130 A. 184 | Conn. | 1925
Lead Opinion
The information upon which the accused was upon trial was before us upon a motion to quash.
"You will never win the strike with soft methods. You young men ought to go out on the bridge. Don't use eggs, use coal or indelible ink. Break foremen's windows at their homes. Watch the scabs when they come from work, lay for them, especially on pay day. Take them in a dark alley and hit them with a lead pipe. That is the softest thing you can use. Reimburse yourselves for what we have sacrificed for five months. Don't forget to bump off a few now and then, so Mr. Pearson will know that you are not getting cold feet. You car men know how to take a brake-shoe off. Take the brake-shoe and put it under something that will put the cars off the irons. A little sand or emery in the journal boxes will help greatly. Don't be satisfied *713 with trimming the engines. Put some of the cars on the bum. Also, if convenient, put something in between the frames and rods of engines on sidings. Get busy young fellows, and trim these scabs. Things are running too smooth on the New Haven Road, but let me hear from you while I am here. Go ahead and rip things and don't let the injunction stop you from trimming these scabs. Don't forget to tie them up with derailments. You boys ought to cut them all up."
On the part of the accused the assignments of error, eighty in number, include exceptions to the rulings on evidence, to the charge as made, to the requests to charge refused, and to the argument of the State's Attorney. The bill of exceptions by the State covers certain rulings on evidence adverse to the State, and the charge of the court in one particular. We take up these several matters in the order stated.
In 1917, the accused was an organizer for the International Association of Machinists, which is affiliated with the American Federation of Labor, and at the same time in the service of the United States Government without pay, in recruiting men for war service at the Fore River shipyard. The State, upon cross-examination of the accused while a witness in his own behalf, offered in evidence for the purpose of affecting his credibility three letters which indicated that at the time he was serving the Government in wartime he was preaching anarchy and advocating the social revolution among the employees of this shipyard. The court admitted the letters over the objection that they were irrelevant, concerned collateral matter, would tend to create prejudice against the accused, were remote, and did not affect his credibility. If the letters disclosed a commercial fraud on the part of the accused they would affect his credibility. If they disclosed that he was in the service of the Government in this shipyard, *714 and at the same time advocating to the employees the overthrow by violence of the Government, the letters were admissible as affecting the truthfulness, that is, the integrity, of the accused. This was undoubtedly the position of the trial court. It was, under the circumstances before the trial court, erroneous. One of the letters states that the accused was "preaching anarchy," and another that he was spreading "the propaganda of the Social Revolution." In one letter he addressed, "Dear Comrade," in one he closed, "For a revolutionary success," in the other, "For the revolution." The State inquired of the accused upon cross-examination what was his definition of anarchy; this and the whole subject of anarchy the court excluded as one "upon which perhaps good men might differ." The court was right; anarchy has several meanings. "At its best," Webster's Unabridged Dictionary says, "it stands for a society made orderly by good manners rather than by law, in which each person produces according to his powers, and receives according to his needs. At its worst, it stands for a terroristic resistance of all present government and social order."
Gitlow was convicted of the statutory crime of criminal anarchy, under New York Penal Laws, §§ 160, 161. Section 160 provides: "Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head, or of any of the executive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony." In the appeal from this conviction, Mr. Justice Sanford thus construes this statute: "The statute does not penalize the utterance or publication of abstract `doctrine' or academic discussion having no quality of incitement to any concrete action. It is not aimed against mere historical or philosophical *715
essays. It does not restrain the advocacy of changes in the form of government by constitutional and lawful means. What it prohibits is language advocating, advising or teaching the overthrow of organized government by unlawful means. These words imply urging to action. . . . That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. . . . And a State may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several States, by violence or other unlawful means." Gitlow v. People of the State of New York,
If the accused meant in any of these letters the second of these meanings, then we think the letter was admissible as affecting his credibility, but if it meant the first, the philosophical use of this word, then it could not affect his credibility because there was no disloyalty to government in his advocacy; it was simply lawful propaganda by peaceful methods.
Our general rule of practice requires this conclusion. The particular acts of misconduct which may be inquired of a witness must be relevant to those which affect his character for veracity. The letters which admit the preaching of anarchy were not relevant because they did not tend to affect the character of the accused for truthfulness. Dore v. Babcock,
The accused on direct examination described those who had taken the places of shopmen out on strike as "scabs." On cross-examination he defined a scab. He was then inquired of if he was in accord with the definition of a scab found upon a card handed him. Over objection and exception he answered yes. The card was then laid in evidence. The definition it gave was a most vivid and venomous one. Later in the case the court struck this from the record. It had already been read to the jury and was of such a character that it had probably left its ineffaceable impress upon the mind of the jury, but regardless of this, we think it was perfectly admissible to read the definition and ask the witness if he was in accord with it. The question is upon the same basis as the question asked of an expert, as to whether he is in accord with a statement appearing in a recognized authority. If his answer be yes, the page of the authority read from cannot be laid in evidence as an exhibit, and for a like reason this definition, purporting to come from a popular novelist, cannot be laid in evidence. To lay it in *717 evidence as an exhibit would take it to the jury room and accord this answer more weight than other answers not marked as exhibits. It follows that the ruling of the court in first admitting this question was not erroneous.
Evidence was offered by the State and admitted over objection and exception by the accused, of the date of the strike, July 1st, 1922, and of its continuance up to and including November 22d 1922, of the classes of employees who struck aggregating nearly 100% in and around New Haven, of the progress of the strike from that date until November 22d 1922, and of the condition of the New Haven road in the operation of its trains and in its equipment, deteriorating up to about August 15th, and thereafter steadily improving until November 22d, when it had reached 75% of normal. The court admitted this evidence in order to present the conditions existing on November 22d, and the period immediately surrounding it. The State claimed to prove these conditions to meet and explain the charge in the information, "Things are running too smooth on the New Haven road." Evidence concerning these several subjects upon the date of the crimes with which the accused was charged and in the period immediately surrounding this date was admissible. The rule adopted by the court was the true one. Its application of the rule is the questionable part of the ruling. The difficulty in application arises in determining the extent of the period immediately surrounding this date. We think facts occurring in July and August do not tend to explain the conditions existing on November 22d. What would be a reasonable period within which to permit evidence of the conditions relating to this strike is a matter of judgment, and hence largely one of judicial discretion. The evidence offered was too remote. Evidence of that nature covering a *718 period of a month would furnish all the background of facts with which to explain the occurrence of November 22d. The ruling made required the accused to meet the proof of this condition for a period of nearly five months, which was placing upon him an undue burden. A necessary consequence of the introduction of such evidence was the liability of the jury holding the accused responsible for this condition, and thus creating prejudice against him for the crimes charged which occurred long after. We do not pause to consider whether this evidence was so harmful as to constitute reversible error, since there are at least two classes of evidence admitted during this period which could not be admissible unless connected with the accused in such way as to make him responsible therefor.
The State offered in evidence a restraining order and an injunction issued by the Federal court against the striking employees about August 18th, 1922. These contained long recitals of acts of violence against those taking the place of the striking shopmen, together with an injunctive order against the perpetration of all illegal acts of a like or similar character. These exhibits could not help but be gravely harmful to the accused. They contained recitals of facts upon which judicial action had been taken. He was not a party to the proceedings. He had, so far as the record shows, no connection with the acts enjoined. Moreover, the State does not claim that the accused was connected directly or indirectly with the subject-matter of the injunction. The facts it recites were not proved by the mere recital. As to the accused it was hearsay, its subject-matter was irrelevant and it could not be admitted against the accused unless he were a party to the court proceeding. The State claims this evidence as proof of the fact that an injunction had been issued, *719 and as corroborative of what the information alleges the accused said, "Go ahead and rip things, and don't let the injunction stop you from trimming these scabs," and as proof that the accused knew and was presumed to know that this injunction had been issued, and to show that there were numerous acts of violence testified to before Judge Thomas, and that after the issuance of the injunction the acts of violence against the employees fell off in large numbers. The court admitted the injunction proceedings as one of the circumstances existing at the time of the alleged statement by the accused, and as the injunction referred to by the accused in his speech. It was proper to prove the fact of the issue of this injunction and restraining order; it was not necessary or proper in proving this fact to lay in evidence these recitals of violence even though the accused testified he knew that the injunction had issued. The injunction and restraining order were collateral issues and wholly irrelevant to the charge against the accused. They could not tend to prove his guilty intent. As to him they were pure hearsay.
Ready testified as a witness in behalf of the accused, that he was chairman of the meeting at which Schleifer spoke, and was also president of System Federation number 17, affiliated with the Railroad Employees' Department of the American Federation of Labor; that innumerable policemen, some in the employ of the railroad and some in the employ of the city of New Haven, and many armed with billies three and four feet long, and with revolvers displayed in belted holsters, were constantly on duty in the vicinity of the New Haven railroad station and the adjoining and adjacent highways and properties. On cross-examination the State's Attorney inquired of him as to numerous acts of violence committed by the strikers about *720 August 1st, and as to whether he had promised the prosecuting officials to help them protect the public by having the strikers who had committed the acts of violence disciplined by the local union, for the purpose of disproving the object of his testimony as to the protection afforded by these numerous police, by showing that it was not efficacious, and for the purpose of showing the bias, prejudice and interest of the witness. The testimony of the witness as to the police was as to facts. He did not testify as to the inference to be drawn from the evidence, or suggest that his purpose was to show that the police protection was efficacious. It was permissible for the State to disprove the truth of these facts by cross-examination as to these, but the State could not prove by the witness a large number of acts of violence, the facts relating to the conviction of some of these strikers for these acts, and a mass of related detail, and thus to show that the protection was not as effective as the evidence of the witness might lead one to infer. Under no possible theory of evidence could this method of introducing into the case all the detail of these many acts of violence be justified. No attempt was made to connect the accused with them and the evidence must have seriously prejudiced the case of the accused before the jury. The evidence was claimed and admitted upon the further ground that it disclosed the bias, prejudice, and interest of the witness. That is, we think, a rather tenuous ground upon which to secure the admission on cross-examination of all these many acts of violence. It rests upon the witness' knowledge of these acts, his promise to have the union take action in reference to them, and his failure to so act. The witness' testimony on direct was within a narrow compass; by reason of the liberality of this ruling, the taking of his testimony was protracted over two days. The objections to this attempt *721 to thus bring before the jury these many acts of violence by the strikers should have been sustained. Neither the union nor Ready was on trial. It was impossible to expect a jury of laymen to hear all about these acts of violence and the outrages perpetrated by the strikers and not associate responsibility for them with the accused.
The State offered evidence through Oviatt to prove the method available in carrying out the advice which it claimed the accused made to the meeting; (1) to take the brake-shoe and put it under something that will put the cars off the irons; (2) to put sand or emery in the journal boxes; (3) to put something in between the frames and rods of the engines. It also offered evidence to prove that the engine could be crippled by putting a small piece of steel upon the guide of an engine close to the cylinder. This also tended to prove the method by which the alleged advice of the accused to trim the engines could be carried out. The exception to the admission of this evidence was not well taken. The evidence of the means by which the accused's alleged advice could be carried out tended to show its practicality in accomplishing the purpose of the advice to cripple the engines and cars of the New Haven road and cause their derailment. The evidence of the fact that the instrumentalities with which these purposes could be accomplished were a part of the equipment of the road and used by its maintenance men, tended to prove that the advice to this meeting was given to men familiar with the uses of these instrumentalities and that they were being used by the road.
The State offered evidence to prove that Satti and Marks, the detectives of the New Haven road who testified to what the accused said in his speech to the meeting, and, against objection, testified that they immediately went from the meeting to a nearby drug *722 store and made memoranda of what the accused had said at the meeting. These memoranda were marked for identification on the State's motion, but not introduced in evidence. The State was entitled to show the fact that the memoranda had been made, and the witnesses entitled to use them to refresh their recollection. They ought not to have been marked for identification, since the State never had the intention of offering them in evidence and could not have done so. The method adopted by the State tended to dignify the memoranda as exhibits in the eyes of the jury. Memoranda not intended to be offered in evidence should not be marked as exhibits for identification. We do not, of course, regard this as a reversible error.
Reardon, the president of Local number 391, International Association of Machinists of Hyde Park, Massachusetts, and also president of District number 43 of the International Association of machinists, which comprised all of the locals of machinists and helpers on the New Haven and Central New England railroads, testified as to the accused's speech at the meeting of November 22d. On cross-examination he was asked concerning his acquaintance with the accused, and inquired of, over the accused's exception, "Did you feel that you would like to know where Mr. Schleifer came from?" This was inadmissible cross-examination and a waste of time and should have been excluded. The witness in his direct examination testified concerning vice-president Atterbury of the Pennsylvania railroad, characterizing him as the notorious Atterbury. On cross-examination he explained that he only knew him by reputation, and, against objection, testified that he was known among railroad men as very unfair to railroad laborers. He was cross-examined, against objection, at length as to this statement and as to General Atterbury's important war service on the other side *723 during the World War. We see no ground of objection in the subject-matter of this cross-examination; it was brought out by the voluntary statement of the witness. The one ground of legitimate criticism of this cross-examination is its lack of sense of proportion in unduly extending an unimportant incident of the trial. The State's cross-examination of Reardon concerning his statement that the Boston police force were a bunch of scabs, by inquiring as to the particular force he referred to being the new force taking the place of the old force after the Boston police strike, and by other questions designed to evince the prejudice and interest of the witness, was relevant cross-examination.
Questions asked of the accused on cross-examination as to where and with whom he had lived, and as to the belief he expressed, in chief, of the right to confiscate the railroads of the country, and as to his meaning, whether with or without compensation, were clearly admissible in view of his direct examination, which contained many wholly volunteered statements. The accused testified that the Daugherty injunction was a fool injunction, and that the judge (Wilkinson) who issued the injunction had been appointed by Attorney-General Daugherty. The State thereupon was permitted upon cross-examination to ask the witness if he didn't regard Judge Wilkinson as a pocket judge? And upon his answering no, the State's Attorney inquired of him in a number of questions as to his statement that Daugherty had made the judge. He then asked him: "Q. Do you recall this statement in the opinion of Judge Wilkinson?" Upon objection being made to incorporating a part of the opinion of Judge Wilkinson in the question, the court overruled the objection and permitted him to read from the opinion a part, to the point that the bill for an injunction was one in the public interest by the government *724
to enjoin an unlawful conspiracy, and to incorporate this in a question. The question was never answered. It went too far. It had no apparent purpose except to introduce a collateral matter. Buckingham's Appeal,
Error fifty-five complains of the continued inquiry of the accused on cross-examination upon a subject after an inquiry upon this subject had been excluded. It would be bad practice not to accept the ruling of the court when definitely made, but we cannot hold in this instance that the State's Attorney was subject to this criticism. The question asked of the accused, whether he approved of Reardon's characterization of the Boston police force as "scabs," was improper and should, upon objection, have been excluded. It is never permissible, though often done, to ask a witness to characterize the testimony or statement of another witness. Prejudicial error cannot be predicated upon a ruling of this character. The accused testified on cross-examination that he formed the opinion that the Daugherty injunction issued by Judge Wilkinson was a joke, in part from certain newspaper articles contending that the injunction was unconstitutional. In order to corroborate the accused's statement, the witness for the accused, Troup, an experienced newspaper man familiar with the articles published by the Press of the country on the Daugherty injunction, was inquired of whether he saw "articles with reference to the Daugherty injunction on the subject of its being unconstitutional." The court excluded the question and the defendant excepted. The inquiry, under the condition of the evidence, was admissible, but it is too inconsequential a matter to predicate error upon.
Errors in failing to charge as requested, and in the charge as made, are not of serious import. Requests to charge that the jury were not concerned with any *725
claimed violation of the injunction issued by Judge Thomas; that the accused cannot be affected by the convictions for crimes of strikers; that the defendant cannot be bound by anything which others said and did in his absence, have been covered by the discussion of whether these matters were admissible in evidence. The other requests, so far as essential, are a part of the charge. The charge, in relation to the testimony of the accused, complained of, "above all, you are to take into consideration that he is the accused in this case and his great interest in the result of the same," was correct. State v. Fiske,
The charge, upon the subject of intent was unexceptionable: "A criminal intent is sufficiently evidenced by other facts and circumstances from which no reasonable inference of other than a criminal intent on the part of the accused can be drawn. In arriving at a decision on this point you may and should consider, not *726
only the words spoken, but the manner of speaking and of the speaker, the occasion which called them forth, and all other surrounding circumstances." The court did not leave the jury with these general principles, but added: "While it is for you to find this intent, and while you are not bound, as I told you before, by any opinion I may express on the facts, I think it is only fair to say to you that if you find that the speech was delivered substantially as alleged, the intent seems to me to follow as a matter of course." In this the court was within our practice and very properly guiding the jury without directing them. State v. Fetterer,
Error is assigned because of the prejudicial character of the argument of the State's Attorney in several particulars. The charge upon which the accused was on trial was not that of being a slacker or a traitor in the late war. The emphasis placed upon these subjects in the State's Attorney's argument would tend to influence the jury unfavorably toward the accused. Argument along these lines was comment directly arising from the introduction of the letters, Exhibits ten, eleven, and twelve, which we have held to have been improperly admitted. We cannot hold that this argument was not, in substance, responsive to these letters, and hence, in substance it was not improper. Upon a new trial the accused will be tried and the case argued upon the charge in the information, and it will not be *727 involved with the consideration of his having been a slacker and a traitor.
The complaint of the State's Attorney's reference four times in the course of his argument to "who spilled the beans," as an attempt upon his part to suggest to the jury that there were others who could testify to the making of the speech besides Marks and Satti, is far-fetched. We find nothing of so vital interest in this continued repetition of an apparently immaterial matter. The complaint of the State's Attorney's frequent reference to Exhibit thirteen, as to the definition of a scab, when it had been excluded from the consideration of the jury, was certainly improper, but we do not think this reversible error.
After the introduction of the letters. Exhibits ten, eleven and twelve, the defense was permitted to introduce three pamphlets referred to in these letters as part of the bundle, and which were concerned wholly with the Mooney case, and the accused stated that he distributed these pamphlets through his interest in the Mooney case and as a labor organizer. Exhibits ten, eleven and twelve were admitted to affect the credibility of the witness, and the State could not contradict the explanation given by the accused of the letters and the bundle of pamphlets or newspapers referred to therein. Shailer v. Bullock,
We pass now to the State's bill of exceptions. The State's inquiry on direct examination of Mr. Foster and Chief McMahon, whether, after the issuance about August 18th by Judge Thomas of the injunction, they noticed that the acts of violence against the New Haven road's employees seemed to diminish, was properly excluded for the reasons heretofore given in discussing the admissibility of acts of violence between July and November, 1922. The State's offer of reports made to Chief McMahon of acts of violence against the employees of the New Haven road were properly excluded. They were hearsay, and in no wise connected with the accused.
The State complains of this part of the charge: "The charge is that, in substance, he spoke as alleged." After giving two definitions of the meaning of "in *729 substance," the court continues: "Remembering the two definitions you will observe that they agree in this; that the words proved must include the material or essential parts of the words alleged. Applying this definition to the facts of the case before us, you will note that the speech alleged to have been made falls into a number of independent sentences; the State must prove that Schleifer spoke the substance, as above defined, of all the statements attributed to him, although it is not necessary to prove that they were spoken in the order in which they appear in the information. Having chosen to charge this offense in the language of the information, the State is held to a proof of the language charged, and again in substance of all of it." The speech as recited in the information solicits the commission of a number of independent crimes. If the State were unable to prove the solicitation as to two of these crimes under this charge, its case must fail. The true construction of this information is that it charges the solicitation to commit any one of a number of crimes, and the proof of the solicitation as charged of any one of these beyond a reasonable doubt would justify a verdict and judgment of guilty. The charge as made imposed upon the State far too heavy a burden and one which might easily produce miscarriage of justice.
The accused was inquired of on cross-examination: "Did you not in Meadville, Pennsylvania, advise and counsel violence?" (Referring to about September 17th, 1922, and at a time when the accused was organizer of a labor organization, and when a part of his duties was to speak to local unions of shopmen.) The question was admitted over objection by counsel for the accused. The State also offered evidence, in chief, to prove that in September, 1922, prior to the New Haven speech and succeeding it on the night of November *730 22d, at New London, the accused, as an organizer of the International Association of Machinists, had incited and counselled the strikers to commit acts of violence against those who had not gone on strike and those who had taken the place of those who had gone on strike. The court excluded the evidence and the State excepted. The State claimed the evidence, not for the purpose of proving that the accused spoke the words charged, but for the purpose of proving that when he said them he did so intending to incite and procure the commission of divers felonies and aggravated crimes. When one is charged with inciting by public speech his hearers to a criminal course, the fact that he has made speeches of like character, prior to and subsequent to this public speech, if not too remote in time, does tend to prove that he made all of these speeches with a like intent and that he meant the words of his speech should have the effect which his words indicate.
In New York Mutual Life Ins. Co. v. Armstrong,
In a prosecution for obstructing and attempting to obstruct recruiting by a speech, the accused's approval of a document expressing and advocating opposition to the war was admitted against him as evidence of his intent. In his opinion, Mr. Justice Holmes said: "Evidence that the defendant accepted this view and this declaration of his duties at the time that he made his speech is evidence that if in that speech he used words tending to obstruct the recruiting service he meant that they should have that effect. The principle is too well established and too manifestly good sense to need citation of the books." Debs v. United States,
The other assignments of error are either so manifestly *732 bad, or their subject-matter so immaterial, as to justify an omission of their consideration.
There is error and a new trial is ordered.
In this opinion BEACH, CURTIS and KEELER, Js., concurred.
Dissenting Opinion
In a trial occupying twelve or more court days, with its record of more than nine hundred pages of testimony crowded with almost innumerable objections, my associates find, as I read the majority opinion, three rulings upon evidence and a brief passage of argument upon which to base a decision of reversal. The waste of time, effort and money which that conclusion entails and the revival of old issues and stirring of old antagonisms which must follow would at least require a careful weighing of these claims of error to determine whether they are sound in fact and sufficient in law. So considered they seem to me wholly inadequate.
The accused while acting as the agent of the government in time of war used the means of approach to the workers in its shipyards thereby afforded to preach anarchy and agitate for the social revolution; whether he intended the overthrow of government by violence or advocated only peaceable methods, while serving the established order he was planning its destruction; what man-on-the-street, called upon to weigh his honesty and sincerity and knowing that fact, would not give it serious heed? The objection made at the trial to the injunction and restraining order was not to the recitals in it, but to its admissibility as a whole, and the ground of reversal which this court finds was never presented to the trial court; moreover, the majority opinion grants that proof of the bare fact of its issuance was proper, but how, under the best evidence rule, could *733 that be made except by putting in the document itself? Ready was one of the accused's chief witnesses upon the issue of the making of the speech as alleged in the information, and he had also given testimony as to the policing of the railroad for the only apparent purpose of rebutting by inference evidence offered by the State as to acts of violence; surely it was within the reasonable discretion of the trial court to permit cross-examination to show his attitude toward illegal deeds similar to those the State charged the accused with advocating, and certainly it was proper to rebut the inference which might be drawn from his testimony by proof of facts indicating that it was not sound. The imminence of the Yale-Harvard football game, with its attendant crowds, was a circumstance which might properly be shown, and, being shown, commented upon; the parallel between that situation and the circumstances surrounding the bomb outrage at the Preparedness Day parade in San Francisco, a matter which had been imported into the case by the accused in answer to questions by his own counsel, was too apt an illustration of the dire results which might be expected to follow upon the inflammatory speech charged against him, too vivid a characterization of the nature and probable intent of that speech, not to be brought to the attention of the jury; and the holding up of the documents, papers introduced in the case by the accused himself as his own exhibits, was merely an oratorical gesture.
I have reviewed these claims of error very briefly because, if my dissent went no deeper, I would not have cumbered the Reports with a discussion of its grounds. But I cannot read the majority opinion, as I cannot read the opinions in several other recent decisions of this court in important criminal cases, without feeling that they have been made largely to turn upon the *734 question whether the particular accused in the particular case was deemed to have had a "fair trial." Anglo-Saxon jurisprudence is not designed to do justice to each individual accused arraigned before the court, but the end sought has been the establishment of orderly procedure by the formulation of rules, rules which will indeed do justice in the majority of cases, but which must be applied even though injustice may now and then result. Certainty and speed in the punishment of crime are much more to be desired than severity of sentence, and they can only come about when justice is administered along fixed lines, so that those engaged in the trial of cases may have their course clearly charted for them; and where the multiplicity of determining circumstances is such that only a broad rule can be laid down, and its application must be left to the exercise of sound sense in the particular case, in legal phraseology, where the matter is one of discretion, that discretion must in all but the extreme case, be lodged in the trial court, not in this court. A "fair trial" to the accused does not require that every possible protection shall be thrown about him, but over against his right must be set the right of society to protect itself against crime and social disorder. As Chief Justice Taft suggested in a lecture some years ago: Criminal procedure should be so framed as to "reach the golden mean between preserving the interests of society by punishing and preventing crime on the one hand and saving the individual charged with crime from unjust conviction on the other."
These are axiomatic principles with which in the abstract no one would probably disagree; yet, if their application in the actual disposition of cases is forgotten, uncertainty, delay, and confusion in the administration of criminal justice must follow. The instant case illustrates, I think, a tendency in this court not to *735 give them proper heed. There has been no violation of any positive rule of law; but the majority of this court think that the trial court did not give the accused a "fair trial" and the State's Attorney argued the case "unfairly," hence it must be retried more to this court's liking. I submit that that is no adequate ground of reversal.