Frederic W. Hinrichs, of New York:

I second that motion.

Franklin Pierce, of New York:

This seems to me to be a matter of the greatest importance, too great to consider it here and consider it in these times of unrest when men in high public office are so restive at the restraint of law, when they act so quickly, and when we are apt to be influenced by those conditions in society. We have in this State, as has been shown already, a provision applying to the criminal appeals similar to those in equity, and we have the same rule, and the reason we have it in equity is that the Courts on appeal say that a judge sitting at Special Term, although he admits irrelevant and incompetent evidence, being a lawyer or a referee, is liable probably to be uninfluenced in the decision of the case by that evidence, and in an equity case they say they will not reverse it if there is sufficient other evidence and if they can say substantial injury has not occurred. The same rule applies in appeals from Justice's Court because they are tried in an irregular way and by men not learned in the law; but they are learned in practical matters and men of sound common sense, so they receive the benefit of this rule. Now we come down to jury trials and we are asked to say if errors creep into the case that the Court may disregard it. You want to consider what is going on. When I left the country practice and went to the city I was astounded to find how differently cases were tried in the city than they are in the country. Why, what are called the Court trial lawyers in New York try a case a great deal as they discuss a question in a sensational newspaper, and the whole object of some of them is to get a verdict without

How

reference much to what kind of evidence is put in, and that is especially true in the District Attorney's office. You have seen the great criminal trials that have occurred there. But it is said a court of appeal may disregard errors if they think they did not affect the result. can the Court say they did not affect the result? Why, it is simply trying your case over by another jury who determine that the verdict is just and therefore they will disregard errors, a jury that does not see the witnesses except upon paper, and all men look alike upon paper. If you allow a trial judge to disregard it, that would be a different thing. The judge sees the witnesses, a witness's name is called in Court, he walks down the aisle, you observe his walk, you see him take the oath. He takes it in a certain way without apparently appreciating the solemnity of the case, and if you see him upon the stand his face may be observed, and the jury may see him and observe his actions, and all that, and then determine the case. But to allow a Court to review the question on appeal on paper who do not see the witness and allow them to say that no injury was done by letting in improper evidence is absolutely revolutionary in its nature. It is said they do it in England. They do it in England, why? I have spent some time at the trials in English Courts by eminent barristers and those that were not eminent, and they are quite a different class of men from those who try cases in our Court. They are thoroughly versed in the law of evidence. They do not attempt to get in incompetent evidence before judges of the highest learning and knowledge of the law. There is no attempt to try a case on incompetent evidence. Objection is scarcely ever interposed, and there is scarcely a ruling in the case on the admission of evidence with an exception

noted. That is why the rule exists in England where barristers try cases and men of eminent legal attainments sit as judges. That is a safe rule possibly there, but it is not a safe rule here, before gentlemen that are nominated by the bosses, before gentlemen of such gracious character and good nature that they do not want to displease anybody. They are like a justice of the peace up in the country. He ruled in favor of one attorney, and then he ruled in favor of the other attorney, and then he said: "Now I have ruled for both of you gentlemen, go on and stop this nonsense." And that is the feeling. They want to be good to everybody and they let in incompetent evidence. Why, Mr. Wheeler, Mr. Stetson, many of you gentlemen know a man who is said to be the most skilled attorney and trial lawyer in New York, and how many times have I heard him ask a witness, "You were arrested?" He wasn't able to complete the question before the counsel would jump up and object, and he knew counsel would jump up and object, and he would say, "Oh, you object, you don't want this man asked that question?" The jury would get the impression the man was arrested, and a hundred little tricks and artifices are used to get in improper evidence, and then you ask a Court on appeal to disregard it. The whole trend and current is to disregard such errors in the higher Courts to-day. Isn't the whole trend and current to disregard such technical errors, and are you going to put it down in the statute book? If you do, you want to get a new kind of judge, and stop trying cases on a sensational plan, and you want to get new lawyers. Suppose the Court of Appeals should say it did not influence the jury. How can they tell? Is there any power on earth or in Heaven that could tell what would influence a jury, how their

minds work? You can study that in fifty years of trial practice and then you can't tell. Yet a Court on appeal is asked to say there was no miscarriage of justice. It is all wrong and revolutionary in its nature and it should not be passed off-hand. It should go over, be passed upon by committees, and discussed thoroughly. We are not in a condition here to give the consideration to it that it merits, and it should be voted down.

Everett P. Wheeler, of New York:

It certainly is a subject not to Prof. Huffcut's

Mr. President, allow me one moment. hard lot for those interested in this have had the question put this morning. paper had been read and a full statement of the reasons and the authorities that led us to the conclusion that this was a needed reform had been made. Many of you who are here now were not here then, and we are in the very embarrassing position either to go over all the ground we went over then, and it is too late for that, or to let what has been said go without any reply. But permit me to take a third course. I am willing to consent to the amendment of Mr. Hodge that the motion be turned into a motion for reference; but I want to state the points, and I will try to do it in two sentences. The point Professor Huffcut made, and I think the experience of most active trial lawyers will confirm it, is this: on whom is the burden of making it appear that the error on the trial was or was not prejudicial? The very cases my friend read show that under the existing system in civil cases certainly the burden is upon the respondent to make it appear that it was not prejudicial. Now, we want to have this burden reversed. The common-law rule and the rule in England down to 1835, was that it was for the appellant to show that the error was prejudicial. That

is really the importance of the change proposed in appellate practice. The other point that none of my friends who have opposed the motion since recess have touched upon, is to expand the authority of the Appellate Division so that instead of feeling bound to order a new trial as it now does in cases appealed from a referee or a trial Judge, it can render final judgment on the merits as the original Field Code said it should. The Judges have, by construction, changed the law so that now the Appellate Court rarely renders final judgment. Those are the two points. It is very fair and proper to have them referred to a committee for consideration another year, and I accept the amendment.

A. D. Wales, of Binghamton:

Mr. President, I am opposed to this matter even being referred to a committee. I fully agree with what the gentleman says, that it is revolutionary. In reality, it is a proposition condemned by every speech that has been made here by the distinguished gentlemen who have addressed this Association this time. It is a proposition to give us a government by men and not by law. It is a proposition to hand us over to the discretion of the trial Judge, and we do not need anything of the kind. The gentleman has alluded to the fact that some of those who spoke did not hear the very able address of Prof. Huffcut. Now, it seems to me that the mistake that Prof. Huffcut and all those gentlemen have made is this, that they only look at the individual case and they say, "See how long that case lasts, that is a shame, that ought to be corrected," and they propose to correct it how? By leaving it to the discretion of the individual Judge. We do not need to go to England to find out what the effect of that thing is. I have had an experience within the last month on that