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House of Lords Criminal Appeal

261

and exact that, however guilty he may be, whether the wife of the deceased in he shall be punished only after having attempting to defend her husband could been accorded every right and guaranty not accidentally have shot him should which the organic and statute law of the also have been left to the jury.14 State secures to him." 12 Convicted a third time the Texas It has been commonly said that as Court of Criminal Appeals a third time one examines the record in a criminal set aside the conviction on the grounds case before an appellate court, it is not that the judge erred in not having given the criminal but the trial magistrate the jury a form of verdict for murder who is on trial. It is like a school in a minor as well as in the first degree, examination where to succeed the judge and in so doing may have impressed must have passed a perfect test. If them with the idea that there was no there has been any single error, there sort of verdict to be rendered except must be a new trial. Of course this is murder in the first degree.15 not true of all American jurisdictions, Tried and convicted again for the but in extreme instances it leads to fourth time, the case was again reversed absurdities that echo throughout a state, by a divided court. One judge based or even throughout the nation, and stirs his decision on the ground that the jury up popular distrust of our judicial had considered the verdict in the Vann machinery. case and been influenced by it in arriving Contrast with this English case a at this conviction. Another judge disre Texas case which we must confess is garded this, but held that the Governor, extreme even for American courts. In who had appointed a special magistrate 1904, Oates and Vann were indicted for to try the case, had no authority to do murder committed during a robbery. so under the Constitution, and that Vann was promptly tried, found guilty, therefore this presiding magistrate had and hanged. Oates was tried and found no authority to act as such.16 guilty, but in April, 1905, the conviction A fifth trial has resulted in a fifth was reversed 13 by a divided court in conviction. An appeal is now pending part on the ground that in the selection and as yet undecided. of the jury the usual number of venire Thus after five convictions for murder, men and talismen had not been given almost eight years after the crime, what the defendant, and in part because a one of the appellate judges was face slight and not very material error had tiously pleased to call "probably a very been made in charging the jury con guilty negro" is still in jail awaiting the cerning the evidence of an alleged ac testing of his last judge before the Court complice. A second time he was tried of Appeals. and found guilty, and in May, 1906, the The humor of such a situation is lost case was reversed a second time by a entirely in its very serious aspects. divided court. It was held that the America is crying out for law reform. same error had been committed again Do not the methods and workings of by the trial judge in charging the jury the English system of criminal appeals with reference to testimony of the point a guiding finger in the direction accomplice; and also that the question in which to move? u State v. Faulkner, 175 Mo. at 618. 13 Oates v. State, 48 Texas Cr. App. 131.

14 Oates v. State, 50 Texas Cr. App. 39. "Oates v. State, 51 Texas Cr. App. 449. 18 Oates v. Slate. 56 Texas Cr. App. 571.