PART II.

OF PROCEEDINGS IN CRIMINAL CASES BEFORE JUSTICES OF THE PEACE.

By the 1st sec. of "An act to regulate the apprehension of offenders and for other purposes," it is provided" That the judges of the supreme court throughout the state, the judges of the circuit courts in their respective circuits, and justices of the peace in their respective counties, shall jointly and severally be conservators of the peace, within their respective jurisdictions, as herein designated, and shall have full power to enforce, or cause to be enforced, all laws that now exist, or that shall hereafter be made, for the prevention and punishment of offences, or for the preservation and observance of the peace. They shall have power to cause to be brought before them, or any of them, all persons who shall break the peace, and commit them to jail, or admit them to bail, as the case may require, and to cause to come before them, or any of them, all persons who shall threaten to break the peace, or shall use threats against any person within this state, concerning his or her body, or threaten to injure his or her property, or the property of any person whatever; and also all such persons as are not of good fame, and the said judge or justice of the peace, being satisfied, by the oath of one or more witnesses, of his or her bad character, or that he or she had used threats, as aforesaid, shall cause such person or persons to give good security for the peace, or for their good behavior towards all the people of this state, and particularly towards the individual threatened. If any person against whom such proceedings are had, shall fail to give a recognizance with sufficient security, it shall be the duty of the judge or justice of the peace before whom he or she shall be brought, to commit such person or persons to the jail of the proper county, until such security be given, or until the next term of the circuit court. Such judge or justice of the peace, shall also take recognizances for the appearance of all witnesses at such courts. All recognizances to be taken in pursuance of this section, shall be returnable at the next circuit court, to be holden in the proper county, where all such recognizances shall be renewed or dismissed, as the said circuit court shall, upon the examination of the witnesses, deem to be just and right. And where the person or persons committed are in jail at the sitting of such circuit court, the court shall examine the witnesses, and either continue the imprisonment, bail the

prisoner, or discharge him or her, as to the said court shall appear to be right, having due regard to the safety of the citizens of this state." Gale's Stat., 237.

CHAPTER I.

OF PERSONS CAPABLE OF COMMITTING CRIMES, OF ACCESSORIES, AND WHO MAY BE WITNESSES IN CRIMINAL CASES.

Persons capable of committing crimes.

CRIMINAL Code. “SEC. 1. A crime or misdemeanor consists in a violation of a public law, in the commission of which there shall be an union or joint operation of act and intention, or criminal negligence.

"SEC. 2. Intention is manifested by the circumstances connected with the perpetration of the offence, and the sound mind, and discretion of the person accused.

"SEC. 3. A person shall be considered of sound mind who is neither an idiot or lunatic, or affected with insanity; and who hath arrived at the age of fourteen years, or before that age, if such person know the distinction between good and

evil.

"SEC. 4. An infant under the age of ten years, shall not be found guilty of any crime or misdemeanor.

"SEC. 5. A lunatic or insane person, without lucid intervals, shall not be found guilty of any crime or misdemeanor, with which he may be charged; Provided, the act so charged as criminal, shall have been committed in the condition of insanity.

"SEC. 6. An idiot shall not be found guilty, or punished, for any crime or misdemeanor, with which he or she may be charged.

"SEC. 7. Any person counselling, advising, or encouraging an infant under the age of ten years, lunatic, or idiot, to commit any offence, shall be prosecuted for such offence when committed, as principal, and if found guilty, shall suffer the same punishment that would have been inflicted on such person counselling, advising, or encouraging, as aforesaid, had he or she committed the offence directly, without the intervention of such infant, lunatic, or idiot.

"SEC. 8. A married woman acting under the threats, command, or coercion of her husband, shall not be found guilty of

any crime or misdemeanor not punishable with death, Provided it appear from all the facts and circumstances of the case, that violent threats, command, or coercion were used; and in such case the husband shall be prosecuted as principal, and receive the punishment which would otherwise have been inflicted on the wife, if she had been found guilty.

"SEC. 9. Drunkenness shall not be an excuse for any crime or misdemeanor, unless such drunkenness be occasioned by the fraud, contrivance, or force, of some other person or persons for the purpose of causing the perpetration of an offence; in which case the person or persons so causing said drunkenness, for such malignant purpose, shall be considered principal, or principals, and suffer the same punishment as would have been inflicted on the person or persons committing the offence, if he, she, or they had been possessed of sound reason and discretion.

"SEC. 10. Acts committed by misfortune or accident, shall not be deemed criminal, where it satisfactorily appears, that there was no evil design or intention, or culpable negligence.

"SEC. 11. A person committing a crime, or misdemeanor, not punishable with death, under threats or menaces which sufficiently shew, that his, or her life, or member was in danger; or that he, or she, had reasonable cause to believe, and did believe, that his, or her life or member was in danger, shall not be found guilty and such threats or menaces being proved and established, the person or persons compelling by such threats, or menaces, the commission of the offence, shall be considered as principal or principals, and suffer the same punishment, as if he or she, had perpetrated the offence.

"SEC. 12. A person that becomes lunatic or insane after the commission of a crime or misdemeanor, ought not to be tried for the offence during the continuance of the lunacy or insanity. If after verdict of guilty, and before judgment pronounced, such persons become lunatic or insane, then no judgment shall be given, while such lunacy or insanity shall continue.

"And if after judgment, and before execution of the sentence, such person become lunatic or insane, then in case the punishment be capital, the execution thereof shall be stayed until the recovery of said person from the insanity or lunacy. In all of these cases, it shall be the duty of the court to empannel a jury to try the question, whether the accused be, at the time of empannelling, insane or lunatic."

Accessories in crimes.

"SEC. 13. An accessory is he or she, who stands by and aids, abets, or assists; or who not being present aiding, abetting, or assisting, hath advised and encouraged the perpetra

tion of the crime. He or she, who thus aids, abets, or assists, advises, or encourages, shall be deemed and considered as principal, and punished accordingly.

"SEC. 14. An accessory after the fact, is a person who, after full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime.

"Any person being found guilty of being an accessory after the fact, shall be imprisoned for any term not exceeding two years, and fined in a sum not exceeding five hundred dollars, in the discretion of the court, to be regulated by the circumstances of the case, and the enormity of the crime."

Who may be witnesses in criminal cases.

"SEC. 15. The party or parties injured, shall in all cases, be competent witnesses, unless he, she, or they, shall be rendered incompetent by reason of his, her, or their infamy or other legal incompetency, other than that of interest; the credibility of all such witnesses shall be left to the jury as in other cases.

"SEC. 16. No black or mulatto person, or Indian, shall be permitted to give evidence in favor, or against, any white person whatsoever. Every person who shall have one fourth part or more of negro blood, shall be deemed a mulatto, and every person who shall have one half Indian blood, shall be deemed an Indian.

"SEC. 17. Approvers shall not be allowed to give testi

mony.

"SEC. 18. The solemn affirmation of witnesses shall be deemed sufficient. A false and corrupt affirmation shall subject the witness to all the penalties and punishment provid ed for those who commit wilful and corrupt perjury.”

CHAPTER II.

OF THE CHARGE OR COMPLAINT.

CRIMINAL prosecutions are carried on in the name of the people, and have for their principal object the security and safety of the people in general, and not mere private redress. But, as offences, for the most part, more particularly affect a particular individual, it is not usual for any other person to

interfere. In general, however, every man is, of common right, entitled to prefer an accusation against a party whom he suspects to be guilty. 1 Chit. Crim. Law, 1. Individuals thus legally entitled to prefer an accusation against a party suspected of crime, are, in general, bound by the strongest obligations both of reason and law, to exert the power with which they are invested. It must, indeed, be admitted, that revenge ought not to become the motive of their actions or occasion any unnecessary harshness in their proceedings. But, on the other hand, at least in cases of greater offences which affect the public, they have no right to forgive the injury which society has sustained, or to deprive mankind of that security which can alone result from the prompt detection and punishment of those by whom it is broken. The object of criminal prosecution is not vengeance for the past, but safety for the future; and, to the furtherance of this design, every man is bound to contribute. 1 Chit. Crim. Law, 3.

Punishment is not designed as an atonement or expiation for the crime committed, but as a precaution against committing, in future, offences of the same kind. 4 Bl. Com., 11. This moral obligation is, in many cases, enforced by the laws themselves. Where a person is knowing of an act of treason being committed, and conceals it, he is guilty of misprision of treason. Crim. Code, Sec. 21. And, by the common law, a person knowing that a felony has been committed and concealing it, is guilty of an offence. 4 Bl. Com., 121. And so he is by the statutes of this state. Gale's Stat., 201.

It is important, however, when a complaint is made to a justice of the peace, that he should acquaint himself with the motives of the person making the same. A justice is sometimes liable to be imposed upon by the statements of the party complaining, which are often made under the influence of feelings excited by a strong sense of personal injury, sometimes from motives of revenge. And, where the application appears to be groundless, the justice should refuse to issue

process.

When application is made to a justice of the peace for a warrant against the party accused, it becomes necessary to ascertain that a crime or misdemeanor has been actually committed, without which no warrant should be granted; and, also, the grounds of the accusation, or the cause and probability of suspecting the party, against whom the warrant is prayed. 4 Bl. Com., 290.

It is a common error, into which many persons as well as justices of the peace have run, that a person has a right to demand a warrant, if he will swear positively. But such is not the law. The justice has a right to inquire into all the circumstances, and to satisfy himself. 3 Wheeler's Crim. Cas., 183. And if there should be a positive charge upon oath, yet if the justice sees that no credit is to be given to it,