Crime and Punishment in American History - Lawrence M. Friedman [164]
Only a small percentage of criminal cases were ever appealed. Arguably, these cases, which crawled or clawed their way to the top level of the judicial system, were the most important. These were the cases, to be sure, that become the source of official legal doctrine. Only appellate courts, by and large, publish; a treatise on criminal law, therefore, is mostly a synthesis of gems laid down and propositions enunciated by appellate courts, assembled into a rich display of doctrine. These reported cases, for all their importance, are not a reliable guide to what happens at the trial court level. We learn something about trials; but what we learn is subject to distortion, since appellate cases are not and cannot be typical. And as far as the petty courts are concerned, they might as well be dead and buried. Reported cases have nothing at all to say about them. For these we have to rely on other historical sources.
Appellate-court rulings, however, often showed an extreme fussiness about procedures and pleadings. Some appeals courts seemed to be saying about indictments: FRAGILE—HANDLE WITH CARE. The least little mistake could be fatal. In the last part of the nineteenth century, we hear complaints of hypertechnicality, of too much reversing for piddling, technical reasons. Texas was supposed to be the horrible example. In 1877, a case was reversed because the jury wrote, “We, the jury, the defendant guilty,” omitting the word find.76 In a later case (1886), a defendant had been tried for receiving stolen cattle. The jury returned a verdict of “guity,” omitting the letter 1. This was grounds for reversal,77 even though in 1879 a conviction of “guily,” missing a t, withstood attack 78
No wonder, then, that someone should remark caustically in 1887, that the Texas Court of Appeals was apparently “organized to overrule and reverse.” The writer claimed that during a twelve-year period the court had reversed twice as many cases as it affirmed: 1,604 to 882. In one volume of cases, the ratio was supposedly five to one.79 If the writer wanted a fearful example of technicality gone wild, he could have cited Taylor v. State (1887).80 Charles Taylor was indicted for the crime of breaking and entering, and taking the property of J. W. Bilgen and R. Y. Holman “without their consent.” This indictment, said the appeals court, was “fatally defective.” Why on earth? “When there are more owners than one, an indictment for theft must allege that the taking was without the consent of either of said owners.” To say “without their consent” would not do.
Was Texas an extreme case or not? Only an array of quantitative studies, which we do not have, would tell us if the problem of excess reversal and hypertechnicality was specific to Texas, or a national problem. Perhaps even for Texas it was exaggerated. In 1893, the Texas court affirmed 110 criminal cases on appeal and reversed 61.81bq This is hardly a disastrous ratio. The law literature tells horror stories but is short on rigor and analysis. Of course, there are examples of hypertechnicality in other states, too, that match anything Texas could come up with, and suggest that bad habits were at least sporadically national. Perhaps some sort of high (or low) point was reached in a Missouri case in 1908. One Campbell was indicted for rape; the indictment ended with the words “against the peace and dignity of State, ” leaving out the word the before the word “State.” This was a fatal flaw:
While it may be conceded that the word “the” is a small one, ... we see no escape from the conclusion that the definite article ... is absolutely essential in order to designate the particular State against which the offense is charged to have been committed.... The omission of this word not only changes the sense but the very substance