familiarly known as “a course of sprouts.”  He makes twenty or thirty “requests to charge the jury” on the most abstract propositions of law which his fertile mind can devise,—­relevant or irrelevant, applicable or inapplicable to the facts,—­and the judge is compelled to decide from the bench, without opportunity for reflection, questions which the attorney has labored upon, perchance, for weeks.  If he guesses wrong, the lawyer “excepts” and the case may be reversed on appeal.  This is not a test of the defendant’s guilt or innocence, but a test of the abstract learning and quickness of the presiding judge.

It is generally believed that appellate courts are prone to reverse criminal cases on purely technical grounds.  Whether this belief be well founded or ill, its wide acceptance as fact is fertile in bringing the law into disrepute.* Justice to be effective must be not only sure but swift.  An “iron hand” cannot always compensate for a “leaden heel”.

Cf.  “Criminal Law Reform,” G.W.  Alger, “The Outlook,” June, 1907.  Also article having same title in “Moral Overstrain,” by same author.  See also, by Hon. C.F.  Amidon, “The Quest for Error and the doing of Justice,” 40 American Law Rev. 681, and article on same subject in “The Outlook” for June, 1906.

It is probably true that in some of the States such a tendency exists and may result in making the administration of justice a laughing stock, but it is far from being so in States of the character of New York and Massachusetts.  The Appellate Division, First Department, and Court of Appeals in New York are distinctly opposed to reversing criminal cases on technical grounds and are prone to disregard trivial error where the guilt of the defendant is clear.  The writer can recall no recent criminal case where the district attorney’s office has felt aggrieved at the action of the higher courts, and on the contrary believes that their action is generally based on broad principles of public policy and common-sense.

During the year 1905 the district attorney of New York County defended forty-seven appeals from convictions in criminal cases in the Appellate Division.  Of these convictions only three were reversed.  He defended eighteen in the Court of Appeals, of which only two were reversed.  One of the writer’s associates computed that he had secured, during a four years’ term of office, twenty-nine convictions in which appeals had been taken.  Of these but two were reversed, one of them immediately resulting in the defendant’s re-conviction for the same crime.  The other is still pending and the defendant awaiting his trial.  Certainly there is little in the actual figures to give color to the impression that the criminal profits by mere technicalities on appeal,—­at least in New York State.

In nine cases out of ten the reversal of a conviction in a criminal case is due to the carelessness or inefficiency of the prosecuting officer or trial judge and not to any inadequacy in our methods of procedure.  Yet the tenth case, the case where the criminal does beat the law by a technicality, does more harm than can easily be estimated.  That is the one case everybody knows about, the one the papers descant upon, the one that cheers the heart of the grafter and every criminal who can afford to pay a lawyer.