"unlawfully." Under the same rule an indictment charging a man with adultery or fornication must specifically allege that the woman mentioned was not the wife of the accused; if it does not it is void even though her name clearly shows that she is not his wife. Thus in a Massachusetts case, an indictment charged that Peter Moore did commit the crime of adultery with one Mary Stuart-she the said Mary Stuart then and there being a married woman, and having a husband alive. After conviction the judgment was reversed. The court said, "We suppose it pretty clear to common apprehension, what the grand jury meant by this averment, but the difficulty is that the precision and certainty required in criminal pleading for the security of the accused will not admit any thing to be taken by intendment. An averment that one had committed the crime of adultery, without alleging how and in what manner would be clearly insufficient. The purpose of an indictment is to allege and set forth those facts which constitute that crime; and, for that purpose it must appear that the woman, with whom the illicit connection is alleged to have taken place, was not the wife of the accused." Therefore, though the name of the woman was stated to be Mary Stuart and that of the accused to be Peter Moore, it was held that no crime was charged because Peter Moore and Mary Stuart might conceivably have been husband and wife, and the grand jury may have indicted a man for adultery with his own wife.

Another rule applicable to indictments that causes unnecessary trouble is the fault in pleading known as repugnancy. This fault consists in alleging two repugnant allegations in the indictment and is fatal. An illustration of this occurs in a recent case in Texas. In this case the indictment was for larceny. All the elements of the offense were charged correctly except that it was alleged that the accused took "twenty ten-dollar bank bills, each of the value of twenty dollars." It was entirely immaterial to the constitution of the crime whether the bank bills were ten-dollar bills or twentydollar bills, but the allegations being repugnant the court felt obliged to reverse the conviction.

A rule of pleading known as "duplicity" is another fruitful cause of miscarriage of justice in that it requires judges to hold indictments invalid where this fault occurs. In a recent case in Nebraska one was indicted that he did "unlawfully, sell, give away and vend spirituous liquors." It was a crime either to sell, or give away

such liquors, and the accused was duly convicted. The supreme court, however, reversed the conviction-properly under the existing rules of law-on the ground that the indictment containing as it did only one "count", charged two offenses, and was therefore uncertain. On the same principle in a recent case in England an indictment was quashed which charged a person with driving a motor "at a rate of speed or in a manner dangerous to the public."

The rules of criminal procedure that bring about the unfortunate results such as those above mentioned as well as numerous others that limitations of space make it impossible to treat of, were framed at a time when other existing rules placed the accused at such a disadvantage that they were necessary for the protection of innocent persons unjustly accused, and thus they kept the balance even. They have remained in force though the necessity for them no longer exists, and persons admittedly guilty escape through their operation. They could be abrogated by statute without sacrificing the amount of protection that a wise code should afford to the innocent person unjustly accused of crime.

What legislation there is, and it is not negligible in the United States, is all in the direction of reform. But no state has progressed as far in this direction as Canada and New Zealand. The codes of these countries offer a useful object lesson to us. The American Institute of Criminal Law and Criminology is doing valuable work in an effort for reform; and the legislative research fund is preparing a code of criminal procedure which it will offer for adoption by any state that desires to recast its code.

STATE INDEMNITY FOR ERRORS OF CRIMINAL JUSTICE

BY EDWIN M. BORCHARD,

Assistant Solicitor, Department of State, Washington, D. C.

We hear occasionally of cases in which a person proves his complete innocence of a crime for which he had previously been convicted and imprisoned. These accidents in the administration of the criminal law happen either through an unfortunate concurrence of circumstances, or from perjured testimony, or are cases of mistaken identity, the conviction having been obtained usually on circumstantial evidence.

A few recent cases will serve as illustrations. A person named Toth was convicted of murder in Pennsylvania and sentenced to life imprisonment, in spite of his continued protestations of innocence. After having served twenty years of his sentence his innocence was established beyond a doubt. He was released from prison a physical wreck. The law could only give him his liberty; the legislature declined to grant him compensation for the wrong the state had committed, and finally Andrew Carnegie saved him from starvation by paying him a small monthly pension. The famous Beck case in England arose through mistaken identity in conjunction with negligence on the part of the English police and the English courts. Beck served seven years on a serious charge and was then released only because the real offender fell into the hands of the police and the mistake of identity was established. There are numerous cases of this kind. Judge Sello of Germany in a book recently published collects a great number of them from various countries of the world.

The matter with which we are now concerned is to ascertain whether the state, by simply opening the jail door, has completely fulfilled its obligation toward these unfortunate victims of the errors of justice. Let us see what the state has done in these cases. It has taken the man from his daily occupation by mistake, either because circumstances appeared against him, or because he looked like the real criminal, or from some other mistaken reason. The state must of course prosecute those who are suspected of crime; but when the facts subsequently show that it has convicted and imprisoned an

innocent man, does not the state owe that man compensation for the special sacrifice he has been compelled to make in the interest of the community?

Our law begins with the assumption that the state can do no wrong and it is therefore apt to be indifferent when by its own wrong it has injured an individual citizen. With the progress of time, however, the state has come to compensate for many of its wrongs, and the federal government and practically all the states now freely subject themselves to suit at the hands of injured individuals. It was for this purpose that the federal court of claims was established. Again, the state freely admits that, for certain interferences with private rights for the public interest, compensation to the private individual must be made. Thus when his private property is taken for a public use, such as a public building or a road, compensation is made. This is a fundamental idea in our constitutional law and has existed for centuries. Yet when the liberty of an individual is taken for the public use-and the preservation of the public peace through the administration of the criminal law is a public purpose at least equally as vital to social welfare as the erection of public buildingsthe right to compensation is apparently overlooked. Why? Dean Wigmore in an editorial on this subject has said:

Because we have persisted in the self-deceiving assumption that only guilty persons are convicted. We have been ashamed to put into our code of justice any law which per se admits that our justice may err. But let us be realists. Let us confess that of course it may and does err occasionally. And when the occasion is plainly seen, let us complete our justice by awarding compensation. This measure must appeal to all our instincts of manhood as the only honorable course, the least that we can do. To ignore such a claim is to make shameful an error which before was pardonable.

Let us briefly state the two main theories which underlie such compensation. The first is the theory of eminent domain which we have just mentioned, that is, that the owner of private property which is taken for public use shall be duly compensated. In this case private liberty, a right at least equally as sacred as that of property, is taken for the public use. And here we may note a fallacy in a contention which has been advanced against this analogy. This contention is that when property is taken the community is enriched and on a well-known legal principle, the doctrine of unjust enrichment, the state must pay; whereas when liberty is taken the state is not

enriched. The fallacy consists in this fact-that the compensation paid does not represent the benefit secured by the state, but the loss inflicted on the individual. The analogy to eminent domain is therefore apparent.

The other theory is the same as that which supports workmen's compensation, which has now received legislative expression in practically every progressive state and is gaining ground constantly. The principle is this-that in the operation of any great undertaking, such as the management of a large industry or the administration of the criminal law, there are bound to be a number of accidents. In other words, among the thousands that are annually convicted some will be wrongfully convicted through mistake. We have recognized, in certain spheres of activity, that it is unfair to the individuals injured that they alone should bear the entire loss resulting from the accident, and therefore society distributes the loss among its members. Where the common interest is joined for a common end-maintaining the public peace by the prosecution of crime-each individual member being subject to the same danger (erroneous conviction), the loss when it occurs should be borne by the community as a whole and not by the injured individual alone.

In moving for this amendment of the criminal law we are guided not solely by our sense of justice, but have, as models, the legislation of practically every country in western Europe. Germany, France, Austria, Portugal, Denmark, Norway, Sweden and Switzerland now have elaborate statutes governing this subject and will in all probability soon be joined by Italy and Holland.1 Ever since the French Revolution, reformers and criminalists have sought to bring about this amendment of the criminal law, and from 1886 on they have seen their efforts crowned with success in one country after another. Why should we in the United States lag behind any longer? The justice underlying the compensation is apparent. In overcoming practical objections, to which we shall now address ourselves, we again have before us the examples furnished by the countries of Europe.

We must distinguish two classes of injustice of the character under discussion. The first is the detention of an erroneously accused innocent person extending up to his acquittal. An injustice has here been

1 See Senate Document 974, 62d Cong., 3d sess., "State Indemnity for Errors of Criminal Justice" by Edwin M. Borchard, with an editorial preface by John H. Wigmore. Washington, Government Printing Office, 1912, 33 p.