Where the accused is a stranger in the community, or where he is unpopular, or where no particular part of the populace would be pleased with a reversal, the Attorney General willingly permits the Court to investigate the merits of each assignment of error.

There is, however, some danger that at some time an Attorney General may be corrupt, intimidated, or coerced, and on that account exercise what is, in effect, a pardoning power for the benefit of a criminal, or of criminals, having a "pull" with him or his associates. The Attorney General is not a king that can do no wrong. He may err, either corruptly or ignorantly, as any other person. He is not immune from fault because he is an official. Officers of greater importance than he have been guilty of high crimes and misdemeanors. There is no reason why judges, who are quick to perceive guilt in other individuals, should assume that an Attorney General lacks capacity for crime, dishonesty or mistake. That officer is not, mentally and morally, a perpetual baby. Like other individuals, he may be shrewd enough, or corrupt enough, to exercise willingly his power to enable criminals to escape punishment. He may be weak enough to be coerced into filing a confession of error, or a document so denominated. And even when acting honestly, a faulty judgment may be sufficient to produce the same result.

The "pardoning power" of the Attor ney General exists only in any jurisdiction where a criminal conviction is reversed solely because such officer has filed a confession of error. In such cases all the Court does is to observe that such a confession of error has been filed, and, without further consideration order a reversal, without directions. The Court will not, as was done in State v. Stevens, supra, "examine the record."

The Court following such practice is not exercising any judicial functions. It only takes the position of a servant, or slave, of

the Attorney General, and proceeds to obey his command to nulify a judgment of conviction. The command is made, of course, indirectly in an innocent appearing confession of error.

The Attorney General may not have. acted judically. He may have filed the document arbitrarily. If he did act honestly, and believed that there is error in the record, then the Court is merely adopt-*. ing his opinion. There is no reason for giving his opinion such weight that it is adopted without the Court's making any examination of its own of the record. That opinion is obviously contrary to that of the trial judge who made the alleged erroneous rulings at the trial, and was not convinced that error was committed when a motion for new trial was disposed of, after argument on the point or points involved. The opinion must also be contrary to that of the prosecuting attorney who asked for the rulings supposed, on review, to be erroneous. It is anomalous to presume that the Attorney General is always right when he files a confession of error, when he is held to be sometimes wrong when he does not.

What is the result? The judgment is reversed, of course, but that is not all. The real ultimate result is, generally, that the case is dismissed when it again reaches the trial court, and the defendant then has all the benefits of a pardon without the stigma attached to a governor's pardon, and is in a position to hold himself out as innocent and as having been persecuted by an ambitious prosecuting attorney.

Of course, if the criminal action is a petty larceny case it is not apt to be dismissed after reversal, but it would not be that kind of a case. In such cases, and cases involving unpopular offenses, Attorneys General do not hasten to exhibit candor, to parade their sense of justice, or to save time and labor for the appellate court by filing a confession of error. They do this only in capital cases, as a general rule, and then, there is a possibility, if not a

probability, that they do so only when the accused is influential or has influential friends. In such cases there is no new trial. The taxpayers were unduly burdened in paying the expenses of the first trial. After reversal it is likely that there is a new incumbent, not familiar with the evidence in the case, in the office of prosecuting or district attorney. Indignation over the crime has died out, and the public does not object to having the case dismissed, because it will save money to taxpayers.

In the jurisdictions, if any there are, which follow the rule herein complained of, the Attorney General knows that his confession of error will have all the effect of a pardon, or of a failure to prosecute in the first instance. The convicted appellant or plaintiff in error and his friends also know this. They naturally observe that it is more expedient to try to "fix," coerce or intimidate the Attorney General, and secure the filing of a confession of error, than to influence the Governor after an affirmance and obtain a pardon. The method indicated is more expedient because more effective. There is no publicity attached to the proceeding. The Attorney General is not hampered, or held in check, by a board of pardons that may "want to be shown." He is not subject to public criticism, as is a Governor who is generous in granting pardons. He can act secretly, so far as the public is concerned.

When a failure of justice, due to the filing of a confession of error, becomes known, if it ever does, the public believes that the reviewing court reversed the case because the prosecuting attorney committed some blunder or the trial court made some unfair rulings. The prosecuting or district attorney, who is always expected to secure results, is most likely to receive the blame. If the case is dismissed, and no new trial is had, the public is indifferent or criticizes the prosecutor for dropping the proceedings. The public never knows that the Attorney General had anything to do

with the final outcome. The secret remains with him and the accused. The reviewing court, and its personnel, simply thinks it followed good appellate practice in revers ing on the sole ground that there had been filed a confession of error. It is an easy way of catching up with the docket.

The secrecy, above indicated, makes it impossible to ascertain what motives caused the Attorney General to file a confession of error, in a case where the record does not clearly justify the confession. For the same reason, it is impossible to demonstrate by the analysis of concrete cases the soundness of the observations herein set forth.

Considering the activities of a certain hooded order which may include in its membership some public officials-the murders which are committed in times of industrial warfare, possibly by members of an organization that is influential with certain officers of the law, and considering, also, crimes in high places, as sometimes hinted in the press-actual cases may arise in which the appellate court would permit or cause crime to go unpunished, and justice to be suppressed, if it reversed a criminal conviction for no other reason than that the Attorney General had filed a paper entitled "Confession of Error."

There are other reasons why a Court should examine a case before reversing the judgment. The alleged errors confessed may not be errors after all. Again, the error confessed may have been harmless error. The evidence may have been amply sufficient to justify the conviction, and the confessed errors may not have been such as to deprive the accused of any substantial right, in which case an affirmance might have resulted if the confession of error had not been filed and the case reversed solely on account of it. If an appellate court will reverse a case simply because the Attorney General says there is error, that official may confess error that the ap pellant has not assigned.

It was no idle fancy that prompted the

writer of the text of 17 Corpus Juris, 369, to say that some courts reverse on a confession of error "without further consideration or comment." It is actually done, and sometimes under circumstances where the bar would not expect it. The writer of this paper, having been a law clerk in the office of a district attorney several years ago, is somewhat familiar with the record of a case upon which he did some work. Seven defendants were charged with, and placed upon trial for, murder in the first degree. Two of them were convicted of voluntary manslaughter. An imposing array of counsel, that had defended them at the trial, sued out a writ of error in their behalf. They prepared and filed, as would be expected, a voluminous brief in the court of review. The Attorney General, then in office, did not file a confession of error. With the aid of two assistant Attorneys General he prepared and filed an able and exhaustive brief upon behalf of the people. They stated therein that they "conscientiously. believe that the defendants

had a

fair and impartial trial and that the verdiet of the jury should be affirmed." After that the plaintiffs in error filed their reply brief. This was done on April 13, 1917. Apparently, and in fact, the status of the

was then such that the reviewing court could take it up, and consider the errors assigned and argued. But did it ever do so?

On the date last mentioned, a new Attorney General was in office. On September 27, 1917, notwithstanding the status of the case as above described, the new Attorney General, acting by himself only, filed a Confession of Error.

On January 7, 1918, the reviewing court. filed the following per curiam opinion in the case:

"Plaintiffs in error were convicted of voluntary manslaughter, and sentenced to serve terms in the penitentiary. They have assigned and argued numerous alleged errors occurring in the trial of the

This is the opinion in Richardson v. People, 69 Colo. 155, 170 Pac. 189, and the entire opinion.

It happens that the published report of that case makes no mention of the first Attorney General, nor does it contain the name of such Attorney General or the names of his two assistants, in the usual space given to names of attorneys appearing in the case. This is apt to give the reader of that opinion, and the matter published in connection therewith, the impression that no one appeared in the Supreme Court on behalf of the people except the one Attorney General who filed the confession of error. The truth is that the same attorneys appeared on behalf of the people in the Richardson case as in the Lawson case. The published report of Lawson v. People, 63 Colo. 270, 165 Pac. 771, contains the names of all such attorneys. In the Lawson case, too, there was a confession of error, but that case was not reversed solely on that account.

In the Lawson case, the following appears in the opinion:

regularity of the conviction. In such circumstances, we think it the better practice to pass upon some of the assignments of error, or one of them at least, upon which the present Attorney General has confessed error.

No doubt the Court was right upon the matter of "the better practice." But "the better practice," according to its own. opinion, was not followed in the later case of Richardson v. People, supra. In the earlier case of Zaneannelli v. People, 63 Colo. 252, 165 Pac. 612, the Court appears to have reviewed the case, in the usual way, although the Attorney General filed a confession of error. The practice suddenly followed in the Richardson case seems anomalous.

The reason for the Court's action in the Richardson case may, it seems, be discovered in the later case of Soto v. The People, 64 Colo. 528, 173 Pac. 339. It is there said, and the correctness of the statement is not questioned, that the Attorney General has the "control" of the case. The control, however, exists also where he seeks an affirmance of the judgment, and the Court never affirms a judgment of conviction merely because the Attorney General desires it. There is no "control" over the judgment of the appellate court. In Webb Sumner Oil Mill v. Southern Coal Co. (Miss.), 91 So. 698, the Court said:

"The mere confession of error does not necessitate the reversal of the judgment or decree appealed from."

A good reason is added for the statement..

If it should become true that courts reverse a criminal case solely because a confession of error is filed, the bar in general, and prosecuting attorneys in particular, should seek to remedy the situation.

In any case the correctness or propriety of a confession of error should be verified by the Court itself, before reversing at judgment. If a former Attorney General has already filed a brief in support of the

judgment, a confession of error by a second Attorney General should not be permitted to be filed, much less should it be entertained, and still less should it be allowed to serve as a pardon and as a verdict of not guilty as to the convicted criminal.

THE SCUTTLING OF SHIPS POSITION OF INNOCENT MORTGAGEES By Donald MacKay

The cases of Samuel & Coy v. Dumas, 39 T. L. R. 154 and Graham Joint Stock Co. v. Merchants Marine Insurance Co., Ltd., 39 T. L. R. 159, lately decided by the Court of Appeal not only raise questions of great importance in the law of Marine Insurance and insurance generally, but concern very specially the position of mortgagees of ships. Both cases relate to vessels which were cast away with the connivance of their owners, and consequent claims against underwriters by mortgagees. We propose to analyze the judgments given under the following heads:

(1) Title to Sue

In the case of Samuel & Co. v. Dumas, the policy was in name of Insurance Brokers and they claimed to sue on behalf of the mortgagee. Deposition was made by the brokers that the policy which ex facie did not disclose any particular interest was taken out to cover the separate interests of both mortgagor and mortgagee. In many cases it has been held that an insurance of the two separate interests can be effectively made in the one document; and though the Court differed in opinion as to the effect of such an insurance in Ebsworth v. Alliance Marine Insurance Co., L. R. 8 C. P. 596, yet they agreed as to the possibility of its being competently so effected.

It was urged that the mortgagee was never separately insured, but was merely an assignee of the policy, subject therefore, to the equities affecting the mortgagor and disqualified in the circumstances existing from asserting any higher right to recover

the insurance money than the mortgagor could maintain. On the evidence, the Court held that the mortgagee was a party to the contract and sustained his title to sue on the policy.

The test whether a person with an insurable interest at the time of the loss can sue on the policy is stated by Arnould (Marine Insurance, 9th Edn., p. 235) on these words: "The true rule then would appear to be, that any party to whom an interest in the property insured doth may or shall appertain at any time during the pendency of the risk may under the general words by subsequent adoption take advantage of the policy to protect such interest if it appears from extrinsic evidence that the person directing the policy to be effected intended at the time to protect this particular interest or at any rate to protect the interests generally of the parties who should ultimately appear to be concerned. The onus of proving that the plaintiff's interest was intended to be insured under these general words is on him." In Dumas case (supra) that onus was held to have been discharged.

The same question of title was the crucial point in the Graham Joint Stock Co. case. The policy there had been effected on the instructions of the mortgagor's attorney through brokers who inter alia wrote to the mortgagees that they were holding the policies to your order to the extent of your interest in the vessel, subject to our lien for unpaid premiums and to having the right to cancel the policies should the premiums not be paid, it, of course, being understood that we should not so act without first advising you."

Under the relative mortgage agreement there were provisions securing that the mortgagees should obtain right to the insurance policies. One clause was in these terms: "All policies of insurance on which the premiums have been fully paid over the hull, machinery and appurtenances of said steamship shall be suitably endorsed in favor of the mortgagees and shall be

lodged either with them along with the mortgage, or with Messrs. Joseph W. Hobbs & Co. (the brokers above referred to) on their behalf, in which event the said Messrs. Hobbs shall address to the mortgagees a letter stating the details of the policies and acknowledging that they are held to the order and on behalf of the mortgagees."

The Court were of opinion that the clear intention, as expressed in the mortgage agreement was that the interest of the mortgagees should be a derivative interest and not an independent separate interest. The policy was never endorsed, but that was regarded as an overlook. It was clear that the mortgagees were not direct parties to the contract of insurance and consequently their claim was disallowed. The following passage from the opinion of Lord Justice Scrutton summaries the position:

"I have come to the conclusion that the mortgagor's attorney gave instructions to insure on behalf of the mortgagor, the mortgagees' interest being protected by an assignment of a charge on the policy, and an irrevocable power of attorney to sue on it in the name of the mortgagor. I think that there were not two separate insurances, one by the mortgagor, who could sue on it for the whole amount, and one by the mortgagees to the amount of their mortgage debt, but one insurance by the mortgagor intended to cover the interest of the mortgagees by assignment, and an irrevocable power of attor ney to sue in the mortgagor's name. this is the true finding, the mortgagees' title is that of the mortgagor, and their claim is defeated by the mortgagor's misconduct."

If

(2) Position of Mortgagee When Vessel Deliberately Cast Away-Small's Case

In the case of the Graham Company, the Court were not under the necessity of considering this point, but in the case of Samuel & Coy v. Dumas they went on to deal with it, for there the policy was effected directly on behalf of the mortgagees and