I concurred in the original majority opinion in this case. I did so solely because of the diffidence I felt in repudiating a rule of procedure that had been accepted and followed for so many years in this State. Upon an investigation of it with respect both to its origin and its practical operation, suggested by a dissenting opinion, I came to the conclusion that its age was the only attribute it had to commend it, and that on the other hand its observance was becoming a serious obstruction to the administration of the criminal law. I thereupon withdrew my concurrence in the ruling that would continue it in force.
I quite agree with my Brother GRAVES, and the other distinguished jurist whose language he quotes, that "the days of any court ought to be numbered whenever it yields by the tithe of a single hair to any other considerations *Page 425 except those arising on the record." But I do not agree that "public clamor alone" is in and of itself a sufficient justification for a court to refuse to reexamine and reconsider the grounds of a ruling against which it is directed. The court or judge who bases such a refusal upon that ground yields, it seems to me, to "other considerations except those arising on the record."
Courts are not infallible. Nor is the law, as was formerly considered, the emanation of pure reason. It is a process, an evolution, growing out of the demands and needs of a constantly changing and developing social order. It at all times presents the paradox of requiring both stability and change in order to function properly. To give it effect in this dual aspect under the limitations imposed upon them is the difficult role of the courts. It is much easier to maintain the stability of the law, its uniformity and certainty, which may be done by merely following established precedents, than it is to respond to the insistent demands of changed conditions, which may require an entirely new application of old principles, or a complete abandonment of what has become archaic. Oftentimes just plain inertia makes it difficult to leave the beaten path. When therefore a rule of procedure which has long been accepted and followed is suddenly assailed by "clamor or otherwise," as operating to defeat the essential interests of society, a court may well take pause and consider whether there should be a re-examination and a re-appraisal of the grounds upon which the rule rests. Such a re-examination was had with respect to the rule involved in this case and the conclusion reached that it has the support of neither reason nor authority. If in addition it operates as a hindrance to the efficient enforcement of the criminal law, as abundantly appears, a continued adherence to it is indefensible. I fully concur in the present majority opinion which was adopted after the case was re-argued. *Page 426