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The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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time necessary to take both degrees. Thus at the University of Michigan,
a six year combined course is offered, the fourth year of residence being
devoted largely to first year law studies, in the completion of which the
A.B. degree is conferred, and two years later, if the remainder of the law
course is taken, the LL.B. degree follows. At Yale, also, a six year com-
bined course is offered, and Columbia has practically the same plan. A
somewhat more liberal arrangement prevails at Cornell and the Univer-
sities of Wisconsin and Missouri, where academic juniors aud seniors are
permitted, under stringent restrictions as to the amount of law work to be
carried on during any one semester, to pursue law studies and count the
same toward the A.B. degree. Stanford and the University of California
have gone still further, and allow law courses to be elected during the
second, third and fourth years. Furthermore, in the catalogues of these
Universities, the dejiartment of law appears as a regular department of the
academic college, on the same plane as the departments of Greek, German
or Mathematics. But the courses which may be elected are closely limited
they embrace, all told, scarcely more than the ordinary first year law stu-
dies, and the system, in its general scope, is scarcely more than a variation
of the familiar method of shortening, by a year, the residence required of
those who wish to take both the literary and law degrees as a preparation
for admission to the bar.

The fatal defect in all those innovations is that they are intended pri-
marily, if not solely, for the benefit of that relatively small body of stu-
dents who intend to make law their business in life. This professed
purpose determines the actual result, and it is, I believe, a comparatively
rare occurrence for anyone to elect the offered law courses who does not



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Vol. Ill] The Criminal Law Journal. 105

intend to complete the work for the law degree. Indeed, there seems to
be an impression among the students that such a course on their part
would be almost an act of bad faith, since the privilege of counting law
studies toward the academic degree is deemed to be granted only in con-
sideration of a honajide intention to complete the entire professional cur-
riculum. What is needed is to freely extend the privilege of electing law
studies to all those university students who may wish to pursue them for
purposes of general culture, instead of limiting it to those who are already
predetermined upon a legal career.

Waiving the administrative problems involved, which are certainly
far from formidable, no valid reason can be assigned why law courses, at
least in such of our universities as maintain undergraduate law schools,
should not be thrown open, with no greater restrictions than are common
in the arts courses, to every properly qualified member of the academic
department. Nor, indeed, does there seem to be any good reason why, in
colleges or universities which do not maintain law schools, chairs of law
should not be established and maintained as of quite equal importance
with the traditional academic chairs. It is an unwise and narrow policy
which compels those who attend a college or university for the purpose of
fitting themselves for non-professional life, to forego the manifold and
acknowledged benefits of legal study. And so long as admission require-
ments in our law departments are no higher than the academic, it can
hardly be objected that only academic upper-classmen are qualified to take
up what law freshmen are able to master.

Instead of throwing all manner of obstacles in the road of those who
wish to learn something of the laws of their country, and to avail them-
selves of the splendid discipline which the law affords, the election of such
studies ought to be made as easy as possible. While the systematic work
of fitting young men for the bar should be pursued as vigorously as ever,
the equally important work of giving academic students an insight into the
rich domain of the law, should be simultaneously carried on. The arts
student should feel as much at home in the kw courses as in history,
economics or science. Tliere is nothing intrinsically more diflScult or more
technical in the elements of contracts, torts, equity, corporations, or even
pleading and evidence, than in classic or Hellenistic Grrcek, differential
calculus, or quantitative analysis. When the arbitrary traditional barriers
between law and the humanities have been swept away, and the study of
law takes its place as a department of liberal culture, a great step forward
will have been taken toward making the university an institution whose
art is in truth, " the art of social life, and whose end is fitness for the

world."— rc./^.i?.;



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106 The Criminal Law Journal. [Vol. Ill

THE BAD CHARACTER OF THE DECEASED.

A Point of Evidence in Murder Cases.

What are the cases in which a man charged with murder maj bring
in evidence as to the bad character of the deceased ?

Are there any circumstances under which the bad character of a
person may gire sufficient cause for one fighting with him to kill him and
be justified by sec. 45 of the Criminal Code ? There is no Canadian
jurisprudence on this matter ; there is very little in England, while the
United States Courts are daily upholding that such evidence is admissible.
The late Mr. Justice Wurtele, in the Bernard case at Montreal, in March
1904, permitted to be proved the bad character of the deceased. The facts
of that case, which resulted in a verdict of manslaughter, were as follows :

On January 30th, 1904, Lucien Bernard, alias Parisien, went to
Pierre Parmentier's house in Montreal to talk over some business. He
had a little money and bought some whiskey, which they drank until they
were intoxicated. Between twelve and one o'clock at night they went to
bed, but Catherine Lebrun the concubine of Parmentier, objected to
Bernard staying over night and told her lover to throw him out. Bernard
was ready to go out, but he wanted to put on his boots, and Parmentier
would not allow that. The neighbours heard Parmentier say : " Never
mind the boots ! get out I get out ! " Parmentier threw Bernard down-
stairs then went to him and was holding him when Bernard took out his
knife and stabbed him.

The only eye-witness was Catherine Lebrun, but she often contradicted
herself and showed a great deal of hostility towards the accused ; she even
said in the box that she would readily kill him if she had the chance. She
obstinately refused to say that Parmentier ill-treated the prisoner, whilst
the neighbours swore that they distinctly heard through the very thin
wall the blows that these men were giving each other. Counsel for the
defence argued that the neighbours' version deserved more credit on
accoiint of their respectability and also of Parmentier's bad character.

Can the character of a man be so bad as to affect the state of mind of
another man fighting with him ? I think that such a case may happen.
A man might have such a dangerous temper that to fight him constitutes
a real peril for one's life. A person having a scrap with a peaceful man
naturally fears less for his security than if he wrestles with a brute.
Bernard, who had known Parmentier for seven or eight years, was aware
that that man was most dangerous under the influence of liquor. Some
of Bernard's close friends had been very severely wounded in encounters
with Parmentier. It is well known, in the surroundings of the deceased
that he generally used iron weapons when quarrelling. He had in fact



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Vol. Ill] The Criminal Law Journal. 107

the reputation of being a reckless and inhuman person. He was an ex-
convict. He had been two years in penitentiary and nine different times
in the common gaol, either for assault, theft or drunkenness. Witnesses
were in the court room who could show wounds that had been inflicted on
them by him. One of them he had struck with a hammer, another with
a bolt, another he had sent to the hospital.

Bernard pleaded self-defence under sec. 45 of the Criminal Code,
which says : " Every one unlawfully assaulted, not having provoked such
assault, is justified in repelling force by force, if the force he uses is not
meant to cause death or grievous bodily harm and is no more than is
necessary for the purpose of self-defence ; and everyone so assaulted is
justified though he causes death or grievous bodily harm, if he causes it
under reasonable apprehension of death or grievous bodily harm from the
'\*iolence with which the assault was originally made or with which the
assailant pursues his purpose, and if he believes, on reasonable grounds,
that he cannot otherwise preserve himself from death or grievous bodily
harm."

In the Bernard case, it was very difficult to get at the truth. It was
even impossible to find out from the only eye-witness if Parn\entier had
violently handled the prisoner. That, nevertheless, came out of the
evidence given by the neighbours who heard a tremendous noise in the
house at the time of the scuffle. Catherine Lebrun was Parmentier's con-
cubine, and a very low prostitute at that. Her evidence appeared unlike-
ly on the face of it, and teemed with contradictious. Moreover, some of
the other witnesses swore that she was not reliable under oath. She,
testified most decidedly in favour of the deceased and tried to hurt the
accused as much as possible.

The defence endeavoured to prove that Parmentier was likely to have
attempted to kill Bernard, and she would not admit it. In view of her
Ijad name and scandalous conduct, some means had to be taken to show
the improbability of her evidence. It was hard iadeed to believe that
Parmentier, tlie wonted assaulter, acted like a peaceful man on this parti-
cular occasion, especially if we consider that he was then intoxicated and
the disinterested neighbours heard the very noisy fight.

In this case, the character of the slaying was in doubt. Catherine
Lebrun's evidence was not entirely truthful. It might have been true, it
might have been false. Had Bernard acted in self-defence, she was not
going to say so. Would not, under these circumstances, a strong proof of
the bad character of the deceased have been of great help ? The fact
that Parmentier had already almost killed three men on three similar
occasions, and that his concubine was a reckless prostitute should have
thrown special light on the point at issue. The three men were in the



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108 The Criminal Law Journal. [Vol. Ill

court room, ready to testify, but the learned Judge did not allow them to
go further than say what was the general character of Parmentier. That
■was perfect as far as it went, and agreed entirely with the doctrine laid
down in PldptorCs Law of Evidence and Russell on Crimes^ who both
report the decision pf Erksine, J., that on a charge of homicidey the bad
character of the deceased was received to show that the prisoner had
reasonable grounds for apprehending violence. But might it not have
gone farther ? Can we not apply that doctrine equally as well on a
charge of murder^ and even go into details as to the character of the
deceased, when the evidence is productive of a serious doubt ? In a case
of Jones V. People, tried in (/olorado, the Code permitted such testimony
on the following grounds : " Such testimony," said the Judge, " when
admitted, is for the purpose of showing a ground for belief in the mind of
the slayer that an attack made upon him was dangerous and felonious.
Hence, as a proper ground for the introduction of such testimony,
an attack must first be shown, the nature of which, together with the
known violent and dangerous character of the attacking party, is suffi-
cient ground for belief in the mind of the defendant that the attack is
felonious." *

It sounds very logical that every act which tends to elucidate and
explain the nature and character of a crime, or the motive and intent
which moved to the perpetration of it, must be given in evidence. This
principle was accepted by the highest court in Alabama in the case of
Pritchett v. the State. In a case of Reynolds v. the People, the Supreme
Court of New York went as far as to hold that it might be presumed
from previous relationship and other circumstances that the character of
the deceased was known to the defendant. And in Jones y. the State, an
Ohio case, it was decided that even evidence of the character of the
deceased's associates is admissible.

Whether or not a proper foundation has been laid for the introduction
of such evidence is, according to United States jurisprudence, a question
of law. It seems well settled, in the United States at any rate, that the
defence, may, under certain circumstances, go into details as to the bad
character of the deceased and even prove that he was a violent and brutal
man ; but, in order to do that, two things are essential : 1st, there must be
evidence of a fight between the accused and the deceased, and, 2nd, there
niust be . a serious doubt as to whether the slaying constituted murder or
manslaughter.

I think it is safe to sjiy that, in Canada also, under such circumstances,
the defence may bring forth evidence as to the conduct of the deceased on

* The American authorities quotetl here are taken from the American and English
Encycloi)ie(lia of Law, vol. 5, pp. 872 et 8e<i.



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Vol. Ill] Thk Criminal Law Jourkal. 109

occasions similar to that on which he died, and even as to the violence and
savageness of his character.

MoNTRKAL. Arthur Beauchesne.

(C.L.Ii.)

WIFE'S EVIDENCE AGAINST HUSBAND.

Can a wife be compelled to give evidence against her husband in a
case in which he is charged with an offence against her ? This question
was raised, so far at least as the law of Cape Colony is concerned, in Ite.r
V. McCahe^ tried in the Circuit Court at Kingwilliamstown on the 25th
September last. The accused was charged with having stabbed his wife
through the body with a sword with intent to murder her. The wife gave
evidence at the preliminary examination, though evidently with reluctance,
as she stated that she did not wish her huaband punished. At the trial she
expressed a decided wish not to give her evidence. The Court (Kotze,
J.P.) held after argument that the law at present in force appeared to bo
that though a competent, she was not a compellable witness.

The history of this question would appear to be as follows. By com-
mon liiw husband ' and wife were incompetent to give evidence for or
a^inst each other in any case, civil or criminal (Huber's ffedendaagsche
Reclitggeleerdheid, 5, 27, 9 ; Kotze's ran I^euwen, 5, 20, 1(»). Some jurists
inclined to think that exceptions should be allowed to this rule. Thus
Moorman ( Verliandelinge over Atisdaden^ 1(>4) thinks such evidence should
be admitted to prove that the accused acted in self-defence ; Sande {Dec,
Fris. 1, 10, .S) says that a wife has been compelled to give evidence in a
civil case, though, he adds, according to the opinion of Faber this should
not be extended to criminal cases ; and Merula (Manier van Procedeeren^
4, 65, 4, sec. 11) says that spouses are compellable when the truth is dis-
coverable in no other way. It appears to have been accepted in Cap© law
that the old rule as to spouses still held good, although it does not appear
that any attempt was ever made to apply the rule to other classes of
" domestic witnesses," e.ff. father and son, brother and sister, who were also
forbidden in Roman-Dutch law to give evidence for or against each other.
Then Ordinance 72 of 1830, which adopts the English law of evidence in
many another, though not in this, respect, enacts in sec. 15 that spouses
shall not be incompetent in any case in which either is prosecuted for .^n
offence against the person of the other. Act 4 of 1861, which makes
them in sec. 2 competent and compellable, in civil proceedings, • specially
excepts criminal proceedings in sec. 3. It would appear, however, from
sec. 6 of Act 13 of 1886, that in any criminal proceeding, if the accused
thinks fit, his or her wife or husband may be called and examined as an
ordinary witness. It might be said that sec. 15 of Ordinance 72 of 1830,



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110 The Criminal Law Journal. [Vol. HI

by making spouses competent, makes them also compellable witnesses,
since every competent witness is /)rtma /cK'iV compellable." But that sec-
tion, being an inroad upon the common law, must be strictly construed,
and not interpreted to mean more than it says. Moreover, the distinction
between competent and compellable is clearly recognised by sec. 17 of the
Ordinance, and also in sec. 3 of Act 4 of 1861 and sec. 5 of Act 7 of 1875.
The result would appear to be that the Cape Colony law of evidence diver-
ges here from the English law of evidence, ^nd that the spouse of an
accused, though a competent, is not a compellable witness, save when the
accused thinks fit that he or she should be called. — (S. A. L. J.)



JUSTICE AS ADMINISTERED AT HOME.

Associate : Prisoner at the Bar, do you plead guilty or not guilty ?

Prisoner : I did take the watch ; but I did not mean to steal it.

Judge : Enter a plea of not guilty.

First witness (P. C, No. 1) : The boy confessed to me he had stolen
the watch after I had told him it would be better for him to tell the truth
and he would get less punishment.

Judge : I shall not allow this evidence, as the confession was not free
and spontaneous : (see 2 East, P. C, 659).

Second witness (the boy's mother) : Please, your Lordship, I said I
would smack his head if he did not tell me all about it, and he said he did
siteftl iAte watch.

Judge : This evidence is inadmissible, as obtained by mmMtfiv : (War-
rickshell's Case, 1 Leach, C. C. R.).

Prisoner's Counsel : " I find, my Lord, this indictment charges the
boy with having " unlawfully " stolen the watch, not " feloniously."

Judge : Then he must be acquitted : (R. v. Gray, L. & C. 365).

as administered abroad.

(According to the French Novell st).

Magistrate : Prisoner, did you steal this watch ?

Prisoner : No.

Magistrate : Your denial will not avail you. Far better to confess
it at once.

Prisoner : But I did not do it.



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Vol. Ill] The Criminal Law Jocrnal. Ill

Magistrate : The Court knows better. Now, about your history. Did
not your parents live together without being married ?

Prisoner : I don't know.

Magistrate : The Court does, fortunately. Now, as to you sister, the
washerwoman. Did she, fifteen years ago, steal a handkerchief, value 1
franc ?

Prisoner : Not that I know of.

Magistrate : This assumed ignorance will do you no good with the
jury. Now, as to your mother-in-law and her aunt ?

Prisoner : Well, sooner than go on with this, I will admit it.

Magistrate : You do well, although too late to save the increased
punishment due to your obstinacy. — (L. L. T.)



FORCIBLE ENTRY OF HOUSE BY OFFICER WITHOUT

WARRANT.

The extent to which the law will permit the breaking into of houses
by police officers without a warrant has always been closely restricted. So
far as execution of civil process was concerned, a man's dwelling was liter-
ally his castle, and no one might enter against his will. The immunity
thus conferred, however, was restricted to the members of the household
and permanent lodgers, and did not extend to strangers and visitors within
the house (Foster's Crown Laws, 320 ; Oystead r. Shed, 181tf, 13, Mass.
520). In criminal process the inviolacy of the dwelling was forced to
give way before those in possession of the " King's Keys," under certain
well-defined conditi<»s. An officer without a warrant, or even a private
person, was justified in breaking down doors while in pursuit of one known
to have committed a treason or a felony or to have given a dangerous
wound. And so an officer might enter in case of felony or where an affray
or breach of the peace is made in the view or hearing of an officer, or
where one, arrested for any cause, afterward escapes and takes refuge in a
Jwuse (2 Hawkins P. C. c. 14 ; 2 Hale P. C. 92).

With these exceptions the general rale was that no one might break
m doors without a warrant issued by n justice of the peace upon probable
cause and supporte<l by oath (2 Burps Justice, 348 ; 2 Hale P. C. 88, 96 ;
McLennon r. Richardson, Mass. 1860, 15 Gray 74). The power of an
officer armed with a proper warrant was in turn limited by establishing
certain prerequisites that had to be observed before a forcible entry could be
Jnade, m., demand of entrance and refusal (Samayne's Case, 1604, 5 Co.
Rep. 91 ; but see Hawkins r. Common-wealth, Ky. 1854, 14 B. Monroe,



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112 The Criminal Law Journal. [Vol. Ill

'* .395) ; disclosure of the contents of the warrant (2 Hale P. 0. 116 ; Dren-
non r. People, etc., 1882, 10 Mich. 169) ; some proof of the officer being
such (State v. Green, 1877, 66 Mo. 631) ; and in case of an unknown
officer production of the warrant (2 Hawkins P. C. chap. 13, sec. 28 ;
State V. Curtis, N. C. 1789, 11 Haywood, 471). Where the object of the
entry was to effect the arrest of one under probable suspicion merely or to
search for stolen goods or for evidences of crime there was no authority
for an officer breaking without a warrant. Nor in this respect would a
general warrant to search for felons or for stolen goods afford any protec-
tion to the officer (2 Hale P. C. 114 ; Chitty Crim. Law 23, 55—7.) Al-
though general search warrants were employed in England for a time,
they were very generally discredited and received their death blow by act of
Parliament after the decision of Money r. Leach (1765, 11 State Trials,
307, 321 ; 1 Chitty Crim. Law, 66 ; 2 Burns Justice, 348). In this coun^
try they are prohibited by the fourth amendment to the federal constitu-
tion and by special provisions in many of the State constitutions.

In a recent case in New York where an injunction was asked against
the police commissioner, it was sought to justify the breaking into and
wrecking of a club house on suspicion that gambling was going on therein,
by citing section 315 of the city charter, which empowered the police " to
carefully inspect and observe * * * all licensed places and gambling
houses ♦ ♦ * and to repress or restrain all unlawful and disorderly
conduct or practices therein." The court held that this did not confer a
right to enter by force without a warrant. The right of inspection con-
ferred mustrbe exercised peaceably and will not justify a breaking in of
doors upon mere suspicion. In this respect section 318 of the charter
^^urporting to empower the police to enter without a warrant upon the
written report of two householders that there is good ground for believing
it to be a gambling house is contrary to the Bill of Rights and void
(Phelps r. McAdoo, 1905, 94 N. Y. Supp. 265). An officer cannot at his
pleasure enter and inspect a private house even though it be under suspi-
cion as a disorderly house (People r. Glennon, 1905, 175 N. Y. 45), and
ih the case of licensed places the right to forcibly enter is limited to cases
of misdemeanors committed in his presence and felonies. — (Columbian
Law I{erieu% December, 1905).



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THE

Criminal Laip Journal



OP



INDIA.
JOURNAL



No. 8] APRIL 30, 1906> [VoL in

SHOULD THE GRAND JURY SYSTEM BE ABOLISHED?*
By George Lawyer.

The traditions of the common law, like the traditions of creed, resent
change and innovation.

A system for the ascertainment of the commission of crime and the
detection of the criminal, began several centuries ago and afterward evolv-
ed into an instrument of reasonable usefulness and protection, forcefully
appeals to the prejudices of conservatism. But it is a maxim of the law,
rarely admitting an exception, that when the reason for the law ceases
80 does the law. Has not the reason for the law ceased in America ?

In order to reach a just and fair conclusion it is necessary to inquire, at
least briefly, into the origin of the inquisitorial process, and the conditions
surrounding its adoption. There is some reason to support the contention,
sometimes asserted, that the institution existed among the Saxons. (Crabb.
Eng. Laws, 35.)

However, not until the reign of Henry II. does the statute law provide
for a jury for the investigation of supposed crimes. (Statute of Clarendon,
10 Hen. II., A. D. 1164.)

It was then provided "if such men were suspected whom none wished



Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 14 of 91)