Page:American Journal of Sociology Volume 4.djvu/657

 CRIMINAL ANTHROPOLOGY AND JURISPRUDENCE 637

and a greater liberty is being granted the state. However, the com- mon-law rule in all its vigor remains in force in many of the states. The law that a person shall not be placed twice in jeopardy for the same offense has been sought to be made a barrier to appeal by the state, but unsuccessfully. This jeopardy is held to begin when the jury is impaneled and sworn to try the case (State vs. Bowman, 62 N. W. Rep., 759). In the case of the State vs. Lee, 30 Atl., mo, which arose under the Connecticut statute No. 1637, in which it was provided that a case may be taken from the superior to the supreme court, with permission of the presiding judge, on all questions of law, in the same manner by the state as by the accused, the extent of equal appeal has been reached. The alleged error in the case was the exclusion of cer- tain evidence offered by the state, and it was held that an appeal on this ground, and a reversal for a new trial, did not violate the pro- vision relating to former jeopardy. Other cases holding advanced decisions are People vs. Damon, 13 Wend., 351, for misconduct of jurors ; State vs. Reed, 26 Conn., 208. The reason for the proposed change is that, if an individual has a right to claim that he shall not be condemned through the mistake or ignorance of his judges, the state also has the right to demand that those whose acquittal is equally the result of mistake or ignorance shall not be allowed to go free. The justice of a sentence rests equally upon a just condemnation or a just acquittal. The extreme rules of former jeopardy, incriminating evi- dence, public trial, and many others, which grew out of the severity of early common law, are now only a menace to society, and the law gov- erning appeals may also be said to be such. From an economic point of view it is better that one innocent man should be punished than that ten guilty should be liberated, although the sentiments of human- ity generally refuse to accept this converse of the ordinary rule.

The accused has a constitutional right to a speedy and public trial. The requirement of this public trial is for the benefit of the accused, that the public may see him not unjustly condemned, and that the presence of spectators may keep his triers alive to their responsibility. This requirement is fairly observed if, without partiality, a reasonable portion of the public is suffered to attend (Cooley's Constitutiotial Limitations, p. 379). Criminal anthropologists demand a greater restriction in public trials and executions, upon the theory of criminal contagion. Public trials, together with the newspaper reports, form an important means of extending this criminal contagion. Any knowl- edge tending to lower the moral standard of the community does not