CHAPTER V. TRIAL. Rights guaranteed to the accused. The sixth article of the amendments to the constitution, as already stated, secures to the accused, "a right to a speedy and public trial." It entitles him also "to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” Speedy Trial.] The spirit of this guaranty is easily discerned, and it was designed for practical effect. It enjoins upon the public prosecutor the duty of diligent preparation for the trial, and upon the courts the obligation to require the strict performance of this duty. A failure to fulfill it entitles the accused to his discharge from further imprisonment, either absolutely or upon his own recognizance, or, if he has been admitted to bail, it entitles his sureties to a discharge from further responsibility. It is to be borne in mind, moreover, that this provision was intended for the benefit of the accused, and that it affords no warrant for compelling him to be brought to trial without an opportunity for due preparation.1 Copy of the indictment, &c.] A person indicted for treason must have a copy of the indictment, and a list of the panel of petit jurors summoned, and of 'It is said to be the settled practice of the English courts, in cases of felony, to try the accused at the same session, and generally on the same day when the indictment is found against him and he is arraigned; while in misdemeanors the practice is otherwise; and when the defendant is not in actual custody, it is said the court has no power to compel him to take his trial at the same session at which he pleaded to the indictment. 1 Chit. Cr. Law, 483, 484. No such distinction, it is believed, has ever been made in the courts of this country. CHAP. 5. PART 4. the witnesses to be produced on the trial to prove the indictment, stating their names and places of abode, delivered to him at least three entire days before the trial; and if indicted for any other capital offenses, must have delivered to him such copy of the indictment and list of jurors, two entire days before the trial.1 Right of defense-Process for witnesses-Assignment of counsel.] The sixth article of the amendment to the constitution further ordains that the accused in all criminal prosecutions shall "have compulsory process for obtaining witnesses in his favor and the assistance of counsel for his defense." The crimes act of 1790, just above cited, contains like provisions in a more amplified form. It was passed, as we have seen, before the full ratification of the amendment, but not being inconsistent with it, the act was not repealed by it. The 29th section of this act, in addition to the provisions already recited, directs: "That every person so accused and indicted for any of the crimes aforesaid, shall also be allowed and admitted to make his full defense by counsel learned in the law; and the court before whom such person shall be tried, or some judge thereof, shall, and they are hereby authorized and required imme 'Crimes act of April 30, 1790, ch. 9, § 29: 1 Stat. at Large, p. 118. In England the right to have a copy of the indictment is limited to indictment for treason, but the time of its delivery before trial, is longer. The statute 7 W. III, c. 3, gives five days, and the act was interpreted to mean five days before the arraignment of the prisoner, for then is the time for him to take exception to it by way of a plea or a demurrer. 4 Bla. Com. 351. It was held, also, that the copy ought to include the caption of the indictment. The statute 7 Anne, c. 24, extends the time to ten days, and requires also a list of jurors and witnesses to be delivered. Id., 352, note. There seems to be good sense, and no more than justice, in the liberal interpretation of the English acts by which the specified number of days is computed from the arraignment; and the number of days prescribed in the American act seems insufficient, especially if, according to the decision of the late Judge STORY, the word "trial" in this act is to receive a strict interpretation, limiting its meaning to a trial by jury. 4 Mason's Rep., 232. diately upon his request, to assign to such person such counsel, CHAP. 5. not exceeding two, as such person shall desire, to whom such counsel shall have free access at all reasonable hours; and every such person or persons accused or indicted of the crimes aforesaid, shall be allowed and admitted in his said defense to make any proof that he or they can produce, by lawful witnesses, and shall have the like process of the court where he or they shall be tried, to compel his or their witnesses to appear at his or their trial, as is usually granted to compel witnesses to appear on the prosecution against them." This enactment, designed to secure important privileges to the accused, which are denied by the common law, it will be noticed, applies only to persons indicted for offenses comprised by the words "any of the crimes aforesaid." The section of which it forms a part, names only treason and other capital offenses. But the other sections of the act define all the offenses for the punishment of which it was then thought necessary to provide, and it may reasonably be presumed that the enactment was designed to embrace all the offenses defined and declared punishable by the act. But the catalogue of offenses against the United States has, by subsequent laws, been considerably enlarged, and to these new offenses the provision in question is supposed not to extend. I am not aware, however, that any distinction has been made in any of the courts of the United States, with respect to any of the rights conferred on the accused by the act of 1790, between the offenses enumerated in the act and those subsequently defined. And by a later act, the right to compulsory process for witnesses has been extended in favor of indigent persons. The provision is in the following words: "And be it further enacted, That whenever any indictment shall be pending in any court of the United States, and any defendant thereto shall make an affidavit, setting forth that there are witnesses whose evidence is material to his defense, PART 4. and that he cannot safely go to trial without them, what he expects to prove by each of them, that they are within the district in which the court is held, or within one hundred miles of the place of trial, and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the court in term, or any judge thereof in vacation, may, if it appear proper to do so, order that such witnesses be subpenaed, if found within the limits aforesaid; and in such case, the costs incurred by such process and the fees of such witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpenaed in behalf of the United States." In requiring the payment by the United States of the fees of the witnesses, the act unquestionably extends to fees for attendance as well as for travel. Another early act directs that "subpoenas for witnesses who may be required to attend a court of the United States, in any district thereof, may run into any other district, provided, that in civil causes, the witnesses living out of the district in which the court is holden, do not live at a greater distance than one hundred miles from the place of holding the court."" The limitation imposed by this proviso with respect to civil cases, the reader will have noticed, is adopted by the act of 1846, above recited, respecting witnesses subpenaed in behalf of the defendant in virtue of that act. But with this exception, the process of subpœna, in criminal cases, runs throughout the United States. The petit jury-Rights of challenge.] Touching the qualifications of jurors, and the mode of designating and summoning them, vide, supra, p. 407.3 1 Act of August 8, 1846, ch. 98, § 11: 9 Stat. at Large, p. 74. 2 Act of March 2, 1792, ch. 23, § 6: 1 Stat. at Large, p. 335. 2 The act of June 17, 1862, ch. 103, prescribing new cause of challenge and requiring an additional oath, recited supra, p. 594, it will be seen, embraces petit as well as grand jurors. The right of peremptory challenge in capital cases CHAP. 5. exists in the courts of the United States; but there appears to be some uncertainty with respect to its boundaries. For the purpose, doubtless, of avoiding certain incongruities which were supposed to be sanctioned by the common law, relative to the consequences to the prisoner in case he should peremptorily challenge a greater number of jurors than the law permitted,' it was provided in the crimes act of 1790, that when any person or persons indicted for treason, should peremptorily challenge more than thirty-five; and when any person or persons indicted for "any other offenses hereinbefore set forth, for which the punishment is declared to be death," should peremptorily challenge more than twenty of the jury, the court should nevertheless proceed to the trial of such person or persons as if he or they had pleaded not guilty. The numbers here designated were in accordance with the laws of England at that time. For although by the common law the prisoner was allowed thirty-five peremptory challenges in all cases of capital felony, as well as on an indictment for treason, the number in cases of murder and other felonies had been reduced to twenty by a statute passed in the reign of Henry VIII.3 In the case of The United States v. Johns, tried in 1806, in the circuit court for the Pennsylvania district, for a capital felony, created by an act passed subsequently to the above cited act of 1790, it was held that the prisoner was entitled to thirty-five per1 See 1 Chit. Cr. Law, 536. 'Ch. 9, § 29: 1 Stat. at Large, p. 112. 'See 1 Chit. Cr. Law, 534; 4 Bla. Com., 353. This statute also embraced treason, but so far as respects this crime was repealed by the 1 and 2 Ph. and M. Id. |