In a trial occupying twelve or more court days, with its record of more than nine hundred pages of testimony crowded with almost innumerable objections, my associates find, as I read the majority opinion, three rulings upon evidence and a brief passage of argument upon which to base a decision of reversal. The waste of time, effort and money which that conclusion entails and the revival of old issues and stirring of old antagonisms which must follow would at least require a careful weighing of these claims of error to determine whether they are sound in fact and sufficient in law. So considered they seem to me wholly inadequate.
The accused while acting as the agent of the government in time of war used the means of approach to the workers in its shipyards thereby afforded to preach anarchy and agitate for the social revolution; whether he intended the overthrow of government by violence or advocated only peaceable methods, while serving the established order he was planning its destruction; what man-on-the-street, called upon to weigh his honesty and sincerity and knowing that fact, would not give it serious heed? The objection made at the trial to the injunction and restraining order was not to the recitals in it, but to its admissibility as a whole, and the ground of reversal which this court finds was never presented to the trial court; moreover, the majority opinion grants that proof of the bare fact of its issuance was proper, but how, under the best evidence rule, could *Page 733 that be made except by putting in the document itself? Ready was one of the accused's chief witnesses upon the issue of the making of the speech as alleged in the information, and he had also given testimony as to the policing of the railroad for the only apparent purpose of rebutting by inference evidence offered by the State as to acts of violence; surely it was within the reasonable discretion of the trial court to permit cross-examination to show his attitude toward illegal deeds similar to those the State charged the accused with advocating, and certainly it was proper to rebut the inference which might be drawn from his testimony by proof of facts indicating that it was not sound. The imminence of the Yale-Harvard football game, with its attendant crowds, was a circumstance which might properly be shown, and, being shown, commented upon; the parallel between that situation and the circumstances surrounding the bomb outrage at the Preparedness Day parade in San Francisco, a matter which had been imported into the case by the accused in answer to questions by his own counsel, was too apt an illustration of the dire results which might be expected to follow upon the inflammatory speech charged against him, too vivid a characterization of the nature and probable intent of that speech, not to be brought to the attention of the jury; and the holding up of the documents, papers introduced in the case by the accused himself as his own exhibits, was merely an oratorical gesture.
I have reviewed these claims of error very briefly because, if my dissent went no deeper, I would not have cumbered the Reports with a discussion of its grounds. But I cannot read the majority opinion, as I cannot read the opinions in several other recent decisions of this court in important criminal cases, without feeling that they have been made largely to turn upon the *Page 734 question whether the particular accused in the particular case was deemed to have had a "fair trial." Anglo-Saxon jurisprudence is not designed to do justice to each individual accused arraigned before the court, but the end sought has been the establishment of orderly procedure by the formulation of rules, rules which will indeed do justice in the majority of cases, but which must be applied even though injustice may now and then result. Certainty and speed in the punishment of crime are much more to be desired than severity of sentence, and they can only come about when justice is administered along fixed lines, so that those engaged in the trial of cases may have their course clearly charted for them; and where the multiplicity of determining circumstances is such that only a broad rule can be laid down, and its application must be left to the exercise of sound sense in the particular case, in legal phraseology, where the matter is one of discretion, that discretion must in all but the extreme case, be lodged in the trial court, not in this court. A "fair trial" to the accused does not require that every possible protection shall be thrown about him, but over against his right must be set the right of society to protect itself against crime and social disorder. As Chief Justice Taft suggested in a lecture some years ago: Criminal procedure should be so framed as to "reach the golden mean between preserving the interests of society by punishing and preventing crime on the one hand and saving the individual charged with crime from unjust conviction on the other."
These are axiomatic principles with which in the abstract no one would probably disagree; yet, if their application in the actual disposition of cases is forgotten, uncertainty, delay, and confusion in the administration of criminal justice must follow. The instant case illustrates, I think, a tendency in this court not to *Page 735 give them proper heed. There has been no violation of any positive rule of law; but the majority of this court think that the trial court did not give the accused a "fair trial" and the State's Attorney argued the case "unfairly," hence it must be retried more to this court's liking. I submit that that is no adequate ground of reversal.