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A. L. FRAZER ON COURT REFORM
Judge Suggests Certain Action That Legislature Might Take.
PORTLAND, Or., April 27.-To the Ed
itor. Referring to your very fair
criticism in Friday's Oregonlan of
some remarks I made concerning legal
technicalities in discussing the Reed
case. It seems to me that some further
explanation might be helpful to those
Interested In the subject who are not
especially familiar with the practices
ot our courts. It Is true that the dis
cussion of this subject had no direct
bearing upon the Reed case. The
i thought In my mind which led me, to
. discuss this question at all was that
I the Increase ef crime and the growing
disregard of the law on the part of
certain elements of our population was
owing, not to the failure of courts to
Inflict severe punishments, but rather
to the delays and technicalities of the
law.
It is true that many, if not most, of
these technicalities are the result of
Judicial Interpretation of the law, but
you are very much in error when you
assume that trial courts are at lib
erty to disregard them, or to disre
gard precedent and construe the laws
differently. These precedents are es
tablished by the decisions of our Su
preme Court, which are practically as
binding upon the trial courts as the
direct provisions of the statute, and
derisions of the Supreme Courts of
other states which have been so long
followed and so well established that
It Is well known they would be fol
lowed by our own Supreme Court.
I do not mean to criticise our Su
preme Court. I think It la as little
disposed to decide cases upon tech
nicalities as any court In the land. It
is necessary that there should be uni
formity of legal .construction of stat
utes. Many of our statutes were
adopted from other states and from
the common law. after they had been
Judicially construed and adopted with
reference to such construction, so that
what is commonly termed legal con
struction of statutes is often. If not
In most cases, the direct will of the
legislature, because they were enact
ed by the Legislature after having
been so Judicially construed. It ts
becaus of these facts that the prob
lem Is one for the Legislature, and
not for the courts.
To cite two or three Instances, let us
take the question of appeals. Ws all
know that there are many appeals
taken upon frivolous grounds, and
merely for the purpose of delay. Why
not give the trial court some discretion
In determining whether an appeal
should be allowed or not? Then, too,
It Is Incumbent upon our Supreme
Court to reverse a case and remand It
for a new trial If there has been error
committed by the trial court. Irre
spective of the question of the guilt
or Innocence of the accused. It may
appear from the record that the ac
cused la guilty beyond any question.
It may appear also that he has had a
fair trial. In substantial compliance
with the law and ordinary practices
of the courts, yet after long delay the
case may be reversed and sent back
for a new trial.
In the meantime a necessary witness
may have died or disappeared, and
this guilty criminal goes free. Would
It not be better if the Legislature
should enact that If upon an appeal
It appeared frem a consideration of
the whole record that substantial Jus
tice had been done, and that the de
fendant had been given a fair oppor
tunity to present his defense, the case
should be affirmed, notwithstanding
technical errors which may have been
committed by the trial court?
Take another Instance in which It seems
to me the Legislature might Justly Inter
vene. Under our present law a defendant
not only cannot be called upon to testify
or make a statement in his own behalf,
or to make any explanation of his con
duct, but If he does not take the witness
stand or make a statement, it is revers
ible error for the District Attorney even
to refer .directly or Indirectly to that
fact. For my own part, I see no reason
in this rule. As a recent writer has well
said, if your own child has been guilty
of a fault, the first thing that occurs to
your mind is to ask him about It, to call
on him for an explanation, and you cer
tainly do not think that in doing so you
are infringing upon any of his constitu
tional rights. I do not mean that I would
advocate compelling a defendant to tes
tify against himself, but let him be called
on to make a statement explaining his
conduct, and If he declines so to do, let
that be a legitimate subject of comment
In the trial of the case. We all know
that In nine hundred and ninety-nine
cases out of one thousand a man who
is innocent is anxious tq take the stand
In his own behalf.
I will name one more subject which I
think should receive the consideration of
the Legislature. The tendency for a
great many years has been to more and
more restrict the powers of the Judge In
a Jury trial, until we hae arrived at
a situation In which the Judge is almost
a nonentity Jn such trials. In equity
cases, which, upon the whole, are at least
as Important and Involve as great per
sonal and property rights as the average
Jury trial, the Judge is trusted implicitly.
It is left to him to determine every mat
ter at Issue In the case, both of law and
fact. In our court In almost half of
the cases In which the parties are entitled
to trial by Jury, the parties waive trial
by jury and allow the Judge to act as
both court and Jury, thereby showing
their confidence In the Integrity of the
Judge, and yet, when a Jury Is called,
the Judge Is not permitted to say one
word in regard to the facts In the case,
and the rule goes so far that It has been
held reversible error for the Judge to
Indicate approval or disapproval of either
side to the contention by so much as a
smile or a frown, and more and more
the Judges' authority in .controlling the
trial has been restricted.'
I am not advocating the abolition of
the Jury system. I thoroughly believe in
It for both civil and criminal cases, and
I think the questions of fact should be
left for final determination to the jury
and their verdict should control, as at
present, but why should the jury be de
nied the benefit of the Judge's experience
In commenting upon the facts, the de
meanor of the witnesses, etc. If the
Judge can be trusted to arrive at a cor
rect conclusion In all suits in equity
and In the large proportion of the cases
at law which are tried without a Jury,
why should it be considered such a mon
strous and Iniquitous thing for a Judge
to show preference for one side or the
otner, which he may believe to be right.
In a Jury trial? -I
might add here that I am heartily in
favor of the agitation which has been be
gun to do away with the necessity for
unanimous verdicts of Juries in civil cases
and In certain classes of criminal cases. I
believe that more Just verdicts would be
rendered by a large majority of the Ju
rors, say eight or nine out of twelve,
than under our present system, requiring
the consent of all; and It Is apparent that
under such a system many mistrials
would be avoided, and both the county
and the litigants would be saved much
needless expense. I am aware that some
of the views herein expressed do not
meet with the approval of lawyers gen
erally, but I also think that upon these
questions lawyers are not always the best
Judges.
I believe It is time that the people
generally took more Interest In the meth
ods of the administration of Justice-
There must be some reason to account
for the fact that there Is four or five
times as much crime in proportion to pop
ulatlon In the United States as In Eng
land. It would seem probable, at least,
that this might be partly accounted for
by the fact that in England the Judges
of the courts are given much more author
ity and wider discretion and much less
attention Is paid to technicalities, result
ing in much less delay and greater cer
tainty in the conviction of the guilty.
But I did not intend to make an argu
ment, only to Illustrate what I meant by
saying that the problem was for the
Legislature. ARTHUR L. FRAZER.
Say Aged Banker Stole.
KANSAS CITY, April 27. The Federal
Grand Jury here today returned an in
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gard charging him with misapplication of
the funds of the Bates National Bank of
Butler, Mo., which suspended in Septem-
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BRADFIOLB REGULATOR OO Atlantm. Om.
ber last and of which he was president,
the Masonic Home of Missouri, Knights
Coal Company, a corporation with large
holdings, the Bates County Investment
Templar of Missouri, Walnut Land and '.Company and several estates of which he
was trustee. The indictment contains 11
counts, $15,000 being involved.
Following the suspension of the bank.
Captain Tygard was declared insane and
confined in a private sanitarium. He is
74 years of age.
on ih-e c$m&$p S I
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