By Irving Browne.
CURRENT TOPICS. Quibbles. — That was an interesting article under this head in a recent number of this magazine. The Chairman in former days cherished a plan of writing a chapter or an essay on " Evasions of Law," which has been forgotten with many other good designs. Our contributor might have referred to the game of ten-pins. Why ten-pins? It was originally played with nine, and known as nine-pins, but the legisla tures prohibited the vicious game of nine-pins, and the Yankees added a pin. One or two interesting quibbles have come to this Chair through the law journals. One of them illustrates the small estima tion in which dogs are held. In West Virginia, where it is not larceny to take a dog, a dog-taker was indicted for stealing the chain to which the dog was fastened; the defendant pleaded guilty, and was sentenced to one hundred seconds in jail. In States where it is not larceny to abstract a promissory note, it may be petty larceny to abstract the paper on which it is written. That was a very serious quibble by which the New Hampshire court, after a defendant had been acquitted on a charge of murder as princi pal, indicted, convicted and hanged him on a charge of being accessory before the fact. In the recent Shea murder case in Troy, N. Y., McGough having been indicted for the same murder and acquitted, but having been convicted and imprisoned for another assault, confessed that he really did the fatal deed, and counsel moved for a new trial for Shea on this ground. Fifteen disinterested persons having sworn that they saw Shea do it, the Court refused the motion, and Shea was executed. So that in genious quibble did not avail. But the most ingeni ous device to defeat justice that was ever heard of was invented in Wisconsin, in the case of Dozkowski, who is imprisoned at Green, on a charge of having murdered his wife. His counsel have brought an action for him against his wife for divorce on the ground of desertion on the very day of the murder. Process has been returned " not found," and now the action will be tried as in case of default. Counsel claim that if the divorce shall be granted, it must be on the assumption that she was alive at the time in question, and the husband, consequently, cannot be convicted of murdering her. In other
words, that a plea of res judicata, founded on a judgment in a civil action, will avail on a criminal charge. That plea will not hold water. The par ties are not the same; they are not privies, nor is the subject-matter the same, nor could the latter charge have been tried in the former case. It is too ridiculous to be seriously entertained. But a grave legal journal gravely announces that the divorce proceedings will be watched with interest; and so indeed they may be, as a fishing expedition for the body of the wife.
Detention of Witnesses. — A very powerful story, entitled " The Silent Witness," by Herbert D. Ward, was published in " McClure's Magazine" a few months ago, aimed at the unjustifiable and bar barous practice of detaining witnesses in criminal cases. This is a practice that ought to have gone out with the prisoner's box. Society has no more right to imprison a man because he saw a murder than it has to hang him for the same thing. He is not an offender. The monstrous quality of the prac tice is enhanced by the fact that it is only applied to poor men. If the witness is rich, he can give or get bail and go about his business, but if he is poor he goes to jail. Some comments on this story from the "Cleveland World" are exceedingly forcible and just : — "A heart-breaking story, founded on fact, in ' McClure's Magazine ' for the current month, is an arraignment of the nineteenth century civilization that, considering its boasts of enlightenment and decency, is as horrible an official crime as any that has given so dark a stain to Russian treatment of innocence. "It is impossible to conceive of more awful, inhuman injustice than this. But the story is not overdrawn. It has happened with variations scores, if not hundreds, of times. It is occurring or liable to occur this very day, not alone in Boston, but in Cleveland. "At a meeting of the judges, a short time ago, Judge Lamson used the following language : — "' The detention of innocent persons as witnesses is, under the best of circumstances, bad. It is clearly the duty of the people of this country, or their representatives, to see that the present disgraceful method in vogue in the county jail is abolished. We have no right, under any law, to place innocent persons on a plane with criminals.
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