having once been exercised by the accused, it is no hardship upon him to allow the testimony of the deceased witness to be read to the jury.29 The primary object of the constitutional provision is to prevent the use of depositions and ex parte statements against the accused, instead of a personal examination and cross-examination of the witness, in which the accused has an opportunity to test his recollection and to sift his conscience, and also to compl him to stand face to face with the jury, in order that they may look at him, and judging by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief; but the constitutional provision must be interpreted in the light of the law as it existed at the time of its adoption, and, being so interpreted, considerations of public policy, and the necessities of the case, have been universally considered by the courts in this country and in England, both before and since the adoption of the constitution, as just and reasonable grounds for the exceptions above indicated to the constitutional rule.30 § 145. Same-Right of accused to compulsory process for witnesses and assistance of counsel.-A criminal trial, and especially in a capital case, without compulsory process for the witnesses in favor of the accused, and without allowing him to make his full defense by counsel learned in the law, is a cruel mockery of justice; and this strange defect of the com 29 Rex v. Joliffe, 4 Term Rep. 285, 290; Rex v. Smith, 2 Stark. 208; Rex v. Radbourne, 1 Leach C. C. 512; Buckworth's Case, Raym. 170; Kendrick v. State, 10 Humph. 479; Commonwealth V. Richards, 18 Pick. 434; S. C. 29 Am. Dec. 608; United States v. Macomb, 5 McLean, 286; Summons v. State, 5 Ohio St. 325; Brown v. Commonwealth, 73 Pa. 321: S. C. 13 Am. Rep. 740; State v. Mc O'Blenis, 24 Mo. 402; S. C. 69 Am. Dec. 435; State v. Baker, 24 Mo. 437; State v. Houser, 26 Mo. 431; State v. Able, 65 Mo. 357; Owens v. State, 63 Miss. 450; Barnet v. People. 54 Ill. 325; United States v. White, 5 Cranch C. C. 457; Robinson v. State, 68 Ga. State V. 30 Mattox v. United States, 156 U. S. 237, 261 (39:409). mon law, which stood so long as a reproach upon criminal procedure in England 31 was remedied and provided against by the sixth amendment to the constitution, and an act of the first congress, passed at its second session, entitled "an act for the punishment of certain crimes against the United States."' 32 The intent and spirit of the constitutional guaranty and the statute have been faithfully adhered to by the judges and courts of the United States, except that an occasional tendency is seen to appoint, for the defense of capital crimes, very young members of the bar, who, although worthy members of the profession, do not possess that experience, learning and skill in the profession which are requisite in such cases. The accused in such cases "shall be allowed and admitted to make his full defense by counsel learned in the law." § 146. Punishment-Cruel and unusual not to be inflicted.The eighth amendment to the constitution declares that: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This provision was taken from the English "act of settlement," in which, after reciting various grounds of grievances, and, among them, that excessive bail had been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects, and that excessive fines had been imposed, and illegal and cruel punishments had been inflicted, it is declared "that excessive bail ought not to be required, nor excessive fines be imposed, nor cruel and unusual punishments inflicted." This declaration of rights had reference to the acts of the executive and judicial departments of the government, and was intended as a restraint upon them.33 At common law neither the mode of executing a prisoner nor the time or place of execution was necessarily embodied in the sentence; directions in regard to the mode of execution were usually given by the judge in the calendar of capital cases prepared by the clerk at the close of the term, and these directions constituted in many cases the only authority of the officer as to the mode of execution, and they were often attended with 31 Ante secs. 1-10. 32 U. S. Const. VI art. of Amndt.; 1 U. S. Stat. at L. chap. IX, sec. 29, p. 118; U. S. Rev. Stat. sec. 1034. 33 Ex parte Kemmler, 136 U. S. 436, 449 (34:519). Punishments are cruel the greatest atrocities and cruelties.34 when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the constitution.35 § 147. Same-Same-Cumulative penalties imposed on habitual criminals.-A statute which imposes increased, cumulative or aggravated penalties upon conviction of a crime of a person, because of his having been previously convicted of a crime or crimes, is not violative of the eighth amendment. · Such statutes are aimed at habitual criminals; the punishment · is for the new crime only; but is made heavier because the accused is an habitual criminal.36 § 148. No person twice in jeopardy for same offense-Meaning of the prohibition.-The fifth amendment declares: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. An acquittal before a court having no jurisdiction of the offense is, of course, like all proceedings in the case, absolutely null and void, and therefore no bar to a supbsequent indictment and trial in a court which has jurisdiction of the offense.37 But although an indictment be fatally defective, yet, if the court have jurisdiction of the cause and of the party accused, its judgment is not void, but only voidable by writ of error; and, until so avoided, cannot be collaterally impeached. If the judgment is upon a verdict of guilty, and unreversed, it stands good, and warrants the punishment of the defendant accordingly, and he cannot be discharged by writ of habeas corpus.38 § 149. Same-Acquittal upon defective indictment-Common-law rule.-In England, by the rule of the common law, an acquittal upon an indictment so defective that, if it had 34 Wilkerson v. People of the United States in Utah, 99 U. S. 130, 137 (25:345). 35 Ex parte Kemmler, 136 U. S. 436, 449 (34:519). 36 McDonald v. Massachusetts, 180 U. S. 311, 313 (45:542) and note. 37 Commonwealth v. Peters, 12 Met. 382; 2 Hawk. P. C. chap. 35, sec. 3; 1 Bishop Crim. Law, sec. 1020; Ball v. United States, 163 U. S. 662, 674 (41:300). 38 Ex parte Park, 93 U. S. 18, 24 (23:787); Ball v. United States, 163 U. S. 662, 674 (41:300). been objected to at the trial, or by motion in arrest of judgment, or by writ of error, it would not have supported any conviction or sentence, has generally been considered as sufficient to support a plea of former acquittal.39 § 150.-Same Same Rule as to acquittal upon defective indictment in the federal courts.-The supreme court of the United States has adopted the English rule as to the effect of an acquittal upon a defective indictment, and has accordingly held, that a general verdict of acquittal found by the jury upon the issue of not guilty to an indictment which undertakes to charge murder and not objected to before the verdict as insufficient on account of a failure to charge some of the essential elements of the offense, is a bar to a second indictment for the same killing, although before the trial on the second. indictment the first indictment has been held fatally defective on a writ of error prosecuted by defendants jointly indicted. in the first indictment with the defendant who was so acquitted.40 § 151. Same-The verdict constitutes the bar. It is the verdict of acquittal found by the jury, and not the judgment entered thereon by the court, which constitutes the bar to a subsequent prosecution. When such a verdict has been duly returned and received by the court, the court can take no other action than to order the discharge of the defendant; the verdict of acquittal is final and cannot be reviewed on writ of error or otherwise, without putting the accused twice in jeopardy, and thereby violating the constitution; the verdict of acquittal, although not followed by any judgment of the court, is an effectual bar to a subsequent prosecution for the same. offense.* 41 § 152. Same-When defendant procures verdict of conviction set aside.-A defendant who has been convicted, and who 39 2 Hale, P. C. 248, 394; 2 Hawk. P. C. chap. 35, sec. 1; 1 Stark. Crim. Pl. (2nd Ed.) 320; 1 Chitty, Crim. Law, 458; Archb. Crim. Pl. & Ev. (19th Ed.) 143; Russell, Crimes (6th Ed.), 48; Ball V. United States, 163 U. S. 662, 674 (40:300). 40 Ball V. United States, 163 U. S. 662, 674 (40:300). 41 Ball v. United States, 163 U. S. 662, 674 (40:300); United States v. Sanges, 144 U. S. 310 (36:446); Commonwealth V. Tucker, 20 Pick. 356, 365; West v. State, 22 N. J. L. 212, 231; 1 Lead. Crim. Cas. (2nd Ed.) 532. procures the verdict and judgment against him, upon an indictment, to be set aside, may be tried anew upon the same indictment, or upon another indictment for the same offense of which he has been convicted. When the defendant, after trial, conviction and judgment, sues out a writ of error to have the judgment and sentence against him reviewed, and, upon such review, the judgment and sentence are reversed, and the indictment ordered to be quashed and dismissed, the former conviction cannot be pleaded in bar of the second prosecution.42 § 153. Same-Several counts in the indictment-Nolle prosequi as to some counts-No finding as to others. "It is familiar law that separate counts are united in one indictment, either because entirely separate and distinct offenses are intended to be charged, or because the pleader, having in mind but a single offense, varies the statement in the several counts as to the manner or means of its commission in order to avoid at the trial an acquittal by reason of any unforeseen lack of harmony between the allegations and the proof." 43 Where there are several counts in the indictment, and a nolle prosequi is entered as to some of them, that works no acquittal, but leaves the prosecution just as though no such counts had ever been inserted in the indictment.** Where an indictment contains several counts, and the jury find the defendant guilty on all the counts but one, and the verdict is silent on that one count, and the court receives the verdict and discharges the jury without the consent of the accused, the silence of the jury is equivalent to a verdict of not guilty as to that count, and may be pleaded in bar of any further prosecution of the charge with reference to which the jury were silent.45 Where the jury find the defendant guilty on several counts, and disagree as to other counts, and their disagreement as to such counts is formally entered upon the record, and the jury is discharged by the court, a 42 Ball v. United States, 163 U. S. 662, 674 (40:300); Hapt v. Utah, 120 U. S. 430 (30:708). 42 Dealy v. United States, 152 U. S. 539, 547 (38:545); 1 Bishop, Crim. Proc. sec. 422; Selvester v. United States, 170 U. S. 262, 271 (42:1029); Claasen's Case, 142 U. S. 140 (35:966); Ballew V. United States, 160 U. S. 187 45 Dealy v. United States, 152 U. S. 539, 547 (38:545); Selvester v. United States, 170 U. S. 262, 271 (42:1029). |