Obviously, the attribute of impartiality is lacking whenever the judge and jury are dominated by a mob. "If the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law. * * *"[960] But "if * * * the whole proceeding is a mask—* * * [if the] counsel, jury and judge * * * [are] swept to the fatal end by an irresistible wave of public passion, and * * * [if] the State Courts failed to correct the wrong, neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent" intervention by the Supreme Court to secure the constitutional rights of the defendant.[961]
Insofar as a criminal trial proceeds with a jury, it is part of the American tradition to contemplate not only an impartial jury but one drawn from a cross-section of the community. This has been construed as requiring that prospective jurors be selected by court officials without systematic and intentional exclusion of any group, even though it is not necessary that every jury contain representatives of all the economic, social, religious, racial, political, and geographical groups of the community.[962]
Other Attributes of a Fair Trial
"Due process of law," the Supreme Court has observed, "requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. * * * What is fair in one set of circumstances may be an act of tyranny in others."[963] Conversely, "as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it * * * [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial."[964] And on another occasion the Court remarked that "the due process clause," as applied in criminal trials "requires that action by a State through any of its agencies must be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political institutions, [and] which not infrequently are designated as 'the law of the land.'"[965]
Basic to the very idea of free government and among the immutable principles of justice which no State of the Union may disregard is the necessity of due "notice of the charge and an adequate opportunity to be heard in defense of it."[966] Consequently, when a State appellate court affirms a conviction on the ground that the information charged, and the evidence showed a violation of Sec. 1 of a penal law of the State, notwithstanding that the language of the information and the construction placed upon it at the trial clearly show that an offense under Sec. 2 of such law was charged, that the trial judge's instructions to the jury were based on Sec. 2, and that on the whole case it was clear that the trial and conviction in the lower court were for the violation of Sec. 2, not Sec. 1, such appellate court in effect is convicting the accused of a charge on which he was never tried, which is as much a violation of due process as a conviction upon a charge that was never made.[967] On the other hand, a prisoner who, after having been indicted on a charge of receiving stolen goods, abides by the prosecutor's suggestion and pleads guilty to the lesser offense of attempted second degree grand larceny, cannot later contend that a judgment of guilty of the latter offense was lacking in due process in that it amounted to a conviction of a crime for which he had never been indicted. In view of the "close kinship between the offense of larceny and that of receiving stolen property * * *, when related to the same stolen goods, the two crimes may fairly be said 'to be connected with the same transaction.'" It would be therefore, the Court concluded, "an exaltation of technical precision to an unwarranted degree to say that the indictment here did not inform the petitioner that he was charged with the substantial elements of the crime of larceny." Under these circumstances he must be deemed to have been given "reasonable notice and information of the specific charge against him and a fair hearing in open court."[968]
Excessive Bail, Cruel and Unusual Punishment, Sentence
The commitment to prison of a person convicted of crime, without giving him an opportunity pending an appeal, to furnish bail, does not violate the due process clause of the Fourteenth Amendment.[969] Likewise, a State, notwithstanding the limitations of that clause, retains a wide discretion in prescribing penalties for violation of its laws. Accordingly, a sentence of fourteen years' imprisonment for the crime of perjury has not been viewed as excessive nor as effecting any unconstitutional deprivation of the defendant's liberty;[970] nor has the imposition of successively heavier penalties upon "repeaters" been considered as partaking of a "cruel and unusual punishment."[971]
In an older decision, Ex parte Kemmler,[972] rendered in 1890, the Supreme Court rejected the suggestion that the substance of the Eighth Amendment had been incorporated into the due process clause of the Fourteenth Amendment, but did intimate that the latter clause would invalidate punishments which would involve "torture or a lingering death," such "as burning at the stake, crucifixion, breaking on the wheel, and the like." Holding that the infliction of the death penalty by electrocution was comparable to none of the latter, the Court refused to interfere with the judgment of the State legislature that such a method of executing the judgment of a court was humane. More recently, in Louisiana ex rel. Francis v. Resweber,[973] five members of the Court reached a similar conclusion as to the restraining effect of the due process clause of the Fourteenth Amendment when, assuming, "but without so deciding" that violations of the Eighth Amendment as to cruel and unusual punishments would also be violative of that clause, they upheld a subsequent proceeding to execute a sentence of death by electrocution after an accidental failure of equipment had rendered an initial attempt unsuccessful.[974]