tried by a petit jury, so-called to distinguish it from the grand jury which makes the indictment.1 Service on juries is one of the duties of citizens, but Jury serv many exceptions are allowed by law, as in the case of ice. lawyers, teachers, ministers, physicians, and some public officers. Others not legally excepted often furnish more or less reasonable excuses and thus escape what they consider a serious burden. It is often difficult, therefore, to secure men of good character and intelligence for jury service. In Cook County, lists of jurors are made up by a board of three jury commissioners appointed by the judges of the higher courts of the county. From these lists, jurors are selected both for the grand jury and for the petit juries. Elsewhere, lists are made up by the county boards. When in any particular trial, twelve competent and impartial jurors cannot be found on the official lists, the judge may order the sheriff to bring in other men for service.2 jurors. Before a jury is selected in any particular case, the Examinaproposed jurors are carefully examined by the court tion of and by the lawyers on both sides. In criminal, as in civil cases, either party may challenge a juror for cause, as for example, when it is shown that he is probably prejudiced for or against the prisoner. The number of peremptory challenges allowed in criminal cases is larger than in civil cases. Whenever the penalty in case of conviction would be death or imprisonment for life, both the defendant and the prosecuting attorney are allowed twenty peremptory challenges. In less serious cases, the number allowed is smaller. Every 1Constitution of Illinois, 1870, Art. II. § 5; Hurd, Revised Statutes, ch. 38, §§ 421-438; Puterbaugh, Common Law Pleading and Practice, ch. 25; Starr and Curtis, Annotated Statutes, ch. 38, Division 13. 'Hurd, Revised Statutes, ch. 78. The trial. The verdict and the sentence. possible care is taken to prevent the jurymen from being influenced in any way except by the regular proceedings in open court and secret or illegal communication with them is a penal offense.1 After the selection of a proper jury, the case is ready for trial. Usually the prosecuting attorney and the counsel for the prisoner make introductory speeches, stating what they expect to prove, and then the witnesses are heard on both sides. Each party has the right to cross-examine the witnesses of the other. The judge may refuse to allow evidence which he considers likely to influence the jury unfairly. When the. witnesses have given their testimony, the lawyers sum up the evidence on each side. Finally, as in civil cases, the judge gives his instructions to the jury on the points of law.2 When a criminal case has finally gone to the jury, they have the right to decide all questions both of law and fact, though they should ordinarily be guided by the judge's instructions on legal points. In considering their verdict, they have to decide first whether the prisoner is guilty or not guilty. The prisoner is always to be supposed innocent until his guilt is proved "beyond a reasonable doubt," and no verdict can be given unless the jury is unanimous. The jury may also in 'Hurd, Revised Statutes, ch. 38, §§ 421-438; ch. 78; Puterbaugh, Common Law Pleading and Practice, ch. 35. * Puterbaugh, Common Law Pleading and Practice, chs. 34, 37; Hurd, Revised Statutes, ch. 110, §§ 52-54. 8 The Supreme Court has ruled that a judge may instruct a jury "that it is the duty of the jury to accept and act upon the law as laid down to you by the court, unless you can say upon your oaths that you are better judges of the law than the court." Davison v. the People, 90 Illinois Reports, 223. certain cases fix the penalty.1 When a verdict of guilty has been returned, sentence is pronounced by the court and this sentence or judgment is then usually carried out by the sheriff of the county.2 The constitution of Illinois provides that no person New trials shall "be twice put in jeopardy for the same offense." and appeals. It follows that an acquittal by a jury is final and that there can be no new trial and no appeal to any higher court. On the other hand, if the prisoner is found guilty, the judge may allow a new trial or an appeal may be taken either to the Appellate Court or, in more serious cases to the Supreme Court of the State. This higher court will then, in case of unfairness or illegality in the proceedings, order a new trial. Finally, if the prisoner has been found guilty and the higher court has refused to interfere, he has still the privilege of appealing to the governor to exercise his power either of giving a full pardon or reducing the sentence. the law." Throughout this criminal procedure, the State, "The technithough itself the prosecuting party, gives the accused calities of person every opportunity to defend himself, assuming that he is innocent until he is proved guilty. Doubtless this system prevents the punishment of many people who are really guilty and this fact often causes an outcry against the "technicalities" of the law. In the long run, however, most Americans believe that it is better to let a few guilty men escape than to punish one innocent man unjustly. 'Hurd, Revised Statutes, ch. 38, §§ 431, 439-457. Cf. Cooley, Constitutional Limitations, ch. 10. 2 Revised Statutes, ch. 38, §§ 439-457. Constitution of Illinois, 1870, Art. II. § 10, Art. VI.; Hurd, Revised Statutes, ch. 38, §§ 458-470; ch. 110. * Constitution of Illinois, 1870, Art. V. § 13. The guardianship of the State. CHAPTER XII THE WARDS OF THE STATE 60. REFERENCES Wines, "Prisons and Prison Discipline" (in Lalor, Cyclopaedia of Political Science, III. 352-360); Henderson, Introduction to the Study of the Dependent, Defective, and Delinquent Classes (full reference lists in Appendix); Holmes, The Common Law, Lecture 2; Wines, Punishment and Reformation; Boies, The Science of Penology; Warner, American Charities. Documents: Board of State Commissioners of Public Charities of the State of Illinois, Biennial Reports, especially the Reports for 1876, 1903; Illinois Conference of Charities and Corrections, Proceedings; Hurd, Revised Statutes, chs. 23, 38, 85, 86, 107, 118, with notes on these chapters in Starr and Curtis, Annotated Statutes. See also reports of the various State penal and charitable institutions. 61. TREATMENT OF THE CRIMINAL CLASS Freedom, responsibility, and self-reliance, are the marks of the good citizen. In every community, however, there are some who have forfeited their freedom because they have used it to the injury of their neighbors, or of the State. Others because of misfortune or weakness cannot be expected to care for themselves. For all these people, the State has to act as a kind of guardian. This guardianship of the State is necessary, first, for the criminal or delinquent class. Though murder may be punished by death and many minor offenses may be atoned for by the payment of fines without the loss of personal freedom, serious offenses are generally punished by depriving the criminal of his freedom and placing him in the custody of the State, in other words by imprisonment. of punish ment. The proper treatment of criminals is a difficult prob- Theories lem and the practical policy adopted will depend largely upon one's theories as to the real purpose for which men are imprisoned or otherwise punished. In old systems of punishment, two ideas were made most prominent. One was that of punishment as a retribution. In the earliest times the man who was injured could get retribution or vengeance by striking back. He was entitled to an eye for an eye and a tooth for a tooth. Under civilized governments, the State has taken the place of the individual and has claimed retribution for the wrong done to its own dignity and to the rights of its citizens. A second idea was intimidation. Men were to be deterred from crime by the fear of the penalty imposed by law. This idea of punishment as a deterrent is still an important element in our criminal law. A third purpose of imprisonment is particularly important in the case of "habitual criminals" who may be kept for longer terms not merely because of what they have done, but because, if set free, they would be a constant menace to the community. These various theories have one thing in common. They all regard imprisonment as something which is necessary to protect the dignity or the interest of the rest of the community. Recently, however, men have come to lay more stress upon reformation. Crimes are now regarded not only as offenses to be punished, but as symptoms of a moral disease which has to be cured. Though this principle is often neglected in our modern |