Conservatism in Legal Procedure The evils of this adherence to ancient usages which have long survived their reason for being are not fully disclosed by the reports of the appellate courts. The rules declared in such cases as I have cited govern the action of the trial courts in many other cases. In dictments are quashed, judgments ar rested, new trials are granted and guilty men are absolved in cases that never reach the Supreme Court. As a conse quence the administration of our crimi nal law is expensive, dilatory and uncer tain. Better it is that ninety and nine guilty men escape than that one inno cent man should suffer. For this reason we have provided full means of defense for every man charged with crime, and hold him to be innocent until he is proven guilty beyond a reasonable doubt. In these substantial and humane provi sions of the law the protection of the man wrongfully accused is found, while its extreme subtleties are but means of escape for the guilty. The provisions of our Constitution securing a fair trial to the accused do none of them sanction the technicalities of the ancient law. Prosecution must be by indictment or information, and as to the form of these, the sole provi sion is that the accused may "demand the nature and cause of the accusation." The trial must be speedy and public and by an impartial jury of the county. The accused may appear and defend in per son and by counsel, have process for witnesses, cannot be compelled to testify against himself and may not twice be put in jeopardy for the same offense, and he must be admitted to bail except in capital cases, where the proof is evi dent or the presumption great. In all other respects the pleading and proce dure are left within legislative control. In every other field of human en deavor the fault which is obviously a
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mere slip of the pen may be corrected by a stroke of the pen. In the law, and especially in the criminal law, the fault is fatal, everything is vitiated and we must begin at the beginning, unless indeed, as sometimes happens, even that cumbersome remedy is precluded. Legis lative attempts to remedy this condition have not been wanting. Statutes of jeo fails have been enacted providing that mere technical or formal defects in plead ings and proceedings shall be disre garded. But we flout the legislative attempt at reform and render it nuga tory by construction. We hark back to the ancient use and hold everything to be material which it held to be so. la. State v. Sides, 64 Mo. 383, the court says: — In a pleading which undertakes to charge the high crime of murder, it is always best to follow precedents which have been long adhered to, and which have received the sanction of the highest courts both of this country and England. It is hazardous to make experiments in departing from them, under the impression that our statute of jeofails will cure an omission to state material facts. And in another case prosecutors are warned that departures from the old precedents are dangerous "and technical rules still obtain, for which it is fre quently difficult to assign a reason." We are commended for guidance to the old precedents rather than to the new statutes. The formal learning of centuries ago is held up to us as the highest wisdom. For the spirit of the old law we have but to read the reports of state trials. Even men so eminent as Lord Coke could resort to torture for the purpose of procuring testimony and exhibit a brutality in prosecution which was hardly surpassed by the brutality of Jeffries on the bench. Men were pressed to death if they refused to plead. With Sir Matthew Hale presid ing, helpless old women were condemned
