which, at the time the Constitution was adopted, it was generally recognized might be more summarily dealt with. The enjoyment of the right is not, however, limited to felonies.1 17 Infamous crimes The provision of the Fifth Amendment that no one shall be held to trial for a criminal offense unless on a presentment or an indictment of a grand jury, is especially limited to capital or other infamous crimes. It would seem that there is no hard and fast definition, in American law at least, of an "infamous crime," each case having thus to be decided on its merits.18 The practical construction which the cases have put upon the constitutional provision with reference to indictments has been that there must be an indictment in every case in which the imprisonment may be for more than a year, inasmuch as by § 5541 of the Revised Statutes it is provided that whenever a person is sentenced to more than one year's imprisonment he may be required to serve the sentence in a penitentiary. By the provision of § 335 of the act of March 4, 1909, revising, amending and codifying the penal laws of the United States, it is declared that "all offenses which may be punished by death, or imprisonment for a term exceeding one year, shall be deemed felonies. All other offenses shall be deemed misdemeanors." Waiver of constitutional guaranties The law governing the waiver by the accused of his constitutional right to a trial by jury in criminal actions, or to a trial by less than twelve jurors, and, indeed, the waiver of any constitutional guaranty, is not in a clearly deter 17 Callan v. Wilson, 127 U. S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223. 18 Ex parte Wilson, 114 U. S. 417; 5 Sup. Ct. Rep. 935; 29 L. ed. 89. mined condition. In cases arising under State constitutions, inharmonious doctrines have been declared. In some jurisdictions the position has been taken that the guarantees are intended merely for the benefit of the accused and may, therefore, be waived. In other States the courts have held that the guaranty of jury trial in criminal cases is one in which the State also has an interest, and which for that reason may not be waived. In some courts, a third view is taken that the jury is essential to give the court jurisdiction, and that while in case of a plea of guilty, the court may at once pronounce judgment, because there are no facts to be determined, where the plea is not guilty, an issue is raised which only a jury is competent to decide. 19 In the United States Supreme Court it has been held in Schick v. United States20 that jury trial may be waived in the trial of minor offenses. The right of the accused to waive jury trial in cases of felony has never come before the Supreme Court; but in Lewis v. United States21 that court held that, in felonies, the presence of the accused could not be waived either by himself or by counsel. The record must show, affirmatively, the presence of the prisoner in court during the trial. It would seem that, in this case at least, the Supreme Court held that a right guaranteed by the Amendments, as distinguished from those in the body of the Constitution, might not be waived. In the majority opinion in Hawaii v. Mankichi22 the rather surprising statement is made that grand and petit juries in criminal proceedings "are not fundamental in their nature, but concern merely a method of procedure." 19 See note in Columbia Law Review, VIII, 577. 20 195 U. S. 65; 24 Sup. Ct. Rep. 826; 49 L. ed. 99. 21146 U. S. 370; 13 Sup. Ct. Rep. 136; 36 L. ed. 1011. 22 190 U. S. 197; 23 Sup. Ct. Rep. 787; 47 L. ed. 1016. Speedy trial The Sixth Amendment secures to the accused a speedy as well as a public trial. This provision has received very little discussion in the Federal courts, and so far as the author is aware, no case in which its violation has been asserted has reached the Supreme Court. Public trial The Constitution expressly provides that criminal trials shall be publicly conducted, and, indeed, it would seem that publicity has been a common-law incident of trials for crime. Many of the State constitutions also expressly provide that proceedings shall be public. In numerous cases, however, it has been held by the State courts that this does not prevent the more or less complete exclusion of spectators where public morals have seemed to require it, and where no prejudice to the accused is thereby occasioned. The question has not been passed upon by the Federal Supreme Court. Double jeopardy It is provided by a clause of the Fifth Amendment that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. Cases may occur in which the same act may render the actor guilty of two distinct offenses; as, for example, the passing of counterfeit coin of the United States, which may be both an offense against the United States, and, as a fraud on its citizens, an offense against the State. In such cases the accused cannot plead the trial and acquittal, or the conviction and punishment, for one offense in bar to a conviction for the other.23 23 Fox v. Ohio, 5 How. 410; 12 L. ed. 213; United States v. Mari From this class of acts which constitute two or more distinct offenses, are to be distinguished those acts which are punishable by the tribunals of two or more countries, or by two or more tribunals of the same country. Here the offense is a simple one, but cognizable in two jurisdictions. In such case an acquittal or punishment in one may be pleaded in bar to a prosecution in another court based upon the same act. Thus, in Grafton v. United. States24 it was held that one acquitted by a military court of competent jurisdiction could not be tried a second time in a civil court for the same offense. This doctrine holds even though the punishment which may be inflicted by the court is different from or greater than that which may be imposed by the other; or even if the indictment in the one court charge a different crime from that stated in the other. What constitutes "jeopardy" is, in accordance with the general principle of constitutional construction, to be determined by the usage of the word and the custom of the common law at the time the Constitution was :dopted. By the common law not only was a second punishment for the same offense prohibited but a second trial forbidden whether or not the accused had suffered punishment, or had been acquitted or convicted.25 It is not necessary, in order that prior jeopardy may be pleaded in bar, that there should have been a former trial and verdict by a jury. This is not the rule uniformly stated, but as declared in Kepner v. United States, 26 "the weight of authority, as well as decisions of this court, have sanctioned the rule that a person has been in jeopardy gold, 9 How. 560; 13 L. ed. 257; Moore v. Illinois, 14 How. 13; 14 L. ed. 306. 24 206 U. S. 333; 27 Sup. Ct. Rep. 749; 51 L. ed. 1084. 25 Ex parte Långe, 18 Wall. 163; 21 L. ed. 872. 26 195 U. S. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 114. when he is regularly charged with a crime before a tribunal properly organized and competent to try him; certainly so after acquittal." Where, upon a former trial, the jury has reported disagreement, it appearing reasonably certain that an agreement cannot be obtained, and the jury has been discharged by the court, a plea of former jeopardy will not be held good. 27 Jeopardy and the right of appeal It is established that in criminal cases the State has no right of appeal where the accused may fairly be said to have been placed in jeopardy. This, the doctrine of the common law, has been repeatedly accepted by the United States Supreme Court. A verdict or a judgment in a trial court in favor of the accused is, therefore, as to him, final and conclusive. But acquittal before a court without jurisdiction is absolutely void and, therefore, no bar to a subsequent indictment and trial before a court having jurisdiction. 28 Where, upon conviction, the defendant has taken an appeal, and a new trial has been ordered, he may be found guilty of an offense of a higher degree than that originally found against him. Thus a verdict of manslaughter having been found, and appeal taken, and a new trial awarded, a verdict of murder may be returned.29 Self-incrimination-Immunity from, not a requirement of due process of law By the Fifth Amendment it is provided: "Nor shall any person be compelled, in any criminal case, to be a witness 27 United States v. Perez, 9 Wh. 579; 6 L. ed. 165. 28 United States v. Ball, 163 U. S. 662; 16 Sup. Ct. Rep. 1192; 41 L. ed. 300. 29 Trono v. United States, 199 U. S. 521; 26 Sup. Ct. Rep. 121; 50 L. ed. 292. |