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322
III. CONSTITUTION AND ADMINISTRATION.
mooted proeessual questions. The real question at issue between the parties is
not decided until final judgment is given.
For reasons of a historical nature criminal cases include not only actions, in
which a criminal charge is preferred, but also actions in which the aid of the
law is called in to settle a civil dispute arising from some wrongful deed, e. g.
a claim for damages on account of a crime committed. In the latter actions,
however, the mode of procedure shows a tendency increasingly to resemble that
of civil cases.
The mode of procedure in criminal-law cases is dominated by the inquisitorial
method. In all the stages of the trial the right of the court to take an initiatory
part is manifest. With respect to serious crimes the court is entitled itself to
institute proceedings, though it seldom does so. In thrashing out the details of
a criminal action and in procuring evidence the court takes a very active part.
As parties in a criminal action there appear on the side of the prosecution a public
prosecutor, a private prosecutor (i. e. the injured party), or both. A private prosecutor
almost always enjoys the right to plead both in respect to the penalty to be imposed
and to other consequences of the crime. There are, on the other hand, a number
of crimes, principally of a less grave character, which for various reasons have
been excluded from the province of the public prosecutor, and in them
consequently he has no right to plead. In sundry other cases his right to prosecute
accrues on information being lodged by the injured party. In other respects his
right to prosecute respecting punishment for crime is unrestricted. In such
criminal actions as in case of conviction may lead to a hard-labour sentence, the
defendant is under the necessity of appearing in person to stand his trial in the
court; he may however avail himself of the assistance of counsel. If in a case
of that description he has been subjected to arrest, the court of justice or an
administrative authority may appoint, at the request of the prisoner, some qualified
lawyer to take up his case and defend him; the charge or fee of such lawyer
is defrayed in advance out of public funds. In other cases the defendant may
be represented by counsel, who pleads on his behalf.
When the crime is one that falls in the province of the public prosecutor,
there is usually held a preliminary police-inquiry as to the nature of the crime
before it is dealt with by the court of justice; such inquiry is conducted by a
prosecutor or by a police magistrate; neither the court of justice nor any of its
members are participators in it as a rule.
Among the coercive means devised to promote the effective conduct of the
inquiry into the case or to ensure the execution of the punishment, there may
be mentioned arrest, confiscation of goods and chattels, and house-visitation. These
measures are usually resorted to previous to the holding of the trial, but may
occur also during its progress.
Criminal proceedings are commenced by a summons, by arrest, or, in exceptional
cases, by a charge preferred before the court.
As regards the forms of evidence in criminal cases the same rules apply in
the main as in civil cases. The legal theory of evidence is however kept somewhat
more in the background, and the oath of a party to the case can only occur to
a limited extent.
In the judgment pronounced as the conclusion of the trial the court may
acquit the prisoner, condemn him, or leave the case open for future decision.
In the last case the trial may be recommenced at any date, while in the other
two, if it is a question of a serious crime, the trial may also under certain
circumstances be recommenced, to the disadvantage of the defendant.
The transfer of a case from one court to another is effected by the
following principal methods or reviewing sentences: lodging an appeal, (vad),
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