Part 91 (2/2)

611. STATE JUDGES.--In almost all of the states judges are chosen by popular vote, though in half a dozen states the choice of these officials still lies with the legislature or with the Governor, or with both acting jointly. Judges of the higher state courts are generally chosen for a long period of time, even for life, while the judges of the lower courts are chosen for relatively short periods.

Salaries vary from practically nothing but fee money for some justices of the peace to an average of $7000 a year for justices of the supreme court. The qualifications imposed upon judges include a minimum age of 25 to 35 years, and citizens.h.i.+p for a varying period of years. Another common requirement is residence within the state, or even residence within the judicial district. For judges of the higher courts it is the custom to demand members.h.i.+p in the legal profession. Judges may be removed by impeachment, and, in a few states, by use of the Recall.

612. OTHER COURT OFFICIALS.--The district or prosecuting attorney is an important official. Generally he is chosen by the voters of the county, though in some instances he is elected from larger areas. The district attorney represents the state in all criminal cases, and conducts the prosecution. This officer conducts a preliminary investigation into crimes and determines whether or not a prosecution should be inst.i.tuted. If the decision is in the affirmative, he presents the case to the grand jury. If the grand jury returns an indictment, that is, if it demands that the accused be held for trial, the prosecuting attorney conducts the prosecution at the ensuing trial.

The clerk, or recording officer, is generally appointed by the court, though he may be elected by popular vote. The constable or sheriff is elected by popular vote. The clerk and the constable are charged with the execution of all orders, judgments, and decrees of the court.

C. POWERS AND PROCEDURE

613. RELATION OF STATE TO FEDERAL COURTS.--The framework of American government includes a dual system of courts, the Federal courts and the state courts. The jurisdiction of the Federal courts is specifically defined by the Federal Const.i.tution, while the state courts have a jurisdiction which is limited only by the prohibitions of the state and Federal Const.i.tutions. The two systems of courts are independent in the exercise of their respective powers, and have separate jurisdictions. In some cases, however, the state courts have a concurrent jurisdiction with the Federal courts, and a litigant has a choice of tribunals before which to bring suit. In most suits the decision of the state supreme court is final, but cases involving Federal law may be appealed for final decision to the Supreme Court of the United States.

614. POWER TO DECLARE STATE STATUTES UNCONSt.i.tUTIONAL.--Just as the Federal courts are the final interpreters of all domestic law, so the state courts have the power to pa.s.s upon the const.i.tutionality of statutes enacted either by the state legislature or by local law- making bodies. The state const.i.tution is the fundamental law of the state, and it is the duty of the state courts to see that all state and local legislative acts conform to this fundamental law.

615. POWER OVER EXECUTIVE OFFICIALS.--Through their power to pa.s.s upon the legality of executive acts, the state courts exercise some degree of control over executive officials. If a state governor were illegally to remove an official from office, for example, the courts could reinstate the latter.

The state courts also have the power to issue writs of mandamus and injunction. The former may be used, under certain circ.u.mstances, to compel an executive officer to perform his duty; the latter writ may be used to prevent either state officials or private individuals from committing illegal acts.

616. CIVIL JURISDICTION.--The jurisdiction of the state courts is either civil or criminal.

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 const.i.tution; 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 ent.i.tled 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 circ.u.mstances 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, a.s.sault 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 a.s.sume 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”?

2. Define equity. How did it arise?

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