Kolkman v. People

Me. Justice Hilliaed,

dissenting.

I concur in the views expressed in the opinion of my brother Butler, but since I believe there are additional reasons why the judgment should be reversed I propose to set them out at some length.

I am in accord with the statement of the rule concerning conspiracy and the admission of testimony showing-statements made by one of the conspirators in furtherance of the common design. Such seems to be settled by the decisions of this court. Davis v. People, 22 Colo. 1 , 43 Pac. 122 ; Johnson v. People, 33 Colo. 224 , 80 Pac. 133 . But as I view the record considerable of the testimony admitted is without the protection of this doctrine. The *53 true rule seems to be that statements- made during the existence of the conspiracy by any of the conspirators are admissible whether made in the presence of the conspirator against whom they are sought to be used or not, provided such statements are in furtherance of the common design. State v. Walker, 124 Iowa 414 , 100 N. W. 354 .

I do not see, therefore, how it can be said that certain of the testimony of the- witness J. B. Morrison was proper. For example, this witness testified that in December, 1929, after he had been all over the Southwest for some time, at the expense, so he said, of the defendants Kolkman, he came back to Colorado and was arrested. Out of the presence of the defendant John Kolkman he said that Boy Kolkman had told him that “ * * * by the time the Court sets in the fall they would have it thrown out of Court and there would be no trial * * *. Boy told me him and John had fixed everything if I would sign some papers and there would be nothing to it. Never did see the papers.^ I told them I figured the District Attorney was the only man who could release me. Boy said the Judge was gone and they couldn’t fix the papers on that account, but that they could bring them to me in Oklahoma. I then went back to Oklahoma and got back here about the last of February [1930]. Thlked to Boy the night I got in. Boy said he had everything fixed and I could refuse to testify on the ground that the evidence I gave might incriminate me; that the Court could not force me to testify; that they would do the same thing and Burson would not identify these hog*s and the case would be thrown out of court * #

This testimony was given in response to three questions, each of which was objected to and exception saved. I believe it error to have overruled them. It requires a great stretch of one’s imagination to conclude that these statements were in furtherance of the conspiracy. They are merely narrative; they amount only to a recitation of remarks made at a meeting between the witness and *54 Roy Kolkman when the subject under discussion was not how to devise ways and means of escape, to conceal the crime, or do anything aimed to perfect the common design. Nothing was planned; nothing agreed upon; no act contemplated; no act done. It was merely said that under the law Morrison could refuse to testify; the Kolkmans could do likewise; Burson would not identify the hogs; and that the District Attorney would have no case to prosecute. How any of these statements furthered the common design or can be thought to have any effect on it I do not perceive.

Perhaps the testimony was immaterial in any event, but that it could have had an unfavorable effect upon the jury is conceivable. Besides, as I think it was very well said in State v. Walker, supra, “The defendant was entitled to the verdict of the jury as to his guilt, free from any prejudice that might reasonably arise from the submission to them of this improper evidence. ‘Without the illegal testimony the jury may not have found the verdict for the State; this testimony may have made the complement of proof which satisfied their minds. In that case the defendant would have been convicted upon illegal evidence. This court cannot determine what quantity of evidence was lawfully sufficient to authorize the verdict. ’ State v. Westfall, 49 Iowa 328 .”

Simply because two or more men have been charged jointly with the commission of a crime does not make every word they may utter between the day of the alleged offense and the commencement of their trial admissible. To hold that that is the law, which is the effect of the decision of the court here, is to emasculate the statute giving the right to separate trials; more, it repeals it.

There are at least three reasons, as I understand the law, why our rule 14b should be held to be inoperative. It is, as to the case at bar, ex post facto, for the alleged crime was committed February 4, 1929, while the rule did not become in force until September 1,1929. Garvey v. People, 6 Colo. 559 and Kring v. Missouri, 107 U. S. *55 221 , sustain this proposition and I cannot perceive the difference between them and this cause that the court seems to believe exists. The principles enunciated in the Crarvey case and the Kring case are of universal application, and distinctions based upon differing sets of facts do not disturb them. The question is, has some alteration been made in the law that works to the substantial disadvantage of the defendant? In the Kring case the Supreme Court of the United States uses this language: ‘£ When * * * we are told that this very radical change in the law of Missouri to his disadvantage is not subject to the rule because it is a chang*e, not in crimes, but in criminal procedure, we are led to inquire what that [Missouri] court meant by criminal procedure. ’ ’

After considering the authorities upon what is meant by “criminal procedure” the court concludes that by it is meant pleading, evidence and practice. The court then says: ‘£ Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed to the disadvantage of the prisoner by State legislation, after the offense- committed, and such legislation not held to be ex post facto, because it relates to procedure, as it does according to Mr. Bishop? And can any substantial right which the law-gave the defendant at the time to which his guilt relates be taken away from him by ex post facto legislation, because, in the use of a modern phrase, it is called a law of procedure? We think it cannot.”

Can the right of the defendant here to be tried by jury without “comment” from the trial judg-e be taken away from him by a rule adopted after the commission of the charged crime and especially by a rule which, so the court has here held, permits the trial judge to declare him to be guilty? I think it should not. A law is ex post facto if it alters the situation of a person to- his disadvantage. Will anyone say that this rule, permitting the trial judge to express opinion that the defendant was guilty, did not alter the situation of the defendant to his disadvantage? I think not.

*56 If there he aught in Beazell v. Ohio, 269 U. S. 167 , that overrules the Kring case, I do not find it either from the excerpt quoted by the court here or from a reading of the whole case. But if the Kring case is overruled by it I can only regret the relaxation of constitutional guaranties in the interest of expediency or other motives which should never control the minds of judges or the workings of courts.

Next, the rule is unconstitutional for another reason. Remember, it is a rule adopted in pursuance of power thought to be granted this court by chapter 121, S. L. 1913. True, the court has determined that the power to malee the rule is perhaps existent without the statute, but for present purposes I shall assume that our right in the premises arose out of that statute. So, assuming it must be admitted that while not a statute in the ordinary meaning of that word, it is a statute in the sense that it is law created other than through the rule of decision. The legislature is forbidden by article 5, section 24, of the Constitution to revive or amend a law “by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be reenacted and published at length.” People v. Friederich, 67 Colo. 69 , 185 Pac. 657 . Our sole power, in my opinion, to make such rules, if we have it at all, and of that I am gravely doubtful, is to be found in the legislative grant to that end. Are we greater than our creator; can we by virtue of this grant exercise powers and make laws forbidden to be exercised or made by the legislature? I think not. How, then, may we lawfully—constitutionally—adopt the nebulous uncertainty, ‘ ‘ The rules governing comments by district judg’es * * * in the United States courts.” I respectfully say that all the authorities cited in the opinion of the court and intended to show what the “rule” is in the federal courts show instead that there is no rule. It seems to me we could have with much more grace declared this rule to be void than to defend it as we have. If the rule is a proper one we could then, in light of what *57 experience has taught us, have redrafted it in certain terms, and made plain what is now and must, I submit, remain indefinite and a source of misunderstanding, doubt and recrimination. I am not insensible, in this connection, that the court has said that “It seems passing strange that no one empowered under this rule has indicated any doubt as to the meaning thereof, or the extent of his power and duty thereunder,” and that “* # * we intended [by the rule] to advise the profession that, in this respect, they might thereafter expect trials to be conducted in the state courts the same as they were conducted in the United States district courts. If we have failed in this purpose, it is because the imperfections of the English language preclude a more definite, certain, and comprehensive statement of the rule, and until some one more adept in its use submits a rule more clearly expressing and defining the intention of those who promulgated it, we must ask the profession to accept and use it in its present form.” I presume that by the first quotation the court means that no district judge has indicated any doubt of his power and duty under the rule, but that that is so is for a very obvious reason. The question of its meaning has not been hitherto before us and since we are apprised in no other way of the business and conduct of trial courts it would be passing strange indeed if we had any information on the attitude of the district judges whatever.

I presume that by the second quotation the court means that the rule cannot be stated with greater certainty, and lay the blame at the door of the language in which our thoughts must be expressed. I cannot for a moment subscribe to such an announcement. To say that the highest tribunal of a sovereign state is so circumscribed is to say that we are incapable of stating’ any proposition of law in certain terms. It is no answer that section 6516, C. L. 1921, in conferring the common law upon us uses scarcely more words than are in rule 14b. The common law as it existed prior to the fourth year of *58 King James I was the growth of centuries of decisions and statutes touching upon every or nearly all of the relations that exist between men. Its marvelous flexibility in meeting* the changing needs of man and time has been repeatedly explained and praised, and I concede the difficulty of codifying it. The American Law Institute has found the restatement of the law a hard task. But surely that does not mean that a single proposition of procedure or, practice may not with the exercise of diligence and intelligence be reduced to terms more definite, more certain, more capable of understanding, and less productive of doubt than our rule 14b. I would not care to undertake to draft such a rule for the very simple reasons that I do not believe we have the power to adopt it or that such a rule is wise in any event, but I cannot see that my position should require me to do that which I am very confident my brethren are fully capable of doing. If the court believes that a rule of this character is properly to be made, and that it is an advance in procedural methods, surely among us we have the wisdom to set down words that will make our meaning and intention clear.

It is- only too obvious, I fear, that the rule is indefinite and uncertain. If it were otherwise it would not require voluminous explanation, definition and interpretation. We have not hesitated to condemn acts of the legislature because they defied reasonable understanding. In Re House Resolution, 12 Colo. 359 , 21 Pac. 485 . We should not hesitate to pass similarly upon our own rules if they be attacked for as good reason.

As I have said, the federal authorities cited in the opinion of the- court indicate uncertainty rather than the existence of a rule. Many of these cases, as I read them, would furnish ample reason to reverse the case at bar because of the language employed by the trial judge. Bogileno v. United States, 38 Fed. (2d) 584, is one. The only distinction I can perceive between it and this cause is that the language of the trial court there was not as *59 certainly calculated to result in a verdict of guilty as the language employed by the trial court here.

I am not greatly concerned by the question of terminology which seems to disturb my majority brethren. The word “rules” is capable of many definitions. We speak of “rules of law,” “doctrines of law,” “principles of law,” “theories of law.” Often those expressions are of like meaning; they are not necessarily so. We pointed out in Parker v. Plympton, 85 Colo. 87 , 273 Pac. 1030 , that our rules of practice and procedure are often to- be found in our decisions and not all of them are gathered up in the little green volume called “Rules of the Supreme Court—1929.” But it does appear proper to my mind that when we undertake to make a rule and publish it in that green volume we should couch it in such language that judges and attorneys will have an inkling of our meaning. Our assumption that the profession would understand it was too sanguine, and for my part, subject to what I have said above, I would rather redraft the rule than to endeavor to interpret it.

Assuming, however, as I must, in view of the opinion of the court, that the rule is effective, I cannot agree that it was properly applied here. I do not believe that it was the intent of the rule, and certainly it is not the law in the courts of the United States, that the trial judge may say that the defendant is guilty. The jury is still the trier of the facts and the judge may not usurp that function. As was said in Bogileno v. United States, supra, “The purpose he [the defendant] assigned may have impressed the court as unreasonable and even unbelievable, but the court could not pass upon that. It was a question for the jury. The question of his intent was an issue of 'fact, and not of law, for the jury’s determination.” The testimony of the Kolkmans may have impressed the trial judge in this case as unworthy of credence, but that did not authorize him, especially in view of his own statement that there was direct conflict between the evidence offered by the Kolkmans and that given by the two Mor *60 risons, to say that he believed “that the evidence taken as a whole and all the circumstances as they have been presented here show that all four of these defendants were guilty. Leslie v. United States, 43 Fed. (2d) 288, cited in the opinion of the court, was reversed because of the trial judge’s statement that “It seems to me, gentlemen, that this defendant is guilty of this crime; it seems to me that he has put up a defense here that will not hold water under this evidence.” There is no difference in substance, and hardly in language, between that objectionable comment and the words uttered by the trial judge in the case at bar and above quoted. If our rule is the same as that of the district courts of the United States we might well reverse this judgment upon the authority of the Leslie case alone.

Starr v. United States, 153 U. S. 614 , may afford some light on the subject. There, at page 625, the court quotes with approval from Commonwealth v. Selfridge, this language: “As to the evidence, I have no intention to guide or interfere with its just and natural operation upon your minds-. I hold it the privilege of the jury to ascertain the facts, and that of the court to declare the law, to be distinct and independent. Should I interfere with my opinion, with the- testimony in order to influence your minds to incline either way, I should certainly step out of the province of the judge into that of an advocate. All that I can see necessary and proper for me to do in this part of the cause is to call your attention to the points or facts on which the1 cause may turn, state- the prominent testimony in the case which may tend to establish or disprove these points, give you some rules by which you are to weigh the testimony, if a contrariety should have occurred, and leave you to form a decision according to your best judgment, without giving you to understand, if it can be avoided, what my own opinion of the subject is. Where the inquiry is merely into matters of fact, or where the facts and law can be clearly discriminated, I should always wish the jury to leave the stand without *61 being able to ascertain what the opinion of the court as to those facts may be, that their minds may be left entirely unprejudiced to weigh the testimony and settle the merits of the case.”

Again, at page 626, quoting from a decision of the Supreme Court of Pennsylvania: “When there is sufficient evidence upon a given point to go to the jury, it is the duty of the judge to submit it calmly and impartially. And if the expression of an opinion upon such evidence becomes a matter of duty under the circumstances of the particular ease, great care should be exercised that such expression should be so given as not to mislead, and especially that it should not be one-sided. The evidence, if stated at all, should be stated accurately, as well that which makes in favor of a party as that which makes against him; deductions and theories not warranted by the evidence should be studiously avoided. They can hardly fail to mislead the jury and work injustice.” Burke v. Maxwell, 81 Pa. 139, 153 .

In Bouvier’s Law Dictionary (Eawles Third Eevision), under the subject ‘ ‘ Charge ” it is said (p. 460): ‘ ‘ Though this is customary in many courts, the judge is not bound to sum up the facts; Thomps. Charging Juries, §79; State v. Morris, 10 N. C. 390 . But if he do sum up he must present all the material facts; Parker v. Donaldson, 6 W. & S. (Pa.) 132; Merchants’ Bank of Macon v. Bank, 1 Ga. 428 . This is the practice in the courts of the United States; United States Exp. Co. v. Kountze Bros., 8 Wall. 342 .”

I take it that the practice in the federal courts is that the judge may, but is not required, to sum up the facts. If he does so he must present all that are material. He is not at liberty to discuss isolated problems, or draw conclusions unwarranted by all the testimony. He must not invade the province of the jury by stating that the evidence, if in conflict, should be controlling upon one side or the other. It is his duty to advise and assist the jury, not to take its place.

*62 I must, therefore, especially emphasize my disagreement with the doctrine announced by the court that the trial judge may make as little or great a review as he desires. I do not believe it to be the law of the United States courts that “Comments are to be made in the discretion of the trial court” in the sense that the summing-up may be restricted to a conclusion that the defendant is guilty. The discretion of the trial court is only whether there shall be a summing- up or not. The rule at the common law was to that effect, as the quotation from Blackstone found in the opinion of the court indicates. Blackstone said that “When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel and all others, sums up the whole to the jury.”

It does not seem to me that it should be said that it is not complimentary to juries to say that they are susceptible to. and influenced by remarks and comments of a trial judge. If so, this court has hitherto been unkind in that behalf. Jurors are laymen, frequently unfamiliar with the law they are called upon to apply. Why they should not give great weight to the remarks and comments. of the judge I do not know. It would be contrary" to the general course of human nature for them to do otherwise. Besides, if they are not susceptible, and are unlikely to be influenced, our rule 14b will be of very little use and will not accomplish that which it is thought it will. That jurors are susceptible in such situation is the opinion of the Supreme Court of the United States. Starr v. United States, supra; Hicks v. United States, 150 U. S. 442 .

I desire also to emphasize a point made by Mr. Justice Butler. The opinion of the court is to the effect that the “comments” are not part of the instructions and need not be in writing for that reason. Wickham v. People, 41 Colo. 345 , 93 Pac. 478 , cited to that end, does not seem to support that position. The definition in that case served very well there, because the question was, what is *63 an instruction within the meaning of sections 7104 and 7105, C. L. 1921. But in this cause we are faced with the problem of what is an instruction in the federal practice. The federal practice is that the court charges or instructs the jury concerning both the law and facts at the same time and that the total of his remarks constitute the charge or instructions. Starr v. United States, supra, and cases therein cited. Hence, if we are to graft the federal practice to ours we should hold that the “comments” are part of the instructions, should he reduced to writing, and be given at the same time as the other instructions. That would partially, at least, make the working of rule 14b adaptable to a system which, as Mr. Justice Butler has said, is ill adapted to receive it. The suggestion made in the opinion of the court is that it would be “an unprecedented, novel, confusing and pernicious practice” to require the trial judge to make his comments in writing and deliver them at the same time as the other instructions. It seems to me to be far more unprecedented, novel, confusing and pernicious to allow the trial judge to make the third speech for the prosecution as the trial judge did here.

In the opinion of the court it is said that experience has proven that the practice of permitting the trial judge to comment upon the testimony has resulted in a much more successful administration of^justice than heretofore obtained in our courts. No authority is cited for this proposition and I know of none. Statistics could be procured, I presume, upon the number of persons tried, the number convicted, the number acquitted, the number convicted who appealed, and the number of convictions reversed, in the several state and federal courts. But to correlate them, would be, I think, impossible. My observation, in many years of practice, is that no more offenders escape in a well conducted Colorado court than escape in a well conducted federal court. My own opinion, contrary to that of my brethren, is that experience has not demonstrated the superiority of the practice of the federal *64 courts and that ultimate justice may more often lie in the hearts of the jurors than in the mind of the judge.

It is not altogether clear what the court means by the assertion that permitting- the trial judg*e to comment, upon the evidence will mean a more successful administration of justice. It is likely, however, that it arises out of a belief that under our present system it has too frequently happened that the required observances of technical formalities has- resulted in reversals of cases where the guilt of the defendant was apparently overwhelmingly established and justice, the ultimate object of every litigated matter, had been done. To this I say that it is not the duty of the Supreme Court or of any court to be concerned with the guilt or innocence of a defendant. The duty of the courts is to take care that the defendant is given a fair trial according to law and that he be not deprived of life or liberty without due process of law. And it should be remembered that the technicalities (as we call rules of law that do not suit our passing need) of the criminal law were made for the benefit of innocent men entitled to retain their lives and have their liberty, and it is for them that they are enforced. If occasionally, and I say it is. not often, a guilty man escapes his just punishment, that is the price we must pay in order that we may have protection. In Marjoribanks’ biography of Sir Edward Marshall Hall, K. C., that eminent barrister is reported to have said that it were far better that ten thousand guilty men escape than that the majesty of the common law be violated. Nor is the cause of civilization, of liberty, of constitutional government, served when an innocent man is convicted because of a precedent created in the process of ensuring punishment to a man whose guilt has been overwhelmingly established.

I question very seriously whether any great number of cases have been reversed where the guilt of the defendant was overwhelmingly established. Indeed, examination -of our reports covering- the last decade shows that very few cases have been reversed at all, and that *65 all that were reversed were reversed for very substantial reasons. In none of the cases reversed would the result have been in anywise influenced had the trial judge had the power and taken the opportunity to “comment” upon the testimony. In volumes 67 to 87, inclusive, of our reports, covering the period from 1920 to 1931, 213 criminal cases were reported. Of that number 167 were affirmed and 46 reversed. In other words something less than 22 per cent were reversed, something more than 78 per cent affirmed. A much greater percentage of civil cases was reversed, but I have drawn no conclusion from that. The point I. am seeking to make is that reversals are not nearly as common as has been supposed to be the fact. They appear to be growing less common, for in volumes 80 to 87, inclusive, 52 criminal cases were disposed of and but 5 reversed, or less than 10 per cent. In volumes 80, 81 and 85 all criminal cases reported were affirmed, while in volumes 82, 83, 84, 86 and 87, one case only in each was reversed and all others affirmed. And, as I have said, they were all reversed for substantial reasons, in a great number of them for error solely attributable to the judge, in several for misconduct on the part of the district attorney. So it would seem that a prolific source of reversals is failure of the judge properly to apply the principles of law, and that district attorneys, stirred no doubt by misplaced partisan zeal, sometimes cause the very failures of justice of which they so bitterly complain. One remedy suggested by this review is for trial judges and district attorneys to endeavor to make criminal trials models of practice and free from such palpable errors as have required this court to enter judgments of reversal. Our present system of criminal jurisprudence is perhaps capable of improvement, but it cannot be denied that under it our jails and reformatories and penitentiaries are crowded to the very walls. It might be better to endeavor to enforce the laws we have by the procedure now in force than to attempt to change the procedure in such a manner as to relieve judges and *66 district attorneys of the consequences of their errors. Law is properly the growth of years; it is too much to expect or hope that we may overnight, by the fiat of rule, correct defects, fancied or real, in the jurisprudence established by years of research on the part of appellate courts, and in statutes tempered by generations of use.

As to the question of whether under the Constitution the making of rules of this kind is our exclusive province, I think we should reserve opinion until the question is before us. It is not now. But I do not wish to let it be thought that by failing to mention it I have overlooked or tacitly approved the opinion of the court in this respect. If one were to reduce to somewhat definite language the doctrine of the court on the subject, that doctrine could be phrased thus: “The power to make rules is ours; it is now, and always has been, since the adoption of the Constitution, one of our responsibilities and duties, and we shall exercise it without interference from any other department of government.” That language, or words of similar import, could have been aptly made a part of the opinion of the court.

Doctrines of that kind have been entertained before. King Louis XIV may not but could have said, “L’etat c’est moi. ” King Louis XV may not but could have said, ‘ ‘ After us the deluge. ’ ’ The fate of King Louis XVI was only too clearly foreshadowed. The judicial power of the state of Colorado is in our hands. The law is what we say it is. We need not be right; none can dispute us. The statutes of our legislature are impotent before our decree; the governor has no recourse when his acts are overturned by our decision. We are the state. But how long will we be the state if drunk with power, impatient of interference, and intolerant of the other branches of government, we continue the aggrandizement warranted and predicted by the court’s opinion here? The Constitution which a majority of my brethren have said clothes us with these awesome rights sprang from the will, not of the courts, but of the people. We may be the state, our *67 immediate successors may see the coming flood, their successors may be swept away.

That Section 7099, C. L. 1921, has the force and effect ascribed to it by the court is, I think, wholly erroneous. Standing by itself it may be a legislative grant of the right we have sought to confer by rule, but it cannot be read alone. It was adopted in 1861 but so far as I can find no attempt to extend its provisions to include the power of judges to comment upon the evidence was ever heretofore made. The reason for this is that in 1868 the legislature adopted what is now section 7105, C. L. 1921, which provides that ‘ ‘ The district court * * * shall only instruct the petit jury as to the law of the case * * The obvious inference from this is, and it has been always so considered by this court until the present time, that the court shall not instruct the jury upon matters of fact. Minich v. People, 8 Colo. 440 ; King v. People, 54 Colo. 122 , 129 Pac. 235 ; Ryan v. People, 50 Colo. 99 , 114 Pac. 306 ; Ausmus v. People, 47 Colo. 167 , 107 Pac. 204 . The only escape from the language of the latter statute is to hold that the-word “instruct” does not and was not meant to include what in rule 14b we have denominated “comments.” But, for reasons herein stated and the conclusions of Mr. Justice Butler, I am constrained to say that such a construction is too fanciful, too- violative of the plain effect of our own previous- decisions, to be considered seriously. Besides, if all our rules are not printed and bound in a separate- book, but are scattered among our decisions, as was said in Parker v. Plympton, supra, we ought to hold that we are bound by them as much as the parties in the Parker case were, and that as a necessary consequence section 7099, C. L. 1921, gives us no such right as is claimed for it at all.

The- theory of the rule under discussion is, I suppose-, that trial judges are better fitted by training' and education to detect the salient points of evidence- and to separate the grain from the chaff. Otherwise stated, that the judges are better fitted to determine- facts, as they *68 are better fitted to determine law. These arguments, at least, are the chief ones advanced by those who advocate the rule. But I wonder if this is so. Many very learned men have written of the inability of judges to weigh facts. Lord Campbell is quoted as saying: “I remember a sergeant-at-law having a brilliant success at the bar from always believing that his client was entitled to succeed, although when a Chief Justice he proved without exception, and beyond all comparison, the most indifferent judge who has appeared in Westminster Hall in my time.” And of other judges he said: “The celebrated advocate when placed on the bench embraces the side of the plaintiff or of the defendant with all his former zeal, and—unconscious of impartiality or injustice— in his eagerness for victory becomes unfit fairly to appreciate conflicting evidence, arguments and authorities.” Lord Chief Justice Tenterden, in King v. Burdett, 4 Barn. & Ald. 162, said that it is “one of the peculiar advantages of our jurisprudence” that in criminal cases “the conclusion is to be drawn by men conversant with the affairs and business of life, and not by one or more lawyers whose habits might be suspected of leading them to the indulgence of too much subtlety and refinement. ” His opinion is quoted with approval in Sparf v. United States, 156 U. S. 51, 180 . Judge Dillon, in Laws and Jurisprudence of England and America, p. 122, said: “I recall with interest the views of the late Mr. Justice Miller and the change of opinion on his part on the subject of trial by jury. His opinions are of value, for by general consent he ranks among the ablest judges who have ever held a seat on the bench in this or in any country. He said to me at one time that his notion of an ideal trial court was a court composed of three judges to try all civil cases of law or fact. Some years afterwards, as the result of more observation and experience, he told me he had changed his views, and that he thought juries better judges of fact than judges.” At page 168 of the same volume Judge Dillon said: “Twelve good and *69 lawful men are better judges of disputed facts than twelve learned judges.” In 21 American Law Review 863, Mr. Justice Miller himself said: “I am willing to give the benefit of my observation on this subject to the public that judges are not pre-eminently fitted over other men of good judgment in business affairs to decide mere questions of disputed fact.” Our own reports are replete with reversals because the evidence below was entirely insufficient to sustain the judgment. The reports of other jurisdictions will furnish many similar examples. The search for truth is a marvelously difficult thing and no nearer successful solution than when Pilate asked his famous question. I, for one, believe that its pursuit may more safely be entrusted to “twelve good and lawful men * * * than twelve learned judges” or one learned judge.

After all, however, the chief objection to this rule of ours is that we have taken upon ourselves the solution of a political problem and wandered from our judicial duties. It is to the legislature, in my opinion, that such problems are committed by the Constitution and by the whole theory of our governmental system. Changes so radical as this should come from the representatives of the people, in assembly, where hearings and debate may be had in the light of day. "We seven men who compose the Supreme Court have no right, I think, to meet in our star chamber and, without the knowledge or consent of the people, alter, abolish or repeal the acts of the legislature. I cannot believe that we had the right to make the rule here under discussion which repeals a statute adopted and in force for more than sixty years.

It is a political question. Sixty years ago the legislature said that our trial judges should not have this power, and during that sixty years no trial judge has successfully defied the statute where appeal was taken when he did. "Why did the legislature of 1868 deprive the courts of this power, which otherwise they would have had? Was it because, as Judge Dillon says at page 129 of his *70 Laws and Jurisprudence of England and America, that “Soften or disguise the fact as best one may, such legislation * * * implies a distrust of the capacity of the judge to deal with the evidence in summing up so as not to be likely to do more harm than good.” So, I say, we should not assume too much. We should not concern ourselves with political problems. We should bear in mind that the chief disputes, even in appellate courts, are not so often about what the law is, but about what are the facts. My own brief experience here indicates to my mind that that is so. The testimony of Mr. Justice Miller is reported in 21 American Law Review 863, where he said: “I must say that in my experience in the conference room of the Supreme Court of the United States, which consists of nine judges, I have been surprised to find how readily those judges come to an agreement upon questions of law, and how often they disagree in regard to questions of fact which apparently are as clear as the law. ’ ’'

In his contribution to the galaxy of opinions herein, Mr. Justice Burke has referred to my belief that permitting comments by the trial judge is an inferior practice. It is his belief that allowing such comments is a superior practice, and says that there is ample authority to support his position. My brother has overlooked the fact that I did not say there were not respectable, even learned, men on that side of the dispute. What I did say was that I knew of no authority that experience has demonstrated the superiority of that system. I presume some very honorable gentlemen have very honorably insisted that judges should have powers of that kind, and there is no doubt that the American Law Institute has drafted a proposed code of which section 337 permits comment by the judge on the testimony. But I perceive two very significant things with respect to that section which is quoted in full by Mr. Justice Burke. First, it demonstrates that it is possible to use words other than those used in rule 14b to express the thought involved. *71 Second, it demonstrates that the gentlemen who drafted the code did so on the theory that the code would be adopted by legislatures.

I cannot believe that Mr. Justice Burke weighed Iris language carefully when'he asserted that the proposed code section “does not confine comments on the evidence to the identical time and method of instructions on the law.” I submit that the section requires the judge to make his comments as a part of his charge: and at the same time, and that if the instructions or charge be in writing the comments must be also. Like rule 14b, however, I apprehend that more definite language could have been employed, and that, although I am duly respectful to the fourteen men who drew it, especially now that their labor has received the seal of judicial approval, proposed section 337 is not as plain and adequate a statement of the matter as might be made. Apparently the fourteen authors had not considered the problem which makes rule 14b so inappropriate to our practice, viz., when shall the judge malte his speech about the evidence, and in what form?

I am happy that Mr. Justice Burke has mentioned the journey I was lately privileged to make to Washington to attend the sessions of the American Law Institute, but his conclusions that my presence there marks my approval of all that body has done, did do, and will do, is hardly a correct one. As I find myself in this cause upon the side of the minority, so at one time at the sessions of the institute, as upon another occasion when I was at Washington, I was in the minority. I shall not venture a philosophic dissertation upon minorities; their potentialities, failures and successes have been often discussed. Many minorities are often right. Every member of this court subscribes to the tenets of a religion that claims but a minority of the people of the world, and at least two different faiths have more adherents than has our Christianity. Was not the Founder of our faith done to death because He was in a minority?

*72 Mr. Justice Burke has taken exception to my statement that it is not the duty of the Supreme Court or of any court to be concerned with the guilt or innocence of a defendant, but I find from his argument that we are in agreement. I advanced the theory that it is the duty of the courts to take care that the defendant is given a fair trial according to law and that he be not deprived of life or liberty without due process of law. Mr. Justice Burke holds that i£It is the duty of all courts vested with jurisdiction of criminal causes to so administer the law and so conduct themselves within it that the guilty may be convicted and the innocent acquitted.” I perceive no difference in our conclusions. All I want is that trial judges and appellate judges shall not usurp the province of either the prosecutor or the defender, and I do not believd my brethren, or any of them, will disagree.

The opinions in this cause of my brethren and myself will fill many pages of our reports, but I do not feel they have been too voluminous. The liberty of John Kolkman was at stake—our duty required us to give our reasons for his continued imprisonment. The words of the opinion of the court will turn the scales of justice many times —our duty required that such important matters be set out at length. The language of the dissenting opinions will be of aid in determining the effect to be ascribed to the opinion of the court.

For the reasons above expressed, and for the reasons expressed in the opinion of Mr. Justice Butler, I am of opinion that the judgment should be reversed and new trial granted.