Gambar halaman
PDF
ePub

to the effect that a general warrant, i. e., a warrant which does not specify the person to be arrested, or the place to be searched, is illegal. What we have before us, therefore, is simply a recapitulation of the provisions of the common law in this relation; and these provisions, as elsewhere discussed at large, are as follows:

(1) A warrant omitting essentials is illegal.'

(2) Peace officers may arrest without warrant for offences in their presence, and for past felonies and breach of the peace, upon reasonable suspicion, which is convertible with probable cause.3

(3) A house may be broken open to execute warrants in cases of felonies or breaches of the peace.

(4) Search warrants may be issued upon oath duly specifying person and thing, but in opening trunks or drawers the key should be first demanded."

XXVIII. SAFEGUARDS OF LIBERTY AND PROPERTY.

Grand jury

felonies or "infamous" crime.

§ 561. By the fifth amendment "no person shall be held to answer for a capital or otherwise infamous crime, requisite in unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger." That the object of this amendment was to secure the interposition of a grand jury in all cases when prosecutions for crime are likely to impose serious and degrading consequences connot be questioned. It has, however, been lately held that "infamous

I See State v. Spencer, 38 Me. 30; Allen v. Colby, 47 N. H. 544; Robinson v. Richardson, 13 Gray, 454, and other cases cited Whart. Cr. Pl. and Pr., § 26.

2 Whart. Cr. Pl. and Pr., § 6. 3 Ibid. § 8.

Ibid. § 18.

5 Ibid. § 22.

the liquor laws of some of the states have been held to conflict with the limitations in the text. Greene v. Briggs, 1 Curtis, 311; Fisher v. McGirr, 1 Gray, 1; State v. Snow, 3 R. I. 64; Hibbard v. People, 4 Mich. 126. As to how far telegraph companies are privileged from the production of their papers, see Whart. on Ev., § 595;

Ibid. § 24; see Cooley, Const. Lim., Cooley, Const. Lim., 376.

371-2.

7 See Whart. Crim. Pl. and Pr., §§

The "search and seizure" clause in 85-89.

crimes" are convertible with felonies. But the better opinion is that all crimes which at common law would affix "infamy" of which the test is incapacitation as a witness, are infamous under this clause.2 It should be added that this and the following limitation bear exclusively on the Federal government. A similar provision, however, is found in the constitution of most of the states.

No one twice in

shall be put

562. "Nor shall any person," so the fifth amendment proceeds to declare, "be subject for the same offence to be twice put in jeopardy of life or limb." This limitation, also, is confined to cases arising in the Federal courts, and does not distinctively affect

1 U. S. v. Field, infra, and cases cited infra; see King v. State, 17 Fla. 183.

2 In U. S. v. Field, 16 Fed. Rep. 780, it was held that counterfeiting U. S. money is not an "infamous crime," and to the same effect are U. S. v. Coppersmith, 4 Fed. Rep. 198; and U. S. v. Yates, 6 Fed. Rep. 861; Wilson, in re, 18 Fed. Rep. 33. It is laid down in the last case following U. S. v. Block, 4 Sawy. 211, that "at common law a crime involving a charge of falsehood, must, to be infamous, not only involve a falsehood of such a nature and purpose as makes it probable that the party committing it is devoid of truth and insensible to the obligation of an oath, but the falsehood must be calculated to injuriously affect the public administration of justice. Tried by this test, the act of passing counterfeit coins with intent to defraud is, manifestly, not infamous." statement is open to criticism. The common law test of infamy heretofore generally accepted is disqualification as a witness; in other words, an offence, a conviction of which disqualifies a person at common law as a witness, is infamous; an offence not working such disqualification at common law is not infamous.

This

205. this

jeopardy for the same of

fence.

17 Wall. 496; U. S. v. Buzzo, 18 Wall. 125; U. S. v. Ebert, 1 Cent. Law J. As a general rule, "infamy," in sense, comprehends treason, felony, and crimen falsi (Phil. & Am. Ev., 17; Co. Litt., 66; 1 Starkie, Ev., 94; 1 Greenl. Ev., §§ 372, 373; Whart. Crim. Ev., § 363); and it has been expressly held that a conviction of forgery works infamy, though forgery be only a misdemeanor. Rex v. Davis, 8 Mod. 54; Poage v. State, 3 Ohio St. 229. If this be the case with forgery, it is difficult to see why it should not be the case with the offence of passing counterfeit coin.

In U. S. v. Petit, 11 Fed. Rep. 58, the court was divided on the question stated in the text. Eminent as are the authorities sustaining an opposite view, it may nevertheless be maintained that the more reasonable course is to hold thatall offences a conviction of which imputes disgrace and brings a disgraceful punishment are "infamous." (See note to this effect, 16 Fed. Rep. 780, and observations of Judge Cooley, Princ. of Crim. Law, 29).

That the fifth amendment does not apply to cases in the army and navy service, see Mason, ex parte, 105 U. S. U. S. v. 696. Mann, 1 Gall. C. C. 3; U. S. v. Isham,

state procedure; though provisions to the same effect exist in most state constitutions. Taking the words in their natural sense it is open to question whether they were meant to be anything more than an enunciation of the common law rule, that a person who has been once acquitted or convicted of an offence cannot (unless in cases where a conviction is set aside on his own motion) be put again on trial for such offence. But whether this is the true meaning of the words as above given has been the subject of animated and persistent controversy. In several states (e. g., Pennsylvania, Virginia, North Carolina, Tennessee, and Alabama) it has been held that any dismissal of a jury, on the ground of inability to agree on a verdict, in capital cases, after the case is opened to them, unless there be physical necessity arising from danger to the life of one of the jurors, operates to discharge the defendant. In the courts of most of the remaining states, and in the United States courts, it is settled that the judge trying the case may discharge the jury whenever, in the exercise of a sound discretion, such discharge seems to him proper. It is agreed, however, on all sides that there is no jeopardy on a defective indictment, and that discharges are not bars when required by the sickness of the defendant or of the judge, or by the statutory close of the court. It is also agreed that to misdemeanors and to felonies, which were never capital, the limitation does not apply, and that the privilege is impliedly waived by a motion for a new trial. Whether it can be waived by an agreement at the time of the discharge is a question about which there has been also much difference of opinion, the courts which hold that there can be no discharge, except in case of physical necessity, generally holding that an agreement by the defendant that the jury shall be discharged does not afterwards bind him. The more reasonable view is that, when the judge is satisfied that there is no prospect of an agreement, to compel the jury to remain together indefinitely, would either produce in one or more of them serious illness, or insure a victory

Fox v. Ohio, 5 How. 410; U. S. v. Gibert, 2 Sumner, 19; Whart. Cr. Pl. and Pr., § 490.

See authorities cited in Whart. Crim. Pl. and Pr., §§ 490 et seq.

of mere brute endurance in rendering the verdict, and that in such cases the jury should be discharged. On the other hand, there is strong sense in the position that a defendant on trial ought not to be asked to consent to a jury's discharge, and that his agreement to such a course should not be held binding. A man on trial for his life ought not to be forced to an election between offending the jury, on whom his fate depends, and consenting to what may expose him to a second and perhaps a fatal trial.1

Party can

pelled to testify

against himself.

§ 563. A party, such is the next provision, shall not "be compelled to be a witness against himself." This, also, is a common law rule; it being a settled not be comprinciple of that law, that a person, even when he offers himself as a witness, may decline to answer any questions, answers to which might be a link in a chain of crimination. This is à fortiori the case with a party compulsorily examined as to a charge involving his own guilt. Under recent statutes, however, defendants in criminal cases may offer themselves as witnesses in their own behalf, and when they begin to narrate facts in respect to the offence with which they are charged, they cannot refuse to answer on cross-examination as to details, on the ground that this would criminate them. Waiving privilege as to part of a story waives it as to all.3

§ 564. It is further provided, in the same article, that a party shall not "be deprived of life, liberty, or property, without due process of law." This limitation, which, in the fifth amendment, applies distinctively to the Federal government, is in the fourteenth amendment expressly applied to the states.*

1 See, also, 17 Am. Law Reg., 735. The authorities on the distinctions taken in the text are given in full in Whart. Crim. Pl. and Prac., §§ 490 et seq., 518, 735.

2 Whart. Crim. Ev., 8th ed., § 463; Horstman v. Kaufman, 97 Penn. St. 147.

Life, liber

ty, or pro

perty, cannot be

taken withprocess of

out due

law.

[blocks in formation]

This does not apply

to police or health re

§ 565. This guaranty, however, does not confer relief from police restrictions;1 and hence a statute providing that places of refreshment shall not be opened in the immediate vicinity of religious meetings is not unstrictions. constitutional. In the same line are to be noticed cases where police security or public health requires the removal or destruction of private property. In such cases, private interests must be subordinated to the public good. Legislation prohibiting lotteries, agencies for sale of liquor, and structures affecting injuriously the health of the community, falls under the same head.3

§ 566. It would render nugatory not only the clause immediately before us, but the similar clause in the fourteenth

1 Supra, §§ 425, 486-7; see State v. Cate, 58 N. H. 43; Com. v. Bearse, 132 Mass. 542. As to "due process," see Sinking Fund Cases, 99 U. S. 700. As to nuisances, see supra, § 486; and as to police regulations generally, supra, § 425. In State v. Kartz, 13 R. I., 528, it was held that a statute providing that "every person who shall keep a place" in which it is reputed "that intoxicating liquors are sold" without a license, is unconstitutional. "Our attention," so said the court," has been directed to certain decisions of the supreme court of Connecticut in which a similar statute of that state has been pronounced constitutional. State v. Thomas, 47 Conn. 546; State v. Morgan, 40 ib. 44; State v. Buckley, 40 ib. 246. The Connecticut statute, however, though essentially the same as ours in terms, has been construed to be different in meaning. The supreme court of Connecticut hold that the word 'reputed' means more than simply reputed, to wit, truly reputed, so that a person is not punishable for keeping a place which is reputed to be used for the illegal sale of intoxicating

liquors, unless it is in fact so used. We do not think the statute so construed would be unconstitutional if carried out as construed, but in order to carry it out so, it would be incumbent on the government to charge the accused with keeping a place 'truly' reputed to be used for the sale of intoxicating liquors, and to prove in support of the charge both that the place was reputed to be so used and that it was so used in fact." As to statutes making evidence absolute, see supra, §§ 388, 494.

2 Slaughter-house Cases, 16 Wall. 36; Beer Co. v. Mass., 97 U. S. 25; Stone v. Miss. 101 U. S. 814; Slaughter House Case, 9 Fed. Rep. 743; New Orleans Water Works v. St. Tammany, 14 Fed. Rep. 194; Com. v. Evans, 132 Mass. 11; Talbot v. Hudson, 16 Gray, 417; Taunton v. Taylor, 116 Mass. 254; Lake View v. Cemetery, 70 Ill. 191; State v. Wheeler, 44 N. J. L. 88; see Fox v. Cincinnati, 104 U. S. 783; see, also, snpra, § 425.

3 Whart. Crim. Law, 8th ed., §§ 1424, 1490, 1530; supra, §§ 426, 486.

« SebelumnyaLanjutkan »