for murder in the first degree (for which the penalty, on conviction, is death), he is permitted sixteen peremptory challenges, which are challenges without the assignment

of cause.

The fundamental principle of our criminal law is that every person is presumed to be innocent until he is proved to be guilty. Hence every precaution is taken to secure a fair trial for the accused, who is given every advantage and the benefit of every doubt.

in the trial.

After the jury is chosen and sworn, the order of pro- Procedure ceedings is the same as in the trial of a civil case. The counsel for the State and for the defense alternate in the presentation of the two sides and in introducing evidence. The opening argument to the jury is made by the State's counsel, the defendant's counsel follows, and the counsel for the State closes. The judge then charges the jury, which withdraws under the custody of an officer of the court to make up its verdict. A verdict must be unanimous, and declare the accused guilty or not guilty.

and

Even after a verdict of conviction, the court may Motions, grant a new trial, or an “arrest of judgment" on motion judgment, of the defendant, if sufficient cause be shown. When execution. an arrest of judgment is granted all the proceedings are set aside, but this does not prevent a new indictment. If the court overrules the defendant's motion, or no motion is made, the court pronounces sentence on the prisoner. The last resort of the defense under such circumstances is to appeal to a higher court on a “writ of error," in which an illegality in the proceedings is alleged. The sentence is carried out under a "writ of execution," issued by the court to the sheriff, directing that officer to inflict the penalty of the law. Such in general is the procedure in criminal actions. This pro

cedure, like that in civil actions, is the outgrowth of centuries. Its purpose is to afford adequate protection to the community against crimes, and at the same time to secure full justice to those charged with the commission of crimes.

English and American Cyclopaedia of Law, "Police Power;" Lalor, Cyclopaedia of Political Science, III., “Police,” pp. 206-212, "Police Power," pp. 212-216; Cooley, Constitutional Limitations, ch. 16, “Police Power of the States;" Black, Constitutional Law, 2d ed., pp. 334-374; H. C. Black, "Police Power" (in American Law Review, 1891); Woolsey, Political Science, I. 235-240, "Police Power," also "Nature and Sphere of the Police Power" (in Journal of the American Social Science Association, 1871); Tiedeman, State and Federal Control of Persons and Property; Parker and Worthington, Law of Health and Safety; Sykes, Public Health Problems (in Contemporary Science series).

Ohio Penal Code, Title i, chs. 4-11; Ohio Civil Code, Part I. Title iii, chs. 7, 8, 9, 18, 21, 24, dealing with the Commissioner of Railroads and Telegraphs, the Superintendent of Insurance, the Inspector of Mines, the Food and Dairy Commissioner, the State Board of Health, and the State Fire Marshal, respectively; Ohio Civil Code, Part II. Title v, “Police Regulations;" Ohio Laws, vol. 96, pp. 22-25, “Ohio Municipal Code;" Constitution of Ohio (1851), Art. IX., "Militia;" Reports of the Commissioner of Railroads and Telegraphs, the State Board of Health, the Adjutant-General, and other officers and boards (printed in the Executive Documents of the State, also separately).

51. THE POLICE POWER OF THE STATE

In the preceding chapter we saw what provision is Judicial made by the State for the protection of the rights of power and individuals against wrongs. It was there pointed out

police power.

that whenever the rights of one individual are invaded by another, the law gives the injured party redress; and when this invasion of private rights is so gross as to affect the community as a whole, it constitutes a public wrong or crime, and is tried and punished in the name of the State. A person who has committed either a private or public wrong is subject to legal action before the courts and suffers a penalty imposed by the judicial power of the State. Closely related to this judicial power, but distinguished from it, is the police power of the State. This police power is employed for the defense of the community against public dangers and nuisances. It includes so many subjects within its scope that it can not easily be defined. However, it may be said to be the power of a government to preserve and promote the public welfare by prohibiting all things hurtful to public safety, health, and morals, and establishing such regulations for the conduct of all persons and the use of all property as may be conducive to the public interest.1

1 One authority states that "the public health and the public morals are the two subjects embraced within the strict and constitutional meaning of the term 'police power,' and adds that "the police power does not extend to matters affecting the mere convenience of the public." A very clear statement of the subjects comprehended within the scope of the police power is found in the case of Lawton v. Steele, 152 U. S. 133, in which the court says: "It is universally conceded to include everything essential to public safety, health and morals, and to justify the destruction or abatement by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that the State may order the destruction of a house falling to decay, or otherwise endangering the lives of passers-by; the demolition of such as may be in the path of a conflagration; the slaughter of diseased cattle; the destruction of diseased or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways

with eminent

Police power may be compared with certain other Comparison powers of government as well as with the judicial power. domain and It differs from the right of eminent domain: under the taxation. latter the government may take property for public use on proper compensation, while by reason of its police power the government may regulate the use of private property by the owner. Police power differs also from the power of taxation: the latter is the right of the government to derive from the people the money necessary to pay the expenses of public administration; the former is the authority of the government thus supported to provide for the peace, health, and safety of the community, even when this involves the restriction of individual liberty.

In a word, police power is society's means of selfprotection, and is based on two well-known maxims of the law, namely, (1) "Every man shall so use his own property as not to injure another," and (2) "The safety of the whole people is the highest law." It is exercised primarily by the legislature. A measure of this power is delegated by the legislature to boards variously constituted, such as boards of county commissioners and township trustees and boards of health. It is also deleand other means of public conveyance, and of interments in burial grounds; the restriction of objectionable trades to certain localities; the compulsory vaccination of children; the confinement of the insane or those afflicted with contagious diseases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of obscene literature and houses of ill-fame, and the prohibition of gambling houses and places where intoxicating liquors are sold. Beyond this the State, however, may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests."

Police power vested in

the State.