Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

the remarks of Mr. Justice Baldwin, of the Supreme Court of the United States, to a jury assisting him in the trial of a criminal charge, and which are given in the note, seem peculiarly dignified and appropriate, and at the same time to embrace about all that can properly be said to a jury on this subject.1

"In repeating to you what was said on a former occasion to another jury, that you have the power to decide on the law, as well as the facts of this case, and are not bound to find according to our opinion of the law, we feel ourselves constrained to make some explanations not then deemed necessary, but now called for from the course of the defence. You may find a general verdict of guilty or not guilty, as you think proper, or you may find the facts specially, and leave the guilt or innocence of the prisoner to the judgment of the court. If your verdict acquit the prisoner, we cannot grant a new trial, however much we may differ with you as to the law which governs the case; and in this respect a jury are the judges of the law, if they choose to become so. Their judgment is final, not because they settle the law, but because they think it not applicable, or do not choose to apply it to the case.

"But if a jury find a prisoner guilty against the opinion of the court on the law of the case, a new trial will be granted. No court will pronounce a judgment on a prisoner against what they believe to be the law. On an acquittal there is no judgment; and the court do not act, and cannot judge, there remaining nothing to act upon.

"This, then, you will understand to be what is meant by your power to decide on the law, but you will still bear in mind that it is a very old, sound, and valuable maxim in law, that the court answers to questions of law, and the jury to facts. Every day's experience evinces the wisdom of this rule." United States v. Wilson, Baldw. 108. We quote also from an Alabama case: "When the power of juries to find a general verdict, and consequently their right to determine without appeal both law and fact, is admitted, the abstract question whether it is or is not their duty to receive the law from the court becomes rather a question of casuistry or conscience than one of law; nor can we think that any thing is gained in the administration of criminal justice by urging the jury to disregard the opinion of the court upon the law of the case. It must, we think, be admitted, that the judge is better qualified to expound the law, from his previous training, than the jury; and in practice unless he manifests a wanton disregard of the rights of the prisoner, -a circumstance which rarely happens in this age of the world and in this country, — his opinion of the law will be received by the jury as an authoritative exposition, from their conviction of his superior knowledge of the subject. The right of the jury is doubtless one of inestimable value, especially in those cases where it may be supposed that the government has an interest in the conviction of the criminal; but in this country where the government in all its branches, executive, legislative, and judicial, is created by the people, and is in fact their servant, we are unable to perceive why the jury should be invited or urged to exercise this right contrary to their own convictions of their capacity to do so, without danger of mistake. It appears to us that it is sufficient that it is admitted that it is their peculiar province to determine facts, intents, and pur

* One thing more is essential to a proper protection of [* 325] accused parties, and that is that one shall not be subject

poses; that it is their right to find a general verdict, and consequently that they must determine the law; and whether in the exercise of this right they will distrust the court as expounders of the law, or whether they will receive the law from the court, must be left to their own discretion under the sanction of the oath they have taken." State v. Jones, 5 Ala. 672. But as to this case, see Batre v. State, 18 Ala. 119.

It cannot be denied that discredit is sometimes brought upon the administration of justice by juries acquitting parties who are sufficiently shown to be guilty, and where, had the trial been by the court, a conviction would have been sure to follow. In such cases it must be supposed that the jury have been controlled by their prejudices or their sympathies. However that may be, it by no means follows that because the machinery of jury trial does not work satisfactorily in every case, we must therefore condemn and abolish the system, or, what is still worse, tolerate it, and yet denounce it as being unworthy of public confidence. Jury trial, when considered in all its aspects, - as an instrument in the administration of justice; as an educator of the people in law and politics; and as a means of making them feel their responsibility in the government, and the important part they bear in its administration, is by far the best system of

trial yet devised; and we must take it with all its concomitants, among which is a due sense of independence in the jurors. The institution loses its value when the jury becomes a mere instrument for receiving and echoing back the opinions of the judge on the case in trial. Concede its defects, and the truth still remains, that its benefits are indispensable. The remarks of Lord Erskine, the most distinguished jury lawyer known to English history, may be quoted as peculiarly appropriate in this connection: "It is of the nature of every thing that is great and useful, both in the animate and inanimate world, to be wild and irregular, and we must be content to take them with the alloys which belong to them, or live without them. . . . Liberty herself, the last and best gift of God to his creatures, must be taken just as she is. You might pare her down into bashful regularity, shape her into a perfect model of severe, scrupulous law; but she would then be Liberty no longer; and you must be content to die under the lash of this inexorable justice which you had exchanged for the banners of freedom."

The province of the jury is sometimes invaded by instructions requiring them to adopt, as absolute conclusions of law, those deductions which they are at liberty to draw from a particular state of facts, if they regard them as reasonable: such as that a homicide must be presumed malicious, unless the defendant proves the contrary; which is a rule contradictory of the results of common observation; or that evidence of a previous good character in the defendant ought to be disregarded, unless the other proof presents a doubtful case; which would deprive an accused party of his chief protection in many cases of false accusations and conspiracies. See People v. Garbutt, 17 Mich. 9; People v. Lamb, 2 Keyes, 360; People v. Revisen, Court of Appeals of New York, October term, 1870. Upon the presumption of malice in homicide, the reader is referred to the Review of the Trial of Professor Webster, by Hon. Joel Parker, in the

[* 326] to be twice put in jeopardy upon the same charge. One trial and verdict must, as a general rule, protect him against any subsequent accusation of the same offence, whether the verdict be for or against him, and whether the courts are satisfied with the verdict or not. We shall not attempt in this place to collect together the great number of judicial decisions bearing upon the question of legal jeopardy, and the exceptions to the general rule above stated: for these the reader must be referred to the treatises on criminal law, where the subject will be found to be extensively treated. It will be sufficient for our present purpose to indicate very briefly some general principles.

A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or infor[* 327] mation * which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged when they have been impanelled and sworn.2 The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continuance of the cause.

North American Review, No. 72, p. 178. See also upon the functions of judge and jury respectively, the cases of Commonwealth v. Wood, 11 Gray, 86; Maher v. People, 10 Mich. 212; Commonwealth v. Billings, 97 Mass. 405; State v. Patterson, 63 N. C. 520; State v. Newton, 4 Nev. 410.

1 Commonwealth v. Cook, 6 S. & R. 586; State v. Norvell, 2 Yerg. 24; Williams v. Commonwealth, 2 Grat. 568; People v. McGowan, 17 Wend. 386; Mounts v. State, 14 Ohio, 295; Price v. State, 19 Ohio, 423; Wright v. State, 5 Ind. 292; State v. Nelson, 26 Ind. 366; State v. Spier, 1 Dev. 491; State v. Ephraim, 2 Dev. & Bat. 162; Commonwealth v. Tuck, 20 Pick. 356; People v. Webb, 28 Cal. 467; People v. Cook, 10 Mich. 164; State v. Ned, 7 Port. 217; State v. Callendine, 8 Iowa, 288. It cannot be said, however, that a party is in legal jeopardy in a prosecution brought about by his own procurement; and a former conviction or acquittal is consequently no bar to a second indictment, if the former trial was brought about by the procurement of the defendant, and the conviction or acquittal was the result of fraud or collusion on his part. Commonwealth v. Alderman, 4 Mass. 477; State v. Little, 1 N. H. 257; State v. Green, 16 Iowa, 239. See also State v. Reed, 26 Conn. 202. And if a jury is called and sworn, and then discharged for the reason that it is discovered the defendant has not been arraigned, this will not constitute a bar. United States v. Riley, 5 Blatch. 205.

2 McFadden v. Commonwealth, 23 Penn. St. 12.

3

People v. Barrett, 2 Caines, 304; Commonwealth v. Tuck, 20 Pick. 365;

If, however, the court had no jurisdiction of the cause, or if the indictment was so far defective that no valid judgment could be rendered upon it,2 or if by any overruling necessity the jury are discharged without a verdict, which might happen from the sickness or death of the judge holding the court, or of a juror,5 or the inability of the jury to agree upon a verdict after reasonable time for deliberation and effort; or if the term of the court as fixed by law comes to an end before the trial is finished; or the jury are discharged with the consent of the defendant expressed or implied;8 or if, after verdict against the accused, it has been set aside on his motion for a new trial or on writ of error,9 [*328] or the judgment thereon been arrested,10-in any of these

Mounts v. State, 14 Ohio, 295; State v. Connor, 5 Cold. 311; State v. Callendine, 8 Iowa, 288; Baker v. State, 12 Ohio, N. s. 214.

1 Commonwealth v. Goddard, 13 Mass. 455; People v. Tyler, 7 Mich. 161. 2 Gerard v. People, 3 Scam. 363; Pritchett v. State, 2 Sneed, 285; People v. Cook, 10 Mich. 164; Mount v. Commonwealth, 2 Duv. (Ky.) 93; People v. McNealy, 17 Cal. 333; Kohlheimer v. State, 39 Miss. 548; State v. Kason, 20 La. An. 48; Black v. State, 36 Geo. 447.

3 United States v. Perez, 9 Wheat. 579; State v. Ephraim, 2 Dev. & Bat. 166; Commonwealth v. Fells, 9 Leigh, 620; People v. Goodwin, 18 Johns. 205; Commonwealth v. Bowden, 9 Mass. 194; Hoffman v. State, 20 Md. 425; Price v. State, 36 Miss. 533.

4 Nugent v. State, 4 Stew. & Port. 72.

Hector v. State, 2 Mo. 166; State v. Curtis, 5 Humph. 601; Mahala v. State, 10 Yerg. 532; Commonwealth v. Fells, 9 Leigh, 613.

People v. Goodwin, 18 Johns. 187; Commonwealth v. Olds, 5 Lit. 140; Dobbins v. State, 14 Ohio, N. s. 493; Miller v. State, 8 Ind. 325; State v. Walker, 26 Ind. 346; Commonwealth v. Fells, 9 Leigh, 613; Winsor v. The Queen, L. R. 1 Q. B. 289; State v. Prince, 63 N. C. 529.

7 State v. Brooks, 3 Humph. 70; State v. Battle, 7 Ala. 259; Mahala v. State, 10 Yerg. 532 State v. Spier, 1 Dev. 491; Wright v. State, 5 Ind. 290.

State v. Slack, 6 Ala. 676; Elijah v. State, 1 Humph. 103; Commonwealth v. Stowell, 9 Met. 572.

And it seems, if the verdict is so defective that no judgment can be rendered upon it, it may be set aside even against the defendant's objection, and a new trial had. State v. Redman, 17 Iowa, 329.

10 Casborus v. People, 13 Johns. 351. But where the indictment was good, and the judgment was erroneously arrested, the verdict was held to be a bar. State v. Norvell, 2 Yerg. 24. See People v. Webb, 28 Cal. 467. So if the error was in the judgment and not in the prior proceedings, if the judgment is reversed, the prisoner must be discharged. See post, p. 330. But it is competent for the legislature to provide that on reversing the erroneous judgment in such case, the court, if the prior proceedings are regular, shall remand the case for the proper sentence. McKee v. People, 32 N. Y. 239. It is also competent, we

cases the accused may again be put upon trial upon the same facts before charged against him, and the proceedings had will constitute no protection. But where the legal bar has once attached, the government cannot avoid it by varying the form of the charge in a new accusation: if the first indictment or information were such that the accused might have been convicted under it on proof of the facts by which the second is sought to be sustained, then the jeopardy which attached on the first must constitute a protection against a trial on the second.1 And if a prisoner is acquitted on some of the counts in an indictment, and convicted on others, and a new trial is obtained on his motion, he can be put upon trial the second time on those counts only on which he was before convicted, and is for ever discharged from the others.2

Excessive Fines and Cruel and Unusual Punishments.

It is also a constitutional requirement that excessive bail shall not be required, nor cruel and unusual punishments inflicted.

Within such bounds as may be prescribed by law, the question what fine shall be imposed is one addressed to the discretion of the court. But it is a discretion to be judicially exercised; and there may be cases in which a punishment, though not beyond any limit fixed by statute, is nevertheless so clearly excessive as to be erroneous in law.3 A fine should have some reference to the

suppose, in the absence of express constitutional prohibition, to allow an appeal or writ of error to the prosecution, in criminal cases. See State v. Tait, 22 Iowa, 141.

1 State v. Cooper, 1 Green, 360; Commonwealth v. Roby, 12 Pick. 504; People v. McGowan, 17 Wend. 386; Price v. State, 19 Ohio, 423; Leslie v. State, 18 Ohio, N. s. 395; State v. Benham, 7 Conn. 414.

Campbell v. State, 9 Yerg. 333; State v. Kettle, 2 Tyler, 475; Morris v. State, 8 S. & M. 762; Esmon v. State, 1 Swan, 14; Guenther v. People, 24 N. Y. 100; State v. Kattleman, 35 Mo. 105. A noble prosequi on one count of an indictment after a jury is called and sworn, is a bar to a new indictment for the offence charged therein. Baker v. State, 12 Ohio, N. s. 214.

The subject of cruel and unusual punishments was somewhat considered in Barker v. People, 3 Cow. 686, in which case the opinion was expressed by Chancellor Sanford that a forfeiture of fundamental rights-e. g., the right to jury trial-could not be imposed as a punishment for crime, but that a forfeiture of the right to hold office might be. In Done v. People, 5 Park. 364, the cruel punishments of colonial times, such as burning alive and breaking on the wheel,

« ΠροηγούμενηΣυνέχεια »