erred.  In the same way, but not in quite the same fashion, the district attorney prepares “requests to charge,” but his desire for favorable instructions should be, and generally is, curbed by the consideration that if the judge makes any mistake in the law and the defendant is convicted he can appeal and upset the case.  Of course, some prosecutors are so anxious to convict that they will wheedle or deceive a judge into giving charges which are not only most inimical to the prisoner, but so utterly unsound that a reversal is sure to follow; but when one of these professional bloodhounds is baying upon the trail all he thinks of is a conviction—­that is all he wants, all the public will remember; to him will be the glory; and when the case is finally reversed he will probably be out of office.  These “requests” cover pages, and touch upon every phase of law applicable or inapplicable to the case.  Frequently they number as many as fifty, sometimes many more.  It is “up to” the judge to decide “off the bat” which are right and which are wrong.  If he guesses that the right one is wrong or the wrong one right the defendant gets a new trial.

CHAPTER III

Sensationalism and Jury Trials

For the past twenty-five years we have heard the cry upon all sides that the jury system is a failure, and to this general indictment is frequently added the specification that the trials in our higher courts of criminal justice are the scenes of grotesque buffoonery and merriment, where cynical juries recklessly disregard their oaths and where morbid crowds flock to satisfy the cravings of their imaginations for details of blood and sexuality.

It is unnecessary to question the honesty of those who thus picture the administration of criminal justice in America.  Indeed, thus it probably appears to them.  But before such an arraignment of present conditions in a highly civilized and progressive nation is accepted as final, it is well to examine into its inherent probabilities and test it by what we know of the actual facts.

In the first place, it should be remembered that the jury was instituted and designed to protect the English freeman from tyranny upon the part of the crown.  Judges were, and sometimes still are, the creatures of a ruler or unduly subject to his influence.  And that ruler neither was, nor is, always the head of the nation; but just as in the days of the Normans he might have been a powerful earl whose influence could make or unmake a judge, so to-day he may be none the less a ruler if he exists in the person of a political boss who has created the judge before whom his political enemy is to be tried.  The writer has seen more than one judge openly striving to influence a jury to convict or to acquit a prisoner at the dictation of such a boss, who, not content to issue his commands from behind the arras, came to the courtroom and ascended the bench to see that they were obeyed.  Usually the jury indignantly resented such interference and administered a well-merited rebuke by acting directly contrary to the clearly indicated wishes of the judge.