tory on this point before the court should presume that the prisoner's hopes did not still cling to, or his fears dwell upon, the first inducements.1

Before prisoners were allowed the benefit of assistance from counsel on trials for high crimes, it was customary for them to make such statements as they saw fit concerning the charge against them, during the progress of the trial, or after the evidence for the prosecution was put in; and upon these statements the prosecuting officer or the court would sometimes ask questions, which the accused might answer or not at his option. And although this practice has now become obsolete, yet if the accused in any case should manage or assist in his own defence, and should claim the right of addressing the jury, it would be

difficult to confine him to "the record" as the counsel [* 317] may be confined in his * argument. A disposition has been manifested of late to allow the accused to give evidence in his own behalf; and statutes to that effect are in existence in some of the States, the operation of which is believed to have been generally satisfactory.2 These statutes, however, cannot be so construed as to authorize compulsory process against an accused to compel him to disclose more than he chooses; they do not so far change the old system as to establish an inquisitorial process for obtaining evidence; they confer a privilege, which the defendant may use at his option; if he does not choose to avail himself of it, unfavorable inferences are not to be drawn to his prejudice from that circumstance; and if he does testify, he is at liberty to stop at any point he chooses, and it must be left to the jury to give a statement, which he declines to

1 See State v. Roberts, 1 Dev. 259; Rex v. Cooper, 5 C. & P. 535. 2 See American Law Register, Vol. V. (N. s.) pp. 129, 705.

3 People v. Tyler, 36 Cal. 522; State v. Cameron, 40 Vt. 555. For a case resting upon an analogous principle, see Carne v. Litchfield, 2 Mich. 340. A different view would seem to be taken in Maine. See State v. Bartlett, 55 Me. 200. In Devries v. Phillips, 63 N. C. 53, the Supreme Court of North Carolina held it not admissible for counsel to comment to the jury on the fact that the opposite party did not come forward to be sworn as a witness as the statute permitted. See also Crandall v. People, 2 Lansing, 309. In Michigan the wife of an accused party may be sworn as a witness with his assent; but it has been held that his failure to call her was not to subject him to inferences of guilt, even though the case was such that if his defence was true, his wife must have been cognizant of the facts. Knowles v. People, 15 Mich. 408.

make a full one, such weight as, under the circumstances, they think it entitled to; otherwise the statute must have set aside and overruled the constitutional maxim which protects an accused party against being compelled to testify against himself, and the statutory privilege becomes a snare and a danger.1

*The testimony for the people in criminal cases can [*318] only, as a general rule, be given by witnesses who are present in court.2 The defendant is entitled to be confronted with the witnesses against him; and if any of them be absent from the Commonwealth, so that their attendance cannot be compelled, or if they be dead, or have become incapacitated to give evidence, there is no mode by which their statements against

1 The statute of Michigan of 1861, p. 169, removed the common-law disabilities of parties to testify, and added, "Nothing in this act shall be construed as giving the right to compel a defendant in criminal cases to testify; but any such defendant shall be at liberty to make a statement to the court or jury, and may be cross-examined on any such statement. It has been held that this statement should not be under oath. People v. Thomas, 9 Mich. 314. That its purpose was to give every person on trial for crime an opportunity to make full explanation to the jury, in respect to the circumstances given in evidence which are supposed to have a bearing against him. Annis v. People, 13 Mich. 511. That the statement is evidence in the case, to which the jury can attach such weight as they think it entitled to. Maher v. People, 10 Mich. 212. That the court has no right to instruct the jury that, when it conflicts with the testimony of an unimpeached witness, they must believe the latter in preference. Durant v. People, 13 Mich. 351. And that the prisoner, while on the stand, is entitled to the assistance of counsel in directing his attention to any branch of the charge, that he may make explanations concerning it if he desires. Annis v. People, 13 Mich. 511. The prisoner does not cease to be a defendant by becoming a witness, nor forfeit rights by accepting a privilege. In People v. Thomas, 9 Mich. 321, Campbell, J., in speaking of the right which the statute gives to cross-examine a defendant who has made his statement, says: "And while his constitutional right of declining to answer questions cannot be removed, yet a refusal by a party to answer any fair question, not going outside of what he has offered to explain, would have its proper weight with the jury." See Commonwealth v. Mullen, 97 Mass. 547; Commonwealth v. Curtis, ib. 574.

* State v. Thomas, 64 N. C. 74; Goodman v. State, Meigs, 197. By the old common law a party accused of felony was not allowed to call witnesses to contradict the evidence for the crown; and this seems to have been on some idea that it would be derogatory to the royal dignity to permit it. Afterwards when they were permitted to be called, they made their statements without oath; and it was not uncommon for both the prosecution and the court to comment upon their testimony as of little weight because unsworn. It was not until Queen Anne's time that they were put under oath.

the prisoner can be used for his conviction. The exceptions to this rule are of cases which are excluded from its reasons by their peculiar circumstances; but they are far from numerous. If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to crossexamine him, or if there were a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party. So, also, if a person is on trial for homicide, the declarations of the party whom he is charged with having killed, if made under the solemnity of a conviction that he was at the point of death, and relating to matters of fact concerning the homicide, which passed under his own observation, may be given in evidence against the accused; the condition of the party who made them being such that every motive to falsehood must be supposed to have been silenced, and the mind to be impelled by the most powerful considerations to tell the truth.2 Not that such evidence is of very conclusive character: it is not always easy for the hearer to determine how much of the declaration related to

what was seen and positively known, and how much was [*319] surmise * and suspicion only; but it is admissible from the necessity of the case, and the jury must judge of the weight to be attached to it.

In cases of felony, where the prisoner's life or liberty is in peril, he has the right to be present, and must be present, during the whole of the trial, and until the final judgment. If he be absent, either in prison or by escape, there is a want of jurisdiction over the person, and the court cannot proceed with the trial, or

1 1 Greenl. Ev. §§ 163-166; Bishop, Cr. Pro. §§ 520-527; Whart. Cr. Law, § 667; 2 Phil. Ev. by Cowen, Hill, and Edwards, 217, 229. Whether evidence that the witness cannot be found after diligent inquiry, or is out of the jurisdiction, would be sufficient to let in proof of his former testimony, see Bul. N. P. 239, 242; Rex v. Hagan, 8 C. & P. 167; Sills v. Brown, 9 C. & P. 601.

21 Greenl. Ev. § 156; 1 Phil. Ev. by Cowen, Hill, and Edwards, 285–289; Whart. Cr. Law, §§ 669-682; Donnelly v. State, 2 Dutch. 463; Hill's Case, 2 Grat. 594; State v. Freeman, 1 Speers, 57; State v. Brunetto, 13 La. An. 45; Dunn v. State, 2 Pike, 229; Mose v. State, 35 Ala. 421; Brown v. State, 32 Miss. 433; Whitley v. State, 38 Geo. 70; State v. Quick, 15 Rich. 158. This whole subject was largely considered in Morgan v. State, 31 Ind. 193.

receive the verdict, or pronounce the final judgment.1 But misdemeanors may be tried in the absence of the accused.

The Traverse Jury.

The trial of the guilt or innocence of the jury must be by jury;2 and wherever the right to this trial is guaranteed by the constitution without qualification or restriction, it must be understood as retained in all those cases which were triable by jury at the common law, and with all the common-law incidents to a jury trial, so far, at least, as they can be regarded as tending to the protection of the accused.

A petit, petty, or traverse jury is a body of twelve men, who are sworn to try the facts of a case, as they are presented in the evidence placed before them. Any less than this number of twelve would not be a common-law jury, and not such a jury as the constitution guarantees to accused parties, when a less number is not allowed in express terms; and the necessity of a full panel could not be waived at least, in case of felony - even by consent. The infirmity in case of a trial by a jury of less than

1 See Andrews v. State, 2 Sneed, 550; Jacobs v. Cone, 5 S. & R. 335; Witt v. State, 5 Cold. 11; State v. Alman, 64 N. C. 364; Gladden v. State, 12 Fla. 577; Note to Winchell v. State, 7 Cow. 525. In capital cases the accused stands upon all his rights, and waives nothing. Dempsey v. People, 47 Ill. 325. It is worthy of note that all that is extant of the legislation of the Plymouth Colony for the first five years, consists of the single regulation, "that all criminal facts, and also all manner of trespasses and debts between man and man, shall be tried by the verdict of twelve honest men, to be impanelled by authority in form of a jury, upon their oath." 1 Palfrey's New England, 340.

3 See note to p. 410, post. A citizen not in the land or naval service, or in the militia in actual service, cannot be tried by court martial or military commission, on a charge of discouraging volunteer enlistments or resisting a military conscription. In re Kemp, 16 Wis. 359. See Ex parte Milligan, 4 Wal. 2. The constitutional right of trial by jury extends to newly created offences. Plimpton v. Somerset, 33 Vt. 283; State v. Peterson, 41 Vt. 504. But not to offences against city by-laws. McGear v. Woodruff, 4 Vroom, 213.

Work v. State, 2 Ohio, N. s. 296; Cancemi v. People, 18 N. Y. 128; Brown v. State, 8 Blackf. 561; 2 Lead. Cr. Cas. 337; Hill v. People, 16 Mich. 351. And see State v. Everett, 14 Minn. 447. In Commonwealth v. Dailey, 12 Cush. 80, it was held that, in a case of misdemeanor, the consent of the defendant that a verdict might be received from eleven jurors was binding upon him, and the verdict was valid. See also State v. Cox, 3 Eng. 436; Murphy v. Commonwealth, 1 Met. (Ky.) 365; Tyzee v. Commonwealth, 2 Met. (Ky.) 1; State

twelve, by consent, would be that the tribunal would be one unknown to the law, created by mere voluntary act of the parties; and it would in effect be an attempt to submit to a species of arbitration the question whether the accused has been guilty of an offence against the State. But in those cases which formerly were not triable by jury, if the legislature provide for such a trial now, they may doubtless create for the purpose a statutory tribunal, composed of any number of persons, and no question of constitutional power or right could arise.

1

Many of the incidents of a common-law trial by jury are essential elements of the right. The jury must be indifferent between the prisoner and the commonwealth; and to secure impartiality challenges are allowed, both for cause, and also peremptory without assigning cause. The jury must also be summoned [* 320] * from the vicinage where the crime is supposed to have been committed; and the accused will thus have the benefit on his trial of his own good character and standing with his neighbors, if these he has preserved; and also of such knowledge as the jury may possess of the witnesses who may give evidence against him. He will also be able with more certainty to secure the attendance of his own witnesses. The jury must unanimously concur in the verdict. This is a very old requirement in v. Mansfield, 41 Mo. 470; Brown v. State, 16 Ind. 496; Opinions of Judges, 41 N. H. 550. In Hill v. People, 16 Mich. 356, it was decided that if one of the jurors called was an alien, the defendant did not waive the objection by failing to challenge him, if he was not aware of the disqualification; and if the court refused to set aside the verdict on affidavits showing these facts, the judgment upon it would be reversed on error. The case of State v. Quarrel, 2 Bay, 150, is contra. The case of Stone v. State, 2 Scam. 326, in which it was held competent for the court, even in a capital case, to strike off a juryman after he was sworn, because of alienage, affords some support for Hill v. People.

Offences against the United States are to be tried in the district, and those against the State in the county in which they are charged to have been committed; but courts are generally empowered, on the application of an accused party, to order a change of venue, where for any reason a fair and impartial trial cannot be had in the locality. It has been held incompetent to order such a change of venue on the application of the prosecution. Kirk v. State, 1 Cold. 344. See also Wheeler v. State, 24 Wis. 52; Osborn v. State, 24 Ark. 629. And in another case in Tennessee it was decided that a statute which permitted offences committed near the boundary line of two counties to be tried in either was an invasion of the constitutional principle stated in the text. Armstrong v. State, 1 Cold. 338. See also State v. Denton, 6 Cold. 539. But see State v. Robinson, 14 Minn. 447.