ELLIOTT ANTHONY. repeals that portion of the criminal code which provides in express terms that "All trials for criminal offences shall be conducted according to the course of the common law, except when this act points out a different mode, and the rules of evidence of the common law shall also be binding upon all courts and juries in criminal cases, except as otherwise provided by law." The mode of impanneling a jury is just as much a part of the trial of a criminal case as the examination of witnesses, and it ought to be the duty of every court to see to the selection of all jurors rather than be prohibited from so doing. We think that the time has arrived when all judges in this State should have their common law powers restored to them, so that they can exercise their functions as they ought to be exercised, for the promotion of public justice. The decision of the case of Coughlin v. People, 144 Ill., 140, struck the severest blow at our jury law of any decision which has been rendered for years. That law was passed to meet an emergency, and its very object was to enable our courts to procure intelligent men to act as jurors. It was to a certain extent an innovation upon the common law, and everybody who knew anything upon the subject knew it. It had become necessary, in the changes which time had wrought in the customs and habits of the people, and the statute in question was passed to meet these changes. We were not the pioneers in this matter, for New York had preceded us, and we merely enacted a copy of their statute. That the law changing the ancient rule of the common law is constitutional is admitted by the Supreme Court, and their decision was upheld by the United States Supreme Court. It has been upheld in New York where the statute originated, and similar statutes exist to-day in almost every State in this Union. Soon after the statute was enacted the case of Albrecht. v. Walker, 73 III., 71, came up before the Supreme Court, and the court at that time, realizing fully the propriety and necessity of the same, said: "It is a familiar principle that jurors must be free from all exception. There have been innovations upon this old maxim of the common law by the legislation of some of the States, among them our own, as will be seen by reference to Section 14 of Chapter 78, title, Jurors, R. S. 1874, p. 633. This change in the law was rendered necessary for the due administration of the criminal justice and demanded by its exigencies, and will no doubt work well in practice." This statute did meet the exigencies of the times and occasions, and did "work well in practice" until it was overthrown by the decision of the court in the Coughlin case. REPORT OF COMMITTEE. It is due to Judge Magruder to say that he did not concur in it, but wrote a most powerful dissenting opinion against it. The action of the court is a plain case of judicial legislation and trenches in the most marked manner upon the powers of the legislative department of the government, and ought not to go unchallenged. Those who wish to see how entirely differently the Court of Appeals of New York views this subject, can do so by referring to the cases of: Balbo v. People, 80 N. Y., 484. People v. Martell, 138 N. Y., 599. Our statute is a copy or nearly so in its language, with the New York statute, and there the court not only upholds its constitutionality, but commends it in its highest terms, because, as they say, it tends to secure intelligence in the jury box instead of dense ignorance. 5. We have made no advance whatever, as it seems to us, in the administration of the criminal law, since Judge Lockwood rendered his famous decision in the case of McKinney v. People, 2 Gilman 545, which was in 1845. If the principles which he laid down in that case had been followed we should have a different state of things entirely from that with which we are confronted to-day. Technicalities which were once resorted to, to save the lives of persons who were charged with criminal offences, when there "were one hundred and sixty different kinds of felonies for which the offenders expiated their crimes on the gallows, and when the stealing of the value of a shilling was made a capital offense," are still resorted to on all occasions, and the great majority of the cases taken to the court of last resort are reversed upon errors committed by the trial judge in admitting or rejecting evidence or for making a mistake in marking "given" or "refused" on instructions without regard to the real merits of the case. Such a course as this ought no longer to be followed by any court, and provision should be made by law, as is the case in New York and several other states, that hereafter no criminal case shall be reversed for any technical error which occurred upon the trial, but every case shall be determined upon its merits. "Though in our criminal law," says Bishop, "there are and must be technical rules, no such rule should be carried so far as to produce results plainly detrimental to the public repose, or to a sound administration of the judicial system." 1 Bishop Crim. Law, Sec. 211. ELLIOTT ANTHONY. The Supreme Court of Pennsylvania say, that "The tendency of modern legislation as well as judicial decision, is to do away as far as possible, with the subtle and refined distinctions of the common law, when they interfere with substantial justice." Hutchinson v. Com. 82 Pa. 472. And our own Supreme Court (Judge Mulkey) say substantially the same thing, and in these words: "The tendency of legislation as well as the decisions of the court is to have legal controversies of all kinds disposed of on their merits and not upon technicalities." Petty v. People, 118 Ill., 157. Spies v. People, 122 Ill., 266. 6. What we have to contend with in this State is: A widespread maudlin sentiment, which in utter disregard to public interests, opposes the proper punishment of violators of the law and which revolts at their incarceration in a prison or penitentiary. We believe in dealing gently with the erring, but we insist that there shall be a marked distinction between good and evil, and that there is a necessity of having it understood that all marauders, robbers, thieves, ballot box stuffers and cut-throats, shall be punished for their evil deeds instead of being rewarded by a public ovation or treated as privileged characters and maintained at public expense. 7. The next thing is a want of appreciation of public rights, and an utter indifference to the wants of society, and a disregard on the part of the Legislative Department of the Government to the requirements of the people in the administration of the criminal law. This is evidenced by its refusal to pass laws which would prevent unnecessary delays and unnecessary expenses in the administration of the criminal law. For more than thirty years the tendency of legislation in this State has been in favor of the criminal classes instead of the public interests. The legislature is always filled with criminal lawyers who assume to know more upon these subjects than anybody else, and the great difficulty is that we never have anybody there to answer them or stand up as they should for public rights. Under our system of practice and procedure, it sometimes seems as if an investigation into a criminal offense was one of the most difficult and complicated proceedings and processes known to the law. Every little mistake which is made during the progress of a trial in admitting or rejecting evidence, is very often construed to be reversible error, whether it affects the merits of the case or not, and REPORT OF COMMITTEE. what should be left to the discretion of the trial judge, has become matter for objection and exception, and the result is, that instead of the investigation being confined to determining the guilt or innocence of the accused, it degenerates into unseemly wrangles over insignifi cant and often immaterial matters and ends with an equation of errors. The trial is conducted amid a constant shower of objections, and is not only undignified, but is unsatisfactory in every way. 8. The great effort on the part of all criminal lawyers is to obtain error in the proceedings and to place the court, State's Attorney and prosecuting witnesses on the defensive and to try them instead of the criminal at the bar. This should not be allowed or encouraged, and should be corrected as far as possible by positive legislation. The great stock defenses, in all criminal cases, are continuances, changes of venue, bills of particulars, separate trials, drunkenness and drunken intent, the unreliability of circumstantial evidence, selfdefense, insanity, and above and beyond all things reasonable doubt. These defenses have been abused beyond all measure and should be placed under proper restrictions so that the criminal code itself may not be subverted and converted into a farce. 9. The office of State's Attorney has in this country assumed great importance, and has become almost a separate department of the government. It takes rank in our great cities with that of the Home Office in Great Britain. State's Attorneys are under our system of criminal jurisprudence invested with large discretion and upon them devolve to a great degree the successful administration of the criminal law. They are the chosen advisers of the grand jury and although they have the power to act independently of them, they can dismiss any indictment which the jury may find, and discharge almost any one who is being prosecuted at public expense. A A State's Attorney represents the people, and the position that he assumes gives tone to all prosecutions, and if he is languid and indifferent as to the consequences in enforcing the laws, this is soon discovered by the criminal classes, and they act accordingly. State's Attorney ought to be a man, not only of integrity, but of great executive ability, and of the most extensive knowledge of the principles of the criminal law, and of its practice and procedure, for he is at times pitted against the entire bar, and sometimes he is very illy supported by the court, and by those who should aid and assist him in the discharge of his duties. He ought to be furnished with all such aids and assistants as would enable him to ferret out the frauds and machinations of those ELLIOTT ANTHONY. who are engaged in corrupting witnesses, concealing crimes, and striving to defeat public justice, and he should not be subject to constant attack in court and out of court by those who seek to render the administration of the criminal law odious. It has got to be very fashionable nowadays for criminal lawyers to make personal attacks upon the motives and conduct of the State's Attorney during the progress of a criminal trial, and engage him in open battle before the court and jury. He cannot meet the statements, flings, and insinuations of the defendants' lawyers by fair argument, without being accused of misstating the defendants' position and the evidence bearing upon the issues, and the most curious thing about this is, that the Supreme Court almost always sides with the defense, rebukes the State's Attorney, and sometimes even reverses the case because, as they claim, the State's Attorney took an unfair advantage of his position and prejudiced the rights of the de. fendant, but nothing is ever said in reprobation of the course and conduct of the defendants' counsel. The arms which the advocate wields he should wield as a warrior, and not as an assassin, and this applies to all lawyers, whether they are prosecuting or defending a case. We think that every person who is charged with the commission of a criminal offence in this country, should be protected in all of his rights, and he should not be unfairly and unjustly dealt with, and the same rule should be enforced against the defendants' counsel, who seems to be allowed unbridled license to attack the prosecutor and all of the witnesses for the State in the most outrageous manner, and nothing is said about it. The great effort seems to be on the part of criminal lawyers, to absolutely muzzle the State's Attorney while they shout themselves hoarse. Against such conduct we enter our protest and draw the line there. The rule adopted in New York in regard to State's Attorneys is well stated in the recent case of The People v. Greenwall, 115 N. Y. 526, in which the Court of Appeals say: "If the intemperate remarks "of the prosecuting attorney in criminal cases, made in the heat and "excitement of the trial, and sometimes under the provocation of "language used by counsel for the defendant, may always be the foun"dation for a new trial, then the administration of criminal justice "will become very uncertain." "The District Attorney, representing the majesty of the people and "having no responsibility except fairly to discharge his duty, should put "himself under proper restraint, and should not in his remarks, in the |