Page images

The jury system) in the southwest has been extended into equity proceedings. This has aggravated the situation because the jury was in origin and has been almost exclusively in practice a feature of the common law. It is generally agreed that the jury is most out of place in civil procedure. It possibly should be limited to capital cases in criminal procedure. The jury might find its most fitting place in civil procedure when public questions or questions of policy are involved.

The make-up of our juries prevents the institution from achieving its best results. The ordinary jury is composed of a conglomerate of nationalities who are expected to be unanimous in their conception of justice. Such hodgepodges did not characterize the jury system in its beginnings. In Texas a representative jury would consist of a Swede, a German, an Englishman, a Mexican, an Italian, a Swiss, a negro, and a few hill billys-a mutual mistrust society. It would be miraculous if such a jury saw any. thing with unanimity.

Juries are now making themselves into local legislative bodies. If a law is not popular, they will not convict anyone of its violation. They interpret the mob psychology of the community, and if this says enforce the law, it is enforced; if not, the jury refuses to convict. Juries of this type, many of their members belonging to societies opposed to legally constituted authority, are really undermining the foundations of civil government.

What changes then in the jury system should be made in the southwestern states?

a. The elimination of the jury from equity proceedings.

b. The restriction of the jury in civil procedure to such matters as involve the community as a whole. In such matters the jury is a sort of legislative body acting on expert advice and only a three-fourths majority should be required for a decision. We let legislative bodies make law by a majority decision.

C. The jury should be abolished in petty criminal cases. Such matters are too trivial to require the time and cost that the jury system involves.

d. The jury should be restored to its proper place in the process of trial by jury and should be subject to the instruction of the judge in both the law and the evidence.

e. The judge should conduct the trial rather than referee it.

f. Service on juries should be compulsory except under the most exceptional circumstances.

g. Judges should rigidly judge of these circumstances. This would greatly improve the personnel of juries.


Technicalities of procedure have been built up by precedent and by legislation until an expert lawyer is likely to fail to file his case properly or to appeal it according to form. A partial list of these is worth quoting:

a. “The indictment or accusation found by the grand jury does not clearly state the crime; or

b. “It does not state that the act is forbidden by law; or

c. “The law itself is not sufficiently clear as to the exact criminal act which is to be punished; or

d. “The indictment misnames or wrongly names the person accused; or

e. “The crime was committed more than two years ago and the accused is therefore freed under statute of limitations; or

f. “That in the trial itself the rights of the accused were violated by trying him in a heated state of public opinion; or

g. “By allowing certain evidence against him to be produced which should not have been admitted; or

h. "By refusing certain evidence in his favor; or

i. "By the judge's decision on certain matters of fact which should have been left to the jury to decide; or by the partiality of the judge's charges,


1 Young, James J., "The New American Government and Its Work," page 338.

Young, James J., “The New American Government and Its Work,"

Judge Robt. W. Winston in a speech before the South Carolina Bar Association in 1914 stated: “A lawyer's education is a process of initiation into the mysteries of the law as it is; he is introduced into an existing system, and for admission to its practice, he must know it as it is, and not as it ought to be. There is therefore no incentive save intelligent citizenship, superior to the mysticism of professional order which prompts him to any active participation in legal reform.”

An example of the significance attached to such technicalities is found in the recent refusal of the Court of Criminal Appeals of Texas to grant an appeal to L. B. Gray of Wichita Falls, because three words were omitted from the record sent up by the lower court. These words were "in this case." This omission due to the oversight of a stenographer, a mere technicality, is, on the basis of abundant precedent, made a barrier to substantial justice. Since this is the decree of the supreme court of the state it is the law. It certainly is neither justice nor common sense. The Dallas News, in commenting on this practice, said: “The only trouble with our present system-or at least one of the biggest troubles with it-is the fact that at times our most distinguished jurists get into the habit of considering that they are conducting in the name of the state a sort of legalistic puzzle department, instead of a tribunal where the rights and liberties of human beings are at stake."


The many opportunities for appeal in most of the systems aid the criminal and the rich litigant. The technicalities of procedure make possible the realization on the opportunities for appeal. They fit into each other to make a system. There should be some restriction on appeal. In Texas, a probate case can receive four trials, two de novo and two on the record. A one-trial and one-appeal system should be established as far as possible. More than this should not be allowed as a matter of right, but additional appeals might be possible on condition that a judge of a superior court after a review of the record recommends

them. No appeal as a matter of right should lie to the supreme court of the state.

The many-appeal system is largely responsible for the inferiority of the lower courts. The theory has been that it makes no difference about the grade of these courts, if they have no final jurisdiction.


The state systems of courts are so constructed that the great mass of litigants never see a competent judge nor hear plead an able lawyer. It is true that as complicated points of law may arise in a case involving $100 as $2500. It is also as important for the poor litigant to have his case properly adjudicated as the rich litigant. What difference does it make if a man's life or all of his property is involved—whether it is $50 or $25,000? The old theory of "rich litigant, rich judge, ignorant litigant, ignorant judge, poor litigant, poor judge" should be permitted to pass out with other mediaevalism.

The lower courts constitute the open forum of the common people and the personnel of their benches should be such as would command the respect of the best lawyers of the bar. Good lawyers regard the practice before these lower courts as "chicken feed,” fit only for the young lawyer or the old, lawyer who has never risen above it.

The district judge is said to be the most important official connected with state government. In each generation a good many of the lives and practically all of the property of the community pass through his hands. Why should not he be the best judge in the system if any discrimination is made?

Again, the masses of the people who pay the expenses of government are entitled to have the courts at the bottom as efficient as those at the top. It is justice.


There is considerable jurisdictional duplication. There is a great deal of concurrent jurisdiction, both original and appellate. This is found between county and justice's courts and between county and district courts. There is usually an appellate jurisdiction running from the county courts to the supreme court. This amounts to a padded system of courts that is unnecessary and expensive. The lack of unity ends in a set of courts rather than a system. Concurrent jurisdiction, appeals and removals have been the main ties between the courts rather than a closely linked and well divided jurisdiction.

Program of Reconstruction

Any program of reconstruction consists of at least five essential divisions: 1. A constitutional amendment disestablishing the present courts, and making provision for the establishment of a system of courts. 2. Arrangements for instituting a simplified procedure. 3. Reorganization of the courts. 4. The establishment of courts of conciliation and arbitration as a part of a county system of courts. 5. An administrative system for the courts.


The constitutional amendment should read: The judicial power of the state is vested in one supreme court and such inferior courts as the legislature may see fit to establish. The judges shall be appointed by the governor with the approval of the senate from a list nominated by a judicial council which the legislature shall establish, and shall hold office during good behavior.


CEDURE. The legislature shall pass a liberal practice act, giving to the supreme court the power to establish a simplified judicial procedure.


There should be one supreme court, exercising appellant civil and criminal jurisdiction, and consisting of sufficient justices and chambers to meet the demands of the litigation

« PreviousContinue »