being a simple-minded man, had concluded that he was guilty under the indictment for murder.

In some places an irregular practice has grown up in felony cases, by which a plea of guilty is entered so that the judge may hear the evidence without a jury. In a felony case the law does not permit the judge to try the case without a jury, much less will it permit a trial upon a plea of guilty where the defendant as a matter of form attempts to confer a jurisdiction not recognized by law. When the trial is upon a plea of not guilty, the defendant retains his right to have a review in a higher court, but a plea of guilty, being a solemn admission of guilt placed upon the record, leaves him at the sole mercy of the judge.

§ 57. Change of venue. While it is the constitutional right of each person neither to be indicted nor tried in any county, other than the one in which the alleged crime is charged to have been committed, most of the states have statutes allowing to the defendant a change of venue if the people of the county are so prejudiced against him that he is not likely to have a fair trial. On a motion for change of venue both sides may file affidavits; but the motion should not be decided upon numbers, for many persons, who are themselves prejudiced against the accused, may swear that they believe he can have a fair trial. The facts set out in the affidavit are to determine the court's action, and if the facts show strong local prejudice against the accused the case should be sent to another county. Motions for change of venue are also in

order when the judge is prejudiced or otherwise disqualified.

§ 58. Compulsory process for witnesses. Motions for continuance. As a general rule witnesses in criminal cases are obliged to attend court without being paid their fees in advance. A defendant is entitled to have compulsory process to bring his witnesses to court. If he is diligent in his efforts to secure the attendance of his witnesses and fails for some reason not his own fault, he may move for a continuance by showing that an absent witness knows of material matters which cannot be fully proved by any other witness, and that he can procure the attendance of the absent witness at the next term of court.

CHAPTER V.

THE TRIAL.

§ 59. Ancient methods of trial. Like all other people in a similar stage of culture, the Anglo-Saxons practiced trial by ordeal, which continued for some time after the Norman conquest. These trials consisted in causing the accused to take into his hands red-hot iron, or plunge his naked arm in boiling water, or to be cast into a pond or river of cold water. If the hot iron or the hot water did not affect him, or if he swam without any effort, he was declared innocent, otherwise guilty (1). Other early modes of trial were by battle, and by wager of law (securing a certain number of persons to swear they believed the accused innocent). Even in the time of Blackstone there was in existence, though seldom resorted to, the trial by battle, which was fought with cudgels. Unless one of the parties was sooner vanquished, it continued from sunrise to star-peeping, when the accused was declared acquitted (2). This was not finally abolished in England until 1819. Happily, these methods have never had a place in American procedure.

§ 60. Present methods. Under our system of criminal procedure we have two methods of trial, trial by court,

(1) 4 Bl. Com. 340. (2) 4 Bl. Com. 346.

and trial by jury. Trials without a jury are generally limited to charges of misdemeanors, while jury trials apply to all criminal cases. By either of these methods, the same class of evidence and certainty of proof is required. More latitude is sometimes allowed in a trial by a judge than in a trial by a jury. The judge may sometimes venture to listen to testimony which would be improper to go to a jury, for on account of his learning and experience, it is presumed that he will be able to reject it in forming his opinion; but he cannot control the minds of the jury, and should not allow any but legitimate testimony to be presented to them.

§ 61. Trial by jury. Trial by jury is a characteristic feature of English and American criminal procedure. Unlike other public officers who may be influenced by party prejudices or personal aspirations, jurors assume a humbler but more independent function. Not self-nominated, they are called to perform a public duty; their compensation is meagre, and their service often performed at a sacrifice; they have no rivals seeking to unseat them; they have neither desire nor opportunity to extend their terms of office; they are usually comparative strangers to each other and to the parties litigant; they form a tribunal likely to be actuated alone by desire to accomplish justice. Trial by jury is a long-tried and successful instance of direct participation by the people in the administration of justice.

§ 62. Selection and swearing of jurors. Of this we can take but a general view, for the practice is largely controlled by local statutes. The jurors drawn and called

into the box are sworn to answer questions as to their fitness. Each side may examine the drawn jurors as to their fitness in that particular case. Those who are closely connected, either with the prosecution or with the defense by interest or relationship, or have an abiding opinion on the question of guilt or innocence, may be challenged and excused for cause. In some jurisdiction jurors having conscientious scruples against capital punishment may be excused in capital cases. A limited number of péremptory challenges are allowed; that is, each side may excuse several of the jurors without giving any reason therefor.

In some jurisdictions, as soon as four jurors are found acceptable, they are sworn to try the case, and the examination continues by "fours," until the entire jury is accepted and sworn. In other jurisdictions, none are sworn, until twelve have passed the ordeal and are selected.

§ 63. Opening statements. When the jury is sworn to try the case, the prosecuting attorney may read the indictment to the jury and briefly state what he expects to prove; after which the counsel for the accused may state the features of the defense, or he may reserve his statement until the witnesses for the prosecution have testified. In the opening statements, counsel should not state anything of which he has not proof, or which the law will not permit to be proved; nor should he indulge in argument or declamation. An opening statement should be simply a clear recital of what counsel expects to prove. It is not evidence but is simply calling the attention of the