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where the district attorney in his opening argument said that "Gillim's testimony must be taken as true because the defendant had not gone on the witness stand and denied it." And the court immediately, on its own motion, stopped the attorney, and defendant's counsel at the same time excepted, and the court then said to the jury that the remarks of the assistant district attorney were improper; that he had no right to make them; and the jury should not draw any unfavorable conclusion or inference against defendant from such remarks; that the law prohibited the assistant district attorney from commenting as he had upon the defendant's conduct in not contradicting Gillim; that it was a gross impropriety for him to have done so; and that his statement should be entirely disregarded, and later on the trial Judge told the jury in other and different words that they must entirely disregard the improper comment. Upon such a state of facts the Court of Appeals held that there was no reversible error. This holding is in direct contravention to the holdings of the courts of many of the states and seems to be in conflict with many of the decisions of the Federal Courts. The jury's attention having been drawn to the fact that the defendant had not testified, no possible charge or caution by the Judge could entirely eradicate the harm done. The defendant is presumed to be innocent until his guilt is established by competent evidence and beyond a reasonable doubt, and his failure to offer any testimony whatsoever must not be taken as any indication of his guilt, nor shall such failure be referred to either by the prosecution or by the court lest a fair trial as defined by the law be denied. The Court of Appeals, in the case under consideration, concluded by saying, "We cannot refrain, however, from saying that counsel in their zeal to enforce obedience to the law on the part of others, should not themselves grossly violate it," which appendage to an affirming opinion seems to warrant us in saying that the court was extremely doubtful of the correctness of its position. It may be added here that the court does not cite a single case in support of its position when, as we know, the books are full of cases opposing such a position. The Constitution provides that no one shall be made to testify against himself. When the prosecution is permitted to remark that the defendant has not testified,

this Constitutional guarantee is swept away, as have the courts so frequently held.

In Goodwin vs. U. S., 200; Fed., 121, the United States attorney used this language, "Do not let it be said, gentlemen, that you as jurors did not have the nerve to attach the death penalty, because, gentlemen of the jury, this case, if there ever was a case, is one in which it is merited." The report does not show just what steps the defendant took to shield himself from this improper attack, but the court said, "Admonitions of this character to a jury by a prosecuting officer of the government cannot be approved. They should not be resorted to by an officer in the performance of his duty as a prosecutor. On the other hand we cannot say that such deviation from the path of strict propriety was such an error in this case as would justify its reversal and a new trial. After carefully reading the evidence we are of the opinion that it had no influence upon the verdict of the jury."

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In the case of Fish vs. United States, 215; Fed., 544, the conviction was reversed because the district attorney, in his argument to the jury, reflected upon the defendant's character which was not put in issue, and going beyond any evidence in the case, and which were not withdrawn or corrected when called to the attention of the court and counsel. The opinion was rendered by Judge Bingham of the Circuit Court of Appeals for the First Circuit, and amohg other things, he said, "What the district attorney said was an appeal to the passion and prejudice of the jury. Immediately upon the statement being made, counsel for the defendant objected, and brought the matter to the attention of the court and of counsel for the prosecution. It then became the duty of the district attorney to withdraw the statement and ask the jury to disregard it; and the court should at that time have instructed the jury that the statement was improper, and that they should not allow it to influence their action. * * * The objectionable statement being allowed to stand, defendant's counsel followed it up with an exception. The objection and exception were seasonably and properly taken. Odell Mfg. Co. vs. Tibbetts, 212; Fed., 652."

In the case of Stewart vs. U. S., 211; Fed., 41, the Court of Appeals for the Ninth Circuit denounced as improper a

reference by the district attorney to the conviction of the partner of the defendant, but refused to reverse. I assume that the judges were so overwhelmed with the horror of the facts that they could find no way for the jury to do anything but convict and therefore found that there was no prejudicial error, but the fact remains that the failure to reverse affords another comfort to the prosecuting officer whc is regardless of the record or of the rights of the accused.

§ 23. District Attorney in Grand Jury Room.Having already noticed something of the latitude permitted the District Attorney or prosecution in argument before the trial jury, it will not be out of place to call attention to the limits within which the prosecuting officer must. work in the grand-jury room in seeking an indictment or presenting evidence to the grand jury upon which he expects an indictment to be returned. In United States vs. Wells, 163 Federal, 313, Judge Whitson reviews, at some considerable length, authorities along this line, and from that opinion may be deduced the following rules and limits: The District Attorney has no right to participate in, nor be present, during the deliberations of a grand jury, nor to express opinions on questions of fact, or as to the weight and sufficiency of the evidence. The District Attorney should not comment upon and review the evidence and apply the law thereto for the purpose of securing an indictment. He should not express an opinion that the defendants are guilty, and that the grand jury should return an indictment against them. He should not be present while the jury is balloting upon the persons under investigation; and while the mere presence of the prosecutor during the taking of a vote, through inadvertence, and without intending to influence any action, is not necessarily fatal to a bill, yet where the prosecutor expresses his opinion and urges the finding of an indictment, it is clearly shown that the grand jury must have been influenced thereby, and an indictment so returned. will be quashed.

§ 24. Jury. The right of trial by jury is the most priceless boon enjoyed by the people under any government. Text-book writers, newspaper writers, politicians, and theorists may thunder as they will against the miscarriages of justice from the jury box; the system is not only established

for all time, but is as necessary as a bill of rights. No judge, however learned, no set of judges, however impartial can approximate the justice that is found and dispensed by the layman juror. A mind trained in the law, or in any other science or profession, holding the utmost purity of thought, is still short of an ability to appreciate and weigh justly the motives that actuate those who are permanently, or occasionally, or unfortunately only once, charged with crime or offense. The very people with whom the unfortunate walked, and the very people who suffered or won as the unfortunate suffered or won understand best the power that makes or unmakes an intent of the human heart. That the Federal judge is permitted to give expression to his opinion to the jury is no argument for the abolition of the jury. The jury is strong, because it has twelve men on it, and, therefore, twelve sets of different opinions, and the addition of a judge's opinion, coupled with the statement that such opinion is not to influence or bind any member of the jury, but strengthens the desire upon the part of the individual jurors to think for themselves, and thus bring to bear the best thought for the determination of the human problem upon which they sit. Not the least part of the gloriousness of American jurisprudence and court history is due to the fact that the American court, appellate or supreme, views with sacredness and honor the verdict of the jury, and only for well-known reasons will there be a disturbance of the same. The latitude given the Federal judge in the matter of his charge is to be entered with great care. The cream of the decisions seems to indicate that a judge should never permit the jury to know just what he thinks individually of the guilt or innocence of the party on trial, but that he may indicate, by instructions or otherwise, his opinion upon a particular piece of evidence, so that the truth or falsity of that particular testimony may be determined with as much ease as possible by the jury, it being the object of a Court to ascertain the truth, and to seek every light possible that will assist in finding just where the truth in fact does lie. The Constitution of the United States provides for trials by jury, as do also the Amendments, which have been denominated by the Supreme Court and by great thinkers as the bill of rights of the American people. Congress has provided, in the Revised Statutes, for jury trials in both the Circuit and Dis

trict Courts of the United States, and has authorized the waiving of a jury in the trial of civil cases in the Circuit Court, but has not authorized the waiving of a jury in the trial of civil cases in the District Court. United States vs. St. Louis Railway Company, 169 Fed., 73; Low vs. United States, 169 Fed., 86.

It is quite certain that a jury cannot be waived by one who is charged with a felony, and it seems that the great weight of authority is against the permission of a waiver of a trial by twelve jurors when the crime is infamous or a high misdemeanor. In Dickinson vs. United States, 159 Federal, page 801, the Circuit Court of Appeals for the First Circuit speaking through Judge Putnam, reviews the American authorities with reference to the waiver of one on trial of his right to be tried by a jury of twelve, when one of the originally selected twelve becomes ill or from other cause must be excused. In that particular case, the juror who became ill was excused by consent, which consent was in writing of both the defendant and his counsel. The case being tried was one denominated by the Federal statutes as a misdemeanor, which, however, under the new Code, is infamous, because the punishment was penitentiary. In that case, the majority of the Court holds that the second Section of Article III. of the Constitution demands a trial by jury, and that Thompson vs. Utah, 170 U. S., 343, has authoritatively determined that a jury for a criminal cause is to consist of twelve men, and that the Amendments to the Constitution relating to jury trial do not in any measure explain or abrogate or lighten the second Section of the original Article III., and that in the trial of criminal cases, not only the defendant is interested in the maintenance of Constitutional guarantees, but that the people themselves are interested and concerned. It is true that District Judge Aldrich, in the foregoing opinion, dissents, and in a well-reasoned and authority-supported paper; but one cannot well escape the force of the suggestion that if a defendant may waive one and be tried by eleven, why could he not waive eleven and be tried by one. The safe rule, therefore, for all District Attorneys, is to see that there is a full panel, and if sickness or other unavoidable interference causes the judge to excuse a member of a jury, that the trial then be discontinued and begun all over again before the regulation number. I have no doubt that a de

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