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tion for the crime which is afterward committed. In some states, accessories before the fact are put in the same group with principals and are punished as such. An accessory after the fact is one who assists in the escape of the offender after the crime has been committed, or helps to cover up the crime.
To be convicted of a crime, a person must have a criminal intent. This is ordinarily presumed. But a small child cannot have such an intent and his acts do not constitute crimes. An insane person is also not responsible for his acts. But legal tests of insanity are much stricter than medical tests, and often persons considered lunatics by medical men are held to be sane in law. An intoxicated person is responsible for his crimes, voluntary drunkenness being no excuse.
While civil actions are brought by the injured party, criminal prosecutions are conducted by a prosecuting officer in the name of the state. A criminal proceeding ordinarily begins with the arrest of the offender. The arrest may be either by warrant or not. A police officer or a private individual may make a complaint before a magistrate who will thereupon issue a warrant or order of arrest against the person so accused. But in many cases an arrest may be made without a warrant, particularly when the crime is committed in view of the person who apprehends the criminal, or when the officer making the arrest knows that a felony has been committed and has reasonable grounds for believing that the one whom he is taking into custody committed the offence. The exact rules defining the cases in which an arrest may be made without a warrant vary in the several states.
After a person is arrested, he is brought before a magistrate1 as soon as possible. The proper official examines the case and hears whatever evidence may be produced; but neither at this examination nor at any subsequent stage of the proceedings may the accused person be questioned, unless he himself desires to testify. This is one of the cardinal principles of the English and American criminal procedure and is one of the main distinctions between the Anglo-American system and that in vogue on the
1 For the writ of habeas corpus, see above, p. 302.
continent of Europe where the accused may be and usually is interrogated.1
If the magistrate before whom the prisoner is arraigned finds that there is probable cause for holding him for trial, he commits him to jail until further proceedings are had, at the same time allowing him to give bail if he so desires, unless the accusation. is one of murder. By giving bail is meant that one or two individuals, called sureties, sign a bond obligating himself or themselves to pay a certain sum of money to the state or county if the accused person fails to appear when his case is called for trial. If bail is given, the person is released.
The case (unless it is a petty offence) is now ready to enter upon the next stage of the proceedings, namely, indictment by the grand jury, before whom the matter is presented by the prosecuting attorney. The grand jury is one of the oldest institutions of the common law and for a long time it was cherished as a safeguard against needless and oppressive prosecutions. It is a body of men drawn at the beginning of each term of court from qualified inhabitants of the county. It passes on all accusations, and if it decides that there is sufficient evidence which, if unrebutted, will probably convict the accused, it finds an "indictment" against him and the case will then go to trial. If the grand jury determines that the evidence is insufficient, the charge is dismissed and the prisoner is released from jail or his bondsmen are discharged, as the case may be.
The proceedings of the grand jury are secret and it hears only one side of the case, the prosecution. The evidence is generally presented by the prosecuting attorney, who also prepares the bill of indictment, and if the grand jury decides to indict, it indorses the fact on the bill. The decision of the grand jury need not be unanimous, as is the case with petty or trial juries, but a majority vote of the whole body is sufficient. The grand jury is not limited to passing on matters presented to it by the prosecuting attorney, but may undertake investigations of its own. It does not often do so, however. While cases usually begin with the arrest of the accused, it frequently
1 These principles are now often most grossly violated in the United States by the "third degree" practice of "sweating" prisoners.
The amount of the bond varies with the enormity of the offence and the probability of escape.
happens that an accusation is presented first before a grand jury, and in that event, of course, there is no preliminary examination before a magistrate.
In some states indictment by grand jury, even in serious crimes, is not necessary to bring a person to trial, but the same result is accomplished by "information"; that is, by an accusation brought by the prosecuting attorney. This procedure gives more influence to the prosecuting attorney, as he then has the sole power to determine whether a case should be brought to trial or not. Prosecution by information is, however, generally employed for minor offences.
After a person is indicted, he is brought before the court, the charge is read to him, and he is directed to plead. If he pleads guilty, no further proceedings are had,' and the judge imposes sentence either at once or at some later date. If he pleads not guilty, a trial is accorded to him. When the date set for the trial arrives, the cause is called before the judge holding the court. The first step consists in impanelling a jury of twelve men. The various jurors summoned are examined in turn by the prosecuting attorney and the defendant's counsel, until finally the jury is selected. The process is at times a long one, particularly in important and sensational cases. Any juror who states that he has formed a definite opinion about the case is incompetent to serve, and this rule excludes a good many men in a case which has attracted much attention and has been discussed by newspapers. In addition to this, each side may challenge a certain number of jurors peremptorily without giving any reason.3
After a jury is thus selected, the prosecuting attorney opens his case, inasmuch as the defendant is presumed to be innocent and the burden is on the prosecution to prove him guilty. In his opening speech, he generally describes the circumstances under which the alleged crime was committed and states by what evi
1 Readings, p. 88.
2 A man cannot plead guilty of murder in the first degree, however, for some form of trial must be employed in such a serious case.
3 The old process of selecting jurymen has been severely criticised within recent years on account of the great expense and waste of time. In the Gilhooly case in Chicago it took three months to secure a jury and the costs of that process to Cook county are estimated at $18,000.
dence he expects to prove the guilt of the prisoner. The prosecuting attorney then summons his witnesses one by one, and examines them about the facts of the case. As he finishes with each witness the defendant's attorney may cross-examine.
The questions that may be asked of the witnesses are limited by rules of evidence, so that no irrelevant matter may be brought in, and the witness may be confined to testimony about the facts with which he is personally acquainted. The purpose of these rules is to prevent the jury from being misled or prejudiced by facts that are not closely connected with the case. If either lawyer believes that the other is asking an improper question, he may object, and the judge then decides whether the question should be allowed or not. If the lawyer against whom the court rules is dissatisfied, he takes an "exception.”
After the prosecution completes the presentation of its side of the case, the attorney for the prisoner presents the other side in about the same manner. He first makes an opening statement to the jury, and then calls and examines his witnesses, one by one, the prosecuting attorney being given a chance to crossexamine as soon as each direct examination is finished. The prisoner is not questioned at any stage of the trial unless he wishes to go on the stand as a witness in his own behalf, and in that event, the prosecuting attorney may cross-examine him in the same way as all the other witnesses for the defence.
After the taking of testimony is ended, the prosecuting and defending counsel make speeches to the jury; and upon their completion, the judge delivers his charge. He sums up the evidence brought out by each side, and states to the jurors what is the law applying to the case before them. Thus, he tells them what must be shown in order to constitute the crime with which the defendant is charged, describes the different degrees of that crime (if the particular offence happens to be divisible into degrees), and states how much proof is necessary. The jury must feel convinced beyond a reasonable doubt that the defendant is guilty in order to convict; otherwise it must find a verdict of not guilty.
When the judge finishes his charge,' the jurors retire to deliberate. They must, as a rule, arrive at a unanimous verdict, and 1 If either lawyer is dissatisfied with any part of the charge he again 'excepts."
often that takes many hours. If they are absolutely unable to agree, they are discharged, and the prisoner has to be tried again. When the jury comes to an agreement, it returns to the courtroom and the foreman announces its verdict - guilty or not guilty. If the defendant is found not guilty, he is discharged at once. If he is convicted, the judge imposes sentence either immediately or at some future date.
The punishment for most crimes is imprisonment. For minor offences a fine is often imposed, and sometimes the sentence consists of a combination of both. The term of imprisonment varies from a short confinement in the county jail or penitentiary to imprisonment at hard labor in a state's prison for life. The law generally lays down minimum and maximum limits of punishment for the various offences, and the trial judge has full discretion in imposing any punishment within those limits. In some southern states convicts are compelled to work in the open air in chain-gangs. At times they have been turned over to private employers to work for wages paid to the state; but this system has given rise to great cruelty and is being abolished because it is revolting to an enlightened public opinion.
For good behavior the prisoner usually receives a substantial reduction in the term of his sentence, and it often happens that he is pardoned by the governor before his term ends, if there are extenuating circumstances warranting mercy. A new system of punishment known as the "indeterminate sentence" has been introduced in some states in recent years. Under this method the judge imposes a minimum and maximum term, and whether the prisoner is released at the close of the minimum term or is kept in prison longer, possibly until the expiration of the maximum term, depends on his behavior and on the promise of reform that his conduct shows. If he is liberated before the close of the maximum term, he is generally kept on probation for a while and is obliged to report to the prison officials at stated intervals, or to special probation officers.
For murder the death penalty is inflicted in most states, and in a few commonwealths it is also imposed for some other crimes.
In a few states in the West a verdict by nine or ten out of the twelve jurors is allowed in some cases; Readings, p. 88.
For an excellent illustration, see Readings, p. 448; on the pardoning power, above, p. 498.