son. crime, but it is no proof of the crime. In Mississippi, the accused confessed that he had mixed poison and caused it to be given to the deceased. The proof showed that the death might have resulted from such poison, or from certain natural causes. The accused was convicted, but the supreme court of the state set the conviction aside, on the ground that death was not proven to be caused (6) by a crime. Some actual instances will show the wisdom of the rule. In 1660 John Perry confessed that he aided and counselled his mother and brother in killing William HarriThe circumstances strongly corroborated his confession. The three Perrys were executed; but several years afterwards Mr. Harrison returned home alive. In Vermont, in 1819, Stephen Boorn, in a written confession, stated that on May 10th, 1813, he killed his brother-in-law Richard Colvin and disposed of the body. Boorn was sentenced to be executed, but through a newspaper report, Colvin was discovered in New Jersey and brought back in time to prevent the execution. In 1841 a man by the name of Fisher disappeared from Springfield, Illinois. Henry Trailor was arrested, and said that his brothers killed Fisher and that he saw the body. He was corroborated by circumstances, and, although it was reported that Fisher was found alive, Trailor told his story under oath at the preliminary examination. Abraham Lincoln defended, and the prisoners were discharged. Fisher in a few days returned alive. (6) Pitts v. State, 43 Miss. 472. § 71. Practice in regard to confessions. As has been already noted, a confession is not proof of the commission of a crime, but simply points out the confessor as the criminal. Experience has demonstrated that truth is not the serf of force or fear, nor the child of struggling hope. Consequently, it is a well-established rule of law that a confession should not be received in evidence, unless it is first proven that it was not the result of any threat, force, or promise from a person in authority, or from one interested in the prosecution. When the prosecuting attorney offers to prove a confession, the judge should direct the jurors to retire to their room. Then it devolves upon the prosecution to prove that the confession is not tainted with force, threats, or promises. On this question evidence on both sides may be heard. It is not sufficient that a written confession recites that it was freely made, for that part, as well as the rest may be tainted. If it is true that the confession was freely and voluntarily made, evidence of it is then given to the jury; but the circumstances surrounding it must also be given in evidence, for, although the judge decides that the confession is proper to go to the jury, the jury must weigh it and it may be will find it unworthy of belief. § 72. Conduct of the presiding judge. While it is the duty of the judge to pass upon all questions relating to the admissibility of testimony, the order of the trial, and questions of law, in many states he is required to refrain from expressing any opinion on the weight of the evidence. The jurors are the judges of the weight of the testimony and of the credibility of the witnesses, and the judge in such states must not by word, action, or implication convey to them his views on the merits of the case. In a homicide trial, the identity of an oil can came in question. The judge remarked: "I believe that is the same can." This was held a fatal error and a new trial was granted (7). In another case, the counsel for the defendant moved for a verdict of not guilty on the ground that there was no evidence to show guilt. The judge remarked in the presence of the jury: "Do you mean to say, sir, that there is no evidence here to show the guilt of the defendant? I say there is evidence." For this remark a new trial was granted (8). The common law rule was contrary to this, and still prevails in England, the United States courts, and many state courts. The United States Supreme Court has stated the rule to be that a judge may express his opinion upon the facts, so long as no rule of law is incorrectly stated and all matters of fact are ultimately submitted to the jury (9). § 73. Argument of counsel. When the testimony on both sides has closed, the case is ready for argument. Usually the prosecution has the opening and the closing argument. In the opening, the theory of the prosecution, with a review of the principal points of the evidence, should be clearly presented; and in the closing argument, no new points should be presented. When a prosecuting attorney has made his opening, if the counsel for the ac (7) Marzen v. People, 173 Ill. 56. cused declines to speak, no further argument by the prosecution should be permitted; for it is to be presumed that a full presentation has been made in opening. It is usual to permit two attorneys to speak on behalf of the accused, sometimes more. If several persons are on trial, each is entitled to separate counsel throughout the trial, and each to at least one argument to the jury. In some jurisdictions the court may limit the time for argument, in others not. When the court has power to declare a time limit, that power should be exercised with a sound discretion, allowing sufficient time for a full presentation of the case. § 74. Nature of argument. The argument should be confined to the facts of the case. Counsel ought not to go outside of the evidence or express their personal belief on the question of guilt or innocence; for it is on the facts introduced in evidence that the jury should find its verdict, and not on the facts outside of the evidence, nor on beliefs or opinions of either court or counsel. However, matters of general knowledge, whether historical or local, may at times be subjects of comment, as well as philosophical reflections on human affairs in general. Of late years, courts have drawn some very close lines and have set aside convictions because of improper argument on the part of public prosecutors. Making statements not connected with the evidence; using violent, intemperate and abusive language; stating personal beliefs on the question of guilt, and attempting to intimidate the jury by a display of official arrogance,—have all been considered sufficient reasons for the granting of a new trial. In a Louisiana case (10), a conviction for murder was reversed, because the prosecutor in his argument said: "If there is a man on that jury who does not believe this man ought to be hung, then I say he is a weakling, not possessed of the proper manhood, and is unfit to sit on that jury." This decision was clearly right. As the representative of the people the prosecutor prepares and presents the case, but he has no right to attempt to intimidate the jurors, in the discharge of their function. § 75. Instructions of the court. It is usual for the presiding judge to instruct the jury as to the law therein contained. In some jurisdictions it is imperative. In some jurisdictions instructions must be in writing, in others they may be oral. They ought to cover all of the principal features of the case, stating the law applicable; and jurisdictions differ greatly as to whether the judge may express any opinion as to the weight of the evidence. See § 72 above. Where instructions in writing are required, counsel on each side generally prepare instructions and submit them to the judge. These he may give or refuse. Those which he refuses to give should be so marked and placed upon file. The better practice is not to use the instructions handed in by counsel but to formulate a logically arranged charge, in which the approved requests are covered in the language of the presiding judge. In the Federal courts the judge gives an oral charge, at the close of which he permits counsel to make (10) State v. Blackman, 108 La. 121. |