The Short Constitution Part 36

"The rule of procedure generally recognized is that when an accused person has been put on trial under a valid indictment in a court having jurisdiction of the case, and a jury has been empaneled and sworn to try the case and give a verdict, and a verdict of _not guilty_ is given-the accused cannot be again put on trial for the same crime, or any included crime for which he might have been convicted in that prosecution."-_Cyclopedia of American Government_, Vol. II, p. 251.

"A verdict of not guilty is conclusive and the defendant must be discharged. If however he is convicted, he may in some instances appeal the case to a higher court for review and that is not being again put in jeopardy."-Emlin McClain, quoted in the _Cyclopedia of American Government_, Vol II, p. 251.

"Jeopardy is complete when the court proceeds with a jury to ascertain the defendant's guilt."

"As the criminal jurisdiction of the Federal Court extends only to offenses against the Federal laws, and no prosecution for such offenses can be entertained in the state courts-it follows that there can be no questions of former jeopardy as between a federal and a state court."-_Cyclopedia of American Government_, Vol II, p.

251.

63 Const.i.tution of the United States, Amendment V.

In our own early colonies persons were frequently tortured to compel them to give evidence against themselves or against other people, but at that time the colonies were still under British authority.

An instance was recently reported of a man appearing before a sheriff and confessing to the commission of five different murders in as many different places in a western State. Upon investigation it was found that murders had been committed in these places about the time he confessed to having committed the crimes, so he was arrested and held by the sheriff. Upon further investigation it was discovered that he was mentally unbalanced and having read of all these crimes he imagined he had committed them. He was released from arrest and was committed to a hospital for the insane. In this instance an innocent man might have been executed if his own testimony had been sufficient to convict him.

If a person confesses to having committed a crime and the facts as stated are found to be correct, he may then be convicted of the crime, but the conviction is made on the basis of the evidence disclosed by his confession and not on the confession itself. Having made a confession the officers may then from the facts told by the accused find other facts sufficient to convict without offering the confession in evidence.

"A confession is not admissible in evidence where it is obtained by temporal inducement, by threats, promise or hope of favor held out to the party in respect of his escape from the charge against him, by a person in authority."-Bouvier's _Law Dictionary_, Vol. I, p.

387.

"When an inducement destroys a confession it must be held out by a person in authority."

64 Const.i.tution of the United States, Amendment V.

This is a part of the fifth amendment to the Federal Const.i.tution, and the fourteenth is an expansion of it, and a.s.sumes that the man charged with the crime is innocent until proven guilty. The old standard set in Europe was that a person charged with crime was considered guilty until he was proven innocent. All citizens, whether native or foreign born, have the protection of this amendment.-Bouvier's _Law Dictionary_, Vol. I, p. 622.

Previous to 1679 in England an accused person could be detained in prison for months or even for years and had no recourse to the courts, but might be thus detained in prison upon a mere charge brought by some one jealous of him and without real reason. In that year the people demanded that Parliament should give relief against unjust or false imprisonment, and Parliament enacted the Habeas Corpus Act. The provisions of this notable act require that a person imprisoned may demand a preliminary hearing and learn the cause of his being seized and imprisoned. Either he or his friends or relatives could go before a judge of a court and demand a _writ of habeas corpus_. Such writ was issued by a judge and directed to the jailer or the person detaining the accused and he was compelled to bring the accused person before the court and show legal reason why that person should be detained. If no such cause or reason could be given, the accused person must be set at liberty. The guaranty of the right to a writ of habeas corpus under our Const.i.tution is considered hereafter. See page 144.

_Due process of law_ may be defined as "according to the law of the place in which the trial is held". It means in this instance that no person may be deprived of life, liberty, or property without the right of judicial trial. _Due process of law_ does not necessarily mean _jury trial_. If a jury trial is the legally recognized method of trying such case, then jury trial is _due process_, but if trial without a jury is legally provided for when permitted by the Const.i.tution, in that instance, _due process_ does not require jury trial. For cases in which the right of trial by jury is guaranteed see pages 111, 125, and 160.

"In a word, 'due process of law' to-day signifies 'reasonable law', in which sense it bestows upon the courts, and especially upon the Federal Courts, as final interpreter of the national const.i.tution, a practically undefined range of supervision over legislation both state and national."-_Cyclopedia of American Government_, Vol. I, p.

615.

"Due process of law, is law in its regular course of administration through courts of justice."-Story's _Commentaries_, Vol. III, pp.

264, 661;-18 _Howard_ 272.

"Any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice."-110 _U. S._ 516.

"Due process of law in each particular case means, such an exercise of the powers of government as the settled maxims of the law permit and sanction, and under such safeguards for the protection of the individual rights as those maxims prescribe for the cla.s.s of cases to which the one in question belongs."-Cooley's _Const.i.tutional Limitations_, p. 441.

"This provision does not imply that all trials in state courts affecting the property of persons must be by jury." This depends to some extent upon the const.i.tution of the respective states, except as limited by the United States Const.i.tution.-92 _U. S._ 90.

65 Const.i.tution of the United States, Amendment V.

Eminent domain means the right and authority of the government to take private property for public purposes upon the payment of a just compensation.

"The superior right existing in a sovereign government by which private property may in certain cases be taken or its use controlled for the public benefit, without regard to the wishes of the owner."-Bouvier's _Law Dictionary_, Vol. I, p. 657.

"Eminent domain is said with more precision to be the right of the nation or the state, or of those to whom the power has been lawfully delegated, to condemn private property to public use, upon paying to the owner a due compensation, to be ascertained according to law."-Bouvier's _Law Dictionary_, Vol. I, p. 651.

Just compensation is generally arrived at by those whose duty it is to secure the land for the government, by offering a good fair price for the land. If the owner of the land refuses to accept the offer, the land may be seized by the proper authority and the matter settled according to law. The law generally provides that a body of appraisers be appointed who appraise the value of the land and this amount is offered to the owner. If he refuses, the matter is carried to the court for determination. A jury is summoned to a.s.sess the value of the land and from this the owner may usually appeal, but the government cannot appeal; it must pay the appraised valuation or allow the owner to keep his property. It must be remembered that private property may only be taken by the government for public purposes.

Some purposes for which the government may take private property are: forts and a.r.s.enals, army posts, or public parks. It may take food supplies for use of the army or navy in time of war. It may take over the railroads for the benefit of the people of the Nation, etc. In all cases it must give just compensation.

66 Const.i.tution of the United States, Amendment VI.

"A speedy trial is, it appears, one that is brought on without unreasonable delay for preparation; and a public trial is not necessarily one to which every one may obtain admission but one sufficiently free and open to allow the friends of the accessed and others to watch the proceedings."-Emlin McClain, quoted in the _Cyclopedia of American Government_.

"Criminal prosecution is the means adopted to bring a supposed offender to justice and punishment by due course of law."

"The speedy trial to which a person charged with crime is ent.i.tled under the const.i.tution is a trial at such a time, after the finding of the indictment, as shall afford the prosecution a reasonable opportunity, by the fair and honest exercise of reasonable diligence, to prepare for trial, and if the trial is delayed or postponed beyond such period, when there is a term of court at which the trial might be had, by reason of neglect of the prosecution in preparing for trial, such delay is a denial to the defendant of the right of a speedy trial, and in such case a person confined, upon application by _habeas corpus_, is ent.i.tled to a discharge from custody."-Bouvier's _Law Dictionary_, Vol. II, p. 1023.

Every jury is sworn to decide according to the evidence presented, guided by instructions in the law given by the judge. Juries are therefore held to be _impartial_.

The entire United States is divided into judicial districts, of which there are about ninety-two. These districts are found within the States as judicial districts do not cut State boundaries. Where the population is more spa.r.s.e a Federal district comprises an entire State. Where the population is more dense a State may contain two or more districts. There are four United States District Court districts in the State of New York, two in Iowa, and only one in Nevada, and some other western States.

Congress may by legislative act lay out Federal court districts.

These districts were first established in the Federal Judiciary Act of 1789. As the population increases Congress may increase the number of districts.

67 Const.i.tution of the United States, Amendment VI.

If one is not given a preliminary hearing shortly after his arrest, the right to a writ of _habeas corpus_ (defined in another chapter), gives the accused an opportunity to know the exact nature of the charge against him and why he is held or detained in prison. Then he is faced by his accusers in court and bears the charge against him.

In all criminal cases the accused is privileged to be present throughout the entire trial, in fact he is required to be present during the trial.

In early England, and in many other European countries in early times, the accused person was not even permitted to know the reason for his imprisonment, and furthermore was tried in court and found guilty without hearing the evidence or knowing who testified in court.

The right of trial upon indictment of a grand jury, and the privilege of confronting one's accusers in court, having witnesses in one's behalf, and having an attorney to defend one accused, is not yet allowed in certain parts of Russia and perhaps other countries in Europe and Asia. These privileges have been the recognized right of all people in the United States since our glorious Const.i.tution was adopted and became the fundamental law of our country in 1789.

Teachers of civics in our schools ought to ask permission of the judge to take their cla.s.ses to visit a session of the court. The judge is able to inform the teacher as to when certain cases of most value to pupils and other persons are to be tried. The trial of certain kinds of cases brings out many fundamental facts of rights and duties of citizenship that boys and girls, as well as many adult persons, ought to know.

"The accused is of all men the most miserable, unless the law gives him an equal chance to defend himself. Time was when the courts could hear privately the witnesses against the prisoner, and then call him into court to answer charges, which he never had heard of, made upon the testimony of witnesses he never had seen, without any legal means of compelling his own witnesses to come to court to testify for him and without any lawyer to speak for him against the trained counsel for the government. Many of these abuses had been weeded out before the Const.i.tution was adopted."-Bacon's _American Plan of Government_, p. 272.

"Almost all the reform needed to make criminal procedure humane and just, has been incorporated into the const.i.tutions and laws of the states during the first era of independence; but the people of the United States bad no such safeguards."-Bacon's _American Plan of Government_, p. 273.

"The charge to be answered by the defendant on trial in a criminal court must be clear, explicit, and definite. The prosecution has no right to compel the accused to show that he is a good member of society."-_7 Peters Rep. 138._

68 Const.i.tution of the United States, Amendment VI.

"In judicial procedure a witness is one who is duly called upon to testify under oath as to matters within his knowledge. By rules of procedure some persons are disqualified from testifying on account of want of mental capacity as, for instance, idiots, insane persons, and infants who have not attained the age of discretion. Others who are qualified to testify may be of such character that their testimony is not ent.i.tled to the weight which should be given to some other witness. Furthermore, a witness may be so related to the subject matter or to the parties as that in the particular case his testimony should not be received, or should be received under limitations as to its credibility and weight. And finally the competency of testimony offered is regulated by rules of evidence fixed by law."

"Under const.i.tutional guaranties of religious freedom, the religious belief of a witness cannot be made a ground for his disqualification to testify."

"As to criminal prosecution, it is usually provided in state const.i.tutions as it is in the Fifth and Sixth Amendments to the Federal Const.i.tution that the accused shall not be compelled to be a witness against himself and that he has a right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. These are privileges which the accused may waive."-Emlin McClain, quoted in _Cyclopedia of American Government_, Vol. III, p. 693.

69 "Compulsory process is the means of compelling a witness to appear before the court at the time of trial and, under oath, tell what he knows about the matter under consideration."-Bouvier's _Law Dictionary_, Vol. II, p. 766.

A _subpoena_ is an order issued in a court and given to a sheriff or other executive officer, to be served upon or read to a witness, compelling him to appear before the court at the time stated. He must lay aside all pretenses and excuses, and appear before the court or the magistrate at the time and place named in the subpoena, under a penalty therein cited for failure to appear. His failure to obey the order of the court, or subpoena, is known as _contempt_.

Contempt is punishable in Federal courts, and in most States by the order of the judge, and is not subject to jury trial. (Oklahoma is an exception.)