In some twenty of the States and Territories, provisions of this general character obtain.

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Connecticut has gone to the extreme in this direction, and by an Act passed in 1886, it was provided that appeals upon all questions of law may be taken by the State, with permission of the presiding Judge, in the same manner as if made by the accused. It was contended that this statute was in violation of the provision of the State Constitution, that no person shall be subject, for the same offence, to be twice put in jeopardy." The constitutionality of the statute was, however, sustained by the Supreme Court. It was held that putting in jeopardy means a jeopardy that was real, in proceedings conducted in all respects in strict conformity to law; that "judicious legislation for securing a full, fair, and legal trial for each criminal cause is not in derogation, but in protection of individual right, and is in full accord with the principle that no man shall be twice put in jeopardy for the same offence."

In one respect, the administration of criminal law in England differs notably from the procedure in all of the American States. Notwithstanding the numerous safeguards with which the English law surrounds one accused of crime, it has ever been reluctant to concede to one whom a jury has pronounced guilty the right of appeal to a higher court. Opportunity to review the procedure of a criminal trial is limited and restricted to very exceptional cases. Perhaps this fact has resulted in less injustice to the accused than would probably arise if the right of appeal in America were correspondingly restricted. The Judges of the English courts have ever been noted for their ability and learning. They are appointed for long terms of service, and are paid liberal salaries. The office of Judge is the worthy ambition of the most distinguished of the Bar, and hence the Judges who preside over the criminal courts in England are probably, as a rule, better qualified as to knowledge of the law than the average trial Judges of our American courts.

The extent to which appeals are allowed to the accused after conviction, in the courts on this side of the Atlantic, has been the occasion of much comment and adverse criticism. There are notable instances where atrocious crimes have gone unpunished by reason of the liberality of our laws in this respect.

In an interesting volume of "Leading Criminal Cases Simplified," published some years ago by Professor John D. Lawson, of the University of Missouri, there Miscarriages will be found a very curious article entitled of justice.

My Assize Sermon to the Judges of Appeal." The author has there collated, in a startling and impressive manner, several instances in which atrocious criminals have escaped their deserts through trivial irregularities of procedure, discovered by the appellate courts. Surely it is more than absurd that one convicted of murder should escape his punishment, because in the indictment the breast of the victim, into which he plunged his fatal dagger, was spelled "brest;" or that another murderer should be set at large, because the indictment charged that his victim "did instantly die," instead of "did then and there die."

It is certainly a serious defect in our criminal procedure which even permits an indefinite postponement of punishment, in the case of one whose guilt has been clearly and conclusively established to the satisfaction of twelve of his countrymen. The liberal provisions which exist in America, according to the accused practically an unrestricted right of appeal, have no doubt resulted, in many States, in serious abuse, and tended, to some extent, to encourage a contempt for the law.

It is said that in the United States more persons suffer the penalty of death from lynching than from the legal execution of the sentences of courts of justice, and that doubtless the criminal procedure consequent upon this right of appeal, coupled with a too rigid regard for technicalities by our appellate courts, has led to this result.

The case of Kring, which arose in Missouri, is a notable

and startling example of the miscarriage of justice for the reasons here adverted to. Kring was indicted for murder in the first degree in the criminal court of St. Louis, in January, 1875. After his case had been three times before the Court of Appeals, and three times before the Supreme Court of that State, a judgment finding him guilty of murder in the first degree, upon which he was sentenced to be hanged, was finally affirmed. In 1882, he brought his case upon a writ of error to the Supreme Court of the United States, and the judgment of the Supreme Court of Missouri was reversed. An account of this remarkable case, as published in the American Law Review in 1883, may be of interest:

"Judge Hayden has exposed the workings of the criminal law in Missouri in an unique manner, by holding up to view the case of the late Charles F. Kring, who was indicted in 1875 for a most atrocious murder; was tried and convicted of murder in the first degree, and the judgment finally reversed in the Supreme Court; was again tried and a mistrial entered, the jury failing to agree; was then suffered to plead guilty to murder in the second degree, under a secret bargain with the acting Prosecuting Attorney, that he should receive a sentence of but ten years' imprisonment, from which should be deducted the time he had already lain in jail; how the Court refused to ratify this bargain and required him to stand upon his plea unconditionally, or else plead to the indictment in chief, and undergo another trial; how he refused to plead in chief, and was then sentenced on his plea to twenty-five years in the penitentiary; how he appealed to the Supreme Court, now claiming and struggling for the right to plead not guilty to the indictment in chief; how the Supreme Court accorded this right to him, again reversing the judgment; how, when he got back to the trial court, he did not want this right, but insisted that he should be sentenced according to his secret and void bargain with the acting Prosecuting Attorney; how this being refused, a plea of not guilty was entered to the indictment generally, and he was again tried and convicted of murder in the first degree; how the St. Louis Court of Appeals, to which he now

appealed, having examined the record, found no error in it and refused to stay the execution; how the Chief Justice of the Supreme Court of Missouri, the case not pending in his Court, not before him in any judicial way, and he having no more jurisdiction in the premises than a justice of the peace had, by an extraordinary misconception of his powers, procured the record of another court, the Court of Appeals, and indorsed thereon a stay of the execution, which the sheriff obeyed; how, subsequently, the judgment was unanimously affirmed in the Court of Appeals and the Supreme Court; how a Justice of the Supreme Court of the United States, happening to be in Missouri upon a particular occasion, granted a writ of error upon a petition drawn up by the prisoner's lawyers, refusing to hear any argument from the State's counsel; how the Supreme Court of the United States, by a divided court, five against four, reversed the judgment of the Supreme Court of Missouri, holding that the prisoner could not be tried for a higher grade of offence charged than murder in the second degree; how he was subsequently admitted to bail, went to a hospital, confessed his sins, was baptized, received into the Church, received the sacraments, and died in his bed like an even Christian, after having defied the law for eight years and after having for eight years acted as the adviser of the criminal classes in jail, and after having committed crimes even in jail which would not be believed if set down in print.

"The result was not more deserving of thoughtful attention than the processes through which the case went. By the unique and absurd rulings of the various courts which culminated in the final decision of the highest court in the Union, a man who had murdered another man's wife, and a quick child in her womb, because she refused to leave her husband and become his mistress, was entitled to have the rules of procedure which existed at the time of the murder kept unchanged for his particular benefit, through all the subsequent successions of trials and retrials. When he committed the murder, the law was such that if he should plead guilty then to murder in the second degree, and the plea should be accepted as valid, and afterwards be set aside, he could not thereafter be put upon trial for murder in the first degree. When he pleaded guilty to murder in the second degree, the law was such that, if the plea should be set

aside, he might again be put on trial for murder in the first degree. He entered his plea in the face of the law as it then existed. The law was not changed between the time when he entered it and the time when he was again put on trial for murder in the first degree, but it was in fact changed nearly three years before, and before the date of the first trial.

"Whatever may be said in favor of the learning and research displayed in the opinion in which this result was reasoned out, no average man will be found who will say that there was any sense in the result. If it were told to an English lawyer, it would provoke laughter and derision. The absurdity was heightened by the fact that the processes culminated in five judges overruling thirteen. Such spectacles unquestionably tend to bring the judges and the administration of justice into general popular disrepute, and it is not easy to say that the ill opinion which is thus engendered is not deserved. If a code will get the administration of justice out of such quagmires, by all means let us have a code. The growth of lynch law in all parts of the country is nothing more than a popular revolt against this kind of justice. A newspaper statistician in Chicago recently compiled and published a statement showing that throughout the United States the number of men hanged for crime by mobs is just about equal to the number executed at the hands of the law. No one can doubt the general truth of the statement. It is disgraceful to the American people in the last degree that it should be so. It is difficult to see how any American, in view of such a state of things, can travel in Europe without hanging his head in shame."

It is not strange that such a remarkable case as this should attract wide attention, and lead to the impression that abuses of this description were more frequent than a careful examination seems to justify.

The right of appeal is afforded the accused in all the courts of America, unless it be in Delaware. In that State, Appeal in three Judges always preside in the trial of criminal Delaware. causes, and four of them when the offence is capital. In that case it would seem that the trial itself takes place in a court representing all the dignity and intelligence of a court of last resort.