The purpose of civil law is to protect the rights of the individual and to redress his wrongs. The individual rights which are the concern of civil law fall under three heads: First, the right of personal security, including the right of protection against violence; second, the right of personal liberty, including the rights set forth in the bill of rights of the state constitution; third, the rights of property, including the right to acquire and hold property, and the right to demand fulfilment of contracts made under state law.
617. CIVIL PROCEDURE.—If an individual believes that his rights have been violated, he, as plaintiff, is entitled to file a complaint with the proper court. The sheriff or constable then summons the defendant to appear in court, and the clerk of the court issues a summons or subpoena to all witnesses which either party to the suit desires to have testify. Generally either party may demand a trial by jury. Both plaintiff and defendant are ordinarily represented by counsel which present the different sides of the case to the judge and jury. The judge decides what evidence may be properly presented to the jury. After the closing argument of the plaintiff's counsel, the judge instructs the jury on the legal points involved in the case. The jury then retire and attempt to reach an unanimous decision. If able so to agree, they return a verdict for either plaintiff or defendant, and after the verdict has been accepted by the court, judgment is rendered. If the jurors have been unable to come to an unanimous decision, the case is ordinarily tried with another jury, though in a few states an unanimous verdict in civil cases is not required.
If the decision of the court is accepted as final, the judgment is enforced. On the other hand, the dissatisfied party may appeal the case to the next higher court on the ground that the verdict was contrary to the weight of evidence, or because of errors of law committed by the judge. Under certain circumstances the judge who tries the case may be induced to grant a new trial.
618. CRIMINAL JURISDICTION.—The purpose of criminal law is to punish those who have committed public wrongs, i.e. wrongs against the state or community. Crimes are of two types: first, felonies, including such grave offences as murder, arson, burglary, and larceny; and second, misdemeanors, including such lesser offenses as bribery, knowingly receiving stolen goods, libel, assault and battery, and disturbance of the peace. Usually felonies are punished either by death, or by a long prison sentence. Misdemeanors are ordinarily punished by fines or by imprisonment for a short term.
619. CRIMINAL PROCEDURE.—A criminal proceeding usually begins with the arrest of the accused person. Generally, though not always, arrest is in pursuance of a warrant. As soon after arrest as possible, the accused is brought before a magistrate for a preliminary examination. If the examining magistrate finds that there is probable cause for holding him for trial, the accused is committed to jail to await trial. Unless the charge is murder, however, the defendant may be released on bail.
If the charge is a serious one, indictment by the grand jury is the next step. If this jury decides that the evidence is insufficient, the charge is dismissed and the prisoner released. The grand jury meets in secret, and hears only the charges against the accused. These are generally presented by the prosecuting attorney. After the defendant is indicted, the prisoner is brought into court and allowed to plead. If he pleads guilty, the judge may forthwith impose sentence and there is no trial. If the plea is "not guilty," a trial is arranged, a jury of twelve men impanelled, and the trial begins.
The case is opened by the prosecuting attorney, since it is the duty of the state to assume the defendant innocent until he is proved guilty. The prosecuting attorney presents his witnesses, each of which the defendant's attorney may cross-examine, and in turn allows the defendant's attorney to present the defense. The prisoner is not questioned at any stage in the trial, unless he is willing to take the stand as a witness in his own behalf.
After the prosecuting attorney and the defendant's counsel have completed their case, the judge sums up the evidence brought out by each side, and instructs the jury as to the law involved. The jury then retire and attempt to reach a verdict. Generally such a verdict must be unanimous, and if this cannot be secured, the jury is dismissed and the case is held for re-trial. If the verdict is "not guilty," the prisoner is discharged; if he is found guilty, sentence is imposed by the court, either immediately or at some future date. [Footnote: For a discussion of the legal aspects of the problem of crime, see Chapter XXI.]
QUESTIONS ON THE TEXT
1. What is meant by the term "common law"?