Central Law Journal.

ST. LOUIS, MO., FEBRUARY 4, 1916.

IMPOSSIBLE FOR ACCUSED ON TRIAL FOR CRIME TO WAIVE CONTINUOUS PRESENCE OF SAME JUDGE AND SAME JURY, IN A FEDERAL COURT.

In Freeman v. United States, 227 Fed. 732, decided by Second Circuit Court of Appeals, there came before the court, a question of first impression, so far as it was informed, namely, "whether one judge can be substituted for another in a criminal trial, either with or without the consent of the accused."

There is very elaborate discussion of the provisions of the federal Constitution guaranteeing the right of trial by jury, and of similar provisions in state constitutions and a review of jury trials as at common law. Special stress is laid upon the importance of the same judge before whom a trial is begun continuing in the cause to its final termination. For example, it is said that the word "jury" means "a tribunal of twelve men presided over by a court and hearing the allegations, evidence and arguments of the parties," and trial by jury of twelve men is that "in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts."

Under Florida Constitution it was said that: "The common law rule is that in a trial for felony, if a juror, the judge or the prisoner become incapacitated by illness or death, after the jury is impaneled and sworn in chief, the proper course to pursue is to declare a mistrial and begin de novo." This was said, however, in a case where one juror became ill and was excused and another took his place. A number of cases are cited to this proposition.

But the interesting question treated is whether not only what was a common law jury but what was a common law trial be

fore such a jury. It is contended, that it is not merely desirable, that the same judge who tried a case should pass upon motions for new trial and impose sentence, but during the trial there can be no substitution of one judge for another.

As to the right to waive substitution, either one juror for another, or of the judge for another judge, it is contended that the interest of a government in its citizens and their lives and liberty, as shown in the policy of the common law, makes this a question of public policy and therefore, at least so far as a trial for felony is concerned, it is not the subject of waiver.

In the case before the Circuit Court of Appeals a substituted judge came into the trial after the government had presented the whole of its case and the verdict of guilty was reversed because it was held that: "In a criminal case trial by jury, means trial by a tribunal consisting of at least one judge and twelve jurors, all of

whom must remain identical from the be

ginning to the end. It is not possible for either the government or the accused or for both to consent to a substitution, either of one judge for another judge or for one juror for another juror. The continuous presence of the same judge and jury is equally essential throughout the whole of the trial."

It is to be observed that the ruling does not distinguish between felony and misdemeanor, and this is because the federal Constitution guarantees the right to a jury trial "in all criminal prosecutions."

It occurs to us, also, that the policy which forbids any waiver is a constitutional policy which statute cannot change, and as a judge is essential to instruct the jury upon the law and advise them upon the facts, all statutes which forbid a judge to comment on the facts are unconstitutional. This suggestion is not appropriate, however, under constitutions which make jurors judges of the law and the facts in criminal cases.

If constitutions should be thought to provide for a common law jury, this takes in the judge who presides over it, and his common law duties are as free from invasion or diminution as are those of the jury.

But is it not strange that these questions are so very long in becoming conclusively settled?

NOTES OF IMPORTANT DECISIONS.

CARRIERS OF GOODS-CONSTITUTIONALITY OF STATUTE REGULATING LIABILITY OF CONNECTING CARRIERS IN INTRA

STATE SHIPMENT. - In South Carolina, statute provides that in through shipments, each carrier is to be held agent of the others and each be liable at the election of a shipper for any damages or loss to goods, the carrier to have an action against whatsoever carrier whose negligence caused the damages or loss. It was claimed that this statute was in contravention of the due process clause of the 14th Amendment, but the claim was held untenable. Atlantic C. L. R. Co. v. Glenn, 36 Sup. Ct. 154.

The chief justice, in unanimous opinion, holds that this contention was controlled by the ruling in A. C. L. R. Co. v. Riverside Mills, 219 U. S. 186, 31 L. R. A. (N. S.) 7, where it was decided that the Carmack Amendment making the initial carrier liable was, as a regulation of interstate commerce, not inhibited by the Fifth Amendment.

It was said: "It is true that case involved the power of Congress over interstate, while this concerns the power of a state over intrastate commerce, but the reasoning by which the conclusion as to the existence of the power was sustained in that case compels a like conclusion with reference to the power of a state over commerce wholly within its borders."

If the power of regulation vested in Congress by the commerce clause, in such a matter, must take into account due process of law under the Fifth Amendment, the reasoning in the cited case must control, but if it can independently of the Fifth Amendment and in its purely dominant way control contractual right within the scope of regulation, such reasoning would seem to be obiter. A

state would not have, under its police power, the same power over contractual rights, at least, it does not appear to us it necessarily would have the same power.

The chief justice submits a cautionary statement as follows: "Of course, we confine ourselves to the case before us and, therefore, do not decide what would be the rights of the terminal carrier, if against its will, it had been compelled to accept the cattle from the initial carrier in a damaged condition, or if they had never been delivered to it. These questions are not presented by the record, since it is not contended that the acceptance of the cattle by the Atlantic Coast Line was not voluntary. In fact, it is stated in the argument of the plaintiff in error, that long prior to the shipment in question, the statute had been construed by the (state) court, to permit the connecting carrier, upon accepting a shipment from an initial carrier, to repudiate the original bill of lading and issue a new one."

Considering that the statute deals only with contracts "for through carriage recognized, accepted in, or acted upon by such carrier," it seems well within legislative competency to declare all carriers in such a shipment to be contractual principals, election being given to refuse to enter into such relation. There is suggested here also what in the way of burden of proof is upon a shipper suing a connecting carrier in an intrastate shipment for loss or damage thereto.

CRIMINAL LAW PRESUMPTION AGAINST ACCUSED FOR FAILURE TO SUBMIT EVIDENCE OTHER THAN HIS OWN TESTIMONY.-In Stout V. United States, 227 Fed. 799, decided by Eighth Circuit Court of Appeals a refused instruction said: "The defendant has seen fit to rest his case upon the evidence which has been introduced in behalf of the Government, including such testimony as may have been elicited upon cross-examination of the Government's witnesses. You are instructed that he had a perfect right to do so and that fact must in no wise prejudice you against him," etc.

HOOK, C. J., speaking for the court said: "The claim of immunity or protection seems broader than the statute. The accused refrained not only from testifying himself, but also from offering any evidence whatever by other witnesses or by records, and he seeks to enlarge the immunity from a presumption against him on one ground to an immunity from prejudice on account of another. We

think that is inadmissible. There should be no hurtful presumption from the failure of an accused personally to testify, but that does not necessarily exclude a prejudice resulting from an entire absence of affirmative evidence in defense, nor inferences from a failure to produce evidence peculiarly within his knowledge or control, not requiring personal disclosures or his presence upon the witness stand."

The caution with which the judge put this"does not necessarily exclude a prejudice," etc.-indicates how easily a prosecuting officer may fall into error in argument before a jury in such a case as was before the jury. It is readily conceivable, however, that the requested instruction was subject to the criticism made of it.

PRACTICE OF LAW-ELIGIBILITY TO OFFICE AS BASED UPON CONTINUOUSNESS IN PRACTICE.-Following our editorial reference in 82 Cent. L. J. 61, anent the practice of law by corporations through retained attorneys, a case decided by Supreme Court of Iowa approaches the question from a scmewhat different angle, to-wit: Endeavor by defendant to show he was a practicing attorney. Barr v. Cardell, 155 N. W. 312.

This defendant was an active practitioner for twenty-four years and then he quit trial work and sold his library with the purpose of moving to another state, but he did not move. "But he was consulted by clients at his office, gave advice, prepared contracts, wills and other instruments, and attended to some probate matters. He appears not to have advertised as attorney nor to have sought for legal business as attorneys do 'without soliciting,' but did advertise that he had money to loan." The court then naively says: "He was 'practicing as an attorney at law' quite as definitely as though he had spent his time in the trial of cases in court; in fact, many of the most learned and successful lawyers are never seen at the trial table. Theirs is commonly known as an office practice." He showed, therefore, that he was thoroughly eligible to the office of county attorney to which he had been elected.

There is something anomalous about this case. One would not seem to be a practicing attorney who has money of his own to lend or, if he had, that he would need to advertise the fact. And if he was so fortunate in this variance from a regular practicing attorney, what in the world, did he wish with the office of county attorney?

COURTS-DECISIONS OF A LOCAL NATURE AND THOSE UNDER PRINCIPLES OF GENERAL LAW.-The dissenting opinion in Columbia Digger Co. v. Sparks, 227 Fed. 789, decided by Ninth Circuit Court of Appeals, where there was an action on a statutory bond says: "I think I have shown that the decision of the majority is not in harmony with the decisions of the Supreme Court of the State; but even if it were, the question here involved is one of general law which must be decided in the same way by this court in every case, whether the question arises in an action on a bond given under the federal statute or under the statute of one of the states."

The majority speaks with chariness in saying: "A federal court ought not to upset the rule thus established by the Supreme Court of a State for the guidance of its own citizens, unless that rule is against the very decided weight of authority," and it cites Detroit v. Osborne, 135 U. S. 492, 498, in its saying that: "There should be in all matters of a local nature, but one law within the state; and that law is not what this court might determine, but what the Supreme Court of the State has determined." This excerpt speaks very much more positively than the majority in the instant case spoke, but there is much uncertainty about what may be a question of local law and what a question of general law.

Generally, if not universally, it ought to be said, that if a right of action is predicated upon the terms of a statutory bond, construction of that bond should be deemed a local matter exclusively, and not unless that construction "is against the very decided weight of authority" ought to control. Indeed, there can be no authority at all unless it is local in character.

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETH

ICS.

QUESTION No. 97. Employment-Relation to Client.-Inconsistent interest of attorney in public employment. He should decline to advise when his personal interest conflicts.

In the opinion of the Committee, is it proper professional conduct for a lawyer, who is the attorney for a Board of County Commissioners, to advise it in answer to its inquiry whether in his opinion it has legal power to grant an application for the reduction of an assessment on the personal property of a class

of institutions, where the lawyer is not only the attorney for the Board but is also a large property holder and tax-payer, and a director and stockholder in one of the institutions of the class concerned? In the opinion of the Committee, is it sufficient that in advising the Board he should disclose the fact of his interest, or should he decline to advise on account of such conflicting interests?

ANSWER No. 97. In the opinion of the Committee, the attorney should decline to advise on account of his conflicting personal interest in the matter involved. His personal interest, and the quasi-judicial character of the municipal body, differentiate this case from those where full disclosure of his professional relation to both parties to a controversy, a lawyer may advise either party as to the law applicable thereto.

Collection

QUESTION No. 98. Agency Fees-Partnership between attorney and layman.-Division of fees with layman disapproved.

A. B., an attorney, is in partnership with C. D., a layman, in the collection business, and, under the partnership agreement, divides the earnings of that business with C. D. He does not divide with C. D. the fees which he may receive upon any act or service performed under his name and by virtue of his office as an attorney. A part of the partnership earnings, however, is derived from commissions charged upon collections made by attorneys to whom claims are sent by the partnership. Is there any impropriety in the above practice?

ANSWER No. 98.-In the opinion of the Committee, it is improper for a lawyer to engage in partnership with a layman and divide fees. (See Q. & A. 47, Ia, Ib, IIa.)

A fee charged for professional services is none the less a reward for professional services because it is called "a commission." Lawyers in other states, who are dividing with a collection agency here the compensation they receive for professional services, are themselves, in the opinion of the Committee, guilty of unprofessional conduct. That the service excludes the bringing of suit or appearance in court does not change the inherent character of the situation. In performing the service the lawyer's professional skill and responsibility are engaged. There is no objection to a lawyer engaging in the collection of an account (See Q. & A. 47, Ib), but when he does so, he does so as a lawyer and is subject to the ethics of his profession.

IN ACTIONS UNDER FEDERAL EMPLOYERS' LIABILITY ACT, HOW SHOULD STATE COURTS INTERPRET THE COMMON LAW?

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The Act in and of itself "constitutes the sole and supreme law as to the subjects upon which it touches." It may not be pieced out by "resorting to the local statutes of the state."2 The common and statutory laws are here on a parity, both being "rules of conduct proceeding from the supreme power of the state." Congress having acted, state laws to the extent that they "cover the same field are superseded, for necessarily that which is not supreme must yield to that which is." When the laws of Congress are to be construed "the rules of the common law furnish the true guide." The Act uses the word "negligence" without defining it. Before the Act it was settled that in dealing with questions of negligence the federal courts would not follow the state court decisions, but would exercise an independent judgment as to what constitutes negligence.

The probabilities are that a majority of cases under the Act will be tried in the state courts and so receive the impress of the Federal Supreme Court upon writ of error only. This situation presents the subject-matter of this article as one of some significance. Notwithstanding the suit is one arising out of a federal statute exclusive in its sphere and operation, the power to review being controlled by § 237 of the Judicial Code, the court may not be required to examine further than to ascertain "whether plain error was committed in relation to the principles of general law involved," but it will review and decide those questions which "in their essence involve the existence of the right of the plaintiff to

It

Whether the proof shows "facts necessary to establish liability under the federal law" presents a federal question." When there is presented a federal question it is "to be determined under the general common law, and, as such is withdrawn from the field of state law or legislation." may then be safely asserted that what constitutes negligence under the Act presents a federal question. In as much as the Act does not define define negligence, etc., we must look to the common law. But to what common law, that of the United States, or of the states? Grant that generally there is no common law of the United States, may there not be, with respect to interstate transactions which by Congressional action have been withdrawn from the realm of state action and control, a common law of the Federal Union? May the United States be not considered as a separate entity distinct from the states comprising the union for this purpose? In commenting on the statement that there is no common law of the United States distinct from the common law of the several states, the Supreme Court, in Kansas v. Colorado, said:

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"Properly understood no exception can be taken to declarations of this kind ***. But it is an entirely different thing to hold that there is no common law in force throughout the United States."

(8) Seaboard, etc., Ry. Co. v. Padgett, 236 U. S. 668.

(9) St. Louis, etc., Ry. Co. v. McWhirter, 229 U. S. 265; Central, etc., Ry. Co. v. White, 238 U. S. 507.

(10) Missouri, etc., R. Co. v. Harriman, 227 U.. S. 657.

(11) 206 U. S., at p. 96.

The subject-matter of the suit arises out. of and depends upon a federal statute, so that the questions involved arise under the laws of the United States, which are declared to be the supreme law of the land, and which are therefore superior to the laws of the states that compose the Union. Where a federal question is to be passed upon there should be no doubt of the law to be applied: it is the law of the United States in the sphere of its sovereignty; the law of its own government. That the laws of the United States shall be ultimately and finally construed by the courts. of any other government is a proposition not seriously to be considered.

"If there are such things as political axioms, the propriety of the judicial power of a government being co-extensive with its legislative may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws decides the question. Thirteen (48) independent courts of final jurisdiction over the same causes, arising under the same laws, is a hydra in government from which nothing but contradiction and confusion can proceed."

So wrote Hamilton in the "Federalist." If it be an accepted principle that every government ought to possess the means of executing and interpretating its own laws. by its own authority, it will follow that the "Head and Front" of the Federal Union must have the final and determinative word upon an act of that Union's legislative body, dealing with a subject in a sphere where the Federal Union is supreme. Of what avail will it be to withdraw by Congressional action the relation of an interstate carrier to its interstate employe from the realm of state action and control, yet leave to those states the opportunity and power to finally determine what those rights and duties are, save in those respects where the Act speaks its own interpretation. Give me the right to interpret a law by which I am to be bound, and I care not who makes it.