CHAPTER X.

THE COURTS.

JUDGE HOWELL JUDGE BACKUS- CHARGE OF CHIEF JUSTICE TURNER TO GRAND JURYIRISHMAN'S READY WIT RESULTS IN LIGHT SENTENCE-EXTRACT FROM CHARGE OF JUDGE BACKUS TO GRAND JURY.

As stated in the third volume of this History, Judge Howell held one term of court in Pima County in the year 1864. He resigned his position, and was succeeded by Judge Henry T. Backus of Michigan. Commencing with the year 1866 all the courts of the Territory held their regular sessions. There is no data accessible from any of the counties, as far as I have been able to ascertain, concerning their work. It was a long time before the decisions of the District Courts and of the Supreme Court of the Territory were kept in any methodical or regular manner. The only record we have in the year 1865 is the charge by Chief Justice Turner to the grand jury at Prescott, from which I quote the following:

"Under the class of misdemeanors will be found in the code the following offenses, to which I invite your attention, viz.: Offenses against public peace and tranquillity; offenses against the public morality, health and police; offenses committed by cheats, swindlers and other fraudulent persons, and fraudulent and malicious mischief.

"These are minor offenses compared with felonies, and yet it may be said with truth that society suffers more from this class of crimes

than from the more heinous, by reason of their frequent occurrence. "The little foxes spoil the vines.' And hence the necessity for a rigid scrutiny into their commission by the grand jury. Crime, like everything else in the world is progressive, and hurries its victim on with fearful rapidity until it reaches its final goal. The boy who stole the pin ended his career of infamy on the gallows. Had that first little offense been punished, the whole course of his life might have been changed. It is a merciful policy to punish the smaller offenses with certainty and promptness.

"I would also call your attention, gentlemen, to the provisions of Chapter 59 on 'Prohibition of Gambling.' This chapter of the code imposes a tax or license on gaming tables therein named. A violation of the various sections of this chapter is made a misdemeanor and punishable with fine and imprisonment in the county jail until the fine is paid. Gambling is one of the greatest evils with which any community can be inflicted. The greatest sufferer is perhaps the victim of the vice himself, and other vices are almost always associated with it and follow in its train. It seems to be the present policy of our legislation to tolerate the evil by the imposition of a license or tax, thus compelling it to contribute something to the revenue of the Territory. It is a mooted point with many great and good men whether the 'wages of iniquity' can be made to contribute even to the material prosperity of any community where one dollar going into the treasury does not take out five in the increased expenditure of the government for the protection of society from the results of the existence of any fault or vice.

"We, gentlemen, however, have nothing to do with the policy of this or kindred laws. It is enough for us to find them on the statute books— our duty is simply to faithfully and impartially administer the law as we find it. There is no more demoralizing influence operating on the citizens than law; a dead letter on the statutebook.

"There are two elements which enter into a crime, first, the intent, and, second, the execution of that intent in an act. To constitute a crime in law, there must combine the wrongful intent, and the wrongful act. All crime exists primarily in the mind. The law presumes the criminal intent for the wrongful act. The presumption of the law is that every person intends to do what he does, and intends the natural, necessary and probable consequences of his act. This presumption of law is open to be rebutted by evidence,

"It sometimes happens that a man intends one wrong and unintentionally does anotherthe intention and the act coalesce, and he is punishable for what he does. Therefore, if a man becomes voluntarily drunk, there is wrongful intent, and if he does a wrongful act, the intent to drink coalesces with the act done while drunk, and for this he is criminally liable.

"It is a doctrine laid down by all law writers that voluntary drunkenness furnishes no excuse for crime. Our jurisprudence deems voluntary drunkenness a malum in se, a wrong in itself, and hence its conclusion. Reason and common sense concur in saying that no man can be permitted to take advantage of his own wrong. If it be wrong to get drunk, then to make it an ex

cuse for a crime would be taking advantage of, and receiving a benefit for his wrong.

"It is thought by some that an individual has a right to get drunk; that it is one of these personal and inalienable rights guaranteed by our free institutions to the citizen. No man has a moral or legal right to do wrong. The right to do right is full and complete. In civilized society every man must use his liberty so as not to abuse his neighbors. A different rule prevails among the savages who surround us, of which we have almost daily evidence.

"Greenleaf on Evidence says, that a man is not permitted to avail himself of the excuses of his own gross vice and misconduct, to shelter himself from the legal consequences of such crimes.

"This same legal author concurs with Bishop on 'Criminal Law' heretofore cited, that 'it is a settled principle that drunkenness is not an excuse for a criminal act committed while in a state of intoxication, and being its immediate result.'

"I am happy to know that this rule of common law that 'drunkenness shall not be an excuse for any crime,' was incorporated into the criminal code of Arizona by its First Legislative Assembly. It indicates clearly that its members were men of high tone, morality and intelligence, and had a clear idea of what the interests of the Territory demanded, and I have no doubt they truly reflected the sentiments of the people.

"This rule of the criminal law is violated in cases of affrays and quarrels growing out of intoxication when the parties use deadly weapons intended to murder or wound a particular

person, shoot at him, and by accident another individual is wounded or deprived of life. In this, and similar cases, the person unintentionally wounding or causing death is guilty the same as if he intended it.

"It will be your duty, gentlemen, if any cases are brought to your notice falling within the principle of the criminal law as above stated, to investigate the same, and if the facts disclosed by such investigation show that the criminal code of the Territory of Arizona has been violated, you ought, in the faithful and impartial discharge of your duty, refer the case or cases to a trial jury by indictment, in order that the wrong done to society may be atoned for and the majesty of the law vindicated in the certain punishment of the guilty parties.

"Gentlemen, we have passed from under the rule of the revolver and the bowie knife to that of law, order and good government. All acts of violence and wrongdoing must be promptly suppressed by the strong arm of government in certain and efficient enforcement of the laws, in order that the transition may be a realized fact, and the citizen feels secure in the protection of government to person and property.

"Violators of law and good order are more deterred by the certainty than the severity of punishment. Let it be understood that all infractions of law will promptly meet with condign punishment, and much will be done toward ridding the Territory of all acts of violence by those pests of society whose only vocation seems to be deliberate disregard of the laws of God and man, in the depredating, Apache-like, on the lives and property of others.