SIR ARTHUR. Nonsense. It comes out of the Times. And I'm the only man that's got a copy of November 20 that is, 1927. And the only one in the world. If you'd care for half a million you can have it. It will be nothing to me.

ALCHEMIST. No, Master. No.

SIR ARTHUR. Or a million, for that matter.

ALCHEMIST. No, Master, I have no uses for it.

SIR ARTHUR. As you like. (Lower down the file) And here again. Tangerines at 80. Hullo! Here's old Perrot dead. He should have kept himself fit he was no older than me. If he'd have played golf - Well, well. October 27. Fancy that. Fancy that. (Takes another paper.) Hullo, hullo. (Makes brief note.) I'll play hell with the Stock Exchange.

ALCHEMIST. Master.

SIR ARTHUR. Ha, ha! Lord! Bolivian United. Well, I never. (Makes note.)

ALCHEMIST. Master.

SIR ARTHUR. And Ecuador Guaranteed. Millions!

ALCHEMIST. Master.

SIR ARTHUR. Well. ALCHEMIST. I have given you your desire, and you have paid me well. Our account is settled. May I go hence?

understand how how to use. Wait a

moment.

ALCHEMIST. Master, I go not to that

city.

SIR ARTHUR. No, it's not the City. Wait a moment. Ah, here we have it. The Derby. Aurelian won. You back Aurelian for the Derby. (Writes on a half sheet and gives it to ALCHEMIST.) There. Aurelian for the Derby.

ALCHEMIST. Master, I make no wager, lest in my hour of gain Hahalaba mock me. (He puts paper down on a table.) And, Master

SIR ARTHUR. Well, never mind now. There's only a few more minutes, and I can't waste them talking. They're worth a million a minute.

ALCHEMIST. As you will, Master.

SIR ARTHUR. Well, good-bye then, and thank you very much. (ALCHEMIST tries the door. It is locked.) Ah, the door. Give me a moment and I'll let you out. (He takes key from pocket, but continues reading papers and making notes.) Another of them. Tromkins now. Why can't they keep themselves fit? Mexican Airways Limited! Well, well. (Another note. Hastily turns over papers, making brief notes, till he nears the bottom of the heap.) Yes, yes. Well, that'll be enough. There's millions in it. I'll let you out now. (Walks to door with key in one hand, the last paper in the other.)

ALCHEMIST. Thank you, Master, thank you.

SIR ARTHUR. And your friend Hahalaba will find it hard to laugh over this deal, for I'm the richest man

ALCHEMIST. Not yet, Master.

SIR ARTHUR. Well, I soon will be. (Unlocks door.)

ALCHEMIST. And, Master. Read no more of these hidden things. It is surely enough. Tempt Hahalaba no further.

SIR ARTHUR. I won't. I've read all

SHERWOOD DAVIS was indicted for assault upon Clio Godfrey. He had his trial and was convicted by a jury. Then he appealed to the supreme court because the evidence at the trial showed the girl's name really to have been Cleo Godfrey. Eventually that tribunal announced that Davis had not been properly convicted. In its opinion, 'Clio is the name well known in history as being that of an ancient goddess, while Cleo is a contraction of Cleopatra. These names are entirely different and have no such similarity, as commonly pronounced in this country, as that they may be said to be idem sonans.' There was a fatal variance between the indictment and the proof, therefore, and the court reversed the conviction.

This happened in Alabama, in the year nineteen hundred and twenty-six.

Lest a too complacent North be tempted to whittle its finger, note also this case from Nebraska. Formal complaint was made against Edward Wagner, charging that he did ‘unlawfully and feloniously drive and operate a motor vehicle, to wit a Studebaker automobile, at a greater rate of speed than thirty-five (35) miles per hour, to wit fifty (50) miles per hour, within the city of Falls City,' contrary to statute, because of which excessive speed and negligent driving he severely injured another automobilist. Under this charge, a jury duly convicted Wagner of driving at illegal speed.

The supreme court, however, realized that the crime of exceeding the speed limit must occur on some 'road, meaning public highway, street, or alley.' 'Neither of these words,' said the supreme court, 'appears in the information, nor their equivalent. The alleged acts might have occurred on defendant's own premises, or on premises lawfully possessed by him, or on a private way, so far as reflected by it.' Therefore the conviction was quashed and the case against Wagner dismissed.

This ruling too occurred in the year nineteen hundred and twenty-six.

In this same year, if one may judge the future by the immediate past, there will be punished less than one out of every ten of those who commit serious crime in the United States. In Alabama's neighboring state of Georgia,

there are no figures available for Alabama itself, of those who are actually formally charged with crime only 53 out of 100 will ever be punished at all and 38 out of these 53 will have pleaded guilty. In Missouri, of those persons arrested on warrant and charged with serious crimes only 3 per cent will be acquitted by juries, yet only 32 per cent will be punished. In Chicago there will be 3019 burglaries reported by the police-with no figures as to how many more unreported and there will be just 179 persons punished for burglary. For 270 murders reported, there will be 65 persons penalized, of whom but nine will be

sentenced to death. Of these nine, one will have his sentence commuted by the governor, two will be reprieved by him, five will secure from the supreme court a stay of execution until further proceedings can be had, and one will be hanged. Throughout the country there will be the same inefficiency in law enforcement. (These figures are taken from the reports of various crime commissions and surveys. But so lacking is this country in even the pretense of real record keeping that the accuracy of the figures is not vouched for even by the organizations presenting them.)

II

For this state of affairs Henry Flivverman will vigorously condemn 'the law,' and so will Mr. Lincoln. No doubt the law is very far from perfect, despite the 1173 statutes enacted last year in North Carolina alone and 812 more in Tennessee, and there is much to be done by the Commissions on Criminal Law springing into existence everywhere. In many places the law is antiquated and anachronistic. In some it is irrational. In a few it is ludicrous.

In California, for example, section 113 of the Vehicle Act makes it a crime for any person to drive an automobile on a public highway faster than 35 miles an hour. The section does not make exceptions or conditions, nor does it say merely that one ought not to exceed that speed. It explicitly declares speeding to be criminal. But section 155 of the same statute prohibits any court, in which a person is on trial for speeding, from considering evidence of the time required for him to traverse a measured stretch of highway, and it precludes judge or jury from hearing the testimony of any policeman unless such officer was 'at the time of such arrest dressed in a

distinctive uniform and patrolling the highway in plain sight of all persons traveling thereon.' The legislature might have framed its ideas as to speeding with much less complicated expression. It might have used the simple declaration that anyone guilty of speeding while a uniformed policeman is in full view shall be punished. This would have hit the stupid and incautious, the unobservant speeder as effectively as does the more elaborate indirection of the statute. But Flivverman and Lincoln asked for just what they got, in respect to that law, and they are still asking for similar nonsensical legislation in other

states.

It is not such peculiarities in the law, however, that account for 270 murders and but one execution, or for five convictions for a hundred burglaries. The scope of the criminal law in general is broad enough. It covers the acts of which we would convict the actors. The figures cited, which are representative of conditions throughout all the United States, show a real escape of offenders from the punishment which the law does provide. The law exists, it is sound, it is wise, it is sufficient. Yet those who violate its prohibitions go unpunished. Murder, rape, excessive speed, are legally punishable, but the murderer, the rapist, and the speeder go unconvicted. The law in effect is a failure.

But, using 'law' in the sense of rules of conduct which are obligatory, which must be followed by the judge as well as by the commoner, this failure is not the fault of the law. On the contrary, its failure, its inefficacy, is the fault of the human element through which alone it can operate. Messrs. Flivverman and Lincoln must direct the blast of their condemnation at the policemen, prosecutors, judges, pardoning boards, and governors who, from good motive

and bad, constantly misapply or misuse the law and defeat its objective.

Consider, for instance, that reversal of Sherwood Davis's conviction. There was no 'law' which obligated the supreme court to reverse it. True, there is an unhesitatingly accepted and very wise principle of law to the effect that the conviction of one who has not had fair trial must be reversed, even though the judges of the supreme court may personally think him guilty. Our law imperatively requires fair trial and full opportunity for defense before a jury, in an orderly and customary way. Consequent on this is the requirement that every defendant be precisely informed, before the trial, of the specific facts upon which the charge against him is based. He must be informed whom he is alleged to have killed, for instance, in order that he may be prepared to prove, if possible, that the victim is still alive. The time of the killing, too, is important to the defendant, that he may be prepared to prove the fact of his presence elsewhere at the time. The allegation of certain material facts in an indictment and the unexpected proof of quite different ones at the trial might be extremely upsetting to a wholly innocent defendant, might catch him without available disproof, and might even result in a most erroneous conviction. Nor could a court of review, knowing only the evidence adduced and not that which might have been adduced, wisely do otherwise than order a trial de novo.

Based on this sound proposition, there developed during that period of English history when courts were scholastic rather than rational a judicial practice of treating every variance between allegation and proof as ipso facto prejudicial. The absurdities of these decisions would be incredible were they not so manifest. They were unreasonable, nonsensical in the extreme, VOL. 139-NO. 1

C

even when the other conditions of society at the time are considered, but they were in fact the judicial

custom.

Among these fungoids of the rational principle was the ruling that any variance in name between allegation and proof was fatal unless the two were idem sonans. (The reason for the exception is immaterial here, although it makes the adoption of the ruling by modern courts peculiarly irrational and ludicrous.) The judges of that period Iwould have rendered the decision in the Davis case as a mere matter of

course.

Nor in fact is there lacking a plenitude of decisions by much more modern courts, to which the Alabama court could have pointed by way of precedent. In 1913 the Illinois supreme court reversed a conviction of crime committed against a little girl, saying simply, very simply, "The Christian name of the victim of the crime was alleged to be Rosetta. The proof was that her name was Rosalia. The variance is fatal.' And this despite explicit Illinois law to the effect that writs of error should be granted only when the court is of the opinion 'that there is serious or prejudicial error in the record,' and that 'no writ of error shall be sustained for any matter not affecting the real merits of the offense charged in the indictment'!

But no real principle of law to-day precluded the Alabama judges from disregarding those particular unprincipled and unsuitable old English decisions. No modern philosophy demanded from the court the decision of the Davis case. So far as legal philosophy is concerned, so far as personal liability to some other political authority is concerned, so far as anything save personal inclination and independence of mind is concerned, the Alabama judges might have declared that