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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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touching does not affect it in the least. We are ignorant of the impres-
sion produced in the chiUrs mind.

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138 The (Criminal L\w Journal. [Vol. Ill

There in jet another Jifficnlty; the horizon of the child being much
narrower than ours a large number of our |>erceptions are outside the
frame within which alone the child can perceive. We know, within cer-
tain limits, the extent of tin.'* frame : we .should not for ins^tance question
a child as to how a complicated piece of roguery was committed or how
adulterous relations have developed ; we know it is ignorant of such things.
But in many directions we do not know the exact point where its faculty
of observation commences or stops. At times we cannot explain how it
does not understand something or other, while at other times we are asto-
nished to see it find its bearings easily among matters thought to be well
l>eyond its intelligence. We are as a rule too distrustful of the capacity
of a child. We have rarely found too much expected of it, while wc
have often discovered that it knew and noted much more than any one

The same experience occurs to us in daily life. How many times Jo
not people speak in its presence of things a child is not supposed to under-
stand, only to discover later on that it has not only understood very well,
but has combined the information with other things heard before or after.
Again it must not be forgotten that a child is peculiarly exposed to external
influences, whether designed or accidental. Any one, knowing that a child
is to appear as a witness in a court of justice, if he is interested in its
statements and has the chance of influencing it himself, will almost certain-
ly exert that influence. The child, as yet devoid of principles, places
great faith in the words of grown-up people ; so if a grown-up person
brings influence to l)ear on it, especially some time after the occurrence,
the child will imagine it has really seen what it has been led to believe.
This residt is obtained with certainty if the man proceeds slowly and by
degrees, leading the child to the desired goal by repeated simple questions,
as, " Is it not so ? '' '* It was not so, was it not thus ? ''

The result is the same, when the influence is undesigned. An
imjiortant event happens ; it is naturally much talked of, all sorts of
hypotheses are started, there is gossip of what others have seen or might
in certain circumstances have seen. If a child, which has itself seen some-
thing of the occurrence, hears these conversations, they become deeply
engraved on its young mind, and ultimately it l)clieves it has itself seen
what the others have related.

One must therefore be always careful in questioning children ; but
their statements, if judiciously obtained, generally supply material of great

in jwssing from the child to the succeeding age, it becomes necessary
to distinguish sex ; for just as sex differentiates in external appearance the
youth from the girl, so are they differentiated ih their methods of percep-

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Vol. Ill] The Ckimixal Laav Juirnal; l-Vj

An intelligent boy is undoubtedly the best obj^erver to be found. The
world begins to take him by storm with its thousand matters of interest ;
what the school and his daily lite furnish cannot satisfy his overflowing
and generous heart. He lays hold of everything new, striking, strange,
all his senses are on the stretch to assimilate it as far as poj^sible. No one
notices a change in the house, no one discovers the bird's nest, no one
observes anything out of the way in the fields ; but nothing of that sort
escapes the boy, everything which merges above the monotonous level of
daily life gives him a good opportunity for exercising his wits, for extend-
ing his knowledge, and attracting the attention of his elders, to whom he
communicates his discoveries. The spirit of the youth not having as yet
been led astray by the necessities of life, its storms and battles, its factions
and quarrels, he can freely abandon himself to everything which appears
out of the way ; his life has not yet been disturbed by education though
he often observes more clearly and accurately than any adult. Besides,
he has already got some principles ; lying is distasteful to him, because he
thinks it mean ; he is no stranger to the sentiment of self-respect, and he
never looses an opix>rtunity of being right in what he affirms. Thus he is
as a rule, but little influenced by the suggestions of others, and he des-
cril)e8 objects and occurrences as he has really seen them. We say again
that an intelligent boy is as a rule the best witness in the world.

It is a different affair with a young girl of the same age. Her
natural qualities and her education prevent her acquiring the necessary
kuowledge and the breadth of view which the boy soon achieves, and
these ate the conditions absolutely indispensable for accurate observation.
The girl remains longer in the narrow family circle, at her mother's apron
strings, while the boy is off with his playmates, picking up in the fields
and the woods all sorts of knowledge of the ordinary aspect of common
things ; which is the best training for discovering, distinguishing and
observing anything extraordinary or out of the way when it turns up.
With his father and his playmates the boy learns to know the great sum
of practical things of which life is composed, and which one must know
before being able to talk about them. The girl has no training of this
sort ; she goes out less, she has little to do with workmen, artizans, or
tradesmen, who are in many ways the school-masters of the boy anxious
to learn : she sees nothing of human life, and when anything extraordinary
happens she is incapable, one might almost suggest, of seizing it with her
senses, that is to say, of observing accurately. If besides there be danger,
noise, fear, all which attract the boy and serve to excite his curiosity, she
gets out of the way in alarm, and either sees nothing or sees it indistinctly
from a distance.

A young girl may even in certain circumstances be a dangero.:s
witness, when she is interested in the matter or is herself perchanco th!.

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1 40 The Criminal Law Journal. [Vol. Ill

centre. In such a case strong exaggerations and even pure inventions are
to Ik? feared. Natural gifts, imagination, dreaming, exaltation such are
the natural degrees bv which the girl, too young yet to have had any
interesting experiences of her own, arrives at last at " Byromism." Now
liyroniisni is a sort of ennuie or weariness of life, always urging one to
seek for c'hange ; and what happier variety could there be than a criminal
matter in which the little lady finds herself mixed up. It is interesting
enough in itself to appear in the witness lx)x, to make a deposition and to
intervene in the destiny of another, but how much more noteworthy is it
when an imi>ortant matter is in (|uestion, when the attention of everyone is
turned u|>on the witness, when all the world is breathless to learn what
she has been asked, what she has replied, and how the case is going to
turn. Thus an insignificant theft is easily magnified into a robbery with
violence : the witness, out of a miserable swindler, manufactures a pale
and interesting young man ; a coarse word becomes a blow ; an insignifi-
cant event develops into a romantic abduction ; stupid chaff turns up as a
great conspiracy. In short, too great care cannot be observed in inter-
rogating a young girl, to whatever class of society she belongs.

But, to be just, we must recognise on the otherliand that no one
notices and knows certain things more cleverly than a young girl. If her
imagination does not carry her away, she can furnish information more
valuable than any grown-up person. Tlie reason is the same as we have
given for her exaggerations and inventions. Her school, her life, her
daily t^isks, do not afford sufficient nourishment for her imaginations and
Ikt (h-eams ; the sexual instinct begins to awaken ; she searches around
her. almost unconsciously, for incidents touching, however remotely, this
sphere. No one discovers more rapidly than a sprightly young girl ap*
proaching maturity the little carryings-on and intrigues of her neighlwurs;
x\\i\ delicacy of her sensibility enables her to seize the least shade of syni-
l)athy which the pair she is observing have for each other ; and lou;^
before they have found it out themselves, she knows what their true
feelings are for each other. She notes accurately the birth of the inti-
macy ; she knows when they sj)oke for the first time. And she anticipates
long before what the result will lx», reconciliation or rupture ; in short she
knows everything earlier and better than any one else in her circle.

( Vmnected with this is the trick young girls have of spying certain
people. An interesting beauty or a young man acquaintance have no
more vigilant watcher of all their goings on than their neighbour — a little
girl of twelve to fourteen. No one knows bettei- tlian she, who they are,
what they do, what company they keep, when Jhey go out, and how they
dress. She even notes the moral traits of those coming under her super-
vision, — tl»('ir joy, their grief, their disappointments, their hopes, and all
th(Mr experiences. If one desires information on such subjects the best

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Vol. Ill] The Criminal Law Journal. 141

witnesses arc school girls — always su[»iM>sing that thoy aro willino^ to toll
the truth.

From youth we pass to adults who thotigh in the flower of their exist-
ence are far from furnishing the best witnesses. The adult is in general
the worst of all observers. Finding himself in the happiest epoeli of his
life, full of hope and ideals, interested only in himself and his desires,
the young man finds nothing important but himself. (Iiild-hood is far
awav : middle-aged and old men have long ago ceased to exist for him ;
what they do is of no importance, the world is the empire of youth, what
interests it is alone of value ; nothing else is worth troubling al)out.

The ideal representative of this age is the young lady to whom the
disippcarance of the world would be a matter of no moment eompannl
with the momentous matter of a ball ; or the society woman for Avhoni the
club or society is the most serious thing under the sun. All this of eonrsc
changes with time ; but youth with its plenitude of force, is the personi-
fication of that robust Egoism which takes possession of the world and in
all its diversions sees only itself. Any one who lias critic4illy watched
himself and watched others, knows all this ; whoever has had the opi)ortii-
nitv of questioning young people on imi>ortant facts ha|)i>ening in their
neighbourhood, is at once irritated and delighted at the sublime indiffer-
ence exhibited.

But if perchance the young man has observed, his deposition will l)e
true and trustworthy ; he has preserved his good principles, not yet
scattered by the storms of life.

In middle age man employs all the forces witli which he has been
endowed by nature ; his good and bad qualities alike have reached their
fullest development ; and what the middle-aged man and woman want
to perceive, they can perceive and describe. Their career, the goal of
their labours is fixed ; their likes and their dislikes are formed and that
decisively ; the middle-aged man thus has a clearly defined position in all
circumstances ; when it is a question of testimony as to justice or injustice
he advances with a firm and decided step.

True this is the case only with the man of sound moral principles.
For there is no period of life assailed more violently l)y his passions.
malevolence, egoism, self-seeking, discord, than when he mounts to tli<'
highest plane of his life, when he is the most active but also the most
unreasonable. These passions never exert their influence on him more
strongly than at this age ; their omnii>otence makes him an tmconscious
liar : and there is no witness more difficult to tackle, or nu)ro dangerous,
than the man In full possession of all his faculties. l)oth good and bad.

If you ask the difference between the word of a man and that of a
woman,\vo can only reply in the words of the poet, - man has great idoas,

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142 The Criminal Law Journal. [Vol. Ill

woman profound sentiments ; for the man, the world is his heart ; for the
woman her heart is the world." This explains the vast difference .between
the standpoints of observation of the man and the woman^ We can even
say beforehand how a man and a woman will assimilate a tact which they
have both seen. And what is interesting and instructive, and at the same
time right to establish with certainty, is exactly that one anticipates what
one is going to bear. Wo are then armed against anything which may
lead us astray or befog us, and moreover we can go straight to the point,
before an inaccurate and distorted statement has been definitely recorded.

The old man comes last : he is either sweet and conciliatory, or sour
and cynical, according to his luck in life. His senses and faculties of
observation are weakened, but experience tells him by a sort of insight
what his eyes do not catch, and frequently his opinion may be summed up
in the words. '' To understand, is to forgive."

In fact, the old man has become a child again, accurate perception of
external objects is wanting but also his passions are dulled. He .sees
simply and without cunning, the difference between the sexes is again
accentuated, the old man and the old woman see and understand things
like children, and the suggestions of another in favour of this or that
regain their power, just as when they wore young. — M. L, 7'.


There has recently been a surprisingly large amount of litigation
involving the right of a murderer to profit by his crime to the extent of
succeeding to property passing by the death of his victim. During the
past year some phases of the question have been passed upon by the courts
of last resort in two States, Iowa and Tennessee, and similar litigation is
pending in at least one other State. The question has arisen in a variety
of eases, the most frequent being cases in which the murderer sought
to succeed to property as heir, as a devisee or legatee, or as the beneficiary
of an insurance policy. Incases involving the right of a murderer to
recover upon an insurance policy made for his benefit upon the life of his
victim, the courts have found little difficulty. The right to recover has
invariably been denied. These decisions are clearly supportable upon the
general principle that when the event insured against is made to happen
by tlie beneficiary's own act he cannot recover the proceeds of the poficy.
And, since a purely contract right is involved, the long established
doctrine that wlien the performance of a contract would be contrary to
(lublic policy it is not enforceable by action, may well be applied.

But in cases in which the murderer seeks to recover as heir, or .as
devisee or legatee, of his victim a more difficult que.stion is presented.
Then is really presented tlie question of the jmwer of the courts to rea<l

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Vol. Ill] The Oeimisjal Xaw Journal. U.^

into the gtatutes of intestate succession or of wills an exception which has
not been inserted therein by the legislatures. In an early New York case,
that of Kiggs r. Palmer, 115 N. Y. 506, it was held by a majority of the
court, two of the justices dissenting, that a legatee who had murdered his
ancestor in order to prevent the revocation of the will forfeited his rights
as beneficiary thereunder. It was said that it could never have been the
legislative intent, in providing for the devolution of property by descent
or devise, that an heir or devisee who committed murder in order to obtain
his victim's property should be permitted to enjoy the fruits of his crime.
But the questionable doctrine of this case has been generally regarded as
untenable. A similar result has been reached in Canada, but in Nebraska,
North Carolina, Pennsylvania and Ohio the right of a murderer to succeed
to the property of his victim as heir or devisee, in the absence of coun-
tervailing statutes, is recognized. And the late Iowa case of In re Kuhn's
estate, decided in October 190i, is distinctly in line with this view. Even
in New Y'ork the C-ourt of Api>eals has receded from the position which,
from the language used, it may be regarded as having taken in the case
cited above. In Ellerson r. Westcott, 148 N. Y. 149, the court reached
the conclusion that, while the murderer takes the legal title which is
unimpeachable in a court of law, a court of equity will deprive him of the
use of the property by enjoining the enforcement of the legal right; in
other words, tliat, having acquired property by his wrongful and criminal
act, equity will compel him to hold it as a trustee e.v malefivio for the re-
presentatives of his victim. This doctrine, while excellent in the result
achieved, seems to be an unwarrantable extension of the remedy by injunc-
tion. Ite effect is to read into the statute law, an exception not put there
by the legislature, which is no more within the province of a court of
equity than a court of law. An injunction is merely an equitable remedy,
and should not be made a vehicle for either giving or taking away a sub-
stantive right, the existence or non-existence of which is determined by
the statute law.

The matter of preventing a murderer from succeeding to the property
of his Aiotifii under the statutes of intestate succession, by will or other-
wise, is clearly one which might profitably engage the attention of the
legislatures. Even the ec[uitable doctrine of the New York courts were
it tenable, is insufficient, for suppose the cusc of the murderer being tho
:^le heir and distributee of his victim. In that coj^e for whom will the
murderer lie charged as trustee e,c malejiciof Statutes somewhat simihir to
those which have been adopted in (California, Iowa, Mississippi, and
perhaps other States, making it impossible for one person to acquire pro-
F®»iy- le^lLy by compassing the death of another, should be enacted. Care
should be e3fcereise<l to make the statutes more comprehensive than some
of those already enacted. Tlieso statutes cannot l)e too explicit, for it has

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144 The Criminal Law Journal. [Vol. Ill

vocontly l)Oon doeided that thoy are penal and must l>e eonstrued strictly.
Tt was so held in the above cited Iowa ease, in which the court <lo-
eided that notwithstanding a statute j)rovidin<if tliat '' no person who
feloniously t^ikes or causes or procures another so to take the lite of
another shall inherit from such person, or take by demise or legacy
from him, any portion of his estate," a widow who had murdered her
husband could not be deprived of her distributive share of his estate, it
being well settled in Iowa that the widow's distributive shares '' goes to
her as a matter of contract and of right, and not by inheritance." Tlic
Iowa statute has been amended so as to bring the surviving spouse within
its terms. Statutes of this kind having l)een enacted, the tjuestion
might arise as to wdiether they do not violate the constitutional provision
that ^'no conviction shall work corruption of bloo<l or forfeiture of estate.''
This may or may not be a serious question, but, however that may l>e,
eliminating all questions except only that of the constitutionality of the
statutes would be a distinct step in advance. — L, S,

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Criminal Lain Journal



No. 10] MAY 31, 1906. [VoL m


The doctrine of previous jeopardy is sacred with the English speakino;
people. It is imbedded in the l)ed rock of our law. It stands as a safe-
guard against oppression and wrong. It is the besicon-light of modern
eivilization and clarifies the gloom of the dark ages. Without this princi-
ple despotism thrives ; within its effulgent light it shrivels as overtcnder
plants in the noon-day's sun. Without it, criminals might be made to jmy
the penalty of their crhnes as often as it might please the whim or caprice
of his government to try him. Without it, there could be no security
from injustice and wrong. Without it, our liberties would not, and could
not, be guaranteed to us. But with it, when one has once paid the penalty
for wrong-doing, and this is as near as it is possible to right the wrong
when once done, he is a free man in every sense of the word and is cap-
able of feeling and acting it. Then it is that he can look the world in the
face and say : " you cannot touch me ; I have expiated my crime ; I am
now a free man, entitled to all the rights under the government that is
accorded to every other citizen." Being once in jeopanly, one cannot
again be tried for the same offence, whether the prosecution was success-
fal or unsuccessful in establishing his guilt. This is guaranteed to th<^
citizens of the United States by our national and state constitutions. But
what is jeopardy ? Jeopardy is the peril in which the defendant is put
when he is regularly charged with crime before a tribunal properly organiz-
ed and competent to try him. He must under such circumstances submit
the sufficiency of his defence to the decision of a jury of his peers. He

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146 The Criminal Law Journal. [Vol. Ill

is in thoir hands exposed to the danger of conviction with all its conse-
fjuences ; or, in the language of the bill of rights, he is " in jeopardy."
From this jeopardy he is to be relieved, if relieved at all, by the verdict
of the jnry. Unless some overruling necessity arises, after the jeopardy
begins, the trial must proceed until it ends in a conviction or an acquittal (1).
In a capital case, therefore, the court has no power to discharge a jury
without the consent of the defendant, unless an absolute necessity requires
it (2). The mere inability of the jury to agree within a few hours or days
is not such a necessity (3) ; nor is the fact that the regular term is approach-
ing an end, for the courts have power to continue the term until the case
can be properly ended. The serious illness or insanity of the defendant,
and the illness, insanity or death of the judge or a juror engaged in the
trial, have been held to create a necessity for the withdrawal of a juror
and a postponement of the trial ; and other instances of the same nature
might arise which would justify a like action. In Commonwealth of
Pennsylvania v. Fitzpatrick, the jury had been dismissed in disregard of
the protests of the defendants, and when they were again put on trial,
they had a right under the constitution to say : " We have been once put
in jeopardy for this crime, and we cannot be compelled to undergo the
same peril a second time for the same offence." This was the effect of
their special plea and it was unanswerable (4). In State v. McKee (5), it
was held that, after a jury has been charged with the trial of a prisoner
upon an indictment for a capital offence, it cannot be discharged, and the
prisoner remanded for a second trial, except for the following causes : (1)
the consent of the prisoner ; (2) the illness of one of the jury, the prisoner,
or the court ; (3) the absence of one of the jurors ; and (4) the impossi-
bility of their agreeing upon a verdict. The plea of former jeopardy will
protect a defendant from a second trial only upon such charges as he
might have been convicted upon under the first indictment (6). It is not
sufficient to show that the jeopardy had once attached, but it must be
shown that it had not been discharged by operation of law or waived (7).
Hence where the court of its own motion without the consent of the
prisoner being asked or given, discharged the jury impaneled and sworn
in a capital case, before any evidence had been given, a plea of former
jeopardy is good, and the accused cannot be brought to trial again for the
same offence (8). If a party is once put upon trial before a competent court

1 Comraomvealth r. Fitzpatrick, 1 L. R. A. 451.

2 Commonwealth r. Cook. C Sei'g. & R. 577.

3 Commonwealth r. Clue, 3 Rawle. 498.

4 Pieffer r. Commonwealth, 15 Pa. 468 : McFa<klen r. Commonwealth, 23 Pa. 12 ;
Wright r. State, 5 Ind. 290 : Daggett r. Bonuvitz, 107 Ind. 276 ; Doles r. State, 97 Intl. 6r>5 ;

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 18 of 91)