IV CODE OF CRIMINAL PROCEDURE. ses upon the Commissioners the duty of revising, simplifying and abridging the pleadings and practice in those courts; and as a necessary consequence, that of adapting the proceedings of other judicial and administrative officers, to such reforms in the practice as fall more literally within their expressly prescribed powers. In their report of a code of criminal procedure, presented at the last session, the Commissioners took occasion to say, that they had weighed with great caution every view which had suggested itself to their minds, as well in respect to the principles upon which they should proceed, as to the details, even the minutest, by which those principles could be successfully carried into practice. It was, however, with them, a matter of regret, that owing to the pressure of time, by reason of the approaching expiration of the Commission, they were unable to present all the subjects which that code should have included, or to accompany their report with such explanations as might lighten the labors of the legislature in considering it. In the code which accompanies this report, they have obviated these difficulties, and while they have in no respect departed from the principles of that formerly reported, they have comprehended the subjects which were then omitted, and have embodied in the code now presented, ample explanations of the principles and details which it contains. It is now, so far as the Commissioners have been able to make it, an entire body of criminal procedure, and in their judgment, will prove, if it should be adopted, a convenient substitute for the present regulations, whether existing at common law or by statute, in respect to the subjects to which it relates. It is unnecessary in this report, to make particular reference, either to the principles or to the details embraced in the proposed code. Those will be found explained in the provisions themselves, and in the notes by which they are accompanied. A brief reference, however, to the general plan of the code, is perhaps not It is divided into seven parts; the first of which relates to courts having original jurisdiction of criminal actions. In this part, are embraced the same provisions which are included in the code of civil procedure, respecting the organization and jurisdiction of the courts of original criminal jurisdiction. That code, being designed, among other things, to embrace the functions of all the judicial tribunals of the State, necessarily includes those which relate to the criminal courts. Their repetition in this code is required, in order to make it a complete guide to criminal procedure, and to dispense with an unnecessary reference from the one to the other; while, by the brevity of the provisions themselves, the code is not inconveniently extended. The second part relates to the prevention of public offences;-a subject which, with but few exceptions, has been left unregulated by statute, and in regard to which, the Commissioners deem a system of practical regulation of the rights and duties of the private citizen, as well as of the public officer, both convenient and neces sary. The third part relates to judicial proceedings, for the removal of public officers by impeachment or otherwise. In this respect, also, the code supplies, what the Commissioners deem, an important defect in the existing statutory regulations. This part is confined to the removal of judicial officers and their clerks, and provides a uniform practice in this respect, for the want of which great embarrassments have been experienced, especially in the proceedings for the removal of justices of inferior courts. The fourth part relates to the proceedings in criminal actions prosecuted by indictment, and comprehends the local jurisdiction of public offences--the time of commencing criminal actions--the information and the proceedings thereon to the commitment, inclusive VI CODE OF CRIMINAL PROCEDURE. the proceedings after commitment and before indictment,--the indictment, the proceedings on the indictment before trial,-the trial, the proceedings after trial, and before judgment,-the judgment and execution, and appeals; and embraces also, under the head of miscellaneous proceedings,-bail,-compelling the attendance of witnesses, examination of witnesses, conditionally,-examination. of witnesses on commission,-inquiry into the insanity of the defendant, before trial, or after conviction,-compromising certain public offences, by leave of the court,-dismissal of the action, before or after indictment, for want of prosecution, or otherwise,-remitting the punishment in certain cases-proceedings against corporations,— entitling affidavits,-errors and mistakes, in pleadings and other proceedings, disposal of property stolen or embezzled,-and reprieves, commutations and pardons. The fifth part relates to proceedings in the police courts, which are substituted in place of the present courts of special sessions. The sixth part relates to special proceedings of a criminal nature, and embraces coroners inquests, and the duties of coroners,-search warrants, the outlawry of persons convicted of treason,-proceedings against fugitives from justice,-proceedings respecting persons held to labor or service, in a state or territory of the United States, and escaping into this state,-proceedings respecting bastards,— proceedings respecting vagrants,-proceedings respecting disorderiy persons, proceedings respecting the support of poor persons,— proceedings respecting masters, apprentices and servants,—criminal statistics, and miscellaneous provisions. The seventh part relates to costs in criminal actions, and in proceedings of a criminal nature. To these are added an appendix, containing brief forms of indictments, in conformity with the provisions of this code. CODE OF CRIMINAL PROCEDURE. VII From this enumeration of the subjects embraced in the code, it will be perceived that it is co-extensive with the whole range of, criminal practice. There is no branch of judicial procedure, which by the common concession of the people of this state, demands at the hands of the legislature, a more searching and thorough examination, or a more complete and effectual reform, than the principles and details of criminal practice. Depending, as society does, for its safety, on the one hand, upon the most rigorous enforcement of the law for the prevention and punishment of crime, and on the other, for a just protection to the life and liberty of the citizen, it will readily be perceived, that the task of adjusting the legislation of the state so as to effectuate the one object without undue prejudice to the other, is one of no easy accomplishment. It will therefore not be attributed to a false profession of diffidence on the part of the Commissioners, to say, that while they have approached the performance of this duty, with a determination, so far as they were able, to attain both these objects, they have at the same time realized the delicacy and difficulty of the work. In the discharge of that duty they have not been unmindful, on the one hand, that the rights of the citizen, in proceedings of a criminal nature, should be most thoroughly protected, while on the other they have not forgotten, that the interests of public justice should be paramount to the observance of the useless forms and unmeaning technicalities, by which it has been so often eluded. In this code, the Commissioners have departed from the plan of the execution of their duties, as contained in their report of a code of civil procedure. In that report, they do not deem it necessary to go further into the details of the practical steps required in the conduct of a cause, than is essential to the successful carrying out of the principles which they propose. The rules there prescribed, are mainly designed for the government of courts of VIII CODE OF CRIMINAL PROCEDURE. civil jurisdiction, embracing a body of intelligence and learning upon which the Commissioners feel a safe reliance may be placed, not merely for a faithful execution of the law, but for an intelligent and discriminating application of its provisions. They are designed also for that class of the profession, whose practice in those courts and whose experience of the rules governing legal procedure, afford, as the Commissioners believe, a just assurance that minuteness of detail would rather tend to confuse than to aid them in the application of principles, which they hope are expressed with sufficient clearness, and which, if that hope be well founded, can be readily and beneficially reduced to practice. Upon that confidence they are willing to rely, so far as the code of civil procedure is concerned; not doubting that when its provisions have become more familiar by practice, and its defects, not peculiar to this more than to any other human undertaking, shall have been remedied either by legislation or by benign judicial construction, it will be found to result in great benefit to the people, and in a still higher degree of moral elevation to the legal profession. In the code of criminal procedure, however, a more detailed systeu of regulation is indispensable. In the rules which it prescribes, should be found a guide to the citizen, in the performance of the duties which are cast upon him for the preservation of public order, to the unprofessional magistrate, in the exercise of a difficult and delicate discretion, and to the executive officers of the law, in the performonce of duties designed for its due enforcement without an unnecessary or oppressive encroachment upon the rights of the citizen. This guide, in which the existing statutes are greatly deficient, and much of which is now furnished by subtle and almost inaccessible rules of the common law, the Commissioners have felt bound to supply, by provisions which, though minute are not unnecessary, and which shall distinctly and plainly 1 1 1 |