CORRESPONDENCE

THE NEW CRIMINAL CODES OF CENTRAL EUROPE

To the Editors:

Before the year 1914, the American public was in close touch with the daily life and interests of Central Europe. Since the war, however, a thick curtain has been dropped between us. We see on the curtain a few moving shadows. But we have very few exact ideas of what is really taking place behind it. And this has been especially true since the armistice. But, very soon we hope, this curtain will be lifted, when peace comes. Should not those of us who take an interest in the development of the criminal law and of penology be ready to make the most of the moment, when this curtain will be raised at last? Let me enumerate one or two points of interest.

I. Russia. I speak of Russia first, because I know least of conditions there, but surely the whole fabric of the criminal law, as well as the administration of prisons, has undergone a great change during the past two years. The Institute of Criminal Law ought to take an active interest in discovering what these changes have been.

II. Germany and the Former Austrian Empire. Some years before the war, royal commissions had been appointed both in Austria and in Germany to prepare a complete revision of the Criminal Code. The reports of these commissions filled several bulky volumes. But the criminal code was never altered; at least not up to the war. The report was a half-hearted attempt at compromise between the two existing schools of criminology: the old conservative school, and the radical modern school of von Liszt and his followers. Since the fall of the German Empire, there must have been some attempt at a complete revision of the existing criminal code. Also some sort of prison reform. Heaven knows, the Austrian prison needed it badly enough.

(a) Take, for example, a community like Bavaria, with Munich as its center. Rightly or wrongly, Bavaria was apparently going to make an attempt at whole-hearted socialism in its most complete modern sense. What sort of a new criminal code will be evolved by those thorough logical Germans on such a basis? And what sort of prison administration will be put into force? Surely there was never such a wonderful chance for a complete revision of the old criminal law on an entirely new basis. What will the new doctrines of Property Rights do to the old established concepts of Larceny and Burglary?

(b) Or take such an interesting people as the Tyrolese. For decades they have groaned under the antiquated criminal code of Imperial Austria, which bore more impossible hall-marks of the Middle Ages than any other code in existence. What kind of a new code will this free people of the snow-capped mountains evolve for themselves?

It seems to me that never before in our history have there been such interesting possibilities for students of criminal law and penology.

Ought we not to be making some preparation betimes, in order to get into touch with the new law-makers and penologists in Germany, in Munich, in Russia, or in Tyrol? Ought we not to be in readiness to find out what they have done, as soon as the curtain lifts that has concealed their doings from us for so long?

Surely, among the members of our institute, there are many who have legal friends or connections in Russia. Could they not have letters of inquiry written and ready to send to Russia, as soon as peace is declared and the mail routes are open again? And even more of us will have former acquaintances among the Austrians or the South Germans. Should we not be ready to get into touch with them as soon as possible?

For myself, if I may be permitted to speak of personal matters, I have made the following plans: I am writing a letter to a former friend of mine, Professor Archibald C. Coolidge, who is the head of the American commission at present working in Austria. I am asking him to give me some suggestions as to how I shall be able to get at the newly made criminal code and methods of penology. I have alsoor rather, unfortunately, I had, once-friends, lawyers and judges, in Austria, in Munich, and in Tyrol. Most of them may be dead. All of them had ceased to be friends during the war. But when peace comes, I am hoping to find one or two left here and there—men of modern views who hated the Prussian yoke and the outworn Austrian Criminal Code-men who will surely have been active in recasting the criminal law and who may be willing to tell me all about it.

I have written this in the hope that I may interest other members of the Institute to make some preparations for getting into touch with the new law-making powers of Central Europe.

Let us not let the opportunity slip. Sooner or later, when normal relations are resumed again, there will be some sort of an international Congress on Criminal Law and on prison reform in general Our Institute ought to be ready to send representatives to such meetings or congresses. And as our first step in that direction, we should be turning our minds, now, at once, towards those European countries, which

have perhaps already made important attempts to revise their criminal codes on a modern humane basis, that may in time become models of perfection for the entire world. Or, on the other hand, they may be making experiments in criminal procedure and in penology, which will be so disastrous that they will be warnings to the rest of mankind of how NOT to do it. In either case, their experiments will be intensely interesting. And we, as an Institute, should do our utmost to be ready to get into touch with them.

Baltimore, July 1, 1919.

JOHN R. OLIVER.

JUDICIAL DECISIONS ON CRIMINAL LAW AND

PROCEDURE

CHESTER G. VERNIER AND WILLIAM G. HALE

APPEAL AND ERROR.

State v. Ricks (Idaho), 180 Pac. 257. Effect of impossibility of obtaining a transcript of testimony in trial court.

Appellants were convicted of crime in the district court, and thereafter took the usual proceedings to have their case heard in this court on appeal; but the court reporter died without preparing a transcript of the testimony adduced at the trial. It is shown that a transcript of the testimony cannot be obtained. They have filed a motion in this court for an order to set aside the judgment of conviction and grant them a new trial on the ground that they cannot be heard on appeal from the judgment rendered.

Held, that the court has no power to grant the motion, in the exercise of either its appellate or original jurisdiction as conferred by Const. art. 5, sec. 9: Chapman v. State (Ga.), 98 S. E. 243. Effect of comment on facts by trial court.

Althought the evidence demands a verdict of guilty, the law commands that it be set aside. The trial judge should have kept dumb, as the statute requires. It was not at all essential to his ruling upon the motion made by counsel for defendant for him to express himself on the facts as he did. We are enjoined in mandatory terms to set this conviction aside. Mandatory statutes must be obeyed, not evaded.

While, ordinarily, it is reversible error for a trial judge, in any case, in his charge of the jury, or during its progress, within the hearing of the jury, to express or intimate his opinion as to what has or has not been proved (Civ. Code, 1910, Sec. 4863; Pen. Code, 1910, Sec. 1058), it is not a violation of the statute, where such expression or intimation of opinion occurs when the judge is discussing with counsel the admissibility of testimony, the propriety of a non-suit, the discharge of a defendant for the lack of evidence to convict, the direction of a verdict, or similar matters in the progress of the trial, or is explaining his rulings upon questions of this nature. Especially is this true where the party complaining of such expression is the one who invoked the ruling which occasioned it.

Stephens, J., dissenting.

CONSTITUTIONAL LAW.

Ex parte Dunkerton (Kans.), 179 Pac. 347. State penal farm.

The purpose of the act of 1917 is to ameliorate the condition of women who have been convicted of an offense punishable by imprisonment. Under the act women are not subject to the debauching influence of the county jail and of the penitentiary and of the close confinment therein, but are placed in a field where labor is pleasant and restraint is limited, and where the evil influence of other persons convicted of crime is minimized. The act seeks