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in the law, and unless the accused was likewise represented by legal counsel, he would usually be at the mercy of the court and of the prosecuting attorney. The prosecution might very easily be converted into a persecution. It was one of the most horrible features of the early common law of England, that persons accused of felonies were denied the right of counsel, the very cases in which the aid of counsel was most needed; and it was not until the present century that in England the right of counsel was guaranteed to all persons charged with crime. But in America the constitutional guaranty of the right of counsel in all cases, both criminal and civil, is universal, and this has been the practice back to an early day. Not only is it provided that prisoners are entitled to counsel of their own appointment, but it is now within the power of any judge of a criminal court, and in most States it is held to be his imperative duty, to appoint counsel to defend those who are too poor to employ counsel ; and no attorney can refuse to act in that capacity, although he may be excused by the court on the presentation of sufficient reasons.?
On the continent of Europe, the prisoner is allowed the aid of counsel during the trial, but until the prosecuting attorney is through with his inquisitorial investigation of the prisoner, and has, by alternately threatening, coaxing, and entrapping the accused into damaging admissions, procured all the attainable evidence for the State, he is denied the privilege of counsel. The counsel gains access to his client when the prosecuting attorney is satisfied that he can get nothing more out of the poor prisoner, who, finding himself perhaps for the first time in the clutches of the law, and unable to act or to speak rationally of the charge against him, will make his innocence appear to be a crime. Not so with the English and American law. From the very apprehension of the prisoner, he is entitled to the aid of counsel, and while his admissions, freely and voluntarily made, are proper evidence to establish the charge against him, it is made the duty of all the officers of the law, with whom he may come into contact, to inform him that he need not under any circumstances say anything that might criminate him. Confessions of the accused, procured by promises or threats, are not legal testimony, and cannot be introduced in support of the case for the State. 1
1 In 1836, by Stat. 6 and 7 Will. IV., ch. 114. Before this date, English jurists indulged in the pleasing fiction that the judge will be counsel for the prisoner. “It has been truly said that, in criminal cases, judges were counsel for the prisoners. So, undoubtedly, they were, as far as they could be, to prevent undue prejudice, to guard against improper infuence being excited against prisoners; but it was impossible for them to go further than this, for they could not suggest the course of defense prisoners ought to pursue; for judges only saw the deposition so short a time before the accused appeared at the bar of their country, that it was quite impossible for them to act fully in that capacity.” Baron Garrow in a charge to a grand jury, quoted in Cooley Const. Lim. *332,
9 Wayne Co. v. Waller, 90 Pa. St. 99 (35 Am. Rep. 636); Bacon v. Wayne Co., 1 Mich. 461; Vise v. Hamilton Co., 19 I. 18.
§ 34d. Indictment by grand jury or by information.The prevailing criminal procedure, throughout the United States, with perhaps a few exceptions, provides in cases of felony for accusations to be made by an indictment by a grand jury. But these are matters of criminal procedure that are subject to constant change by the legislature, and it cannot be doubted that no constitutional limitation would be violated, if the grand jury system were abolished.
I Commonwealth o. Taylor, 5 Cush. 605; Commonwealth o. Curtis, 97 Mass. 574; Commonwealth v. Sturtivant, 117 Mass. 122; Commonwealth 0. Mitchell, 117 Mass. 431; People o. Phillips, 42 N. Y. 200; People v. McMahon, 15 N. Y. 385; State o. Guild, 10 N. J. 163 (18 Am. Dec. 404); Commonwealth v. Harman, 4 Pa. St. 269; State v. Bostick, 4 Harr. 563 ; Thompson v. Commonwealth, 20 Gratt. 724; State v. Roberts, 1 Dev. 259; Statev. Lowhorne, 66 N. C. 538; State v. Vaigneur, 5 Rich. 391; Frain v. State, 40 Ga. 529; State v. Garvey, 28 La. Ann. 955 (26 Am. Rep. 123); Boyd o. State, 2 Humph. 635; Morehead v. State, 9 Humph. 635; Austine o. State, 51 Ill. 236; State v. Brockman, 46 Mo. 566; State v. Staley, 14 Minn. 105.
2 In some of the States all accusations are now made by information fled by the prosecuting attorney, and probably in all of the States prosecutions for minor misdemeanors are begun by information.
§ 34e. The plea of defendant. — According to the early common law, it was thought that before the trial could proceed, the defendant had to plead to the indictment. In treason, petit felony, and misdemeanors, a refusal to plead or standing mute, was equivalent to a plea of guilty and the sentence was pronounced as if the prisoner had been regularly convicted. But in all other cases, it was necessary to have a plea entered, before judgment could be pronounced; and unless the defendant could be compelled to plead, the prosecution would fail. It was the custom in such cases to resort to tortures of the most horrible kind in order to compel the defendant to plead ; and where the refusal was shown to be through obstinacy or a design to frustrate the ends of justice, and not because of some physical or mental infirmity (and these matters were determined by a jury summoned for that purpose), the court would pronounce the terrible sentence of “peine forte et dure."'? But at the present day the necessity of a voluntary plea to the indictment does not seem to be considered so pressing, as to require the application of this horrible penalty. Respect for the common law requirement is manifested only by the court ordering the plea of not guilty to be entered, whenever the prisoner failed or refused to plead, and the trial then proceeds to the end as if he had voluntarily pleaded.
1 Kallock o. Superior Court, 56 Cal. 229. But the United States Constitution requires indictment by grand jury in those cases in which it was required at common law. See United States Const., Amend., art., V.
2 Which was as follows: “That the prisoner be remanded to the prison from whence he came; and put into a low dark chamber; and there be laid on his back, on the bare floor, naked, unless where decency forbids; that there be placed upon his body, as great a weight of iron as he could bear, and more; that he have no sustenance, save only, on the first day, three morsels of the worst bread; and, on the second day, three draughts of standing water, that should be nearest to the prison door; and in this situation such should be alternately his daily diet till he died, or (as anciently the judgment ran) till he answered.” 4 Bl. Com. 423.
If, upon arraignment, the prisoner should plead guilty, it would appear, from a superficial consideration of the matter, that no further proof need be required. But, strange as it may seem, there have been cases in which the accused has pleaded guilty, and it has afterwards been discovered that no crime had been committed. A tender regard for the liberty of the individual would suggest the requirement of extraneous evidence to prove the commission of a crime, and the plea of guilty be admitted only to connect the prisoner with the crime. This would be sufficient precaution in ordinary criminal cases, but in capital cases it would be wise to authorize a refusal of all pleas of guilty; for a mistake in such cases would be irremediable.
If the plea is not guilty, it becomes necessary for the State to show by competent, legal evidence, that the defendant has committed the crime wherewith he is charged. Except in a few cases, where the sul ject-matter of the testimony forms a part of a public record, or consists of the dying declaration of the murdered man in a case of homicide, which are made exceptions to the rule by the necessities of criminal jurisprudence, the evidence is presented to the court by the testimony of witnesses. It is the invariable rule of the criminal law, which is believed to be guaranteed by the constitutional limitations, that the testimony must be given in open court by the witnesses orally, so that the defendant will have an opportunity to cross-examine them.” One of the most important constitutional requirements in this connection, and that which most distinguishes the common-law system of criminal procedure from that of the European Continent, is that the accused can never be compelled to criminate himself by his evidence. Nor can he be compelled to testify to any degree whatever. On the continent of Furope he is compelled to answer every question that is propounded to him by the presiding judge. In England and America he may now testify in his own behalf, but the privilege of remaining silent is so strictly guarded, that it is very generally held to be error for the State to comment on, and to drawn adverses inferences from, his failure to take advantage of the opportunity to testify in his own behalf. The Anglo-Saxon spirit of fair play requires the State to convict the accused without the aid of extorted confessions, and will not allow such criticisms on his silence.1 But if he goes upon the witness-stand, while he still has the privilege of deciding how far and as to what facts he shall testify, and may refuse to answer questions which may tend to criminate him, the State attorney may comment on the incompleteness of the evidence and his refusal to answer proper questions. Having put himself upon the stand,
1 In Stringfellow o. State, 26 Miss. 155, a confession of murder was held not sufficient to warrant conviction, unless supported by other evidence showing the death of the man supposed to have been murdered. See, also, People v. Hennesy, 15 Wend. 147.
2 Jackson o. Commonwealth, 19 Gratt. 656; Johns v. State, 55 Md. 350; State o. Thomas, 64 N. C. 74; Bell v. State, 2 Tex. App. 216 (28 Am. Rep. 429) ; Goodman v. State, Meigs, 197. But if there has been a preliminary examination before a coroner or magistrate, or a previous trial, when the defendant had an opportunity to cross-examine the witness, it will be allowable to make use of the minutes of the previous examination in all cases where the witness is since deceased, has become insane, or is sick, or is kept away by the defendant. Commonwealth v. Richards, 18 Pick. 434; State 0. Hooker, 17 Vt. 658; Brown o. Commonwealth, 73 Pa. St. 321; Summons v. State, 5 Ohio St. 325; O'Brien v. Commonwealth, 6 Bush, 503 ; Pope v. State, ?? Ark. 371; Davis o. State, 17 Ala. 354; Kendricks o. State, 10 Humph. C79; People v. Murphy, 45 Cal. 137.
* See Commonwealth v. Bonner, 97 Mass. 587; Commonwealth o. Morgan, 107 Mass. 109; Commonwealth o. Nichols, 114 Mass. 285 (19 Am. Rep. 346); Commonwealth o. Scott, 123 Mass. 239 (25 Am. Rep. 87);
Cameron, 40 lt. 555 ; Brancion o. People, 42 N. Y. 265; Connors v. People, 50 N. Y. 240; Stover v. People, 56 N. Y. 315; Devries o. Phillips, 63 N. C. 53; Bird v. State, 50 Ga. 585; Calkins v. State, 18 Ohio St. 366; Knowles v. People, 15 Mich. 408; People o. Tyler, 36 Cal. 522; See, contra, State v. Bartlett, 55 Me. 200; State v. Lawrence, 57 Me. 375; State v. Cleaves, 59 Me. 298 (8 Am. Rep. 422).