User:Juris77
Concerning the proof of facts, Judge Furman rejected the commonplace notion that circumstantial evidence was inferior to direct evidence:
There is a deep-rooted and widespread feeling, not only on the part of the public, but among many members of the legal profession and many courts, that circumstantial evidence is to be considered as a chain, of which each circumstance relied upon constitutes a separate and distinct link, and that each such circumstance or link must be proven by the same weight and force of evidence and must be as convincing in its conclusiveness of guilt as though it was the main issue in the case. The fallacy of this theory lies in the fact that it makes every such circumstance or link stand by itself and depend alone upon its own strength. It matters not how strong some links in a chain may be; the weaker links will not gain strength by being connected with the stronger links. It is manifest that no chain can be stronger than its weakest link. It is utterly impracticable to apply the chain theory to matters of belief. The man who would apply this theory to his private affairs would never accomplish anything.
He would be everywhere looked upon as a self-confessed fool. Why should we apply a theory to the administration of justice in our courts which we repudiate in every other transaction of life? It is an accepted maxim that straws floating on the surface prove the way that the current is flowing. Every man's experience demonstrates that his beliefs are based upon a great number of circumstances, many of which standing by themselves are not fully proven and would amount to nothing, but which, when combined together, give strength to each other and constitute proof as strong as holy writ. From these and other reasons this court has repudiated the chain theory with reference to circumstantial evidence, and has adopted in its place the rope or cable theory as being more in harmony with reason and human experience, and therefore more efficacious in the administration of justice.
The chain theory is largely responsible for the misconception and consequent prejudice which exists in the minds of so many persons against circumstantial evidence. When we start out with false premises, we are sure to arrive at an unsound conclusion. It may be stated as an axiom that truth is never derived from or will seek companionship with error. It is therefore of the utmost importance that we base our conclusions not only on sound reasoning, but also upon true premises. Instances have been industriously collected in which persons have been wrongfully convicted upon circumstantial evidence which are invariably used for the purpose of intimidating courts and juries and preventing them from enforcing the law upon this class of testimony. But a fair investigation will show that these instances are rare when compared with the great volume of business transacted, and that they have occurred at times and places remote from each other. An investigation will show that a much larger per cent. of persons have been convicted improperly upon direct and positive evidence. The Savior of mankind was crucified upon direct and false testimony.
To Make Lawyers, And Not Quibblers[edit]
Henry Furman was as well versed in the arcane and technical rules of common law pleading and procedure as any lawyer of his day. He believed lawyers "should do everything in their power that is fair and legal to protect the substantial rights of their clients, and in so doing they should be upheld by the courts,"[2] but too many lawyers were plying their trade in liquor trials and appeals using antiquated technical irregularities of the common law rather than the merits of the case. "Their capital consists chiefly of their knowledge of obsolete technical rules. Therefore they desire this court to enforce these rules, and thereby perpetuate the chains which have bound justice hand and foot for so long a time."[3]
He recognized, too, that common lawyers "have been educated in and are accustomed to an antiquated system of procedure, and have been taught to look with reverence upon old legal theories, and are thereby unduly biased against any change in legal procedure."[4]
The result is that, even when the Legislatures attempt to reform legal procedure, many courts and lawyers are disposed to construe such legislation in the light of their preconceived ideas. They often do this without being aware of it, and in this way the purpose intended to be accomplished by remedial legislation is defeated.[5]
As an appellate judge, Furman transformed the criminal law with an interpretation of a handful of statutes that effectively overturned the common law rules of pleading and procedure. In the Laws of 1909, the Legislature had "repeal[ed] the common-law doctrine of a strict construction of penal statutes, and substitute[d] in its place the equitable doctrine of a liberal construction of such statutes."[6] In Furman's view, the Oklahoma Statutes now mandated a construction of law "according to its spirit and reason, so as to enable it to reach and destroy the evil at which it was aimed, and thereby effect the object for which it was enacted and promote justice."[7]
Furman also read the statutes of 1909 to abolish all common law defenses based on technical irregularities in the information or indictment, and variance between the indictment and the proof. The Statutes, properly interpreted, did thus make an end of
that ancient refuge, stronghold, and citadel of defense of murderers, thieves, perjurers, and all other desperate criminals, that indictments must be certain to a certain intent in every particular, and place them upon a common-sense basis, and make an indictment sufficient if a person of ordinary understanding can know what was intended, and forbid the courts from holding insufficient any indictment or information, unless the defects therein are of such a character as to prejudice the substantial rights of the defendant upon the merits.[8]
The Legislature also provided in Section 6957 of the Laws of 1909 that "[o]n appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties." Section 6005 of the Revised Laws of 1910 further emphasized the Court's obligation to do substantial justice, providing:
No judgment shall be set aside or new trial granted by any appellate court in this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.
In section 6957, Judge Furman saw the destruction of "that ancient heresy of the common law that error presumes injury, and by its terms absolutely binds this court to disregard any and all technical errors, defects, and exceptions, unless the party complaining thereof can show from the record that he has been deprived of some substantial right thereby to his injury."[9] Section 6005, moreover, embodied
a legislative acknowledgment and establishment of the doctrine of harmless error for which this court has unflinchingly stood from the day of its organization. Those who have been criticizing the court on account of its decisions should turn their batteries on the Legislature who passed this law and on the Governor who approved it. It vindicates everything this court has said on this question, and, it matters not what the future personnel of this court may be, it settles the law of Oklahoma unless repealed by the Legislature.
The Criminal Court of Appeals and its Presiding Judge served notice to the bench and bar that common law matters of technical form would not hold sway over the fortunes of criminal justice in Oklahoma.
When the Legislature has made a change in legal procedure, it is the duty of the courts to lay aside their preconceived ideas, and construe such legislation according to its spirit and reason. We are not in sympathy with those who believe in the infallibility of the common-law rules of criminal procedure, or that form, ceremony, and shadow are more important than substance, reason, and justice. This court does not propose to grope its way through the accumulated dust, cobwebs, shadows, and darkness of the evening of the common-law rules of procedure; but it will be guided, as the statutes above quoted direct, by the increasing light and inspiration of the rising sun of reason, justice, common sense, and progress . . .
The effect of the statutes hereinbefore quoted is to prevent disputes over mere technical questions of procedure. If properly construed, they destroy legal quibbling. Their purpose is to eliminate from a trial all immaterial matters, and thereby better secure the triumph of the party who ought to succeed upon the actual merits of the case . . .
All of these statutes are contrary to the common law and to the procedure in force in many of the states, but they are binding upon the courts of this state. For this reason it is an utter waste of time for lawyers in their briefs and oral arguments to cite and discuss decisions from states which have different statutes. It is not a question as to whether we like these statutes. It is enough for us to know that they are the law of Oklahoma. This court is not a forum of legislation. Our duty is ended when we obey the law, and we should either do this or resign and allow others to take the places which we occupy, who will regard the obligation of their oaths of office. The great trouble with the judiciary of the entire country is that many judges try to so twist and evade statutes as to enable them to substitute their own private views for regularly enacted statutes. This evil has become so great that there is now more judge-made law in the United States than there is law enacted by the people. If the courts do not correct this evil, no one can tell what the result will be. It will end in one of three things, viz., peaceable reformation, bloody revolution, or a judicial oligarchy. This court proposes to do its duty by rendering a ready and willing obedience to the regularly enacted laws of Oklahoma, and by doing all in its power to see that they are followed by the trial courts of this state.[10]
It was Judge Furman's practice to praise defense counsel who represented their clients zealously, for he well recognized that a lawyer "is necessarily and involuntarily affected by the views and interests of his clients . . . In fact, the lawyer who cannot sympathize with his clients, and who does not make their cause his cause, never attains eminence at the bar." Yet he was determined to set the Court's policy plainly before the trial and appellate counsel, impress upon them the futility of pursuing "technical" defenses at trial and on appeal, and urge them to pursue meaningful tactics.
In Steils v. State,[11] he said that "[l]awyers who attempt to make a purely technical defense, without regard to reason and justice, will see themselves as this court sees them by reading the following lines," thereafter re-printing the complete text of a popular satirical verse about the technical absurdities of criminal defenses, "The Up-to-Date Defense of Cy N. Ide." As such defenses tended to involve minor discrepancies between the pleadings and the proof--for example, the address of an alleged establishment operated in violation of the liquor law, or the day on which the alleged violation occurred--one verse is sufficient to illustrate the Judge's point:
First, then, we ask the court to quash The whole indictment — pray read Bosh On Bluff and Bluster, chapter two: "Ink must be black and never blue; And if the ink used is not black 'Tis ground to send the whole case back!" The rule, pray please the court, is plain; But here I read the law again — I quote now from authority Of Blow and Buncombe, chapter three: "If any `t' shall not be crossed, Or dot of any `i' be lost, These grave omissions, then, shall be Enough to set defendant free!" So here we have the law; and see — Here is a naked, uncrossed "t"!
In Ostendorf, Judge Furman complimented counsel for "great ingenuity and industry in the presentation of his case," and expending "much labor in preparing his brief," but cautioned against the desperate tactics employed in the client's defense.
It appears that upon the trial of this case counsel relied alone upon a technical defense, without regard to the guilt or innocence of his client. He interposed objections to everything that was done in the trial court. He demurred to the information, which was overruled. When the case was tried, he objected to the introduction of any testimony, upon the ground that the information did not charge any offense against the laws of Oklahoma. Every conceivable objection was offered to each question asked every witness in the case. Counsel for appellant was evidently fishing with a grabhook and seining with a dragnet, hoping that by some lucky chance he might catch onto an unforeseen and unknown error, and thereby secure the reversal of a conviction. In some states this practice may be beneficial, but it has directly the opposite effect in this state. If it does not in effect amount to a plea of guilty, it at least shows clearly that counsel was relying alone upon a technical defense, and that he was seeking to place the burden on this court of looking through a bushel of chaff to see if we could find a single grain of wheat therein, or of hunting through a haystack to see if we could find a needle.
In the syllabus for the Court, the Judge again urged trial and appellate counsel to focus on the factual merits of the case.
As long as lawyers disregard the oft-repeated requirement of this court that they must try their cases upon their actual merits, and persist in quibbling over mere trifles, which are only shadows, cobwebs, and flyspecks on the law, and present questions to this court which are purely technical, we will continue to condemn such practice, it matters not who the attorneys may be; for we are determined, if possible, to break it up in Oklahoma. Our purpose is to elevate the practice of law in Oklahoma, and make lawyers, and not quibblers, out of those who try such cases. The only questions which this court desires to have submitted to it are those which involve the actual merits of a case. This does not include the presentation of jurisdictional questions, which cannot be waived, and which are always in order, and which may be raised at any time.[12]
The Criminal Court of Appeals' adoption of the harmless error rule and rejection of the common law rules of pleading and procedure was a central feature of Judge Furman's legacy as a progressive and pragmatic legal reformer. In the wake of the civil liberties and constitutional law revolutions of the Warren Court, use of the harmless error doctrine has become identified with judicial conservatives, but in Judge Furman's day, the doctrine of harmless error was widely regarded as the palladium of judicial progress.