errors in instructions to juries" in any work on the subject of instructions is appalling, but I am pleased to testify that as a rule the Supreme Court of this state has taken a less technical and more common sense view of the subject than many of the courts of our sister states.

While speaking of instructions, I may be pardoned, perhaps, for modestly suggesting that trial courts may somewhat reform the procedure and lessen the danger of reversals on account of exceptions to instructions in both civil and criminal trials by adopting in substance a rule which for more than eight years I have found to give satisfaction in the court over which I have the honor to preside.

I refer to the Clallam county special rule No. 4 as found in the pamphlet of Superior Court rules issued in 1892. This rule provides for arguing and settling the law of the case in the absence of the jury before the commencement of the argument to the jury on the facts. I have heard suggestions that this rule ought to be embodied in the code of procedure and its observance made compulsory on the courts and counsel in all cases, but I prefer it in the form of a mere rule of the court so that it may be waived in the interest of economy of time in unimportant cases.

The people of the United States have been so jealous of the encroachments of judicial power, with or without reason, that the state constitutions almost if not quite unanimously prohibit the judges of the state courts from summing up the evidence before juries — a privilege which federal judges have generally exercised, but in this day of judicial honor and enlightenment, when a Lord Jeffreys on the bench cannot even be conjured up to frighten children, it may be doubted if our practice in this regard is in the interest of public justice. I have never known an innocent man to be convicted by reason of the judge's "summing up," but every Prosecuting Attorney of large experience can recall numerous instances where deeply guilty men have been swept out of court and forever beyond the reach of legal justice by a deluge of trifling collateral facts which were barely admissable in evidence and unworthy of more than momentary consideration by any one accustomed to analyzing evidence facts which would be mentioned in the "summing up" only for the purpose of explaining

their slight and transient value with reference to the main issue. But this is a matter which is only proper to submit with deference and without definite suggestion to the wise consideration of those who in the future may make and unmake constitutions, the sovereign people themselves.

Eloquent and aspiring young prosecuting officers will pardon me, I trust, for mentioning a matter wherein they may render important service in securing greater certainty of conviction in clear cases of guilt, and my remarks are intended more in the nature of kindly admonition than otherwise, as it is a matter wherein the Legislature can furnish no aid and the courts none, except in the form of such advice as experience may dictate. What judge of large experience has not witnessed a total miscarriage of justice in at least one if not several causes where the indictment or information charged murder in the first degree and where the evidence either failed to establish that degree, or left it fatally doubtful, but did fairly and conclusively establish the guilt of the accused in a lower degree? Verdicts of not guilty in such cases are sometimes, though very rarely I think, the result of erroneous rulings and misdirection of the jury by the court, but they are far too frequently the result of too much misdirected eloquence on the part of the prosecuting officer. He most assiduously studies the law of the case before the trial, and with equal industry he gathers and weighs all the facts which he believes it possible for either the state or the defendant to produce at the trial, and in his opinion no honest jury can possibly find any verdict below murder in the first degree. Thereupon he proceeds to conceive and gestate a majestically eloquent speech which shall crush the wicked defendant and his audacious counsel and at the same time elevate himself to the highest pinnacle of fame as a forensic orator, and he comes into court already laboring for its delivery. The fire of a searching cross-examination in open court refines the evidence down to its exact legal value and either eliminates or renders fatally doubtful the element of premeditated malice, but the pains of approaching parturition of that great speech renders our young friend oblivious to the changed conditions of his legal surroundings, and at the supreme moment, when his great progeny is to come forth and go thundering down the ages, he proceeds to convince the conscientious jury that the

accused is guilty of either murder in the first degree or of nothing at all. The able, foxy old attorney for the defendant listens with counterfeit evidences of unutterable woe all over his face and a

huge laugh in his sleeve. When his turn comes he replies to his “eloquent and learned young friend," and, evading the real facts in the case, he takes care to heighten the impression that it is a case of "neck or nothing." The prosecuting attorney, believing his opening speech unanswered and unanswerable, closes in a burst of eloquence resplendent with the diamonds of speech culled from the poets of all lands and of all times, from Homer down to Higginson, with solemn appeals to the duties of citizenship, the majesty of the law and even the authority of Jehovah Himself for shedding the blood of murderers, and then any one who has frequently witnessed such scenes may usually see at a glance that the emotions of the jury instead of their reason has been touched and that the great question in each man's breast in the jury room will be the awful, life-long responsibility he will carry on his conscience if he vote to hang even a possibly innocent man and thereby make his wife a widow and his thirteen children fatherless. May the court assist them by separating the material from the immaterial facts the real from the possible and conjectural? No. That would be "summing up," and only benighted federal judges may do that. May the court assist them in any way whatever to weigh the evidence and separate the vapory shadows of facts from the facts themselves? No. That would be an invasion of the province of the jury a deadly reversible error. The court may tell the jury what the law of the case is, but it must be told in such form and with such absence of proper emphasis as to frequently augment instead of weakening the false impression left on the minds of the jury by the argument of the counsel. The judge may tell the jury, if he please, that they must take the law from the court, but some eloquent cobbler or blacksmith in the jury room may persuade them to unwittingly overrule the court, and if a guilty man escape thereby there is no remedy for the miscarriage of justice. It has sometimes happened in the trial of a charge of murder in the first degree that all the witnesses for both the state and the defendant have sworn to facts which clearly established his guilt in the second degree and the defendant has sworn himself guilty of

manslaughter, and then twelve honest jurors, with the misguided eloquence of counsel still ringing in their ears, have speedily returned from the jury room with a sworn verdict that he was not guilty of anything at all! The lesson in duty which prosecuting officers should learn from such cases is: If you fail in open court to clearly establish the higher degree charged in the information, frankly concede it, and then you will stand upon safe ground for demanding a verdict for what is clearly established.

In my opinion it is very doubtful if our law which makes an appeal in a criminal case ipso facto a supersedeas serves any good purpose. It works a hardship on the counties, and so far in our history its only other certain result has been to aid guilty men to escape punishment. It ought to be repealed as to all except capital cases; and I think the latter part of the same section (6529 Ballinger's Code) providing for deducting from the term of 'sentence of a convicted felon the time he may be compelled to remain in the county jail, pending appeal, should also be swept from the

statute.

Our statute relating to the matter of charging offenses in the indictment or information is so far in advance of the technical common law method that it may seem to the minds of most men, even to ultra reformers, that we should be thankful for what we have and should be willing to let well enough alone, and yet it is the opinion of many lawyers and a few able courts that the courts of many states, our own included, have been over technical and conservative in the construction of the statute; or, perhaps, it would be more accurate to say, in the interpretation of the indictments and informations filed under it. The technical name of the crime charged is not a matter of great importance to either the state or the defendant, but the facts charged are of the utmost importance to both, and when the facts are clearly set forth and enough of them have been clearly proved to establish the defendant's guilt of any crime necessarily included in the commission of the crime. charged, the jury, in default of proof of the higher crime, should have the right to find him guilty of the crime clearly proved. A single example will illustrate the point: It has been held in this state and in many of our sister states, that a charge of assault with a deadly weapon with intent to commit murder does not include the

statutory crime of assault with a deadly weapon with intent to inflict upon the person of another a bodily injury. A good charge of assault with intent to commit murder must charge that the acts were done purposely and maliciously, i. e., substantially, with a "wilful, malignant and abandoned heart," as required in the information for assault to do bodily injury. The two forms of expression as to purposely or willfully doing the acts with malice are practically synonymous, both necessarily include bad heart, and both are plain to the common understanding. The intent is the remaining factor of the equation. If "intent to commit murder" includes "intent to do a bodily injury" it would seem to follow logically that the greater crime mentioned necessarily includes the lesser. If it does not then it must follow that a man may assault another with a deadly weapon with intent to murder him, with extreme cruelty and torture of his person, but without any intent to do him a bodily injury! If that is not reductio ad absurdum then indeed language must have been invented to conceal ideas. I find no fault with our Supreme Court for its decisions under the statute, as I think they follow the weight of authority, but it might be well for the Legislature to consider this and other similar laws and see if they cannot be amended so as to render the procedure less costly and more simple and certain, and thereby promote public justice.

But the greatest defect in the criminal procedure, the one which more than any other tends to produce uncertainty and defeat justice, is the oldest fault in the system and the one for which no court or Legislature has as yet found a sovereign remedy, and that is in the selection and empanelling of the jury. The history of this subject is thickly strewn with dead and abandoned legislative and judicial attempts at reform, and, though some progress has been made, we still find too frequently that the twelve men in the box in a very important criminal case constitute what the reporters describe as "the intelligent jury" — with a large interrogation point either expressed or understood after the long word. The most intelligent citizens, those who are readers and thinkers, are seldom found in the jury box after the jury is sworn. The intelligent juror has read the newspapers and he frankly admits on examtion that his mind is not like a blank sheet of white paper"