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very little weight can be given to his testimony, if he does not tell the whole truth, as well as nothing but the truth.

It is hardly necessary to state that a full opportunity must be given to the accused to defend himself against the charge of the State. Without such an opportunity, the proceeding would be only ex parte.

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§ 34f. Trial by jury — Legal jeopardy. — All prose

cutions are tried at common law by a jury, and in some of our State constitutions the right of trial by jury is expressly guaranteed. Where the right is guaranteed without restriction, it means a common-law trial by jury; and where at common law certain offenses were triable by the court without the aid of a jury, the jury is not now required.? Whether in the absence of an express guaranty of the trial by jury, it could be abolished by the legislature, is difficult to determine. If one can keep his judgment unbiased by the prevailing sentiment, which makes of the jury

66 the palladium of liberty," " the nation's cheap defender," etc., it would seem that he must conclude that the jury is not needed to make the trial “ due process of law;" and where the constitutional clause reads in the alternative, as it did in the Magna Charta, “ by the judgment of his peers or the law of the land,” the presumption becomes irresistible that when the trial by jury is not expressly guaranteed the power of the legislature to abolish the jury system is free from constitutional restraint. But in the present temper of public opinion concerning the sacredness of the right of trial by jury, it would not be surprising if the courts should pronounce an express guaranty to be unnecessary.

The last constitutional requirement concerning criminal trials to be considered is that which declares that no person shall “ be subject for the same offense to be twice put in jeopardy of life or limb." A person is said to have been in legal jeopardy when he is brought before a court of competent jurisdiction for trial, on a charge that is properly laid before the court, in the form of an indictment or an information, and a jury has been impaneled and sworn to try him. When this is done, the defendant is entitled to have the case proceed to a verdict, and if the prosecution should be dropped by the entry of a nolle prosequi against the defendant's will, it is of the same effect as if the case had ended in acquittal of the defendant. There cannot be any second prosecution for the same offense. But if the prosecution should fail on account of some defect in the indictment, or for want of jurisdiction, or if for unavoidable reasons, the court has to adjourn and the jury be discharged without a verdict, as when the death of a judge or of a juror

1 State o. Ober, 62 N. H. 459 (13 Am. Rep. 88); State o. Wentworth, 65 Me. 234 (20 Am. Rep. 688); Connors v. People, 50 N. Y. 240.

? What are the common-law characteristics of a jury trial, are so fully set forth and explained in books of criminal procedure, that any statement of them in this connection is unnecessary.


i Commonwealth o. Tuck, 20 Pick. 365; People v. Barrett, 2 Caines, 304; State v. Alman, 64 N. C. 364; Nolan v. State, 55 Ga. 521; Grogan 0. State, 44 Ala. 9; State v. Connor, 5 Cold. 311; Mounts v. State, 14 Ohio, 295; Baker v. State, 12 Ohio St. 214; State v. Callendine, 8 Iowa, 288. But see State v. Champeau, 53 Vt. 313 (36 Am. Rep. 754), in which a nolle prosequi at this stage is held not to constitute a bar to a second prosecution. See, generally, as to what constitutes a legal jeopardy, State v. Garvey, 42 Conn. 232; People v. McGowan, 17 Wend. 386; Commonwealth v. Alderman, 4 Mass. 477; State v. Little, 1 N. H. 257; Williams v. Commonwealth, 2 Gratt. 568; Hoffman v. State, 20 Md. 475; State o. Spier, 1 Dev. 491; McFadden v. Commonwealth, 23 Pa. St. 12; State v. Ned, 7 Port. 217; Lee v. State, 26 Ark. 260 (7 Am. Rep. 611); O'Brian o. Commonwealth, 9 Bush, 333 (15 Am. Rep. 715); Price v. State, 19 Ohio, 423; Wright v. State, 5 Ind. 292; State v. Nelson, 26 Ind. 366; People v. Cook, 10 Mich. 164; State v. Green, 16 Iowa, 239; People v. Webb, 28 Cal. 467.

2 Commonwealth v. Bakeman, 105 Mass. 53; Black v. State, 36 Ga. 447; Kohlheimer v. State,' 39 Miss. 548; Mount o. Commonwealth, 2 Duv. 93; Gerard v. People, 4 Ill. 363; Commonwealth v. Goddard, 13 Mass. 455; People v. Tyler, 7 Mich. 161.

3 See United States v. Perez, 9 Wheat. 579; Commonwealth v. Boden, 9 Mass. 194; Hoffman v. State, 20 Md. 425; State v. Wiseman, 68 N. C. 203; State o. Battle, 7 Ala. 259; Taylor v. State, 35 Tex. 97; Wright v. State, 5 Ind. 290; Price v. State, 36 Miss, 533. The result is the same if the adjournment without a verdict is ordered with the express or implied consent of the defendant. Commonwealth v. Stowell, 9 Met. 572; State v. Slack, 6 Ala. 676.



occurs,' or the jury is unable, after a reasonable effort, to agree upon a verdict, and a mistrial has to be ordered.2 A second prosecution may also be instituted when a verdict is set aside, or the judgment reversed, on the ground of error. 3

SECTION 35.-- Imprisonment for crime – Hard labor — Control of con

vict in prison.
350.-- Convict lease system.

§ 35. Imprisonment for crime Hard labor- Control of convicts in prison.-The most common mode of punishment for crime at the present day is confinement in some jail or penitentiary. The liberty of the convict is thus taken away for a specified period, the length of which is graded according to the gravity of the offense committed. What shall be the proper amount of imprisonment to be imposed as a reasonable punishment for a particular crime is a matter of legislative discretion, limited only by the vague and uncertain constitutional limitation, which prohibits the infliction of “ cruel and unusual punishments." 4 Within the walls of the prison the convict must conduct himself in an orderly manner, and conform his actions to the ordinary prison regulations. If he should violate any of these regulations, he may be subjected to an appropriate punishment, and for serious cases of insubordination, cor. poral punishment is very often inflicted, even in those States in which the whipping-post has been abolished.

| Nugent v. State, 4 Stew. & Port. 72; Commonwealth o. Fells, 9 Leigh, 620; Mahala v. State, 10 Yerg. 532; State v. Curtis, 5 Humph. 601; Hector v. State, 2 Mo. 166.

2 People v. Goodwin, 18 Johns. 187; State o. Prince, 63 N. C. 529; Lester v. State, 33 Ga. 329; Moseley o. State, 33 Tex. 671; State v. Walker, 26 Ind. 346; Commonwealth v. Olds, 5 Lit. 140; Dobbins v. State, 14 Ohio St. 493; Ex parte McLaughlin, 41 Cal. 211; 10 Am. Rep. 272. 3 See State v. Lee, 10 R. I. 494; Casborus v. People, 13 Johns. 329;

People, 32 N. Y. 239; State v. Norvell, 2 Yerg. 24; Kendall v. State, 65 Ala. 492; State v. Redman, 17 Iowa, 329. 4 As to the meaning of this limitation, see, ante, $$ 11, 12.

McKee o.

For minor offenses, it is usual to confine the criminal in the county jail, and the punishment consists only of a deprivation of one's liberty. But for more serious and graver offenses, the statutes provide for the incarceration of the convict in the penitentiary, where he is required to perform hard labor for the benefit of the State. The product of his labor is taken by the State in payment of the cost of his maintenance. It cannot be doubted that the State has a constitutional right to require its convicts to work during their confinement, and there has never been any question raised against the constitutionality of such regulations. The penitentiary system is now a well recognized feature of European and American penology.

§ 35a. Convict lease system. — An interesting question has lately arisen in this country, in respect to the State control of convicts. In many of the Southern States, instead of confining the convict at hard labor within the walls of the penitentiary, in order to get rid of the burden of maintaining and controlling them within the penitentiary, provision was made for leasing the convicts to certain contractors to be worked in different parts of the date, usually in the construction of railroads. The entire control of the convict was transferred to the lessee, who gave bond that he would take care and guard them, and promised to pay a penalty to the State for the escape of each convict. The frequency of the reports of heartless cruelty on the part of lessees towards the convicts, prompted by avarice and greed, and rendered possible by the most limited supervision of the State, has aroused public sentiment in opposition to the convict lease system in some of these States, and we may confidently expect a general abolition of the system at no very distant day. But it is still profitable to consider the constitutionality of the law, upon which the convict lease system is established. In Georgia, the constitutionality of the law was questioned, but sustained. In pronouncing the statute constitutional, the court said: “In the exercise of its sovereign rights for the purpose of preserving the peace of society, and protecting the rights of both person and propperty, the penitentiary system of punishment was estabJished. It is a part of that police system necessary, as our lawmakers thought, to preserve order, peace and the security of society. The several terms of these convicts fixed by the judgments of the courts under the authority of the law, simply subject their persons to continement, and to such labor as the authority may lawfully designate. The sentence of the courts under a violated law confers upon the State this power, no more; the power to restrain their liberty of locomotion, and to compel lavor not only for the purposes of health, but also to meet partially or fully the expenses of their confinement. The confinement necessarily involved expenses of feeding, clothing, medical attention, guards, etc., and this has been in its past history a grievous burden upon the taxpayers of the State. Surely it was competent for the sovereign to relieve itself of this burden by making an arrangement with any person to take charge of these convicts and confine them securely to labor in conformity with the judgments against them for a time not exceeding their terms of sentence. It was a transfer by the State to the lessee of the control and labor of these persons in consideration that they would feed, clothe, render medical aid and safely keep them during a limited period.”'It cannot be doubted that, as a general proposition, in the absence of express constitutional limitations as to the place of imprisonment and labor, the convict could

1 See ante, $ 12a.

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Georgia Penitentiary Co. v. Nelms, 65 Ga. 499 (38 Am. Rep. 793).

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