« SebelumnyaLanjutkan »
This is another of the bills that have been recommended by the President and the Secretary of War in pursuance of the act of May 17, 1928, providing for the revision and codification of the laws of the Canal Zone. It provides approximately 120 amendments to the Code of Criminal Procedure for the Canal Zone, which was enacted by the Isthmian Canal Commission September 3, 1904.
The Code of Criminal Procedure is found in the laws of the Canal Zone (annotated 1921) at page 173. Many of the proposed amendments to the code are found to be necessary by reason of several changes in the Canal Zone judicial system that have been adopted since the Code of Criminal Procedure was put into effect in 1904. For instance, rules of evidence, and rules for determining the competency of witnesses are entirely missing in the existing code; they are added to the code by these proposed amendments. When the code was originallly adopted there was no jury system in the Canal Zone which explains the reason for many of the proposed amendments applicable to trials by jury. The purpose and effect of the different proposed amendments may be briefly explained as follows:
Section 1 amends section 2 of the existing code. The present provision authorizes a trial by jury "upon demand." This act requires a jury "unless waived." The amendment is in conformity with section 689 of the California Penal Code.
Section 2 amends section 3 of the existing code by restating the first clause of the section and omitting the rest which is covered in other sections of the bill.
Section 3 amends section 8 of the existing code by making it conform to both courts that are now authorized in the zone by the judicial system adopted since the present Code of Criminal Procedure was put into effect.
Section 4 amends section 9 of the existing code so as to include. offenses against the laws of the United States applicable to the zone.
Section 5 amends section 11 of the existing code by restating the same and eliminating reference to preliminary examinations before the district attorney. This is in conformity with section 686 of the California Code.
Section 6 amends section 12 of the existing code by combining portions of sections 12 and 13. The definition of magistrates in section 12 of the existing code is no longer appropriate in view of the creation of magistrates' courts since the existing code was adopted.
Section 7 amends section 14 of the existing code by restating it to conform to existing conditions.
Section 7a amends section 18 by restating the same in a better form. Section 8 amends section 19 of the existing code by adding a requirement that the affidavit of complaint in the magistrate's court must contain particulars as to time, place, person, and property. This requirement was formerly erroneously made in the last sentence of section 20 of the existing code in respect to warrant of arrest rather than the affidavit of complaint.
Section 9 amends section 20 of the existing code by restating it in a different form and eliminating the last sentence, which is covered by the amended section 19 of the proposed new code.
Section 11 provides a new section in the Code of Criminal Procedure, 21a. This section provides new law not covered by the existing code and gives in detail the requirements for a warrant of arrest.
Section 12 amends the existing code by providing a new section 21b, which defines "peace officers" not defined in existing law.
Section 13 amends section 22 of the existing code by limiting the effect of the section to offenses that are triable in magistrates' courts.
Section 14 amends section 23 of the existing code by eliminating an obsolete provision whereby a defendant could waive trial in a magistrate's court. The amendment also eliminates from the section provisions for summons for witnesses, provision being made elsewhere in the proposed code for issuing subpoenas for witnesses. The amendment also eliminates from existing law the fine for nonattendance of witnesses, which constitutes contempt and is provided for elsewhere.
Section 15 amends section 24 of the existing code by eliminating the procedure on a plea of not guilty, which is covered in the next section of the code.
Section 16 amends section 25 of the existing code by merely making certain minor changes in the first and second subdivisions of the section.
Section 17 amends section 26 of the existing code by substituting the word "magistrate" for "court".
Section 18 amends section 30 of the existing code by restating it to meet existing conditions.
Section 19 amends section 32 of the existing code by eliminating the last clause of the section which is now inapplicable and obsolete because of the changed judicial system adopted since the existing law was enacted.
Section 20 amends section 33 of the existing code to make it conform to the new courts that have been adopted since the Code of Criminal Procedure went into effect.
Section 21 amends section 40 of the existing code by eliminating the first clause of that section which required the defendant in all cases to be taken before a magistrate for examination.
Section 22 amends section 41 of the existing code by restating it to meet existing conditions and remove the ambiguity in the original section.
Section 23 amends section 44 of the existing code. The original section 44 of the code was repealed by an Executive order dated November 7, 1908, and a mode of appeal was prescribed by section 1 of that order. This mode of appeal was expressly retained by section 7 of the Panama Canal act and the proposed amendment modifies and incorporates this mode of appeal in the Code of Criminal Procedure.
Section 24 amends section 50 of the existing code by reducing the maximum imprisonment from 90 to 30 days, in order to make it conform to section 7 of the Panama Canal act.
Section 25 amends section 52 of the existing code by eliminating reference to proceedings before persons empowered to conduct judicial investigations under authority of the magistrates, magistrates having no such authority under existing law.
Section 26 amends section 59 by requiring all papers in a case preliminarily examined in a magistrate's court to be delivered to the district attorney within two days. Formerly under section 39, which is repealed by section 119 of the proposed bill, it was required that the warrant, complaint, depositions, etc., be transmitted to the clerk of the court. Since it is within the discretion of the district attorney
to file an information or not, as he finds proper, it is thought proper that these papers should go to the district attorney's office to be later returned to the magistrate. Where the district attorney does file an information, he attaches thereto all papers received from the magistrate and they all go to the clerk of the court in that case.
Section 27 amends section 60 of the existing code by restating and clarifying the language in harmony with the present law of the zone. The section is changed in substance because the law provides that the district court does not take jurisdiction until an information has actually been filed, and the magistrate should therefore retain possession of undertakings or cash bail until the case is tried in the district court by the district attorney.
Section 28 amends section 62 of the existing code by adding the words "in all criminal matters within the original jurisdiction of the district court." The reason for the amendment is obvious.
Section 29 amends section 64 of the existing code by eliminating the words "the information when filed shall be known as the presentment and must be presented to the court," and requires all informations to be filed with the clerk of the court.
Section 30 amends section 67 of the existing code so as to make it conform to the present Canal Zone law. The effect of the amendment and the reason for it will appear more clearly by reference to the existing law with the modifications shown in brackets and italics elsewhere in this report.
Section 30a repeals sections 68 and 69 of the existing Code of Criminal Procedure. These sections prescribe the manner in which bench warrants shall be issued in the district court, and are rendered obsolete and unnecessary in view of the proposed section 91, amending section 297 of the code, and Title VI of the code as amended in Chapter I, providing for arraignment of the defendant.
Section 31 amends section 70 of the existing code by changing the word "directed" to read "direct". The amendment is necessary to correct an error in existing law.
Section 32 amends section 77 of the existing code by substituting the words "be signed and filed by the district attorney for the Canal Zone" for the words "be subscribed and presented to the court by the district attorney for the Canal Zone".
Section 33 amends the existing code by adding a new section 86a. This adds new law for which no provision is made in the existing code, and is believed to be a proper part of the new Code of Criminal Procedure.
Section 34 amends section 90 of the existing code by substituting the words "district attorney" for "prosecuting attorney".
Sections 35, 36, and 37 amend sections 92, 93, and 94, respectively, of the existing code, covering the filing of information by the district attorney after preliminary examination. These sections have been restated in the amendment so as to improve them and bring them more into harmony with existing law of the zone.
Section 38 amends section 97 of the existing code by adding a proviso respecting amending of the complaint.
Section 38a amends section 103 of the existing code by changing the language in various instances to conform to the present law and the present practice in the Canal Zone. It must be understood in the case of a great many of these amendments that are proposed by
this bill to the Code of Criminal Procedure are considered necessary or advisable because, since the enactment of the existing Code of Criminal Procedure, the whole structure of the courts on the Canal Zone has been changed, so that the language used in the existing code does not properly apply to the courts and the practice in the courts under existing law. And this is one of the most urgent reasons for having the laws of the Canal Zone revised and codified.
Section 39 amends section 105. The original section of the Code of Criminal Procedure provided for the assignment of duties to the clerk of the court by the Governor of the Canal Zone, or the Isthmian Canal Commission, or the judge of the court. Of course under changed conditions on the zone now the provision with reference to the governor and the Isthmian Canal Commission should be eliminated from the law, and the assignment of any other duties to the clerk of the court should rest solely in the hands of the judge.
Section 40 amends section 113 of the existing code by adding the exception at the end of the section, the reason for which is obvious. Section 41 adds section 114a to the existing Code of Criminal Procedure. This is a new provision of the law and the reason for it is obvious.
Section 42 amends section 116 of the existing code by restating the section so as to cover arrests, with or without warrants, and to permit the use of reasonable means only in order to effect the arrest.
Section 43 amends section 119 of the existing code by striking out the last part of the section which requires an arresting officer, who takes weapons from a prisoner, to deliver the weapons to the judge of the court. There is of course no reason why weapons taken from a prisoner should be delivered to the judge.
Section 44 amends section 125 of the existing code by striking out the requirement that the "complaint and warrant" should be read to the defendant, and leaves it only requiring that the information be read.
Section 45 amends section 129 of the existing code so as to make the law conform to the existing conditions on the Canal Zone. The existing law with the proposed omissions and insertions are shown elsewhere in this report.
Section 46 amends section 134 of the existing code by striking out the word "must" and inserting the word "may." Other provisions of the proposed code provide for a public defender for the Canal Zone. Section 47 amends section 138 of the existing code. The original section of the Code of Criminal Procedure was amended by the Executive order of the President of August 16, 1910, and required that an information filed by the district attorney in the case of a felony had to be sworn to. The section as amended eliminates the provision requiring that the information be sworn to.
Section 48 amends section 140 of the existing Code of Criminal Procedure by eliminating the proviso at the end of the section. The proviso is no longer needed under the existing laws of the zone.
Section 49 amends section 150 of the existing code by adding a new provision regarding the amendment of an information, and by striking out the proviso in the original section which is no longer applicable to the existing courts of the zone.
Section 50 adds a new section to the code, 163a. This new section is in harmony with the similar provision in the Code of Criminal Procedure in the State of California.
Section 51 adds a new section to the Code of Criminal Procedure, 169a, which is taken from rule 1 of the rules of the court.
Section 52 amends section 170 of the existing code by adding thereto subsection 3 which seems to bring the section into harmony with the practice in other jurisdictions.
Section 53 amends section 171 of the existing code. Section 171 of the existing code is long and involved and provides for the issues of fact in criminal cases to be tried and determined by the judge or judges of the court. In cases of felony facts have to be tried by three judges and the section provides in detail for the selection and qualifications of the judges. This section affords a splendid illustration of the necessity for revising the laws of the zone. The existing law is antiquated and was adopted at a time when there were no jury trials in the zone and when the courts were differently organized. These laws should have been revised years ago. The failure of Congress to do so has been a great hindrance to the courts of the Canal Zone in the administration of justice. The amended section 171 as proposed by this bill strikes out all of the obsolete provisions of the section and provides simply that issues of fact in criminal cases within the original jurisdiction of the district court must be tried by a jury, unless a trial by jury be waived.
Section 54 amends section 175 by striking out the word "five" and inserting the word "two" with reference to the days allowed to prepare for trial, after the defendant pleads.
Section 55 amends Chapter I of Title VII of the Code of Criminal Procedure by inserting therein, after section 176, 27 new sections which add new law to the laws of the Canal Zone. These sections pertain to the challenging of jurors and are taken from the law as found in the California Code of Criminal Procedure.
Section 56 amends subsection 3 of section 177 of the Code of Crimi nal Procedure by striking out the word "respectfully," therein and inserting in lieu thereof the word "respectively".
Section 57 amends the existing code by inserting a new section therein, 184a, which provides that the rules of evidence in civil actions are applicable also in criminal actions, except as otherwise specifically provided in the new code.
Section 58 amends the existing code by inserting therein a new section 184b, with reference to perjury: this is new law and provides that perjury must be proven by the testimony of two witnesses, or of one witness and corroborating circumstances.
Section 59 amends section 199 of the existing code by striking out an obsolete provision for a view by the court and inserts a new provision for a view by the jury in proper cases, in criminal trials.
Section 60 to and including section 70 of this bill all amend the Code of Criminal Procedure for the Canal Zone by inserting therein 11 new sections respecting the verdict of the jury; these new sections introduce into the code provisions that are not covered by existing law. They have been very carefully prepared from similar provisions in other codes and are recommended as a necessary and proper part of the Criminal Procedure for the Canal Zone.
Section 71 amends section 206 of the existing code by adding the words "or jury" after the word "court" appearing twice in the section.