§ 40. The plea of defendant. According to the early common law, it was thought that before the trial could proceed, the defendant had to plead to the indictment. In treason, petit felony, and misdemeanors, a refusal to plead or standing mute, was equivalent to a plea of guilty and the sentence was pronounced as if the prisoner had been regularly convicted. But in all other cases, it was necessary to have a plea entered, before judgment could be pronounced; and unless the defendant could be compelled to plead, the prosecution would fail. It was the custom in such cases to resort to tortures of the most horrible kind in order to compel the defendant to plead; and where the refusal was shown to be through obstinacy or a design to frustrate the ends of justice, and not because of some physical or mental infirmity (and these matters were determined by a jury summoned for that purpose), the court would pronounce the terrible sentence of "peine forte et dure."1 But at the present day the necessity of a voluntary plea to the indictment does not seem to be considered so pressing, as to require the application of this horrible penalty. Respect for the common law requirement is manifested only by the court ordering the plea of not guilty to be entered, whenever the prisoner failed or refused to plead, and the trial then proceeds to the end as if he had voluntarily pleaded.

If upon arraignment, the prisoner should plead guilty, it would appear, from a superficial consideration of the matter, that no further proof need be required. But, strange

1 Which was as follows: "That the prisoner be remanded to the prison from whence he came; and put into a low dark chamber; and there be laid on his back, on the bare floor, naked, unless where decency forbids; that there be placed upon his body, as great a weight of iron as he could bear, and more; that he have no sustenance, save only, on the first day three morsels of the worst bread; and, on the second day, three draughts of standing water, that should be nearest to the prison door; and in this situation such should be alternately his daily diet till he died, or (as anciently the judgment ran) till he answered." 4 Bl. Com. 423.

as it may seem, there have been cases in which the accused has pleaded guilty, and it has afterwards been discovered that no crime had been committed. A tender regard for the liberty of the individual would suggest the requirement of extraneous evidence to prove the commission of a crime, and the plea of guilty be admittted only to connect the prisoner with the crime. This would be sufficient precaution in the ordinary criminal cases, but in capital cases it would be wise to authorize a refusal of all pleas of guilty; for a mistake in such cases would be irremediable.1

If the plea is not guilty, it becomes necessary for the State to show by competent, legal evidence, that the defendant has committed the crime wherewith he is charged. Except in a few cases, where the subject-matter of the testimony forms a part of a public record, or consists of the dying declaration of the murdered man in a case of homicide, which are made exceptions to the rule by the necessities of criminal jurisprudence, the evidence is presented to the court by the testimony of witnesses. It is the invariable rule of the criminal law, which is believed to be guaranteed by the constitutional limitations, that the testimony must be given in open court by the witnesses orally, so that the defendant will have an opportunity to crossexamine them.2

1 In Stringfellow v. State, 26 Miss. 155, a confession of murder was held not sufficient to warrant conviction, unless supported by other evidence showing the death of the man supposed to have been murdered, See, also, People v. Hennesy, 15 Wend. 147.

2 Jackson v. Commonwealth, 19 Gratt. 656; Johns v. State, 55 Md. 350, State v. Thomas, 64 N. C. 74; Bell v. State, 2 Tex. App. 216 (28 Am. Rep. 429); Goodman v. State, Meigs, 197. But if there has been a preliminary examination before a coroner or magistrate, or a previous trial, when the defendant had an opportunity to cross-examine the witness, it will be allowable to make use of the minutes of the previous examination in all cases where the witness is since deceased, has become insane, or is sick, or is kept away by the defendant. Commonwealth v. Richards, 18 Pick. 434; State v. Hooker, 17 Vt. 658; Brown v. Commonwealth, 73 Pa. St. 321; Summons v. State, 5 Ohio St. 325; O'Brien v. Commonwealth, 6

According to English and American law, the presumption of innocence of the accused, until that presumption is overthrown by evidence to the contrary, is generally held to require the prosecution to dissipate every reasonable doubt before the defendant can be justly pronounced guilty. But this principle of criminal law does not prevent the legislature from declaring by statute that certain facts when proven create a presumption of guilt, or shall be taken as prima facie evidence of guilt. It would, of course, be different if the statute created a conclusive presumption of guilt from the proof of certain facts. Such a conclusive presumption when created by statute, would be a violation of the constitutional requirement of "due process of law."1

One of the most important constitutional requirements in this connection, and that which most distinguishes the common-law system of criminal procedure from that of the European continent, is that the accused can never be compelled to criminate himself by his evidence. Nor can he be compelled to testify to any degree whatever. On the continent of Europe he is compelled to answer every question that is propounded to him by the presiding judge. In England and America he may now testify in his own behalf, but the privilege of remaining silent is so strictly guarded, that it is very generally held to be error for the State to comment on, and to draw adverse inferences from, his failure to take advantage of the opportunity to testify in his own behalf. The Anglo-Saxon spirit of fair play requires the State to convict the accused without the aid of extorted confessions, and will not allow such criticisms on his silence.2 Bush, 503; Pope v. State, 22 Ark. 371; Davis v. State, 17 Ala. 354; Kendricks v. State, 10 Humph. 479; People v. Murphy, 45 Cal. 137.

1 State v. Beach, 147 Ind. 74; State v. Anderson, 5 Wash. St. 350 (31 P. 969); Floeck v. State (Tex. Cr. App.), 30 S. W. 794; Wooten v. State, 23 Fla. 335; People v. Cannon, 139 N. Y. 32; People v. Quinn, Ib.; People v. Bartholf, Ib.

2 See Commonwealth v. Bonner, 97 Mass. 587; Commonwealth v.

But if he goes upon the witness-stand, while he still has the privilege of deciding how far and as to what facts he shall testify, and may refuse to answer questions which may tend to criminate him, the State attorney may comment on the incompleteness of the evidence and his refusal to answer proper questions. Having put himself upon the stand, very little weight can be given to his testimony, if he does not tell the whole truth, as well as nothing but the truth.1 It is hardly necessary to state that a full opportunity must be given to the accused to defend himself against the charge of the State. Without such an opportunity, the proceeding would be only ex parte. For that reason, a State statute has been declared to be unconstitutional, which provides that the jury may return a verdict of guilty of embezzlement, on an indictment which charges the defendant with larceny.3

§ 41. Trial by jury-Legal jeopardy. All prosecutions are tried at common law by a jury, and in some of our State constitutions the right of trial by jury is expressly guaranteed. Where the right is guaranteed without restriction, it means a common-law trial by jury; and

Morgan, 107 Mass. 109; Commonwealth v. Nichols, 114 Mass. 285 (19 Am. Rep. 346); Commonwealth v. Scott, 123 Mass. 239 (25 Am. Rep. 87); State v. Cameron, 40 Vt. 555; Brandon v. People, 42 N. Y. 265; Connors v. People, 50 N. Y. 240; Stover v. People, 56 N. Y. 315; Devries . Phillips, 63 N. C. 53; Bird v. State, 50 Ga. 585; Calkins v. State, 18 Ohio St. 366; Knowles v. People, 15 Mich. 408; People v. Tyler, 36 Cal. 522. See, contra, State v. Bartlett, 55 Me. 200; State v. Lawrence, 57 Me. 375; State v. Cleaves, 59 Me. 298 (8 Am. Rep. 422).

1 State v. Ober, 52 N. H. 459 (13 Am. Rep. 88); State v. Wentworth, 65 Me. 234 (20 Am. Rep. 688; Connors v. People, 50 N. Y. 240.

2 In re Roberts (Kan. App.), 45 P. 942.

3 Howland v. State, 58 N. J. L. 18.

4 State v. Craig, 80 Me. 85; State v. Pugsley, 75 Iowa, 742; City of Creston v. Nye, 74 Iowa, 369; Grand Rapids & I. Ry. Co. v. Sparrow, 36 F. 210; Jester v. State, 26 Tex. App. 369; Conners v. Burlington, etc., Ry. Co., 74 Iowa, 383; Thomas v. Hilton (Wash.), 17 P. 882; State v. Cottrill, 31 W. Va. 162.

where at common law certain offenses were triable by the court without the aid of a jury, the jury is not now required. Whether in the absence of an express guaranty of the trial by jury, it could be abolished by the legislature, is difficult to determine. If one can keep his judgment unbiased by the prevailing sentiment, which makes of the jury the palladium of liberty," "the nation's cheap defender," etc., it would seem that he must conclude

1 What are the common-law characteristics of a jury trial, are so fully set forth and explained in books of criminal procedure, that any statement of them in this connection is unnecessary. State v. Churchill, 48 Ark. 426. It is not a violation of the constitutional guaranty of a trial by jury, if in the enforcement of city ordinances, juries are not required. State v. City of Topeka, 36 Kan. 76; Wong v. City of Astoria, 13 Oreg. 538. So, also, in enforcing the subpoenas of the United States Interstate Commission. Interstate Commerce Commission v. Brimson, 154 U. 8.

447.

It is also held to be no violation of this constitutional provision for the statutes to authorize the defendants in criminal cases, and both parties in civil suits, to waive a jury, and try the case before a judge alone. Laverty v. State, 109 Ind. 217; Warwick v. State, 47 Ark. 568; Moore v. State, 21 Tex. App. 666; Citizens Gaslight Co. v. Wakefield, 161 Mass. 432.

It seems that where the offense is of grave import a statute is unconstitutional, which does not provide for a trial by jury; as, for example, where property of large or substantial value is directed to be condemned or destroyed, because it was used in violation of law. This ruling was made in a case under the fishery law of New York, which provided that vessels, unlawfully used in disturbing oyster beds, shall be seized, and condemned to be sold in proceedings before a justice of the peace, with out the intervention of a jury. This law was held to be a violation of the constitutional guaranty of trial by jury. Colon v. Lisk, 153 N. Y. 188; aff'g s. c. 43 N. Y. S. 364. On the other hand, under the same law, the summary destruction of fishing nets by a constable or peace officer, when found on or near the shores of the waters, was held to be constitutional, even though there has been no judicial condemnation of these contraband articles, with or without a jury. Lawton v. Steele, 119 N. Y. 226; s. c. 152 U. S. 133.

The common law permitted courts to commit persons for contempt of court, without the verdict of a jury; and it has been held that the legislature has no right to curtail the power of the courts to punish summarily for contempt. Hale v. State, 55 Ohio St. 210; In re McAdam, 54 Hun,637.