"The right of a defendant to speak for himself, after conviction in capital cases, is one of substance, and should be carefully guarded. It is the last opportunity the law affords him of speaking for himself, and showing cause, if he is able to do so, why judgment should not be pronounced against him. This right, given by the common law and now incorporated into our statute, compels the courts to accord him the privilege, and no court has the right to deprive him of it. The trial, however, terminates with the judgment of the jury. The statute then steps in and gives the defendant two days time to determine whether further legal proceedings should be taken in arrest of judgment, unless it should be the last day of the term of court, or he consents to waive the statutory time. Under the provisions of the Code of Criminal Procedure additional powers have been given to this court in the review of capital cases. The error which was committed in the passing of judgment occurred after the trial and the verdict of the jury. We therefore are of the opinion that under the increased power of this court given by the Legislature it no longer becomes neces sary to grant a new trial for errors of this character, and that all of the rights of the defendant may be fully protected by a reversal of the judgment and a remitting of the case to the Supreme Court to proceed upon the verdict in accordance with the requirements of the law." SHARP COLLOQUY BETWEEN COURT AND COUNSEL. A month ago, several prominent white men on trial for peonge before a jury in the United States District Court for Georgia, Judge Speer presiding, were defended by counsel who is the attorney general-elect of that State. In outlining the defense to the jury he repeatedly referred to the negro accuser of his clients as a "nigger." Finally Judge Speer said to him: "Don't you think the future attorney-general of the State of Georgia can spare us this nigger, nigger, nigger?' It sounds so unworthy of a great court of justice and so unworthy of your own position at the bar to be alluding to these poor unfortunate constantly in the lower terms of degradation." It is well known that Judge Speer has a strong and sensitive instinct of humanity. To his respectful admonition counsel tartly replied: "I think I know my duties and rights as a lawyer, an American lawyer practicing in an American court." After Cinna protested that he was not the conspirator of that name, but Cinna the poet, "Tear him for his bad verses," cried the mob of Caesar's avengers. We are inclined to think the flavor of fustian, rather than of contumacy, in counsel's reply, was chiefly responsible for the following retort: "You are exceeding those rights, and if you continue on this line and insist upon using this language, which is nothing but an appeal to the lowest race prejudice, I will have to sever our relations not only in this case but in all cases in this court. I do not believe the American judiciary will tolerate the use of such language in the presence of a court of justice on the part of a gentleman who as a condition precedent to his admission to the bar has sworn to support the constitution and laws of the United States. Now I do not wish to do anything of the sort, but I do beg of you to use the language of which I know you are capable, the language of a cultivated gentleman, and save us this never-ending 'nigger, nigger, nigger.' I want you to act as becomes a lawyer in this court. Thereupon counsel resumed his address, but did not again use the word "nigger" Perhaps the learned attorney-general had in mind "the ever-memorable struggle between Erskine and Mr. Justice Buller"--Lord Chief Justice Campbell's words on the trial of the dean of St. Asaph, 21 How. St. Tr. 954 : Mr. Erskine. Would you have the word only recorded? One of the Jury. Yes. Mr. Erskine. Then I insist that it shall be recorded. Mr. Justice Buller. Mr. Erskine, sit down, or I shali be obliged to interpose in some other way. Mr. Erskine. Your lordship may interpose in what manner you think fit. And Mr. Erskine did not subside nor remain silent. In those supreme moments no wonder the greatest jury lawyer that ever spoke the English language was nerved by the sudden and appalling gravity of the situation in respect to the vital interest of his distinguished client when the foreman of the jury pronounced the last word of the verdict, Guilty of publishing only." An episode something different from counsel's insistence on a purely personal "right" to use a slang word offensive to the court and entirely unnecessary for any legitimate purpose. THE DOMICILE OF A MARRIED WOMAN. The intolerable conditions which may arise out of the differences of the marriage law of various countries, by which a person is treated as married in one place and not married in another, were singularly illustrated this week in an undefended petition for divorce which came before Mr. Justice BargraveDeane (Ramos v. Ramos). The petitioner was a native-born British subject, who some years ago married in this country the respondent, a man who was a domiciled Mexican. She went out and lived with him in Mexico as his wife, but he failed to register the marriage, and by the Mexican law she had not, therefore, any civil status, and was not legally married. He treated her cruelly, and then deserted her and lived with another woman, and she returned to England. There was evidence that, though divorce is not recognized by the law of Mexico, she might have obtained in that country a judicial separation a imensa et thoro, or a decree of nullity. But she had failed to take that course, and sued for an English divorce. The Court, however, held that it had no jurisdiction to grant the petition, since by English law the marriage was complete and the wife had acquired her husband's domicile. These circumstances are very similar to those in Ogden v. Ogden (1908), where an English-woman, validly carried to a Frenchman in this country, failed to obtain a decree of divorce in our courts after her husband had secured the annulment of the marriage in France. Subesequently she married again, and the Court on the second husband's application declared the marriage bigamous; but Lord Gorrel, in giving the judgment of the Court of Appeal, suggested that, in such a case, the woman should be allowed to obtain a divorce in England. In that learned Judge's opinion, the real basis of the rule against allowing a divorce suit to be maintained except in the country where the marrid couple are domiciled—which was to prevent difficulties, inconveniences, and scandals --did not apply when the country of the husband's domicile did not recognize the marriage. Mr. Justice Bargrave-Deane did not see his way to follow this suggestion in a court of first instance in view of the many decisions in a contrary direction; but he expressed the hope that the Court of Appeal might be able to review his decision, and make the law of divorce less rigid and more humane than the stern logic applied by the judges to questions of domicile has contrived to render it. London Law Journal. NEW WAY TO PAY OLD DEBTS. A West Virginia darky, a blacksmith, recently announced a change in his business as follows: "Notice-De co-pardnership heretofore resisting between me and Mose Skinner is hereby resolved. Dem what owe de firm will settle wid me, and dem what de firm owes will settle wid Mose." JUDGE BREWER MEANT WELL. The late Justice Brewer was presiding, years ago, over a civil case in which one of the important witnesses was a horse doctor named Williams. The doctor was a small man with a weak little voice, and the counsel on both sides, as well as the court and jury, had great difficulty in hearing his testimony. During cross-examination the counsel for the plaintiff became exasperated and began to prod and harry the little man. "Dr. Williams," he shouted, "if we are ever going to get anywhere with this case you must speak up so the court will hear you. Speak up loud and strong, sir!" The small-sized veterinary tried, but it was evidently no use. Whether from embarrassment or inability the sound would not come. "Well, your Honor-" began the counsel indignantly, when Judge Brewer stopped him with a gesture. Leaning over the bench he said in his kindly tone: "Mr. Attorney, you must be patient with the doctor. He cannot help it. Years spent in the sickroom have apparently made speaking low a second nature with him."-St. Paul Dispatch. CARRIER-LOST FREIGHT-ACT OF GOD BURDEN OF PROOF. Whenever a carrier seeks to excuse itself for loss occurring cn account of an act of God or some irresistible superhuman cause, it is held in Chicago. R. I. & P. R. Co v. Logan, Snow & Co., 23 Okla. 707, 105 Pac. 343, that the burden of proof rests upon the carrier. This proposition is shown by the note accompanying this case in 29 L. R. A. (N. S.) 663, to state the wellsettled rule. The only conflict of authority arises when the question is: Must the carrier relying upon such a defense as an act of God or vis major go further, and affirmatively show thta there was no negligence or want of due care on its part but for which the goods would not have been injured or destroyed? Upon this question the decisions are conflicting, though the weight of authority seems to support the rule that it is incumbent upon the carrier to show that it used due diligence to carry the goods safely, and that the act of God or the vis major was the sole cause of the loss. THE BAR AFTER MANY YEARS OF PUBLIC SERVICE AT THE NATIONAL CAPITAL, AND AFTER A SOMEWHAT CLOSE OBSERVATION OF THE PRICE, 10 CENTS. $1.00 A YEAR IN ADVANCE. NEW DOMINION PRINT MORGANTOWN, W. VA. |