accused is guilty or innocent. That is all this bill does. I think that in the interest of justice no judge should be allowed to do that thing, because it is not the law. It never was the law for a judge to pass upon the facts or upon the credibility of the witnesses. Those are questions for a jury to determine. If it were not, what would be the use of a jury? If the judge is to say what the facts are or what has been proved or has not been proved, or whether one party should prevail or the other party should prevail, or whether the party is guilty or innocent, what use have we for a jury? Would they not be of no use at all? I think that the law ought to be carried into effect by the passage of some one of these bills, and I think that the bill which I have introduced is the best bill upon that subject. Mr. HERSEY. Speaking about your bill, Brother Thomas, in the last two lines of the first section it provides that the decision shall be reversed and a new trial granted, "with such directions as the said appellate court may lawfully give." What do you mean by that? Mr. THOMAS. That court can say what the law ought to have been. In my State it can. Mr. HERSEY. After that is done, the case will be remanded to the court below with such directions as the appellate court shall give? Mr. THOMAS. That means if they reverse the case, they send it back to the lower court for a new trial, and they in effect charge the lower court with what law in their opinion should have been given. They do that in my State. Mr. HERSEY. After they reverse the decision of the lower case, they give their opinion as to why they reversed it and they send it back to the court below for a new trial, "with such directions as the said appellate court may lawfully give.' Mr. SUMNERS. Do not the words "lawfully give" sufficiently limit the directions which they could give? Mr. BOIES. The word "intimate" is used. Do you think that this bill would prohibit the judge from instructing the jury with reference to the testimony of a man who had been convicted of a felony? Mr. THOMAS. Oh, no. Of course the court as you know passes upon the competency of testimony. Mr. HERSEY. Weight, you mean. Mr. THOMAS. Competency, too. Mr. PERLMAN. Do you think your language, "express or intimate his opinion as to what facts have or have not been proved" governs the case as to the credibility of a witness? Mr. THOMAS. I put that in afterwards; at least I intended to. Mr. PERLMAN. Suppose that a witness is considered by the court to be a perjurer, and the judge says, “ I think this man is a perjurer.” How do you cover that in your bill? Mr. THOMAS. We do not allow that to be done. Mr. SUMNERS. Should we not first determine whether or not we favor this sort of legislation, and then we can get down to the question of how the bill ought to be framed? (Whereupon, at 11.50 o'clock a. m., the committee went into executive session.) COMPENSATION ACT HEARING BEFORE THE COMMITTEE ON THE JUDICIARY orge HOUSE OF REPRESENTATIVES SIXTY-EIGHTH CONGRESS |