CAPITAL TRIALS.

I renew the recommendations heretofore made by me, that the statutes be so amended that capital trials may be conducted by one or more justices of the Superior Court, rather than by two or more, as now required. The reasons which seem to me to render this change in the law advisable were briefly set forth in my former report. The number of justices available for the routine duties of the court ought not to be diminished, except for imperative reasons, since these duties demand the constant service of every member of the court in uninterrupted assignments, which, notwithstanding the addition of two justices by the Legislature of last year, already appear to be inadequate to expeditiously dispose of the cases awaiting trial. The conditions already existing, and emphasized by the additional sessions required by the act of 1903, and the assured increase in the number of cases, make it of the utmost importance to relieve the justices of every duty not peremptorily required by the proper administration of the law.

There appears to me no sufficient reason requiring the attendance of two justices in a capital case, but the law should be so framed as to permit such assignment, if any extraordinary circumstance demands it. The proposed change in the law will in no wise impair any right, or remove any just protection, of the accused.

PROCEDURE IN CASES OF MURDER IN THE SECOND DEGREE.

Under the provisions of the Revised Laws, codifying and simplifying criminal procedure, indictments for murder in the second degree may be now found and trial proceed upon that charge, without adhering to the ancient common law rule which required the degree of murder to be found by the jury, and made it necessary to present all indictments for murder as of the first degree. By reason of this very wise modification of the law, approved by a recent decision of the Supreme Court, unnecessary formalities in the trial of cases which are not above the second degree are obviated, to the great relief of the court, and it is now unnecessary

for the prosecuting officers to deal with such homicides as capital cases. Murder in the first degree, as determined and defined by the action of juries, appears to be a crime of infrequent occurrence in this Commonwealth; and, while I believe that the law should still recognize murder in the first degree as a capital crime, I anticipate that comparatively few cases will be so defined in indictments, or require trial upon such presentment.

THE BERTILLON SYSTEM.

I recommend the extension of the Bertillon system of measurement and records to all persons convicted and committed on sentences for felony. At present the law requires such record and measurement only in cases where the sentence imposed is for a term of imprisonment of not less than three years for felony. The adoption of this recommendation would tend, in my judgment, to the better protection of the public, and would aid the courts in imposing adequate sentence. In many cases a criminal remains unidentified, and courts and prosecuting officers are ignorant of the fact that the defendant has, as is often the case, been previously convicted of felony. Such convicts, moving from State to State or from county to county, for the purpose of avoiding identification, are often dealt with, from lack of full knowledge, as first offenders, and thus escape exemplary punishment, which they deserve and which justice requires.

COMMITMENTS TO INSANE ASYLUMS.

Believing that persons found not guilty on charges of crime, solely by reason of insanity, should be committed to the department for the criminal insane at Bridgewater, I deem it my duty to renew my recommendation to that effect submitted in my last report. If an institution is to be maintained for the confinement of the so-called criminal insane, it is clear that the class of persons to which I have referred should be there committed. Whether there is any moral distinction to be made between those unfortunates who are of diseased mind, by which some are to be held criminals because of acts for which the law holds them irresponsible,

and others, who have done nothing in violation of the law itself, are to be held innocent, I do not presume to decide. Such distinction is, nevertheless, made by our law, and in sentiment such discrimination certainly exists. Just objection may therefore be made by the friends and relatives of the unfortunates committed, without a taint of crime, to our State hospitals, if the latter are compelled to there live in confined association, or in the same institution, with those who are looked upon as criminals, but against whom the sentence of the law is stayed. I am advised that no provision is made at Bridgewater for the confinement of female prisoners committed as criminally insane. It appears that such provision should be made.

ANNUAL EXAMINATION OF BONDS FOR THE FAITHFUL PERFORMANCE OF DUTY IN THE CUSTODY OF THE TREASURER AND RECEIVER-GENERAL.

Section 16 of chapter 18 of the Revised Laws requires courts and public officers or boards, whose duty it is to approve bonds for the faithful performance of official duties or trusts which are in the custody of the Treasurer and ReceiverGeneral, annually to examine into the sufficiency of such bonds, and report thereon to the Governor and Council.

Such examination, if made in the manner prescribed and with the care and detail requisite to insure the protection of the public interests which such bonds are designed to afford, must in every instance entail upon the official charged with the responsibility of making the examination exacting and sometimes protracted investigation, which, in the case of the courts, is a duty quite foreign to, and possibly inconsistent with, judicial functions, since a question of fact or law on such bond might come before such courts for their official determination.

In the case of similar and no less important bonds deposited with the Controller of County Accounts, the duty to make such examination is imposed upon that officer, or one of his deputies (section 18); and I see no reason why the bonds in the custody of the Treasurer and Receiver-General

should not in like manner be examined by him, or under his authority, or by or under authority of the Auditor, and I therefore recommend legislation to accomplish that result.

THE OFFICE OF THE ATTORNEY-GENERAL.

The tabulations hereinafter appearing state the number of cases pending or acted upon with which this department has been concerned. It may be a matter of interest, however, to call specific attention to the fact that during the past year actual trials have been had and an adjudication reached in forty-nine cases involving the assessment of damages for property taken by the Commonwealth, of which twelve were for property taken by the Metropolitan Park Commission, twenty-three by the Metropolitan Water and Sewerage Board, one by the Harbor and Land Commission and thirteen were for the determination of damages sustained by the restriction of the height of buildings in the vicinity of the State House. One hundred and sixty-one cases pending for the settlement of damages for property taken have been settled out of court, fifty-five for the Metropolitan Park Commission, eighty-nine for the Metropolitan Water and Sewerage Board, fourteen for damages sustained by restriction of the height of buildings in the vicinity of the State House and three for the Harbor and Land Commission. Annexed to this report are the principal opinions submitted during the current year.

Respectfully submitted,

HERBERT PARKER,

Attorney-General.