THE OKLAHOMA LAW JOURNAL EDITED AND PUBLISHED MONTHLY BY D. H. FERNANDES, GUTHRIE, Oklahoma. August, 1912. VOL. 11. No. 2 THE MASTER MIND AT THE TRIAL TABLE IN JURY CASES. As wind and waves are on the side of the best navigators, and as Napoleon expressed it, even God on the side of the best trained battalions, so it is with success in the trial of causes. Other things being equal, the victory is to the best mind at the trial, whether that mind is rich in analytic power by natural endowment or by acquisition. Lawyers often seek victory from only one half of the material at command. They may happen to have a good case, and have fairly arranged the evidence to sustain it, if nothing should occur to upset the course they have laid out; but if the course becomes changed or conflicts arise, they find themselves in deep water and not only sink in the confusion but with them the cause they sought to sustain. They may have a fair amount of book knowledge of the law, may have even the good wishes of the Court; but if they lack quick, keen analytic power, often the best material to secure the verdict passes before them unutilized. The writer has seen a continuance refused. It had been the third asked for by the applicant. Although an important case, through a number of circumstances, especial by numbers of other set to be tried ahead of this one being compromised it forced it days ahead on the calender by the then existing rules of the court. All the important witnesses being out of the state. A master mind was compelled to go to trial or dismiss his suit. He went to trial. After two days battle the jury returned the verdict for him. He made the evidence of his opponents his own. His victory was entirely due to the accuracy of the analyses made of the motives, prejudices, memories and circumstances in the case. This power the trial lawyer must secure to be a master at the trial table. Keen analysis will often reveal things that nine out of ten do not see. With witnesses this is especially so where prejudice, self-interest or passion leads them to desire a verdict for one party and the defeat of the other. And sometime even honest men unconsciously state as an actual fact what is the mere product of their own reasoning. If a jury can be made to understand the influences that operated upon the mind of the witness, and to perceive clearly the actual facts within his knowledge, it will not be very difficult to persuade them that the witness has, through error that almost any man in a like situation might commit unwittingly given them as a fact what, in truth, is a mere inference. The circumstances more than the positive testimony, will supply the means of showing what the witness did actually see or hear. tives, and his prejudices well reasons for affirming that his beyond the actual facts. But no effective progress can be made out of these elements of success without laying a foundation of clear analysis of the circumstances and strong combination of all that tend to show what you desire that the witness should have seen and heard. All oral testimony comes from human memory. If he is a truthful witness he will tell only facts that he remembers. As said by a great writer: 'Memory is a vast receptacle, into which countless things are crowded, and it is no wonder that what enters that mighty throng mingles and His interest, his modisplayed, will furnish reasoning has lead him merges with kindred things. It is undoubtedly true that things which enter the memory, and long remain, under go changes of which the man himself is unaware. The greater the throng in the memory the greater the probability that the identity of an act or occurence will be lost in the throng. A man with the cares of a vast business daily pressing on his mind will not clearly remember, if he remembers at all, an event which aroused no especial attention. A rich man, with many matters occupying his mind, would be less likely to remember the details of a transaction involving a trifling sum to him, than the poor man to whom the sum seemed large. ́ ́ Our memories take up and retain what to us is important, and he who deals with few things esteems each of them important, although one who deals with many things might not so regard them. It is evident, therefore, that the accuracy of memory may often be tested by proving the situation of the parties, and by showing that the one forget and the other remember the details of a transaction, because the memory of the one is thronged, while that of the other is not. Real progress is made when it is shown that the memory of the adverse witness is so crowded with other things that it is not probable that he could accurately remember and reproduce the particular fact; and if to this be added proof that the opposing witness was not in a position where his memory would be so heavily laden, the case is much strengthened. The deeper the impression an event makes, the stronger memory grasps it, and the more accurately is it reproduced. One who contends for the accuracy of a statement will, therefore, naturally call to its support all the facts and circumstances which make it probable that a deep impression was made upon the mind of the witness. An opposite course will naturally be taken by one who denies the accuracy of the statement, for he will array all the facts and all the circumstances which make it probable that the impression was faint and transient. If there is anything that directs particular attention to the event or declaration, it will be registered, and not merely observed, and when reproduced it will receive augmented force if skillfully surrounded by circumstnces showing that there was a mental registry as well as a mental perception. In many instances the event is so striking as to fasten itself in memory, and when this is so the event, with its peculiar characteristics and striking incidents, may be described and amplified with profit. If there is nothing peculiar in the event, he who opposes the witness will naturally treat it as one of common occurrences of life, which make but a faint impression on the mind, abide only for a little time in the memory. One event is remembered by another, and often strength may be given oral testimony by linking events together. The memory of an event or a declaration may be weakened by showing that it alone is remembered while associated things are forgotten. One side will do all that can be done to show that the thing the witness professes to remember stands alone, while the other will do what in him lies to show that it is remembered as one of a train of events. An event is fastened in the minds of jurors, as well as in the minds of witnesses, by associating it with some other thing of mark and importance, and it is, therefore not only for the purpose of supporting the witness that it is well to bind events together, but it is also important for the purpose of fixing the the event firmly in the minds of the jurors. A little circumstance may bind events together and make them probable, while its omission may destroy the connection and leave the memory without assistance. What caused an event or declaration to be remembered is always important to the attorney who calls the witmess, for if he shows a cause why the memory should be true and the repro. duction correct, he gives great strenght to the testimony of his witness. On the other hand, if there be an absence of this cause a wary adversary will use it with a forca that it will be difficult to withstand. THE CRIMINAL COURT OF APPEALS OF IN THE MATTER OF THE APPLICATION OF Application for Writ of Habeas Corpus. Writ Granted and Petitioner Discharged. 1. Party nominations by primary elections is a fundamen tal principle of popular government and is a permanent rule of public policy in this State, as declared by Article 3, Sec. 5, (Sec. 47 Williams' Constitution). "The Legis. lature shall enact laws providing for a mandatory primary system, which shall provide for the nomination of all candidates in all elections for State, District, County and municipal officers; for all political parties, including United States Senators: Provided, however, this provision shall not exclude the right of the people to place on the ballot by petition any non-partisan candidate.' 2. Under this positive constitutional direction, it is the right and duty of the legislature to prescribe reasonable regulations for the holding of manditory primary elections, but such regulations must not contravene other constitutional provisions relating to elections. 3. This provision of the constitution recognizes political parties for the purpose of nominating candidates for elective offices and only electors who are members of the political parties shall participate in primary elections for the selection of candidates for the respective parties, and then vote only the ballot of the party which they are members of. 4. The mandatory primary provision of the constitution and the provision of Art. 3 Sec. 4 (45 William's Const) providing that "The Legislature shall enact laws creat ing an election board not more than a majority of whose members shall be selected from the same political party", is a constitutional recognition of political party organiza |