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Smith v. Speed (Okla.) Right of Legislatures to
Abridge the Power of Courts to Punish for Con.
tempt, Ed. 221
State v. Bailey (Iod.) Constitutional Law-Compulsory
Education as an Unauthorized Invasion of Rights
of Parent, R. D. 142.
State v. Gravett (Ohio) Physicians and Surgeons-Con-
stitutionality of Act Discriminating Against Oste-
opathy, R. D. 122.
-Private Service-Right to Refuse, app. case, 407.
as a Defense, np. case, 266.
a Defense to Larceny, R. D. 322.
Right of Court to Criticise the Character or Value
of Expert Testimony, R. D. 323.
in Salary of State Officers During Term of Office, R.
rens System of Registation, ann. case, 290.
porate Franchises, Ed. 81.
8. C.) Jurisdiction of the United States Supreme
Court in tbe Railroad Merger Case, R. D. 302.
Tarbell v. Rutland R. R. (Vt.) Release-Validity of Con.
tracts by Next of Kin Releaslog Common Carriers
from Liability for Negligence, R. D. 222.
Tuckor v. Alexandroff (U. 8. 8. C.) International Law
- Surrender of Deserters from Foreign Ships of
stables-Constitutional Right of Sheriffs to Custody
of Prisoners, R. D. 443.
cedure-Improper Argument of Counsel, R. D. 1.
Mortgage of Homestead Entry Before Patent, ann.
to Give Expert Testimony on the subject of Elec.
tricity, R. D. 302.
Revocation of Check by Death of Drawer, Ed. 441.
III.) Federal Jurisdiction-Citizensbip of Corpora.
Williams v. Pressler (Okla.) Verdict-Misconduct of
Jury in Arriving at a Verdict, R. D. 2.
Servant Fellow Servants – Injuries – Assumed
Torrens Registration of Real Estate Titles,
ton John Stevenson,
No. 16. To What Period of Time is the Im-
No. 6. Proposed Provisions Against Fraudulent No. 19. Bondholders as Complainants in the
Foreclosure of Corporate Mortgages. By
No. 20. Spendthrift Trusts. By Nathaniel S.
No. 10. As to Who May Offer and Accept Re No. 22. Wanton Interference With Contract and
Business Relations. By Henry M. Dowling,
State of the Forum. By John D. Lawson, 223. No. 24. Rights of a Covenantee Upon Breach
Central Law Journal. state or territory to which such fugitive per
son has fled shall refuse the demand of the
governor or executive authority of the state ST. LOUIS, MO., JANUARY 3, 1902.
from which said fugitive fled, as above pro
vided, then the governor or executive of the The suggestion of the CENTRAL LAW JOUR- state from which said fugitive fled may issue NAL, in its issue of November 29, 1901 (53
his warrant of arrest to any marshal of the Cent. L. J. 421), in regard to the refusal of
United States commanding him to arrest and executives of certain states to recognize bring forth with before the court having juris. the requisitions for the extradition of diction of the offense the said fugitive from fugitives from justice from executives of justice. There shall be attached to said sister states, has just been adopted in a bill warrant a copy of an indictment found or an presented to congress December 13, 1901, affidavit made before a magistrate in said and referred to the judiciary committee. We state or territory to which said warrant is made a thorough examination of the subject issued charging the person demanded with at that time, and are absolutely convinced
having committed treason, felony, or other that the remedy suggested, and which is crime, and certified as authentic by the govadopted in this bill, is the only solution for ernor or chief magistrate of said state. those unhappy and serious clashes of au- “The said warrant when so issued shall thority between the governors of sister com- authorize any marshal of the United States monwealths. This subject is not a political to arrest and secure said fugitive in the said one, but is one in which every lawyer and state or territory to which he fled and to every citizen is vitally interested. The bill bring him back into the state or territory is number 5827, and was introduced by Mr.
from which he fled.” Robinson, of Indiana, through whose cour
That this is a most excellent and necestesy we are in receipt of a copy thereof. Its sary step in advance is obvious to every one object is to amend section fifty-two hundred acquainted with the present facts and condiand seventy-eight of the Revised Statutes tions. Of recent years there has been a tenof the United States on extradition. The dency among governors to refuse the rendition section amended by this bill would read as of fugitives from justice for certain political follows:
crimes or for offenses charged to enforce "Whenever the executive of any of the financial obligations and on various other states or territories demand any person as a grounds which they have alleged as “ul. fugitive from justice of the executive of any terior," thus laying themselves open to the other state or territory to which such person charge of acting in the face of the constituhas fled, and produces a copy of an indict- tion and of the decision of the supreme court, ment found in an affidavit made before a denying them any discretion in such matmagistrate of any state or territory charging ters. We heartily indorse this bill as a the person demanded with having committed happy solution to a most difficult problem of treason, felony, or other crime, certified as American constitutional law. authentic by the governor or chief magistrate of the state or territory from whence
NOTES OF IMPORTANT DECISIONS the person so charged has fled, it shall be the duty of the executive authority of the TRIAL AND PROCEDURE--IMPROPER ARGUstate or territory to which such person has MENT OF COUNSEL.--Attorneys in their zeal to fled to cause him to be arrested and secured,
promote their client's interests, often overstep
the bounds of reason and fairness in their stateand to cause notice of the arrest to be given
ment of the case and argument to the jury. But, to the executive authority making such de- as a general rule, such arguments or statements, mand to receive the fugitive, and to cause even if objectionable, will not be ground for a the fugitive to be delivered to such agent
new trial unless some substantial right of the opwhen he shall appear. If no such agent ap
posing party has been affected. Such was the
decision in the recent case of Watson v. Southpear within six months from the time of the
ern Oregon Co., 65 Pac. Rep. 985, where the arrest the person may be discharged. If
Supreme Court of Oregon held that the reading the governor or executive authority of any of an opinion in a former case by counsel while
discussing a proposition of law, in which no agreed to leave it to two of the jurors to go by question decided was material in the pending themselves and agree, and, if the two could not trial, is not error in the absence of a showing agree, then the two were to select a third juror tbat counsel acted in bad faith, or that the read- as umpire; and the two, failing to agree, selected ing improperly influenced the jury. And also the third, and these three agreed to find no cause that the fact that a court considered statements of action. The jury then returned a verdict in made by counsel of plaintiff prejudicial to de- conformity to the finding of these three jurors. fendant, and sufficient to justify granting a new The court said, “This transaction was unlawful, trial, unless plaintiff remitted a part of the ver- and the judgment rendered on a verdict obtained dict, does not make such statements assignable in this manner cannot be supported." Other as error on appeal, in the absence of an objection authorities supporting the court in the prinby defendant's counsel thereto.
cipal case on the general proposition might
be mentioned as follows: Merserve v. Shine, 37 VERDICT MISCONDUCT OF JURY IN AR- Iowa, 253; Richardson v. Coleman, 131 Ind. 210, RIVING AT A VERDICT. - One of the most 29 N. E. Rep. 909, 31 Am. St. Rep. 429; Randolph serious questions of legal procedure which v. Lampkin, 90 Ky. 551, 14 S. W. Rep. 538, 10 L. is perplexing courts and lawyers alike, is the R. A. 87; Henderson v. State, 12 Tex. 532; Knight gross misconduct of jurors in arriving at a ver- v. Fisher. 15 Colo. 176, 25 Pac. Rep. 78; Donner dict in the most important civil suits, which, if Palmer, 23 Cal. 40; Burke v. Magee, 27 Neb. the litigation on this question is any criterion, is 156, 42 N. W. Rep. 890; Lee v. Clute, 10 Nev. 149. growing with alarming rapidity. Indeed, trial by jury in civil cases, where large financial and
IMPROPER REMARKS AND CONDUCT business interests are involved, is not to be commended, and litigants in such cases generally
OF TRIAL JUDGES AS REVERSIBLE waive a jury and leave the matter to the discre
ERROR. tion of the trial judge or to a commission of When a case is submitted to the court, referees, who are especially versed in the subject what the judge says and does that would be of controversy. Some juries seems to have a very extremely prejudical before jurors bas, in low conception of the importance of a verdict. A verdict has been very correctly defined as the
their absence, no evil effect on any party to unanimous decision made by a jury and reported
the suit. Even the party complaining canto the court, on matters lawfully submitted to not object that notice is given of the court's them in the course of the trial of a cause, and attitude or opinion. When, however, a case should be the result of sound judgment, dis
is being tried before a jury there are two passionate and conscientious consideration.
judicial bodies, a judge of the law and Litigants in a cause before a jury are titled to tbe free, deliberate, unbiased and con- judges of the facts. Neither has a right to scientious judgment of twelve jurors, and a ver- invade the province of the other. As a condict should not be permitted to stand which has sequence improprieties of speech or conbeen brought about by any undue or improper
duct on the part of the trial judge are ordiipfluences, or made to depend upon any contin
narily assigned as error on the ground that gent result. In the recent case of Williams v. Pressler, 65 Pac. Rep. 934, a jury, after delibera
the jurors were influenced thereby, or, in tion for a reasonable time, stood three for the de.
other words, that the judge did not properly fendant and nine for the plaintiff, and the three respect the province of the jury. who were favorable to the defendant signed a
There is not unanimity in judicial decisions written agreement to the effect that they would
on the subject of the respective provinces or find for the plaintiff if the other nine would sign a written statement to the effect that they believed
functions of the judge and the jury. The rule the defendant had willfully testified to a lie, and of the federal courts is familiar. They refuse the other nine, in order to induce the three to to follow the statutes and decisions prevailagree with them, did prepare and sign a written
ing in a majority of the states, and hold that statement wherein they stated that they believed
the expression of an opinion by the judge in that the defendant did willfully and knowingly swear falsely in the case then before them, and
submitting the case to the jury, when no rule on this being done the jury returned a verdict for of law is incorrectly stated and all matters the plaintiff. The Supreme Court of Oklahoma of fact are ultimately submitted to the deheld that such verdict was not the result of free, termination of the jury, cannot be reviewed deliberate and unbiased judgment, and should be
on a writ of error. There are decisions by set aside. Among the cases bearing on this question is
state courts of review, particularly in New that of Ryerson v. Kitchell's Executors, 3 N. J.
York and Pennsylvania, that give to trial Law, 998. In that case, the jury, after delibera- 1 Doyle v. B. & A. R. Co., 27 C. C. A. 264, 82 Fed ting for some time, and being unable to agree, Rep. 869; Railroad Co. v. Putnam, 118 U. S. 545, 553
judges the right of expressing opinions on the importance attached to preserving jury facts. Justice Gaynor, of the New York verdicts free from prejudice or improper inSupreme Court, recently used emphatic lan- fluence, and the remarks and conduct of guage in advocating what would practically nisi prius judges are erroneous when they be the adoption of the federal (rule in the have such an effect. state courts.2 The learned justice in his In an opinion written by Justice Grant opinion refers to what he terms the vogue of the Supreme Court of Michigan declares certain counsel“whose uppermost idea seems itself on this subject, in substance, as follows: to be that the business of trial judges is Appellate courts must presume that one oconly to help the tip staffs keep order while cupying so important a position as that of a the jury tries the case,” and that the judge circuit judge can influence a jury, and when"is placed in such a state of tutelage and ever he expresses an opinion on any disputed subjection under our present system that he fact, or of the character of a witness, or may say nothing that is not colorless and compliments one attorney at the expense of apologetic.” Later, in the opinion, he says: another, or uses language which tends to "I prefer to believe that the constitution and bring an attorney into contempt before the laws have not reduced trial judges to any jury, or uses any language which tends to such humiliating position in this state. It prejudice, then he commits an error of the seems to me that it has always been recog law for which the verdict and judgment must nized as wholesome in this state, the same as be properly set aside. The decisions are in England, that trial judges should feel free numerous which hold that any improper reto exercise full control over the trial of mark of the trial judge, in the presence and causes, and, to speak plainly, especially in hearing of the jury, liable to influence their the presence of trickery and fraud. It is action, is misconduct, and reference is here that which kept the jury system so high in made to those of this purport subsequently England. Honest litigants and honorable herein cited. The late Justice Cooley held and learned counsel expect it and want it, that even the demeanor of a trial judge and are entitled to the protection of it. Our could be assigned as error because of its imhighest court bas carefully guarded this proper influence on the jury.4 Speaking with function of the trial judge and refrained reference to the remarks of trial judges Judge from infringing upon it, though often invited Gary, of Chicago, in an opinion delivered to do so." This is a fair and able presentation when a justice of the appellate court of of the views of those advocating for trial Illinois, said, characteristically and forcibly: judges "full control of jury trials, but with “One of the greatest difficulties of a nisi all due respect for the opinion of the writer, prius judge is to keep his mouth shut. I it is proper to state that his position is not had twenty-five years' experience of it. *** being commonly adopted in this country. The Many judgments have been reversed in this tendency is to guard carefully the province state because the judge talked too much.”5 of the jury as judges of facts, and to deny In a recent Pennsylvania case, after a trial to the court the privilege of expressing opin of several weeks, the jury had been out two ions thereon, and even in jurisdictions where days, when the court told them that if they the court is allowed to express an opinion on did not agree he would keep them together the facts, it is held to be his duty to insiruct for weeks, and people would suspect them of the jury that they are not bound thereby. corruption. When the case reached the When those statutes are considered which
supreme court Justice Dean called attention provide, in substance, that judges shall not to the intelligence of the jury, and in a measgive opinions on facts, as this is the true ure outlined the duty of the court by saying office and province of the jury, it cannot that what the jurors needed was the lawful, consistently be claimed that, as a general patient and kindly aid of an able judge, rule, “honest litigants” desire exactly the while instead of this there was a complete obopposite. Surely these statutes were not literation of the dividing line between the enacted wholly by dishonest litigants or in their favor. Such laws are an evidence of
3 McDuff v. Journal Co., 84 Mich. 1.
4 Wheeler v. Wallace, 53 Mich. 355. ? Baker v. Riedel, 52 N. Y. Supp. 832.
5 Kane v. Kinnare, 69 Ill. App. 81.