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who shall execute the writ of execution, the tenth part (decima) of the amount of the debt, in places where a custom should exist to pay this fee,33 L. 7. tit. 21. lib. 4. Rec. [L. 1. tit. 30. lib. 11. Nov. Rec.] without being able to exact others, L. 12. tit. 21. lib. 4. Rec. [L. 4. tit. 30. lib. 11. Nov. Rec.] Upon which it is to be observed, 1st, That the decima or fee is not due until sixty-two hours after the execution hath been levied, L. 30. tit. 21. lib. 4. Rec. [L. 17. tit. 30. lib. 11. Nov. Rec.]

2d, That it is not due on debts to the crown or fisc, but at the rate of thirty maravedis for a thousand, L. 8. tit. 21. lib. 4. Rec.34 [L. 1. tit. 30. lib. 11. Nov. Rec.

3d, That the decima or fee cannot be exacted until the creditor be declared satisfied and paid, L. 7. tit. 21. and L. 31.35 tit. 4. lib. 4. Rec. [Ll. 14, 15 and 16. tit. 30. lib. 11. Nov. Rec.]

4th, That there is no decima or fee, if the debtor shall pay [ 310 ] within twenty-four hours after the execution is made, or shall deposit the amount, Ll. 21, 22 and 23. tit. 21. L. 4. Rec. [L. 15. tit. 30. lib. 11. Nov. Rec.] and he is also in this case discharged or relieved from the costs of the escribano, L. 22. tit. 21. lib. 4. Rec.

5th, That if any dispute should arise whether the debtor had paid or not within the twenty-four hours, and the hour should not have been noted by the escribano, the latter must pay the costs.

33 The fees of the sheriff or marshal (alguazil mayor), are regulated in Trinidad by docket.

34 This law is not inserted in Nov. Rec.

35 Not inserted in Nov, Rec. Palacios says, it should be L. 31. tit. 4. lib. 3. Rec. (L. 7. tit. 30. lib. 11. Nov. Rec.): which law says, in addition to the text, the decima shall not be paid if the parties agree or arrange the suit.

TITLE XI.

OF CRIMINAL TRIALS OR PROSECUTIONS.

CAP. 1. HAVING already explained the mode of proceeding in civil suits it now only remains for us to expound what particularly and differently belongs to criminal trials; wherefore we shall take care not to repeat any of those things which they have in common, and which therefore are already treated of.

A criminal trial is that in which the coguisance and punishment of a crime committed are treated of.

The proceeding to the punishment and investigation of crimes is, either by accusation of the party, or by inquisition (pesquisa) arising from denunciation, or from the office of the judge (de propio oficio), L. 6. tit. 1. lib. 8. Rec. [L. 2. tit. 34. lib. 12. Nov. Rec.]

§ 1. Accusation is the charge which one man prefers against another before the judge, charging an offence which he alleges the accused hath committed, and praying the infliction on him of punishment for it, L. 1. tit. 1. P. 7. [L. 1. tit. 1. P. 7.] It is considered with reference to the following axioms: 1st, That only they can accuse who have a motive or an interest (entienden) in the accusation; those who can1 strike terror (aterrar) into the delinquent; those who by accusing, do not act against piety, and those who are in no manner of suspicious character (sospechosos.)

2d, That all can be accused who are capable of offending and suffering punishment.

[311] 3d, That the calumnious or false accusation does not remain unpunished.

From the first principle it is inferred, 1st, That a woman cannot accuse, nor a minor of fourteen years of age, nor a person of bad character, nor the perjured, nor one bribed or suborned (cohechado); he who has two accusations pending cannot in the mean time prefer a third, nor can a person of very great poverty accuse, nor the accomplice in the crime, nor can a relation or servant accuse a relation in the line of ascendants,3 or being a brother, unless it were for the crime

1 On the contrary, those who cannot strike or cause terror, says, Palacios; and that one of the reasons assigned by Greg. Lop., Gl. 5. L. 2. tit. 1. P. 7. for a judge being prohibited to be an accuser, is, because he might produce this effect on the accused. A better reason for such exclusion is, that the judge ought not to be the accuser. The learned Professor also observes, that the language of the law is, every person may be an accuser who is not prohibited by the laws, L. 2. tit. 1. P. 7. For information as to the constitution of the criminal courts, and the mode of proceeding in criminal trials, in Trinidad, the reader is referred to the Appendix F.

2 A woman, observes Palacios, may accuse for the murder of her husband, as also the husband for the murder of his wife, L. 14. tit. 8. P. 7.

3 Or descendants, adds Palacios.

of high treason (læsæ majestatis), or for a crime committed against their relations in the fourth degree, fathers-in-law, sons-in-law, or step-brothers, L. 2. tit. 1. P. 7. [L. 2. tit. 1. P. 7.]

2d, Neither can he accuse who has another accusation pending against him until his trial be concluded, unless it be for a crime against his person, or that of any of those relations in the degree we have mentioned; but if he should be condemned to perpetual banishment, he can at no time accuse another, unless for an offence against his relations, which his accuser hath committed, L. 4. tit. 1. P. 7. [L. 4. tit. 1. P. 7.]

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3d, That no judge can accuse, but may give information to the king of offences committed in the places of his jurisdiction, Ll. 2. and 5. tit. 1. P. 7. [Ll. 2. and 5. tit. 1. P. 7.]

4th, That when several accuse a person of the same crime, the judge ought to select from the accusers him whom he understands to proceed with the best intention, L. 13. tit. 1. P. 7. [L. 13. tit. 1. P. 7.]

5th, That any one may accuse or charge with respect to a crime committed against his person, or to the injury of another, except the crime of adultery, not having the consent of the husband, L. 2. tit. 19. lib. 8. Rec. [L. 4. tit. 26. lib. 12. Nov. Rec.]

From the second axiom it follows,

1st, That persons deceased cannot be accused, unless it be for the crime of high treason, or against the public, or of heresy, or for having misapplied the property of the crown, L. 7. tit. 1. P. 7. [L. 7. tit. 1. P. 7.]

2d, That also every judge who may have aggrieved a party accused before him, may be accused even after death; also the sacrilegious thief, and the woman who attempts the death of her husband,' because all these ought, by reason of their crimes, to suffer in their property the punishment which cannot be inflicted on their bodies, L. 8. tit. 1. P. 7. [L. 8. tit. 1. P. 7.]

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3d, Persons under fourteen years of age cannot be ac- [ 312 ] cused, unless for crimes of blood, death, theft, and others of a like nature, being above ten years and a half old, in which last case the

4 A person, says Palacios, referring to L. 4. tit. 1. P. 7.; and Greg. Lop., Gl. thereupon, who has an accusation pending against him, cannot accuse another of a crime of less or equal degree to that of which himself is accused.

5 Or against himself, adds Palacios.

6 This exception does not appear to be, to the extent, or in the manner put in the text, supported by the law of the 7th Part. referred to; which would only seem to permit the accusation, when the sentence for banishment was temporary, and not perpetual; and then without any qualification or limitation as to persons against whom the offence might be committed.

7 This seems to apply only to persons charged with the administration, receipt, custody, &c. of property of the crown.

Ex. gr. through bribery, &c.

9 A trial commenced against a wife, under such a charge, who may happen to die during its progress, may be concluded, and sentence given, declaring her infamous in case the offence be proved-Palacios, referring to L. 8. tit. 1. P. 7., cited in the text.

10 The offences, observes Palacios, referring to L. 9. tit. 1. P. 7., of which persons under fourteen cannot be accused, are those relating to carnal excesses (de luxuria).

Vol. I.-44

puuishment must be lessened with respect to them, L. 9. tit. 1. L. 17. tit. 14. and L. 8. tit. 31. P. 7. [L. 9. tit. 1. L. 17. tit. 14. and L. 8. tit. 31. P. 7.]

4th, Nor madmen, &c., L. 9. tit. 1. P. 7. [L. 9. tit. 1. P. 7.]

5th, Neither can judges, while in office, be accused, except for a crime committed by reason of their station or employment, L. 11. tit. 1. P. 7. [L. 11. tit. 1. P. 7.]

6th, Nor can any one who has once been accused be a second time accused of the same offence of which he hath been acquitted, except in the second accusation it be proved that the first was carried on with fraud or deceit (dolo); or the first having been prosecuted by a stranger, the second should be preferred by a relation, who proves that he was ignorant of the first, L. 12. tit. 1. P. 7. [L. 12. tit. 1. P. 7.] From the third principle it is inferred,

1st, That the accusation ought to be made in writing, setting forth the name of the accuser, that of the accused, that of the judge before whom the accusation is preferred, specifying the crime, the place, year, and month in which it was committed; and the judge must inscribe the day on which he receives it, and make the accuser take the oath of calumny," L. 14. tit. 1. P. 7. [L. 14. tit. 1. P. 7.]

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2d, That he who shall accuse through calumny or falsely, ought to suffer the punishment12 of the accused, L. 26. tit. 1. P. 7. [L. 26. tit. 1. P. 7.] But there are certain persons in whom, although they may not prove the accusation, it can only be considered presumptive, and not evident calumny; for which reason our laws exempt them from this punishment. Such are,13 1st, The guardian 14 of an orphan. 2d, He who accuses one of being a false coiner. 3d, The heir who follows up the accusation which the testator announced in his lifetime 15 against a determinate person for having attempted his death. 4th, He who accuses with respect to an act committed against himself. 5th, He who accuses on account of the death of his relations in the fourth degree. 6th, And the husband and wife on account of the death of each other, Ll. 6. 20, 21, and 26. tit. 1. P. 7. [Ll. 6. 20, 21, and 26. tit. 1. P. 7.]

From the fourth principle we deduce, 1st, That the judge of the place where the accused committed the offence, or of that where he shall be accused, is the competent judge, when once submission shall be made to his jurisdiction by the medium of contestation, or the judge of the domicile of the accused, or of the place where he shall have the greater part of his property, L. 15. tit. 1. P. 7. [L. 15. tit. 1. P. 7.]

And the accused being cited, the accusation is passed to him: and twenty days allowed him to answer. Vide L. 14. tit. 1. P. 7., quoted in the text. 12 Vide persons excepted by the law. Vide relations, &c. 13 Such persons, says Palacios, are excused from the punishment of presumptive calumny, which is, when the accuser does not prove the accusation; but not from the punishment of evident calumny, which is, when it is proved that he made it maliciously. He refers to Greg. Lop. Gl. 5., L. 6. tit. 20. P. 7., cited; and to Curia Filip., p. 3. § 8. 14 Unless he be proved to have accused through malice. Vide L. 6. tit. 1. P. 7. 15 Or mentions in his will, L. 21. tit. 1. P. 7. Vide the law.

2d, That if the same person hath commitied two crimes, the judge who first takes cognisance ought to substantiate or establish the cause, and afterwards transmit it to the other who demands it, Cur. Filip. P. 3. § 4. n. 6.

3d, That if the judge in whose jurisdiction the crime was committed, should demand the accused from the judge of his domicile, [313] although the latter may have previous cognisance of the cause (prevenga en la causa), he ought to hand the accused over, unless he is liable to corporal punishment, or being so, if the proceeding should be by accusation, Cur. Filip. ibid.

4th, That the alcaldes of the court (de corte) being supreme criminal judges, are in no case obliged to hand over or give up the accused, Cur. Filip. ibid. n. 7.

5th, We say the same of the alcaldes del crimen in the chanceries and audiences in respect to the cases de corte enumerated in Cur. Filip. ibid.

The accusation being preferred before a competent judge, he ought to cite the accused to appear or answer within twenty days, giving him a copy or traslado of the accusation, L. 14. tit. 1. P. 7. [L. 14. tit. 1. P. 7.] and in this term admit him to allege exceptions,16 L. 16. tit. 1. P. 7. [L. 16. tit. 1. P, 7.] From thenceforward neither the accuser nor accused can desist from the criminal prosecution.17 L. 17. tit. 1. P. 7. [L. 17. tit. 1. P. 7.] The accusation may be abandoned with the permission of the judge within thirty days after being preferred; and this may be always granted, provided no fraud or deceit is discovered in the accusation, or except in the six cases expressed by L. 19. tit. 1. P. 7. [L. 19. tit. 1. P. 7.]

The accusation is at an end by the death of the accuser,18 or the accused, except it be with respect to crimes, which may be prosecuted against persons deceased,19 L. 23. tit. 1. P. 7. [L. 23. tit. 1. P. 7.] and in the cases expressed in L. 24. and 25. 20 tit 1. P. 7. [Ll. 24. and 25. tit. 1. P. 7.1

Cap. 1. The proceeding in the inquiry or investigation of a crime may be also by the mere denunciation of the party which any one may prefer, without being obliged to prove it before a competent judge, unless the delator bind himself to do so, or the judge should

16 Dilatory exceptions before contestation or answer. Vide the law quoted, and note 1. Greg. Lop., thereon.

17 In any stage of the trial before sentence, the accuser may compound with the accused in criminal cases where the punishment is corporal, except in that of adultery, (which at present may be said not to entail corporal punishment), L. 22. tit. 1. P. 7. But this does not prevent the judge from proceeding in virtue of his office, in the like trial, until imposing the corporal punishment which the offence shall deserve, L. 10. tit. 24. lib. 8. Rec.: (L. 4. tit. 40. lib. 12. Nov. Rec.)-Palacios.

18 Heirs, if accusers, are not obliged after his death, to prosecute, but they may do so. Vide L. 23. tit. 1. P. 7.

19 Or rather their property.

20 As to the pecuniary penalty, the trial may be carried on against the heirs of the ac cused, even after his death, if, in his life-time, he had contested or answered the demand.

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