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of death was evident. The body had been examined, with the marks of violence plainly apparent, the bruised head, the fractured skull, and the broken club lying near it, with hair still adhering to it. It was evident that a crime had been committed. From the time that a felonious homicide was established, the proceedings assumed the form of a criminal investigation. Hendrickson v. People, per Gardiner, J., 10 N. Y. 49.

By section 777 of the Code of Criminal Procedure it became the duty of the jury, if the death was occasioned by criminal means, to find who was guilty thereof, and on such finding the coroner was empowered to issue his warrant for the arrest of the guilty party if not already in custody. From that time the prisoner occupied the position of a person accused of crime, and his situation was similar to that of such a person before an examining magistrate, "and although the tribunal might be different, yet upon principle his rights would be the same in both cases." 10 N. Y. 48. And in Teachout v. People, 41 id. 9, Woodruff, J., in commenting upon the case of McMahon v. People,says: "The coroner was acting substantially in the place of an examining magistrate, and the fact that the prisoner was held under arrest without warrant could not make his protection against such an inquisition less imperative." And at page 12 the learned judge says, that declarations made under examination with such a charge depending should be excluded except where obedience to the statutory precautions is observed.

The admissibility of examinations in evidence upon trial of the offender has been passed upon in many English cases, but the whole subject has been so thoroughly discussed in three cases in this court that it is not necessary to refer particularly to the English authorities.

In Hendrickson v. People, 10 N. Y. 13, the wife of the defendant died suddenly in the morning, and in the evening of the same day a coroner's inquest was held. The defendant was called and sworn as a wit-. ness upon the inquest. At that time it did not appear that any crime had been committed, or that the defendant had been charged with any crime, or even suspected, except so far as the nature of some of the questions asked of him might indicate such a suspicion. On his subsequent trial on an indictment for the murder of his wife, the statements made by him at the coroner's inquest were held admissible, on the ground that he was not examined as a party charged with the crime; that it had not appeared even that a crime had been committed, and that he had simply testified as a witness on the inquiry as to the cause of the death.

In People v. McMahon, 15 N. Y. 384, the defendant was arrested by a constable, without warrant, on a charge of having murdered his wife. The constable took him before the coroner, who was holding an inquest on the body, by whom he was sworn and examined as a witness. It was held that the evidence thus given was not admissible on the prisoner's trial for the murder, and his conviction was reversed upon that ground. In the judgment all the judges who heard the case concurred.

The next case is Teachout v. People, 41 N. Y. 7. In that case the defendant appeared at the coroner's inquest, in pursuance of a subpoena to testify, and voluntarily attended. He was not under arrest, but was informed by one Dalley that it was charged that his wife had been poisoned, and that he would be arrested for the crime. Before he was sworn he was informed by the coroner that there were rumors that his wife came to her death by foul means, and that some of those rumors implicated him, and that he was not obliged to testify unless he chose. He said he had no objection to telling all he knew. The learned judge

delivering the opinion precludes it by a reference to these facts as showing that the statements made were voluntary in every legal sense, aud held that a mere consciousness of being suspected of a crime did not so disqualify him that his testimony, in other respects freely and voluntarily given before the coroner, could not be used against him on his trial on a charge subsequently made of such crime. On that ground he held the evidence properly admitted, at the same time referring with approval to the McMahon case, and distinctly limiting the rule of exclusion to those within its bounds.

The present case is identical in all its essential features with the McMahon case. In both cases the prisoner had been arrested without warrant as a suspected murderer. While under arrest he was taken by the officer having him in charge before the coroner's inquest, and examined on oath as to circumstances tending to connect him with the crime. The present case is even more clear than the McMahon case, for here the homicide had been shown before he was examined, the prisoner was informed that he was charged with the murder, the alleged instrument of death was produced, and the prisoner was interrogated as to his motive for the alleged killing, his whereabouts, and other inculpating matters.

There has been no case overruling the McMahon case, and we are not referred to any decision, either in this country or in England, at variance with it, although there are many which sustain it, and even go further in the direction of excluding examinations under oath, before a magistrate, of persons afterward put upon trial on criminal charges. Rex v. Lewis, 6 C. & P. 161; Rex v. Danis, id. 177; Wheiting's case, 8 id. 238; Hawarth's case, 4 id. 254, note.

The court at General Term in the present case seem to regard the case of People v. McGloin, 91 N. Y. 241, as sustaining the course pursued by the prosecution, and consequently overruling the McMahon case; but a brief examination will show that there is no analogy between the two cases. The case of McGloin was not that of the examination of a prisoner on oath before a magistrate, before whom he was taken involuntarily while in custody, and interrogated by the magistrate, who to all appearance had power to require him to answer. But it was a clear case of voluntary confession. The prisoner was not taken before any magistrate. While under arrest he said to the inspector of police, who had him in charge, that he would make a statement. The inspector then said he would send for Coroner Herman to take it. The coroner was then sent for, and came to police headquarters, and took down in writing the confession dictated by the prisoner, the coroner asking no questions, and not acting in any official capacity, but as a mere amanuensis to take down the confession and prove the contents. Whether sworn or unsworn is immaterial, as the confession is in no respect compulsory, but was voluntarily offered by the prisoner. It was not taken before a magistrate upon a judicial investigation against the person accused of the commission of the crime. It lacked this essential element of the McMahon case, and is in no respect in conflict with it.

Section 395 of the Code of Criminal Procedure is also referred to as superseding the McMahon case. That section provides that "a confession of a defendant, whether in the course of judicial proceedings, or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney that he shall not be prosecuted therefor."

The rule thus established is founded upon the common-law rule on the subject of confessions, but is much more definite and stringent. The rule, as laid

down in Hawkins, is stated to be that "a confession, whether made under an official examination or in discourse with private persons, which is obtained from a defendant either by the flattery of hope or by the impression of fear, however slightly the emotions may be implanted, is not admissible in evidence."

By the section of the Code quoted, the fear which is required to exclude the confession must be a fear produced by threats, and the hope must be based upon a stipulation of the district attorney promising immunity from prosecution for the crime confessed. But I do not apprehend that this provision was intended to apply to any but voluntary confessions, or to change the statutory rules relating to the examination of prisoners charged with crime. The Criminal Code retains the provisions of the Revised Statutes applica- | ble to such examinations, which provisions are framed with reference to the constitutional provision that no person shall in any criminal case be compelled to be a witness against himself. Art. 1, § 6.

In all the cases in which reference has been made to the subject, it seems to be conceded that an examination of a person arrested on a criminal charge, conducted in violation of the statutory provisions, would not be admissible in evidence against him on his trial for the offense. To take a prisoner before a magistrate, swear him, subject him to a minute interrogation as to the circumstances as relied upon as evidence of his guilt, and then use such an examination on his trial, would be a departure from our system of criminal jurisprudence which should not be tolerated, and whether the investigation were conducted before a committing magistrate or before a coroner's jury, could make no substantial difference, provided it appeared that a homicide had been committed, and the prisoner was brought before the inquest as an accused person, and the object of the inquisition was to ascertain his guilt.

The McMahon case held distinctly that an examination thus conducted before a coroner's jury could not be used on the trial of the prisoner, and after that decision has stood for nearly a quarter of a century as the law of the State, it would require, for the purpose of overruling it, something much more definite than any thing that can be found in the Penal Code or the Code of Criminal Procedure.

There is nothing indefinite in the doctrine of that case as defined and limited in the Teachout case, nor am I able to see that an adherence to it would in any way embarrass the administration of criminal justice in the State, while on the other hand it is not difficult to see that a departure from it would be subversive of some of the fundamental principles of our criminal jurisprudence. Nor is there any thing in the exclusion of such evidence inconsistent with section 395 of the Code.

The evidence sought to be excluded is not a confession, certainly not a voluntary confession, but an official examination on oath of the prisoner while in custody, in which, although he admits some facts in regard to the relations between him and the deceased, he denies all knowledge of the crime, he denies having seen the deceased after he saw him on the railroad track on the day when he left his home, and he denies ever having been on the ground where the body was found. These denials were much more important to the prosecution than any of the admissions contained in the examination, for they were met by the evidence of the prisoner's subsequent admissions to Sheriff Brown, which, if true, showed that his previous statements under oath before the coroner's inquest were false. This mode of examining and involving a prisoner arrested on a charge of crime is not sanctioned by the provision of section 395 of the Penal Code, which declares voluntary confessions made "in

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the course of judicial proceedings" admissible in evidence. Those words do not necessarily refer to a ju dicial examination of the prisoner on the subject of the charge made against him. The object of section 395 is to declare what confessions shall be deemed vol. untary, and therefore admissible, whether made out of court to a private person, or in court, or in the course of any judicial proceeding between any parties. The examination of a prisoner on oath before a magis. trate on the subject of the charge made against him is condemned in the McMahon case, and those upon which it rests, in the Teachout case, and by the stat utes which prohibit such examinations. Code Crim. Proc., §§ 188, 196, 198; 2 Rev. Stats. 708, §§ 14, 15, 16. The three cases which have been cited, the Hendrickson case, the McMahon case, and the Teachout case, draw the line sharply, and define clearly in what cases the testimony of a witness examined before a coroner's inquest can be used on his subsequent trial, and in what cases it cannot. Where a coroner's inquest is held before it has been ascertained that a crime has been committed, or before any person has been arrested charged with the crime, and a witness is called and sworn before the coroner's jury, the testimony of the witness, should he afterward be charged with the crime, may be used against him on his trial, and the mere fact that at the time of his examination he was aware that a crime was suspected, and that he was suspected of being the criminal, will not prevent his being regarded as a mere witness whose testimony may be afterward given in evidence against himself. If he desires to protect himself he must claim his privilege. But if at the time of his examination it appears that a crime has been committed, and that he is in custody as the supposed criminal, he is not regarded merely as a witness, but as a party accused, called before a tribunal vested with power to investigate preliminarily the question of his guilt, and he is to be treated in the same manner as if brought before a committing magistrate, and an examination not taken in conformity with the statute cannot be used against him on his trial for the offense. On this ground the judgment should be reversed, and a new

trial ordered.

Andrews, Danforth and Finch, JJ., concur, Earl, J., reads dissenting opinion for affirmance; Ruger, C. J., concurs; Miller, J., not voting. Judgment reversed.

NEW YORK COURT OF APPEALS ABSTRACT.

MASTER AND SERVANT-NEGLIGENCE.-A railroad company is not required to furnish engines for its business of any particular power; and the company is not liable for an injury to one of its employees caused by the diminished power of one of its engines. Burke v. Wetherbe, 96 N. Y. 562; Marsh v. Chickering, 101 id. 396; Sweeney v. B. & Jones Em. Co., id. 520. In the case of Marsh v. Chickering, Judge Miller, following prior authorities, said: "The rule is that the master does not owe to his servants the duty to furnish the best-known or conceivabie appliances; he is simply required to furnish such as are reasonably safe and suitable, such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances." Suppose in that case the ladder had when new been furnished with hooks and spikes, and they had by use been broken off, how could it have been claimed that the liability of the master would be different? Would the master have been bound to replace hooks and spikes which had come off, while he owed no duty to his servant originally to place them upon the ladder? So here was the defendant bound to restore this engine

by repairs to the power which it originally possessed, while it owed no duty to purchase a new engine of greater horse power than this then possessed? It is plain that the answer to these questions should be in the negative. Jones v. Granite Mills, 126 Mass. 84; Kelley v. Silver Spring Co., 12 R. I. 112; Smith v. Railway Co., 69 Mo. 34; Fort Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 133; Western, etc., R. Co. v. Bishop, 50 Ga. 465; Wander v. Railroad Co., 32 Md. 411; Philadelphia, etc., R. Co. v. Keenan, 103 Penn. St. 124. Oct. 5, 1886. Bajus v. Syracuse, etc., R. Co. Opinion by Earl, J.

MORTGAGE-FORECLOSURE OF RECEIVER'S CERTIFICATES-WAGES OF EMPLOYEES.-The lien of the mortgagees of a railroad cannot be impaired or affected by the claims of employees of the company for wages due them at the time of the appointment of a receiver in proceedings to foreclose a mortgage. The receiver has no power to issue certificates of indebtedness to pay such employees, which will be a lien on the road prior to the lien of the mortgage. Oct. 5, 1886. Metropoli tan Trust Co. v. Tonawanda Valley, etc., R. Co. Opinion by Danforth, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

CRIMINAL LAW-ASSAULT AND BATTERY-RIOT.-A conviction for assault and battery only may be had on an indictment which charges in one count a riot and an assault and battery committed riotously. The general rule is familiar that any defendant in an indictment may be convicted of any offense which is well charged therein, and is proved, although the whole charge contained in the indictment is not proved. But the defendant contends that the present case falls within an exception to the rule, and that no conviction for assault and battery only can be had on an indictment which charges in one count a riot and an assault and battery committed riotously. The decision in Rex v. Heaps, 2 Salk. 593; S. C., nom. Rex v. Sudbury, 1 Ld. Raym. 484, is chiefly relied on to support this view, and it certainly has been often considered by textwriters as going to this extent, though on examination it will be seen that it does not necessarily do so. The indictment in that case charged several with riot and a riotous assault, and the jury found a general verdict of guilty against two and acquitted the rest. On a motion in arrest of judgment, it was considered olear that the two defendants who were convicted could not be held guilty of a riot since the others were acquitted, and two persons are not enough to make a riot; and being thus in contemplation of law discharged of the riot, it was held that no judgment upon the general verdict of the jury could be entered against them for the assault and battery. No special verdict of guilty of the assault and battery was returned, and the question did not arise whether such a special verdict could have been sustained. In principle no good reason is perceived for taking this case out of the general rule more than other cases where there is a charge of assault and battery, with circumstances of aggravation, which the evidence fails to prove. The whole current of moderu decisions is opposed to establishing such an exception, and the decision in Shouse v. Commonwealth, 5 Penn. St. 83, cited with approbation in Dinkey v. Commonwealth, 17 id. 126, is directly in point. See Bennett & Heard Lead. Cas. 551-554; 2 id. 38. Mass. Sup. Jud. Ct., Oct. 21, 1886. Commonwealth v. Hall. Opinion by C. Allen, J.

~~ SENTENCE-CHANGING AT TERM.-The final complaint made in the case is that the court erred in

the sentence. When the defendant was first called for sentence, the court inadvertently adjudged him to confinement at hard labor in the penitentiary for a term of six months. This of course was erroneous, for no person can be sentenced to confinement a hard labor in the penitentiary for a term less than one year. Comp. Laws, 1879, ch. 31, § 291. Within an hour after sentence was pronounced the attention of the court was called to the mistake, and the prisoner and his counsel being still in court, the case was again called, and the court proceeded to sentence the prisoner to imprisonment for a term of one year. It does not ap pear that a formal order was made setting aside the first sentence, but the court pronounced the second sentence upon the same verdict, stating in the record, as a reason for its action, that the statute did not authorize the judgment first pronounced. This was in effect a setting aside of the first judgment; and the only formal judgment recorded in the case is the one under which the prisoner is in custody, sentencing him to imprisonment for one year. The general rule is that the records of a court may be corrected or revised at any time during the term at which the judgment was rendered. The sentence first pronounced against the defendant was not executed or put into operation, and "so long as it remained unexecuted, it was, in contemplation of law, in the breast of the court, and subject to revision and alteration." Com. v. Weymouth, 2 Allen, 147. We think it is clearly within the discretion and power of the court, until the end of the term, to amend and revise or increase the sentence which had not gone into effect. 1 Bish. Crim. Proc., § 1298, and cases cited. As nothing had been done under the sentence first pronounced, and as the final sentence did not impose a penalty in excess of that provided by law, the rights of the defendant were not infringed upon, nor has he any ground for complaint. Kaus. Sup. Ct., Oct. 7, 1886. State v. Hughes. Opinion by Johnston, J.

SALE OF INTOXICATING LIQUORS TO MINOR BY AGENT.-Defendant, who was duly licensed to sell liquors to be drunk on the premises, was indicted for selling to a minor. It was claimed that the sale was made by the bartender without defendant's authority. On the trial the court instructed the jury that a sale by a bartender in his master's shop, and in the regular course of his master's lawful business, is prima facie a sale by the master, although the sale is an illegal sale; but that such a sale may be explained by showing that it was unauthorized. Held, error; that although it was evidence for the jury to consider, and which might warrant it in inferring that the sale was authorized by the defendant, yet that it was going too far to behold that it raised a presumption of fact that such was the case. The fact that a man employs a servant to conduct a business expressly authorized by statute, and that the servant makes the unlawful sale in the course of it,do not necessarily overcome the presumption of innocence merely because the business is liquor selling, and may be carried beyond the statute limits. Com. v. Putnam, 4 Gray, 16; Com. v. Dunbar, 9 id. 298. It is true that a master would be liable civilly for such a sale as supposed in the instruction, but his civil liability exists even when he prohibits the sale, and therefore it does not stand upon a presumption that he authorized the sale, but upon the general ground of a master's liability for the unauthorized torts of his servants,, whatever that may be. George v. Goodey, 128 Mass. 289; Roberage v. Burnham, 125 id. 277; Pub. Stat., ch. 100, § 24; Byington v. Simpson, 134 Mass. 169, 170. Com. v. Holmes, 119 id. 195, cited for the prosecution, went no further than to decide that evidence that the defendant's son and clerk sold intoxicating liquors in a public house kept by the defendant

was evidence of sale by the defendant sufficient to be submitted to the jury. See Com. v. Edes, 14 Mass. 406. Nothing was said as to a presumption of fact. The evidence too was stronger than the case at bar. For there the defendant set up no license, and any sale was unlawful, and the question was whether the defendant gave authority to his clerk to sell at all. It might well be thought that the clerk would hardly undertake to sell in the way of business in his employer's house without some authority. But it is obviously much more likely that a servant employed to make lawful sales should occasionally go beyond his authority, which he might do by his taking a minor for an adult, than that he should go into a wholly unauthorized business. Com. v. Nichols, 10 Metc. 259, probably suggested the ruling of the court, and is perhaps a little nearer the case at bar than Com. v. Holmes, as the defendant seems to have sold liquors wholesale, and to have employed his clerk in that business, although not licensed to sell at retail. The court, in sustaining the defendant's exceptions, said a sale at retail by the clerk was only prima facie evidence of a sale by the master. It hardly said, and could not have decided, that such a sale was prima facie a sale by the master, or that it raised a presumption of fact. Moreover, if it were held that there was such a prssumption of fact in cases like Com. v. Holmes and Com. v. Nichols, it would not follow that there was the same presumption in the present case, still less that it was so plain that the jury could be instructed to act on it. Such presumptions are questions of fact and of degree. Mass. Sup. Jud. Ct., Oct. 21, 1886. Commonwealth v. Briant. Opinion by Holmes, J.

STENOGRAPHER-COPY OF TESTIMONY-CONTRACT.Court stenographers may recover for copies of testimony made by them under special contract, and the public has no concern therein so long as they discharge their official duties properly, since the laws under which they are appointed, and which prescribe their duties, do not require that they shall devote all their time to the public service. Smith v. Portage Co., 9 Ohio, 25; Davis v. Munson, 43 Vt. 676; England v. Davidson, 11 Adol. & E. 856; 1 West Con., § 502; Sharp's Adm'x v. Kirkendall, 2 J. J. Marsh. 150; Evans v. Inhabitants of Trenton, 24 N. J. Law, 764. Mich. Sup. Ct., Oct. 21, 1886. Langley v. Hill. Opinion by Sherwood, J.

COURT OF APPEALS DECISIONS.

IE following decisions were handed down Tuesday, Nov. 28, 1886:

THEA

Judgment affirmed with costs-Isaac N. Phelps et al., appellants, v. Robert B. Borland, respondent; Sarah Solomon, administratrix, appellant, v. Manhattan Ry. Co., respondent; Julia Riley, administratrix, v. Albany Savings Bank, respondent; Samuel G. Craig, administrator, respondent, v. Manhattan Ry. Co., appellant; In re Final Accounting of Elbridge T. Gerry, trustee of Jean B. Goelet, deceased, under will of Peter P. Goelet; Peter Moller, Jr., et al., executors, respondents, v. Joseph W. Duryes et al., executors, appellants; Clarissa Lammer et al., appellants, v. Helen G. Stoddard, executrix et al., respondents; Harry Marion Simms, executor, etc., respondent, v. United Sates Trust Co. of New York, appellant; William E. Smith, respondent, v. Thomas Nelson et al., executors, appellants; Ansonia Brass and Copper Co., appellant, v. William C. Conner et al., executors, respondents; John Cox, respondent, v. Mayor, etc., of New York, appellant; Susan E. Bedell, administratrix, respondent, v. Long Island R. Co., appellant; Joseph Young, administrator, respondent, v. N. Y. C. & H. R. R. Co., appellant; James P. Conner et al., executors, respondents, v. Joseph Dubee et al., appel

lants; In re Estate of Elias W. Cady, deceased; In re Application of Robert B. Gardner, administrator; Dorlesca M. Van Alstyne, executor, respondent, v. N. Y. C. & H. R. R. Co., appellant; In re Judicial Settlement of Accounts of John Hohman et al., executors; James B. Lockwood, as sole trustee et al., v. William T. Brantley, administrator et al.; Betsey Squires, appellant, v. Coleman Robinson, executor, respondent,

-Each of the two judgments affirmed; that against the defendant as executrix without costs; that against her as an individual with costs-Angeline C. Johnson et al., administrators, respondents, v. Maria J. Myers, executrix, appellant. Two cases.-Order reversed-Angeline C. Johnson v. Maria J. Myers.Judgments of General and Special Terms modified according to opinion herein, and with these modifica tions the interlocutory judgment appealed from affirmed, without costs of this appeal to either party-Le Dette A.Bostwick, resp., v. Emily P.Beach, exc.,app.Judgment reversed, and judgment rendered for defendant, with costs-Edgar T. Brackett, administra tor, respondent, v. Chester Griswold, impleaded, appellant.--Judgment affirmed, with costs-Eli W. Blake, respondent, v. Same.-Judgment of General and Special Terms modified in accordance with opinion herein,costs of the appellants to be paid out of the proceeds of the sale-Francis J. Byrnes et al., resp., v. Benjamin M. Stillwell et al., appellants.-Judgment and order of General Term reversed, and that of surrogate affirmed with costs-Phebe Auge bine et al., respondents, v. John M. Jackson, executor, appellant.

-Judgment reversed, new trial granted, costs to abide the event-Mary Shaw, administratrix, respond. ent, v. Charles L. Sheldon et al., appellants; Nellie Card et al., executors, respondents, v. Manhattan Ry. Co., appellant; Jennie E. Gardinier, administratrix, etc., respondent, v. New York Cent. & H. R. R. Co., appellant. Judgment affirmed-People, respondent, v. Charles A. Budden seick, appellant; People, respondent, v. Charles G. Sherman et al., appellants. Judgments of General and Special Terms reversed, and judgment entered in accordance with opinion herein; costs of all parties in the Supreme Court and in this court to be paid by the trustees out of the sur plus income of the trust estate-Albert Delafield et al., executors, respondents, v. Richard Delafield Shipman, impleaded, appellant.-Judgment reversed, with leave to the defendant to answer on payment of costs-Emily D. Jex et al., executors, appellants, v. Mayor, etc., of New York, respondents.-Order affirmed with costs-Peter Moller, Jr., et al., executors, respondents, v. Joseph W. Duryee, appellant, Abram B. Conger et al.; Sarah W. Duryee, appellant, v. Isaac Ogden, respondent; Alexander C. Morrison, respondent, v. Jane Van Benthuysen et al., executors, appellants; William C. Hoag, respondent, v. Mary Kehoe, appellant; People v. Knickerbocker Life Ins. Co.; In re Settlement of accounts of Dorothy A. Huntington, executrix. Order of General Term striking out disbursements reversed and the judgment as entered at Special Term affirmed, with costs of appeal to this court-Roxanna C. Larkins, respondent, v. Paul C. Maxon, appellant (two cases).-Motion to dismiss granted-People v. William C. Moore.

NOTES.

A Judge at North Yakima, Washington Territory, in a recent case in which the right of a woman, who was born in a foreign country, to sit in the capacity of a juror was questioned, held that if the husband of the woman was a citizen of this country, the woman ac quired the same status as that of her husband, and was therefore qualified to vote and sit as a juror.

Would not such a form, considering the habits and

The Albany Law Journal. training of our bench and bar, throw upon the

MR

ALBANY, DECEMBER 4, 1886.

CURRENT TOPICS.

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judges a burden of interpretative work under which the whole judicial system would break down? Again, with this form, classification becomes of the utmost importance, for every proposition or rule should be deducible from a more general rule that precedes it in the order of arrangement." Mr. Platt pays Mr. Field very high compliments, but we wish he were not "almost " but "altogether" of his way of thinking. He also says a good word for our own "American Reports," which we are grateful for. But we think he exaggerates the difficulties of codification. A very distinguished and very | able judge of this State in his last years fell into a doubting habit of mind, which an acute observer described as follows: "6 He doesn't exactly see how the plaintiff is going to be able to make out a cause of action in any case." There is no use in waiting for a perfect code or one which will please everybody. The only way ever to get a good code is to enact the best now practically attainable. This will undoubtedly be improved, but the time will never come when there will not be a considerable class who will believe that "man never is, but always to be, blest" with a code.

R. JOHNSON T. PLATT, of New Haven, sends us his paper on The Opportunity for the Development of Jurisprudence in the United States," read before the American Bar Association at its last meeting. Mr. Platt starts out with assuming that the law is in an "uncertain condition." Herein we agree with him, although Mr. Cortlandt Parker says there is no trouble of that sort in New Jersey. We infer that Mr. Platt is in favor of eventual written law, but he thinks that the undertaking is hedged about with very serious difficulties, owing to "the undue activity of legislative bodies, and the carelessness and ignorance exhibited in framing statutes." He thinks that the time has not arrived "when we can, to the best advantage, or with much hope of benefit, put the whole law into statutory forms." We would like, right here, to ask Mr. Platt when he thinks it will come, and why he has any reason to expect it, if it has not arrived? When will the accumulations, the contradictions and the confusion, ever be less under the present Another voice from New Haven reaches us in a no-system? (A laboring man, hearing Henry Rus- paper entitled "The Incorrigible; who is he, and sell sing, "There's a good time coming boys, wait a what shall be done with him?" read by Professor little longer," arose and said, "Mr. Russell, about Wayland at the recent meeting of the National when do you think it will get here?") Mr. Platt Prison Association at Atlanta. The first question continues: "Much as codification has been consid- is easily answered by the essayist; "the incorrigiered and discussed, there are many questions relat- ble" is an habitual criminal. As to what is to be ing to it still unsettled, and upon which there is no done with him, we were afraid the professor was agreement, even among its professed advocates." going to recommend whipping him, but he does Well, when will they ever agree? But he goes on: not- he recommends shutting him up for life, af"What is the best classification and arrangement ter two or three convictions, which is much more for a code? Will not the statement of some parts sensible. He exhibits convincing statistics of habitof the law in the form of brief general propositions ual criminality. He does not much believe in combreed more uncertainty than afflicts us at present? mutation for good behavior. On this point he says: Would not the putting of the law in statutory form, 'Nothing can be more fallacious or more misleadwhere, as in this country, the importance of care-ing than a belief that what is technically called in ful and judicious legislation is but imperfectly un- prison parlance 'good behavior,' has any decisive, derstood, greatly increase the tendency to frequent or controlling, or considerable value in determining and unnecessary changes in the rules of law? the question of character. This is especially true Should a draft code contain simply a statement of in the case of all penal institutions where an allowthe existing rules of law, or be accompanied by sug- ance of time is conceded for good conduct. Every gestions for their improvement and amendment? warden in the country knows by long and uniform What would be the effect of codification upon the observation that the most hardened criminals are tendency now apparent to bring the laws of the the very men who rarely transgress a prison rule. several States upon many important topics into con- They have learned the hard lesson of self-control. formity? Is the proposed code to embrace the They will gladly submit to any self-denial which whole of the law, both statutory and common, or shortens the time of confinement, which hastens only the statute law and so much of the common the day of deliverance, the day which reunites law as the draughtsman finds it convenient to ex- them to their old pals, and introduces them to new press in the form of general rules? * * Take schemes of plunder. I once asked a prisoner, an the mode in which the rules of law are to be ex- old offender, whose conduct was irreproachable, pressed in the code. Shall they be contained in and to whom I had been referred by a confiding brief, general propositions, which look very simple official as a specimen of what wholesome prison disto the untrained, but in fact are very hard to un- cipline could effect in the way of reformation, how derstand and apply to a particular state of facts? he occupied his mind during his leisure hours. He VOL. 34- No. 23.

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