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struck, and it came, not from the legislature, but from the bench. The legislature took its cue from the judiciary. The court, in 25 Colorado, has even gone further when they hold, in Ward vs. Ward, that for a man to get an injunction against his wife makes a good case for divorce.
In People vs. District Court, 21 Colo., the married couple had become reconciled and dismissed the proceeding. The court had made an order imprisoning the defendant for non-payment of counsel fees. The court says that the remedy (imprisonment) is a harsh one, and should be used only in extreme cases, but that the reconciliation of the parties made this an extreme case -that the obligation to pay the counsel fees was of greater sanctity than the marriage relation.
In Redington vs Redington, 2 Colo. App., the Court of Appeals holds that all causes of divorce are of equal validity-that the moral distinctions cut no figure. Taking the decisions as a whole, the tendency is to hold that a cause of divorce, once accrued, is a vested right, and the old doctrine, never abolished by statute, that divorce is an extreme remedy, always to be discouraged, has been completely broken up, not by the legislature, nor by public sentiment, but by the judiciary itself, in creating new principles not known at common law nor imposed by statute.
In negligence cases, if plaintiff is contributory, he can not recover. To this general proposition nobody dissents. If a workman remains in employ, knowing machinery to be unsafe, he assents to his master's negligence, and is contributory. To this the mind yields with a protest, because there is a non sequitur in the reasoning. My folly or my carelessness is one thing; my remaining in a dangerous position because I have nowhere else to go is another thing. Here is an instance where an illogical position should be restrained by conservative holding. On the contrary, the appellate courts of this state have gone to extremes on the question of contributory negligence, seeming to try to invent some excuse to prevent the possibility of recovery, no matter how gross the negligence of the defendant.
In Kennedy vs. Railroad, 10 Colo., the plaintiff was run over and killed under circumstances which would have justified a verdict of manslaughter against the engineer; yet the court held that, being old and deaf, he (the plaintiff) had no business on the track, and the engineer had the right to kill him. A case more outrageous than this is not to be found on the books.
The well known rule that the master must provide reasonably safe place, safe machinery and safe passage never was consistent with the rule that the servant remaining took the risk; but the former, not the latter, should be made to give way. Instead of that, in Lord vs. Smelting Co., the Supreme Court lay down the rule so broadly that the law of safe machinery is utterly abrogated.
The law of strict construction of criminal statutes in favor of liberty has been dangerously dallied with by the appellate courts.
There is nothing so well established as that a man, to be convicted at all, must be convicted of the very offense with which he is charged, and of none other. And that he shall have a fair trial, with all presumptions in his favor, and the conviction sustained only when the law is clear and the facts proven beyond a reasonable doubt.
The law of reasonable doubt is almost reasoned away in Minich vs. People, 8 Colo., and in Kelly vs. People, 17 Colo.
In Harris vs. People, 21 Colo., the defendant had been indicted for keeping a tippling house. The evidence showed that he sold beer, which was not drunk on the premises. The court upheld the conviction for keeping a tippling house.
The word tipple is one of those old Saxon words, which has only one meaning, and that is to drink. It does not mean to sell liquor, to keep a disorderly house, to steal or to kill, and to say that a man keeps a tippling house when he keeps a house where liquor is not drunk on the premises, is an absolute trifling with the law. The old maxim is that criminal statutes are to be construed strictly, but here a new and unheard-of meaning to a well known word was forced into the case to justify a conviction.
In 1874 Alfred Packer is supposed to have killed five persons. He was not indicted or tried till 1883-nine years after the offense.
During the intervening period the statute defining murder had been repealed without a saving clause. The Supreme Court, on writ of error, reversed the conviction on this ground, and he was sent back to be retried, not for murder, but for manslaughter.
The case is reported in 8 Colo., and is based on Garvey's case, decided a short time before. The Garvey case is a long,
labored opinion, never satisfactory to the bar, in which the court, without precedent, by a line of casuistic reasoning, evolved that every murder includes manslaughter, which no lawyer ever denied, and that therefore on an indictment under a repealed murder statute a man could be convicted of any constituent of the larger crime, a proposition to which no lawyer ever as sented.
The repeal of a statute, no matter how unwise or careless the repeal, has always been construed as a sweeping pardon for all offenses against the statute committed before its repeal, and there is as much logic in the opinion as there would be if a warden, on receiving a pardon for a convict held for murder, would continue to detain him to serve out his sentence for manslaughter, and also for an assault, as every murder includes both these offenses.
Under the Emperor Tiberius, one Cordo wrote a poem, in which he said that Brutus was the last of the Romans. Brutus was deceased at the time. If Brutus, then deceased, was the last of the Romans, therefore the reigning emperor, the deified Tiberius, was not a Roman, and Cordo was put to death for lacse majesty. There is no escape from the logic of this reasoning, but the result is as abhorrent to our natural sense of justice in one case as in the other.
When the case was sent back for second trial, an unheard-of procedure was resorted to. Against his protest he was forced to trial, not only on the original indictment, but on four other indictments found at the same time. No greater judicial outrage than this could be committed.
If there was not evidence as to one killing, the evidence on the other indictments would supply its place. The mere fact that he was charged with killing five separate persons would induce a tendency to convict.
After a vain proceeding by habeas corpus in 18th Colorado, last year a third attempt was made to review the record, but we look in vain for the consistent logical result of the reasoning in the former opinion in the 8th Colorado. In that opinion, as already stated, the court concluded that the manslaughter stat ute not having been repealed, a trial for manslaughter could be had. But as a manslaughter indictment must be found within three years after the crime, the man was entitled to his liberty on this charge, because none of the indictments had been found within that time. This logical result being forced upon them,
it is still contrived to sustain the conviction by a new departure in criminal law, to wit: that an indictment need not show on its face that the crime charged was committed within the period of the statute of limitations. It is true that one or two precedents exist for this ruling, precedents as scarce as Virgil's Rarinantes in Gurgite Vasto, but the Illinois rulings, from which state we took our penal code, the ruling of nineteen other states, and the uniform holding at nisi prius for forty years, have been otherwise; so also the common justice of the situation. If a man is charged with committing a crime nine years ago, when the limitation act is three years, it is, to say the least, the extreme of judicial harshness to assume that possibly the defendant comes within some excepting clause.
The Colorado statute says: "No person shall be prosecuted unless the indictment shall be found within three years." ." If it had said no person shall be convicted, etc., it might fairly be construed that the date was matter of evidence, but the indictment itself is the prosecution, and that it should show the date is therefore self-evident.
There is another peculiarity about this case. knows about it. Most people have talked about it. It is known as the cannibal case. He is supposed to have eaten as well as killed his victims-not from malice or choice, but because one or the other must die, the party being in a perishing condition.
If this is so, it was neither murder nor manslaughter according to the doctrine of self-defense, which applies to such extreme instances.
If this is so, and still it must be called murder-I beg pardon, the murder statute was repealed-if it must still be called manslaughter, it is a crime calling only for the minimum of punishment.
It is also well known to all who have inquired into the subject that persons beginning to perish of thirst or starvation invariably become delirious before death, and in that state are not legally or morally responsible for their acts.
I am no sentimental apologist for murder. I believe in cap. ital punishment for deliberate murder. I have no respect for lynch law, which, of course, takes its place in every community which tries the experiment of its repeal. But I do not believe in imprisonment for life, which may mean sixty years to a young man, and only ten to an old man. I consider this case in all its
phases as of as little credit to the state as the Dreyfus case to France.
In that case the pretext was that the forms of law had been complied with; that an error on the facts was not reviewable, and an error of the law at a certain stage was incurable; and, exactly like it in this case, the original railroading of this man to conviction, practically without counsel or defense, is by the Supreme Court upheld and commended, as if it were not enough that one man's life should languish in perpetual imprisonment, and forgetful of the fact that every sacrifice of a prisoner's right, however guilty, opens wide the room for future convictions of men entirely innocent.
The Court Reporter, 57 Pac., 1088, querulously puts it that this man has been so importunate as to have five times troubled the dignity of his court. He seems never to have heard of the judge who gave justice "lest by her continual coming she weary me." I would remind him that his court and the time of his court is paid to protect the whole body of citizens vicariously represented by the appellants in criminal cases, and that even five times is not enough if justice is still for the fifth time denied.
Every case once reported becomes a precedent by which any citizen may at some time suffer; and I say that the strained ruling in this case, in the face of the unbroken criminal practice since the passage of the Criminal Code in 1861, is a menace to the liberty of every citizen, and this man Packer is as much entitled to his liberty as was the convict of Devil's island. Guilty, or not guilty, no man ought to be sentenced to forty years' imprisonment on the refined process of reasoning which the Packer record discloses.
And I say, with all deference to the Supreme Court, that they have gone out of their way in this Packer case to establish precedents which are dangerous to innocent men; and that the last holding on the writ of error ought to be so severely condemned by the bar as to produce its overruling at the earliest possible moment.
I have spoken of the exemplary damage cases because they have been matter of comment for years. I have spoken of negli gence cases because everybody has noticed the extreme rulings on that line. I have spoken of divorce cases because I have none of them. I tell my unhappy wives to go home and obey their husbands, and unhappy husbands to be forbearing and gentle with their wives. Time and again I have been consulted