or
the professional man, or the farmer, scarcely dares
leave his wife or daughter at home. Cupidity, anger
or jealousy cause assassination and murders. There
is nothing sacred and nobody safe from the despot
ism and cruelty of crime. The law ought to protect
the innocent and the good, but it does not. If an
archy is not already here, we are very near it.
“Lord, Give the Legislature Light.”
Defects in the law of criminal procedure call loudly
for amendment. The martyr, John Wycliffe, used to
cry out, “Lord, give the King of England light.” And
so let us hope that all good men everywhere may
say, “Lord, give the Legislature light.”
Finally—
We recommend that this Convention again set
itself squarely in favor of REFORMS in the criminal
law; that pastors be urged to preach at stated inter
vals against the sinfulness of crime in every form;
that the churches, in their own good time and way,
agitate for the same purpose, and that good men
everywhere fervently pray to deliver our land from
blood-guiltiness.
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