son, bribery, duelling, malfeasance in office, public defalcation or embezzlement of the public funds, perjury, offenses against the elec tion laws, and murder. In a number of the states, the disqualification attaches to the conviction of any infamous crime. This conse quence of a conviction is strictly and properly a punishment. cannot be inflicted except by due process of law. Thus, a constitutional provision making a defaulter or embezzler of the public money ineligible to any office of trust or profit presupposes that the default shall be ascertained and fixed by judicial or other legal authority; until this is done, the acts of a person holding the office will be valid and binding, and his sureties will be liable for them." But a person who has committed an act disqualifying him for office may be removed from his office by a proceeding by quo warranto, or by information in the nature of a quo warranto, although he has not been convicted of the offense in any criminal prosecution against him.108

105

The federal constitution also contains certain provisions of this character. Thus, in article 1, § 3, we read: "Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States." And the third section of the fourteenth amendment provides that no person shall hold any office, civil or military, under the United States or under any state, who, having previously taken an oath, as a member of congress or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But congress, by a two-thirds vote of each house, may remove such disability. Congress has been very liberal in the exercise of the power to remove this disability, and it is believed that there are now very few persons, if any, who still remain under its burden.

105 Cawley v. People, 95 Ill. 249.

106 Royall v. Thomas, 28 Grat. (Va.) 130; Com. v. Walter, 83 Pa. St. 105; Brady v. Howe, 50 Miss. 607.

PROVISIONS IN THE CONSTITUTIONS.

245. Under the American systems, every person charged with crime and brought to trial therefor is secured, by constitutional guaranties, in the enjoyment of certain rights which are generally deemed essential to the due administration of justice under a free government. Some of these rights are secured by the constitution of the United States, others by the constitutions of the individual states, and others by both concurrently.

246. The most important of these rights are as follows: (a) The right to a presentment or indictment by

a grand jury.

(b) The right to be tried by a petit jury.

(c) The exemption of the prisoner from being compelled to testify against himself.

(d) The right to be confronted with the witnesses against him.

(e) The right to compulsory process for obtaining witnesses in his favor.

(f) The right to be present at the trial.

(g) The right to be heard in person or by attorney
and to have the assistance of counsel for his
defense.

(h) The right to a speedy, fair, and public trial.
(i) The privilege against being deprived of life,
liberty, or property without due process of
law.

(j) The guaranty that the prisoner shall not be
twice put in jeopardy of life or limb for
the same offense.

(k) The guaranty that excessive bail shall not be required.

(1) The guaranty that excessive fines shall not be imposed nor cruel and unusual punishments inflicted.

(m) The provision that no person shall be punished by a bill of attainder or an ex post facto law.

(n) The privilege of the writ of habeas corpus, except when it may be lawfully suspended

in emergencies provided for by the consti

tution.

The fifth, sixth, and eighth amendments to the federal constitution, wherein many of the above mentioned rights are guarantied to persons accused of crime, are now conceded to be applicable only to the courts of the United States and proceedings therein. They were not intended to operate, and do not operate, to restrict the power of a state in its dealings with persons offending against its own laws, but were designed merely as limitations upon the power of the national government.1

But the same rights are secured by

1 Miller v. State, 153 U. S. 535, 14 Sup. Ct. 874; Twitchell v. Com., 7 Wall.

the constitutions of nearly all the states, not always in the same language, but to practically the same effect. And there are certain provisions of the federal constitution, relating to criminal procedure, which are binding, not upon the national government and its courts, but primarily upon the several states and their judges and legislatures. These are the provisions that no state shall pass any bill of attainder or ex post facto law, and that no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Waiver of Rights.

Some of these rights are merely personal to the defendant and may be waived by him. Others, according to the prevalent doctrine, are inalienable and cannot be taken away even with the free consent of the accused. Thus, he cannot be compelled to furnish evidence against himself; but a statute allowing him to testify at his own trial if he elects to do so is constitutional, and if he takes the stand in his own behalf, he may then be cross-examined the same as any other witness.2 So, he has the right to be confronted with the witnesses against him. But a law providing that he may take depositions of witnesses in a foreign jurisdiction on condition that he consents to the prosecution doing the same, is constitutional, and if he takes advantage of this act, he thereby waives his guarantied rights to that extent. On the other hand, it is held (in a majority of the states, though not in all) that the right to be tried by a jury of his peers is an inalienable right, which the accused cannot give up, unless, it may be, by express statutory authority, or in cases of mere misdemeanors. Again, it is generally held that the prisoner cannot waive his right to be present at the trial. If he is absent, there is a want of jurisdiction, and the court cannot proceed with the trial, nor receive a verdict, nor pronounce sentence. But 321; State v. Paul, 5 R. I. 185; Murphy v. People, 2 Cow. (N. Y.) 815; Pervear v. Com., 5 Wall. 475; O'Neil v. Vermont, 144 U. S. 323, 12 Sup. Ct. 693.

2 People v. Tice, 131 N. Y. 651, 30 N. E. 494; Boyle v. State, 105 Ind. 469, 5 N. E. 203.

Butler v. State, 97 Ind. 378.

4 Wilson v. State, 16 Ark. 601; State v. Maine, 27 Conn. 281; Whallon v. Bancroft, 4 Minn. 109 (Gil. 70). Compare League v. State, 36 Md. 259.

People v. Perkins, 1 Wend. (N. Y.) 91; Prine v. Com., 18 Pa. St. 103; State

this rule is not applicable to the trial of a misdemeanor or a breach of a municipal ordinance; such a trial may proceed in the absence of the accused, if he was legally arrested."

PRESENTMENT OR INDICTMENT.

247. The fifth amendment to the constitution of the United States provides that "no person shall be held to answer for a capital or otherwise infamous crime, 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.” And the same provision is to be found in the constitutions of most of the states, except that, in some, it is extended to all criminal offenses, and that, in some others, it is provided that no person, for any indictable offense, shall be proceeded against criminally by information.

The object of this guaranty is to secure to persons charged with high crimes the intervention of a grand jury, which safeguard against tyranny and oppression is generally regarded as no less important than the right to a trial by jury after indictment found. A presentment, properly speaking, is an accusation made ex mero motu, by a grand jury, of an offense, upon their own observation and knowledge, or upon evidence before them, without any bill of indictment laid before them at the suit of the government. An indictment is a written accusation of an offense preferred to a grand jury and presented upon oath by them as true, at the suit of the government. Upon a presentment, the proper officer of the

v. Hughes, 2 Ala. 102. Compare Fight v. State, 7 Ohio, pt. 1, p. 180; McCorkle v. State, 14 Ind. 39.

6 City of Bloomington v. Heiland, 67 Ill. 278.

7 At the common law, a grand jury was composed of not less than twelve nor more than twenty-three persons, and the concurrence of twelve of this number was absolutely essential to the finding of an indictment. A state statute which provides that every grand jury shall consist of twelve persons is not unconstitutional. But if it goes further than this, and provides that the assent of eight of that number shall be sufficient to the finding of an indictment, it is invalid. English v. State, 31 Fla. 340, 12 South. 689.