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Where the accused is a stranger in the the Attorney General, and proceeds to obey community, or where he is unpopular, or his command to nulify a judgment of conwhere no particular part of the populace viction. The command is made, of course, would be pleased with a reversal, the At- indirectly in an innocent appearing contorney General willingly permits the Court fession of error. to investigate the merits of each assign- The Attorney General may not have ment of error.
acted judically. He may have filed the There is, however, some danger that at document arbitrarily. If he did act honsome time an Attorney General may be estly, and believed that there is error in corrupt, intimidated, or coerced, and on the record, then the Court is merely adopt.' that account exercise what is, in effect, a ing his opinion. There is no reason for pardoning power for the benefit of a crimi- giving his opinion such weight that it is nal, or of criminals, having a "pull" with adopted without the Court's making any him or his associates. The Attorney Gen- examination of its own of the record. That eral is not a king that can do no wrong. opinion is obviously contrary to that of He may err, either corruptly or ignorantly, the trial judge who made the alleged eras any other person. He is not immune roneous rulings at the trial, and was not from fault because he is an official. Offi- convinced that error was committed when cers of greater importance than he have a motion for new trial was disposed of, after been guilty of high crimes and misde- argument on the point or points involved. meanors. There is no reason why judges, The opinion must also be contrary to that who are quick to perceive guilt in other of the prosecuting attorney who asked for individuals, should assume that an Attor- the rulings supposed, on review, to be ney General lacks capacity for crime, dis- erroneous.
It is anomalous to presume honesty or mistake. That officer is not, that the Attorney General is always right mentally and morally, a perpetual baby. when he files a confession of error, when Like other individuals, he may be shrewd
he is held to be sometimes wrong when he enough, or corrupt enough, to exercise does not. willingly his power to enable criminals to What is the result? The judgment is escape punishment. He may be weak reversed, of course, but that is not all. enough to be coerced into filing a confes. The real ultimate result is, generally, that sion of error, or a document so denomi- the case is dismissed when it again reaches nated. And even when acting honestly, the trial court, and the defendant then has a faulty judgment may be sufficient to all the benefits of a pardon without the produce the same result.
stigma attached to a governor's pardon, The “pardoning power” of the Attor- and is in a position to hold himself out ney General exists only in any jurisdiction as innocent and as having been persecuted where a criminal conviction is reversed by an ambitious prosecuting attorney. solely because such officer has filed a con- Of course, if the criminal action is a fession of error. In such cases all the petty larceny case it is not apt to be disCourt does is to observe that such a con- missed after reversal, but it would not be fession of error has been filed, and, with- that kind of a case. In such cases, and out further consideration order a reversal cases involving unpopular offenses, Attorwithout directions. The Court will not, neys General do not hasten to exhibit canas was done in State v. Stevens, supra, dor, to parade their sense of justice, or to "examine the record."
save time and labor for the appellate court The Court following such practice is not by filing a confession of error. They do exercising any judicial functions. It only this only in capital cases, as a general rule, takes the position of a servant, or slave, of' and then, there is a possibility, if not a
probability, that they do so only when with the final outcome. The secret remains the accused is influential or has influential with him and the accused. The reviewing friends. In such cases there is no new court, and its personnel, simply thinks it trial. The taxpayers were unduly bur- followed good appellate practice in reversdened in paying the expenses of the first ing on the sole ground that there had been trial. After reversal it is likely that there filed a confession of error. It is an east is a new incumbent, not familiar with the way of catching up with the docket. evidence in the case, in the office of prose- The secrecy, above indicated, makes it cuting or district attorney. Indignation impossible to ascertain what motives caused over the crime has died out, and the public the Attorney General to file a confession of does not object to having the case dis- error, in a case where the record does not missed, because it will save money to tax- clearly justify the confession. For the payers.
same reason, it is impossible to demonIn the jurisdictions, if any there are, strate by the analysis of concrete cases the which follow the rule herein complained of, soundness of the observations herein set the Attorney General knows that his con- forth. fession of error will have all the effect Considering the activities of a certain of a pardon, or of a failure to prosecute in hooded order which may include in its memthe first instance. The convicted appellant | bership some public officials—the murders or plaintiff in error and his friends also which are committed in times of industrial know this. They naturally observe that warfare, possibly by members of an organiit is more expedient to try to “fix,'' coerce zation that is influential with certain officers or intimidate the Attorney General, and of the law, and considering, also, crimes secure the filing of a confession of error, in high places, as sometimes hinted in the than to influence the Governor after an press-actual cases may arise in which the affirmance and obtain a pardon. The appellate court would permit or cause method indicated is more expedient because crime to go unpunished, and justice to be more effective. There is no publicity at- suppressed, if it reversed a criminal contached to the proceeding. The Attorney | viction for no other reason than that the General is not hampered, or held in check, Attorney General had filed a paper enby a board of pardons that may want to titled “Confession of Error." be shown." He is not subject to public There are other reasons why criticism, as is a Governor who is generous should examine a case before reversing the in granting pardons. He can act secretly, judgment. The alleged errors confessed so far as the public is concerned.
may not be errors after all. Again, the When a failure of justice, due to the fil- error confessed may have been harmless ing of a confession of error, becomes error. The evidence may have been amply known, if it ever does, the public believes sufficient to justify the conviction, and the that the reviewing court reversed the case confessed errors may not have been such as because the prosecuting attorney committed to deprive the accused of any substantial some blunder or the trial court made some right, in which case an affirmance might unfair rulings. The prosecuting or dis- have resulted if the confession of error trict attorney, who is always expected to had not been filed and the case reversed secure results, is most likely to receive the solely on account of it. If an appellate blame. If the case is dismissed, and no court will reverse a case simply because new trial is had, the public is indifferent or the Attorney General says there is error, criticizes the prosecutor for dropping the that official may confess error that the approceedings. The public never knows that
The public never knows that pellant has not assigned. the Attorney General had anything to do It was no idle fancy that prompted the
writer of the text of 17 Corpus Juris, 369, cause, which they claim entitle them to to say that some courts reverse on a con- a reversal of the judgment. The prosefession of error “without further consid- cution, acting through the Attorney Generation or comment." It is actually done, eral, has filed a confession of error and and sometimes under circumstances where askes for a reversal of the judgment. the bar would not expect it. The writer Under these circumstances, it is not inof this paper, having been a law clerk in cumbent upon us to investigate the the office of a district attorney several record and determine as to the correctyears ago, is somewhat familiar with the
ness of his conclusions. We therefore rerecord of a case upon which he did some verse the judgment and remand the work. Seven defendants were charged with, and placed upon trial for, murder
This is the opinion in Richardson v. Peoin the first degree. Two of them were
ple, 69 Colo. 155, 170 Pac. 189, and the convicted of voluntary manslaughter. entire opinion. An imposing array of counsel, that had de
It happens that the published report of fended them at the trial, sued out a writ
that case makes no mention of the first of error in their behalf. They prepared
Attorney General, nor does it contain the and filed, as would be expected, a volum
name of such Attorney General or the inous brief in the court of review. The
names of his two assistants, in the usual Attorney General, then in office, did not
space given to names of attorneys appearfile a confession of error. With the aid
ing in the case. This is apt to give the of two assistant Attorneys General he pre
reader of that opinion, and the matter pubpared and filed an able and exhaustive lished in connection therewith, the impresbrief upon behalf of the people. They sion that no one appeared in the Supreme stated therein that they "conscientiously, Court on behalf of the people except the believe that the defendants
one Attorney General who filed the confesfair and impartial trial and that the ver
sion of error. The truth is that the same dict of the jury should be affirmed.” After
attorneys appeared on behalf of the people that the plaintiffs in error filed their reply 1 in the Richardson case as in the Lawson brief. This was done on April 13, 1917.
The published report of Lawson v. Apparently, and in fact, the status of the People
, 63 Colo. 270, 165 Pac. 771, contains case was then such that the reviewing
the names of all such attorneys. In the court could take it up, and consider the
Lawson case, too, there was a confession of errors assigned and argued. But did it ever do so?
error, but that case was not reversed solely
on that account. On the date last mentioned, a new Attorney General was in office. On Septem
In the Lawson case, the following apber 27, 1917, notwithstanding the status
pears in the opinion: of the case as above described, the new At- * The present Attorney General has torney General, acting by himself only, filed confession of error
In such filed a Confession of Error.
case, it appears to have been the uniform On January 7, 1918, the reviewing court practice of this Court to reverse the case filed the following per curiam opinion in
upon his confession of error, without
giving it further consideration. We “Plaintiffs in error were convicted of would do so here, were it not for the voluntary manslaughter, and sentenced fact that the former Attorney General to serve terms in the penitentiary. They filed herein, during his term of office, a have assigned and argued numerous al- very able and exhaustive brief upon beleged errors occurring in the trial of the half of the people. in support of the
the case :
regularity of the conviction. In such judgment, a confession of error by a seccircumstances, we think it the better i ond Attorney General should not be perpractice to pass upon some of the assign-mitted to be filed, much less should it be ments of error, or one of them at least, entertained, and still less should it be alupon which the present Attorney Gen- lowed to serve as a pardon and as a verdict eral has confessed error.”
of not guilty as to the convicted criminal. No doubt the Court was right upon the matter of “the better practice." But
THE SCUTTLING OF SHIPS "the better practice,” according to its own
POSITION OF INNOCENT MORTGAGEES opinion, was not followed in the later case
By Donald MacKay of Richardson v. People, supra.
In the earlier case of Zancannelli v. People, 63 The cases of Samuel & Coy v. Dumas, Colo. 252, 165 Pac. 612, the Court appears 39 T. L. R. 154 and Graham Joint Stock to have reviewed the case, in the usual Co. v. Merchants Marine Insurance Co., way, although the Attorney General filed
Ltd., 39 T. L. R. 159, lately decided by the a confession of error. The practice sud- Court of Appeal not only raise questions denly followed in the Richardson case seems
of great importance in the law of Marine anomalous.
Insurance and insurance generally, but The reason for the Court's action in the
concern very specially the position of Richardson case may, it seems, be discov! mortgagees of ships. Both cases relate to ered in the later case of Soto v. The People, vessels which were cast away with the con64 Colo. 528, 173 Pac. 339. It is there said, nivance of their owners, and consequent
, and the correctness of the statement is not claims against underwriters by mortgagees. questioned, that the Attorney General has
We propose to analyze the judgments given the “control” of the case. The control, under the following heads : however, exists also where he seeks an
(1) Title to Sue affirmance of the judgment, and the Court never affirms a judgment of conviction
In the case of Samuel & Co. v. Dumas, merely because the Attorney General de. the policy was in name of Insurance Broksires it. There is no "control” over the
ers and they claimed to sue on behalf of judgment of the appellate court. In Webb
the mortgagee. Deposition was made by Sumner Oil Mill v. Southern Coal Co.
the brokers that the policy which ex facie (Miss.), 91 So. 698, the Court said:
did not disclose any particular interest was
taken out to cover the separate interests of “The mere confession of error does
both mortgagor and mortgagee. In many not necessitate the reversal of the judg.
cases it has been held that an insurance of ment or decree appealed from."
the two separate interests can be effectively A good reason is added for the state- made in the one document; and though the ment.
Court differed in opinion as to the effect If it should become true that courts re- of such an insurance in Ebsworth v. Alliverse a criminal case solely because a con- ance Marine Insurance Co., L. R. 8 C. P. fession of error is filed, the bar in general, | 596, yet they agreed as to the possibility and prosecuting attorneys in particular, of its being competently so effected. should seek to remedy the situation.
It was urged that the mortgagee was In any case the correctness or propriety never separately insured, but was merely of a confession of error should be verified an assignee of the policy, subject therefore, by the Court itself, before reversing a to the equities affecting the mortgagor and judgment. If a former Attorney General disqualified in the circumstances existing has already filed a brief in support of the from asserting any higher right to recover
the insurance money than the mortgagor lodged either with them along with the could maintain. On the evidence, the mortgage, or with Messrs. Joseph W. Hobbs Court held that the mortgagee was a party & Co. (the brokers above referred to) on to the contract and sustained his title to their behalf, in which event the said Messrs. sue on the policy.
Hobbs shall address to the mortgagees a The test whether a person with an in- letter stating the details of the policies and surable interest at the time of the loss can acknowledging that they are held to the sue on the policy is stated by Arnould (Ma- | order and on behalf of the mortgagees.” rine Insurance, 9th Edn., p. 235) on these The Court were of opinion that the clear words: “The true rule then would appear intention, as expressed in the mortgage to be, that any party to whom an interest
agreement was that the interest of the in the property insured doth may or shall mortgagees should be a derivative interest appertain at any time during the pendency and not an independent separate interest. of the risk may under the general words The policy was never endorsed, but that by subsequent adoption take advantage of was regarded as an overlook. It was clear the policy to protect such interest if it ap- that the mortgagees were not direct parties pears from extrinsic evidence that the per- to the contract of insurance and conseson directing the policy to be effected in- quently their claim was disallowed. The tended at the time to protect this particular following passage from the opinion of Lord interest or at any rate to protect the in- Justice Scrutton summaries the position: terests generally of the parties who should
“I have come to the conclusion that the ultimately appear to be concerned. The
mortgagor's attorney gave instructions onus of proving that the plaintiff's interest
to insure on behalf of the mortgagor, the was intended to be insured under these
mortgagees' interest being protected by general words is on him.” In Dumas case
an assignment of a charge on the policy, (supra) that onus was held to have been
and an irrevocable power of attorney to discharged.
sue on it in the name of the mortgagor. The same question of title was the crucial
I think that there were not two separate point in the Graham Joint Stock Co. case.
insurances, one by the mortgagor, who The policy there had been effected on the
could sue on it for the whole amount, instructions of the mortgagor's attorney
and one by the mortgagees to the amount through brokers who inter alia wrote to the
of their mortgage debt, but one insurmortgagees that they were holding the poli
ance by the mortgagor intended to cover cies “to your order to the extent of your
the interest of the mortgagees by assigninterest in the vessel, subject to our lien
ment, and an irrevocable power of attorfor unpaid premiums and to having the
ney to sue in the mortgagor's name. If right to cancel the policies should the pre
this is the true finding, the mortgagees' miums not be paid, it, of course, being un
title is that of the mortgagor, and their derstood that we should not so act without
claim is defeated by the mortgagor's misfirst advising you."
conduct." Under the relative mortgage agreement there were provisions securing that the
(2) Position of Mortgagee When Vessel mortgagees should obtain right to the in- Deliberately Cast Away-Small's Case surance policies. One clause was in these In the case of the Graham Company, the terms: “All policies of insurance on which Court were not under the necessity of conthe premiums have been fully paid over sidering this point, but in the case of Samthe hull, machinery and appurtenances of uel & Coy v. Dumas they went on to deal said steamship shall be suitably endorsed with it, for there the policy was effected in favor of the mortgagees and shall be directly on behalf of the mortgagees and