« PreviousContinue »
composing our jury should render a verdict, while under the Anglo-Saxon system the unanimous vote of the twelve jurors is required. It was provided, besides, with a view to prevent the failure of justice, that if, in the opinion of the presiding judge, the verdict were clearly against the evidence, he should so report to the higher court, with a motion to set that verdict aside, and, if the higher court should sustain his opinion, a new trial should be granted, unless eight jurors had concurred in the verdict, in which case it should be final and could not be set aside. These provisions were somewhat changed by an Act issued on the 24th of June, 1891, which provides that the jury shall be composed of nine jurors, that a majority of them shall render a verdict, and that the decision of the jury shall be final if given by seven votes. Even with all these alterations in the system, I have seen cases in Mexico where criminals have gone unpunished, because through the eloquence of their attorneys the jury has been influenced in their favor.
Under the system of criminal jurisprudence prevailing in the Federal District of Mexico, all the preliminary proceedings in a criminal trial, such as the examination of the accused, the taking of testimony, etc., take place before the judge who presides over such proceedings without a jury ; when this has been completed and the case is ready to be submitted, the jury is empaneled and the evidence is read to it as set forth in the record already formed ; the prosecuting attorney then presents the charges, the defense is heard and the witnesses of both parties are examined and cross-examined ; thereupon the jury renders its verdict, adjudging the accused either innocent or guilty, following substantially the practice under the common law of England and of the United States. In most of the Mexican States prevails the old Spanish system of criminal jurisprudence.
I often hear it asserted in this country that the proceedings ander the Roman law are secret, and that the accused does not know what the witnesses have testified against him. This assertion is entirely incorrect, and often leads to very grave misunderstandings. One of the difficulties that the Spanish-American countries have to contend with at Washingtan, in cases where citizens of the United States are tried by the local judges in any of those countries, is the great difference between their criminal
legislation and procedure and the system prevailing in this country.
According to the Roman system, every criminal trial is divided into two stages. During the summary (sumario), which is the first, and the purpose of which is to ascertain the facts connected with the case, the testimony of the accused is taken down, sometimes without his knowing who may be the witnesses testifying against him, or the crime with which he is charged. During the plenary (plenario), or second stage, all the proceedings of the summary are made known; and thereafter all the proceedings are public, the accused enjoying the same rights which are guaranteed to him by the common law. To this latter statement there may be some slight exceptions, as, for instance, the fact that bail is allowed in only a few specified cases, determined by law, and never when the person may, upon conviction, be liable to bodily punishment. It would, however, take more space than is allowed in an article of this character, to state the respective advantages of the two systems, and I shall, therefore, limit myself to briefly mentioning the principal differences between them.
The secret proceedings of the sumario are much criticised in the United States, it being forgotten that the English common law likewise provides a secret proceeding very similar to the sumario. Before anyone is indicted in this country, the case is heard secretly by a grand jury, a body composed of persons who, in some cases at least, are secretly designated. The grand jury listens to such testimony as is offered, or as it may deem sufficient, without permitting the accused to be present or to know what transpires; and if in their judgment there should be sufficient ground, an indictment is found; and thereafter the public trial begins before the court. It is very difficult, of course, to make any general statement which will be accurately true with respect to all of the forty-five commonwealths which compose this country, since, as is well known, each of them has its own legislation.
In some states, as in New York, a preliminary hearing may take place before a police magistrate, who has in some petty cases power to inflict punishment, release the accused, or hold him for the action of the grand jury. Sometimes, however, no arrest is made until an indictment has been found by the grand jury, or in cases of misdemeanor for trial by a court of judges if the defendant waives a jury.
So far, therefore, as a proceeding under one system may be said to correspond to a proceeding under the other, it may be said that the sumario, in countries where the Roman law prevails, corresponds practically to a grand jury indictment in AngloSaxon nations.
In the Latin countries testimony is taken down in writing, and, after being read to the witness, is signed by him in proof of the fact that his statements have been correctly recorded. It gives a degree of certainty to the correctness of the testimony which cannot be obtained by a stenographic report; and it renders it impossible for the judge or opposing counsel to put into the mouth of a witness language different from that which he has actually used. When the summary is ended, all the testimony is presented to the accused for his examination; and the right is then given him to cross-examine the witnesses who have appeared against him. The cross-examination is an old Spanish proceeding which we call “careo," and which in Spanish means that the accused is personally confronted with the witnesses in the presence of the judge, for the purpose of cross-examining them. It is therefore quite incorrect to assert that, because the sumario, or first stage of the trial under the Latin system, is kept secret, therefore the accused does not know anything regarding the evidence presented against him; the fact being that during the second or plenary stage of the proceeding he is fully informed of all that has been done, and is given ample opportunity to refute it, either by presenting his own witnesses or by cross-examining such as have been presented by the other side, or called by the judge.
Another right guaranteed to the accused under the Mexican law, and which in its broadest sense is unknown to the common law as such, is the right of appeal: that is to say, the right in every case to have both the law and the facts reviewed by a higher court. Under the Mexican laws this right is very broad. Our laws provide that no decision made by judge or jury condemning the accused can be executed until after it has been affirmed by a higher court. Not only is the accused given the right to appeal once, and sometimes twice, from any decision against him, but it is also made the duty of the lower court to
VOL. CLXIII.-NO. 476. 6
send the case with the record for review to the higher court in cases where the convicted person does not himself appeal. Such is the practice under the Roman and Spanish law; but in the Federal District of Mexico, where the jury system has been adopted, the case goes to the higher court only on appeal of the aggrieved party, and said appeal only affects questions of law and not the facts as stated before the jury, which cannot be controverted.
It is true that under the common law system of criminal jurisprudence the accused or his lawyer can take exceptions to points decided by the judge during the trial, and that these exceptions may be reviewed by a higher court, but this can hardly be said to be an appeal, in the sense contemplated by the Mexican law, because the decision of the appellate court is only limited to those points which may be covered by the exceptions taken at the trial. It is true that in some States, as, for instance, in New York, an appeal can now be taken which will bring before the court for review questions of fact as well as questions of law; but in so far as this procedure has been adopted, it is a departure from the strict rules of the common law and an adoption of the principles of the Roman law, since, according to the theory of the common law, a jury can make no mistake, and its findings of fact are therefore final.
Our Constitution of 1857 is so careful not to allow anybody to be kept in prison for any extraordinary length of time that Article 19 specially provides that as soon as a man shall have been arrested the judge shall immediately hold a preliminary examination, and shall within three days from the time of the arrest render his decision. If the judge shall be of opinion that there is sufficient ground for continuing the investigation the prisoner shall be remanded; otherwise he shall be set at liberty. In the first instance the judge has to sign what is called in Spanish auto de prision formal, meaning an order of formal commitment. In the second place, the prisoner is set at liberty. This proceeding corresponds in a measure to the grand jury investigation under the common law. As I have already stated, in some States, like New York, a committing magistrate is authorized to examine the case as a preliminary step to the investigation of the grand jury. Where such a practice prevails two examinations take place before the criminal charge upon which the accused is to be finally tried is definitely formulated, while under our system only one investigation is made and even that must be completed within three days of the arrest.
The assertion, often heard, that American citizens tried in Mexico are not notified of the cause of their arrest ; that they are not confronted with their accusers; and that they are not allowed to appear in self-defense, is in open contradiction to the express provisions of our statutes. As a matter of fact, Article 20 of our Constitution of 1857, grants the following guarantees to the accused in criminal cases :
1. That the cause of the proceeding and the name of the accuser be made known to the accused.
2. The preliminary examination of the accused must be held within forty-eight hours from the time he is placed at the disposal of the judge.
3. He may cross-examine the witnesses who testify against him.
4. Such information as the accused may need for the purpose of answering the indictment must be given him, if it be in the record.
5. He must be heard in his own defence either in person or by some attorney of his own selection, or by both, as he may elect; and in case he should have no one to appear for him he is furnished with a list of lawyers appointed for such cases, and is given the right to select as his attorney any one whom he may
We have copied in our constitution from the Anglo-Saxon system of jurisprudence the writ of habeas corpus, the great conquest of the Anglo-Saxons, which guarantees life and liberty to man, and which places under the control of the judiciary the otherwise arbitrary orders of those in authority; but we have gone considerably farther in this direction, and under the name of amparo have extended this guarantee so that it is not limited to the protection of personal life and liberty, but embraces all rights under the Constitution-including the right of personal property, even when such rights have been defined by judicial decisions. If, for instance, a man finds that his property, or any other of his constitutional rights, are interfered with, either by civil or military authority, or even by a judicial sentence of a federal or state court, he may apply to the respective federal district court having jurisdiction thereof to at once suspend the act complained