Page:The Green Bag (1889–1914), Volume 08.pdf/242

 A Reform in Criminal Procedure. sons are, he would demand a trial, let the prosecutor read the complainant's affidavit, on which the indictment is based; and then the defendant would unfold his side of the case to the jury, take an acquittal, and go out among his fellow citizens cleared of all the clouds which have surrounded him since the accusation. A defendant on a criminal charge does not occupy a position of his own seeking, and it is mantfcstly unjust that the State should place him in an attitude toward the community in which it is not prepared to maintain him. If a person has committed a felony, the sooner the State locks him up for a term of years, the better; but if he has not committed a felony, and yet has been arrested on a felonious charge, it is the duty of the State to replace him in the posi tion previously occupied by him. Only a formal acquittal can do this. On a mere dismissal of the indictment, if the accused person brings an action against the com plainant for malicious prosecution, or against a newspaper that may have published libel lous comments upon the transaction, the question of his guilt or innocence is liable to be agitated in a civil court, whose procedure does not compel such a weight of evidence as a criminal court of competent jurisdiction, does not so efficiently throw the burden of proof upon the person who makes the charge, and does not confer upon a litigant the absolute right to call at least five wit nesses to good character, and reputation for truth and veracity. This affords a strik ing illustration of the truth that one wrong generally leads to another. For certainly, next to the wrongfulness of locking up an innocent man, is the wrongfulness of turn ing him "out again with a clouded reputaiton, and of depriving him of the only pos sible means of clearing away the cloud. Prosecutors might urge that such a course of procedure as is here suggested would give infinite trouble to the courts. But this is no argument, since the citizens of a com

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munity pay the expenses of the courts, and have a right to the best justice that the courts can administer, and to the largest amount of it, and all the time. It may seem to the average District Attorney that it makes but little difference to a defendant whether he gets an acquittal or a dismissal of the indictment; in either case he goes forth a free man, his bail is discharged; he retains his citizenship; his credibility as a witness is not shaken; his legal status is not disturbed. And yet an enormous difference exists between the acquitted and the dis missed defendant. The average citizen docs not live in a large world. No matter how vast any city may be, each one of its inhabitants knows, and is known to, a 'limited number of people. But the fact that his reputation is confined to a limited number implies that, as to these selected few, his reputation has a certain value; and not being spread over a large area, it is the more carefully scrutinized. This citizen, whom we will style John Doe, finds himself one day brought • before a police justice on the complaint of Richard Roe, the alleged crime being, let us say, a constructive larceny arising out of a busi ness transaction in the results of which Rich ard Roe may have been disappointed, and chooses to consider himself criminally in jured. On the affidavit of Richard Roe, John Doe withholding his defense and waiv ing an examination,—the more decidedly so since the magistrate informs him that, while his statements may or may not be 'credited, any admissions that he may make will cer tainly be used against him,—he is committed for trial. An indictment follows, quite as a matter of course; and Doe prepares his evidence and engages his witnesses in the expectation of establishing his innocence at a public trial. It is safe to say that every one of his acquaintances becomes informed of the affair, and is more or less interested in its results. Whether creditors, debtors, rela