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University of Michigan Law Library
THE CODE PENAL
I CI D1ICII CHILE
Translated and corrected according to the most recent modifications under the direction of the Chief of the Gendarmerie d'Haiti.
CAPTAIN H. R. WOOD, G. d'H.
D. C. Me-DOUGAL,
General of Division, Chief of the Gendarmerie d'Haiti.
The primary object in translating this work into English has been to give to each officer of the Gendarmerie a hand book which would serve him as a guide in the enforcement of the penal laws and in his relations with the lower courts, which would overcome the handi-capof legal phraseology and terms to a limited knowledge of the French language, and to make readily available to new officers who do not know French a knowledge of the laws they will be called upon to enforce.
For this reason, it has been the desire of the translator to avoid as much as possible the use of any legal terms or phraseology which would tend to render the meaning obscure or questionable, and to render the text into the simplest form of English composition. Special effort has been made, however to translate the original text as nearly literally as possible.
This translation includes the modification of the Code d'Instruction Criminelle voted in the law of 1920 and there will therefore be noted certain differences between the text of this work and the French text of the handbook used by the Gendarmerie at present.
While this book may be depended upon to give a clear idea of the meaning of the various articles of the two codes, as they have been understood by the translator, it must be borne in mind that it is only a guide to enable the Gendarmerie officer to understand more clearly the French text. In studying or quoting the Codes, the French text should be followed, using this translation as a guide.
Port-au-Prince 16 June 1922.
CODE DESTRUCTION CRIMINELLE.
LAW No 1.
Art. 1. The action for the application of penalties appertains only to the functionaries to whom it has been confided by law. I. C. 9-13 and fol,. 44 and fol., 122 and and fol., 113, 116, 153 and fol., 175, 178, 279, 299, 460, and fob,
The action for reparations of damages caused by a crime, by a misdemeanor or by a contravention, may be prosecuted by any one who has suffered such damages. C. Com. 585. I. C. 2 and fol., 127, 132, 139, and fol., 145, 146, 155, 163, 167, 170, 173, 190, 247, 251, 266, 289, 292, 296, 298, 303, 317, 318, 324, 336, 349, 424, 462, 463.
Art. 2 The public action for the application of the penalty, is extinguished by the death of the accused.
The Civil action, for the reparation of the damages, may be prosecuted against the defendant and against his representatives.- C. O. 581,707, 914, 1169.-- I. C. 1, 3 and fol.,
Both actions are extinguished by prescription as is regulated in Law N 8, Chapter V, upon prescription. I. C. 460-467.
Art. 3. The Civil action may be prosecuted at the same time and before the same judges as the public action. 1. C. 1, 2, 4, 53 and fol.,
It may be also procecuted separately : in which case the prosecution thereof is suspended if the public action instituted before or during the prosecution of the civil action has not been definitely prononced upon C. C. 222. Pr. C. 240. 241.- I. C. 53, 156, and fol.. 178 and fol., 286, 296, 460. 462, 463.- C. P. 86.
This article does not abridge the dispositions of the Code of Commerce, relative to the administration of the property of bankrupts.- C. Com. 521 and fol., 526 and fol., 533 and fol., 538 and fob, 552 and fol., 558, 559, 560 and fol., 570.
Art. 4. The renunciation of the Civil action cannot arrest nor suspend the prosecution of the public action. -- 0. C. 1812.- Pr. C. 250.- I. C. 50. 53. 54, 155.
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Art. 5. Any Haitien who shall have rendered himself guilty, outside of the territory of Haiti, of a crime against the surety of the state, of counterfeiting national money in circulation, of national papers,of bank notes authorised by law, shall as soon as he shall have been siezed, be prosecuted, judged and punished in Haiti, in accordance, with the dispositions of the Haitian Law.C.C.5 I. C. 15,362.
Art. 6. These provisions shall be extended to foreigners who, authors or complices of the same crimes, shall be arrested in Haiti, or for whom the government shall obtain extradition. C. C. 5. I. C. 15, 362.
Art. 7. Any Haitien who shall have rendered himself guilty outside of the territory of the Republic, of a crime against a Haitien, shall be upon, his return to Haiti, prosecuted and judgedif already he has not been judged in a foreign country, and if the Haitien wronged makes plaint against him.I. C. o, 15. 50.
LAW No. 2.
The Judicial Police and the Officers and Agents of The Police who exercise it.
Art. 8. The judicial police search for crimes, misdemeanors and contraventions,gather proofs thereof and deliver the authors to the courts charged with their punishment. Pr. C. 15 and fol., 94 and fol I. C. 9, 10, 13, and fol.38,and tol. 44 and fol., 390 and fol.
Art. 9. The judicial police shall be exercised, following the provisions which are established, by the public prosecutors, by the Judges dTustruction, by the Judges dePaix and by the agents of the urban and rural police. I.C. 10, 11 and fol., 16, 38 and fol., 447.
Agents of the Urban and Rural Police Art. 10. The agents of the urban and rural police are
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charged whith the research of crimes, misdemeanors and contraventions which shall have borne injury against persons or property. I. C. 8, 9, 38 and fol.
They shall make their report to the juges de paix of the commune upon the nature, the circumstances, the time and place, of crimes, misdemeanors and contraventions, as well as the proofs and the indications they have leen able to collect. I. c. 11, 16, 133, 134.
They shall follow the things taken, to the place where they have been transported and shall put them in sequestration.CC. 1729,Pr. C. 6815.1. C. 9-25.--C. E.145.
They shall arrest and conduct before the juge de paix any individual they shall have surprised in flagrant misdemeanor, or who shall been denouced by public clamor I. 0. 31, 88.
CHAPTER III Juges de Paix
Art. 11. The juges de paix or their suppleants, within the extent of their communes, shall search out crimes, misdemeanors and contraventions ; they shall receive reports, denunciations, and plaints relative theretoI. C. 10,50.
They shall consign to the proces-verbaux which they shall make out to that effect, the nature and circumstances of the contraventions misdemeanors or crimes ; the time and place were they shall have been committed, the proofs and indications to the charge of those who shall be presumed guilty therefor.I. C. 10, 22, and fol., 32, 129, 132,133, 164, 395, 447.
Art. 12. When it is question of an act which should be brought before a correctional or criminal court, the judges de paix or their supp-leants, shall forward to the officer who fulfills the funetions of prosecutor at the said court, all documents and information, within three days at the latest, comprising therein that in which they have taken cognizance of the fact upon which thev have proceded. I. C. 123.
Oommissaire du Gouvernement.
The Juridiction of the Commissaire du Gouvernement Relative to the Judicial Police.
Art. 13. The Commissaires du Gouvernement are charged with the research and the Prosecution of all misdemeanors or crimes the cognizance of which appertains to the Courts of the First Instance, judging in correctionnal or criminal matter. I. C. 14 and fol. 25, 51.67, 68, 72,96, 99, 103 and fol.
Art 14. There are equally competent to fulfill the functions delegated in the preceding article, the Commissaire du Gouvernement of the place of the crime or misdemeanor,that of the residence of the accused and that of the place where the accused may be found. I. C. 15, 19 and fol., 50, 56.
Art. 15. These functions, when it be question of crimes or misdemeanors committed out side of Haitien territory, in the cases set forth in articles 5, 6, and 7, shall be fulfi-' filled by the Commissaire du Gouvernement of the place where the accused resides that of the place where he may be found,or bv that of his known residence.-- I. C. 14, 50, 56, 362.
Art. 16. The Commissaire du Gouvernement and all other officers of the. judicial police shall have, in the exercise of their functions,the right to make requisition directly upon the public force.- I. C. 9, 10, 85, 90, 306.
Art. 17. The Commissaire du Gouvernement, in case of hindrance shall be replaced by a judge commissionned to this effect by the court.- Pr. C. 90- I. C. 45.
Art. 18. The Commissaire du Gouvernement shall provide for the expedition, the notification and the execution of the ordonances which shall be rendered by the Juge d'Instruction. in accordance with the regulations hereinafter established in the Chapter upon Juges d'Instruction.--Pr. C. 78.- I. C. 13, 46 and fol. 59.
Procedure of the Commissaires du Gouvernement in the Exercises of their functions.
Art. 19 Any constituted authority, any public functio-
nary, or officer who in the exercise of his functions shall acquire knowledge of'a crime or misdemeanor, shall be required to give notice thereof at once to the Commissaire du Gouvernement, in whose juridiction this crime or misdemeanor have been committed, or in which the accused may be found, and to transmit to this magistrat all information, proces-verbaux, and documents relative thereto. I. C. 10. 13, 20. and fob, 50.
Art. 20. Any person who shall have been witness to an attempt against the public surety, against the life or property of an individual, shall be equally held to give notice to the Commissaire du Gouvernement of the place of the crime or misdemeanor or of the place where the accused may be found.- C. C. 587-3, 589.- I. C. 13, 21, 30, 38 and fol., 254-6, 255, 289, 377, 381.
Art 21. The denunciations shall be drawn up by the denunciators or by their attorneys, or by the Commissaire du Gouvernement if he be so requested ; they shall be signed by the Commissaire du Gouvernement upon each sheet, and by the denunciators or by their attorneys. C. C. 1751.- I. C. 20.
If the denunciators, or their attorneys, cannot or do not wish to sign, mention shall be made therein. I. C. 23, 32,
The power of attorney shall be annexed to the denunciation and the denunciator may cause to be delivered to him, at his expense, a copy of the denunciation. I. C. 29, 38, 50, 288.
Art.. 22. In all cases of flagran misdemeanor, when the fact shall be of a nature to incuran afflictive or ignominious penalty, the Commissaire du Gouvernement, will himself, if possible, go to the place, without delay, to draw up the proves-verbal, necessary to verify the Corpus delicti, its condition, the condition of the premises, and to receive the declarations of the persons who shall have been present, or who shall have information to give.-- I. C. 23, 26, 31, 37 47.
The Commissaire du Gouvernement shall give notice of his visit to the Juged'Instruction, without, however being obliged to await him before proceding, as is set forth in the present chapter. I. C. 13, and fob, 44.
Art. 23. The Commissaire du Gouvernement may also, in the case set forth in the preceding article, call upon, for his proces-verbal, the relatives, the neighbors or domestics, presumed to be able to give some explanation upon the
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fact; he will receive their declarations, which they shall sign.
The declarations received in consequence of this article and the preceding article, shall be signed by the persons,or in case of refusal,mention shall be made thereof. I. C. 21, 32.
Art. 24. He may forbid any person whatsoever to leave the house or the premises uniil after he has closed his pro-ces-verbal Pr. (J. 94. I. C. 3(5 390.
Any offender to this prohibition, shall be, it he can be caught, deposited in jail ; the penalty for this offense shall be pronouneed by the Juge d'fnstruction, upon the motion of the Commissaire du Gouvernement, after the offender shall have been sumoned and heard or by default, if he does not appear, without other formality or delay and without opposition or appeal.
The penalty may not exced ten days imprisonement and twenty gourdes fine Pr. C. 94. I. C. 36, 390.
Ait. 25. The Commissaires du Gouvernement shall sieze all weapons, and all that which appears to have served or to have been destined to serve to commit the crime or misdemeanor, as well ns all that which appears to have been the product thereof, in fine, all that which may serve for the manifestation of the truth; he shall call upon the accused to explain the things siezed ns presented I efore him ; he will draw up a proces verbal of the whole, which shall be signed by the accused, or which shall make mention of his" refusal. I. C- 10, 11, 13,28, 29, 31, 32, 47, 75, 116. 133.
Art. 26. If the nature of the crime or misdemeanor is such that the proof may probably be found in the papers or other effects in possession of the accused, the Commissaire du Gouvernement shall visit at once the" domicile of the accused to search for the objects judged necessary for the manifestation of the truth.' I. 0. li, 22, 27 28, 29, 36, and fob, 46 49, 73, and fob, 362.C. P. 145.
Art. 27. If there exists in the domicile of the accused, papers or effects which may serve for conviction or discharge, the Commissaire du Gouvernement shall draw up a proces verbal thereof and sieze the said effects or papers. I. C. 10, 26, 28, 29, 32, 36 47, 73 and fob, 115 and fob, 163, 209 and fob, 372.
Art. 28. The objects siezed shall be closed and sealed, if possible to do so ; or if they cannot receive written characters, they shall be put into a receptacle or sack, upon which the Commissaire du Gouvernement shall attach a band of paper sealed with his seal.I. C. 25, 29, 36, 75.
Art. 29. The operations set forth in the preceding article shall be done in the presence of the accused, if he has been arrested It he does not wish to be present or cannot, in the presenee of some person whom he may name. The objects shall be presented to him, in order that he may recognize them and initial them, if necessary and in case of refusal, mention thereof shall be made in the proces-verbal. C. C. 1751. I. C. 25, and fob, 75.
Art. 30. In case of flagrant misdemeanor, the Commissaire du gonvernment shall cause to be siezed the aceti-sed persons present against whom there exists grave indications, and after having interrogated them, shall give orders for their confinement. I. C. 10, 80, 83 and fob
If the accused is not present the Commissaire du Gouvernement shall issue an order to cause him to app rear ; this order is called Mandat d'amener ". 1. C. 35, 45, 77 and fol,., 87, 94.
Denunciatiation alone does not constitute sufficient presumption for the issuance of this order against a person of fixed residence. C. C. 91, 1- C. 20, 21.
The Commissaire du Gonvernement shall interrogate upon the spot the accused brought before him and if necessary issue order for his deten ion.
Art. 31. The misdemeanor in the act of commission or which has just been committed, is flagrant misdemeanor. I. C. 10, 22, and fob, 36, 38 and fob, 46, 47, 88.
There are also reputed flagrant misdemeanor ; the case where the accused is pursued by public clamor and that where the accused is found with eflects, weapons, instruments or papers, giving rise to the presumption that he is the author or complice, provided that this be at some time near that of the misdemeanor. 1. C. 25, 75.
Art. 32. The proces-verbaux of the Commissaire du Gouveruement in execution of the preceding articles shall be made and drawn nup in the presence of and signed by the juge de paix of the commune in which the crime or
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misdemeanor has been committed, or by his suppleant or by two citizens living in the same commune.-- I. O. 10, 11, 39,
Nevertheless the Commissaire du Gouvernement may draw up these proces-verbaux without the assistance of witnesses when it shall be impossible to procure them at once.
Each page of the proces-verbal shall be signed by the persons who have assisted thereto ; in case of refusal or impossibility to sign on their part, mention shall be made therein.-- I.'C. 21, 23.
Art. 33 The Commissaire du'Gouvernement shall cause to accompany him, in case of need, one or two persons, presumed, because of their art or profession, to be capable of appreciating the nature and the circumstances of the crime or misdemeanor. I. C. 34.
Art. 34. In case of a violent death, or a death the cause of which is unknown and in doubt the Commissaire du Gouvernement shall cause to assist him one or two doctors, surgeons or health officers, who shall make report upon the causes of the death and upon the state of the body. C. C. 88. 81.- I, C. 33.
The persons called, in the case of the present and preceding articles, shall take, before the Commissaire du Gouvernement. an oath to make their report and to give their opinion in honor and conscience. I. C. 62. 249, 263.
Art. 45. The Commissaire du Gouvernement, shall transmit, without delay to the .luge d'Instruction, the proces-verbaux, papers, documents and instruments, drawn up or siezed in consequence of the preceding articles, for the procedure set forth in Chapter IV, for Juges dTnstr.iction, and the accused shall remain in the hands of Justice under a Mandat d'Amener "-- I. C. 25 and fol., 30 43. 47, 51.
Art. 36. The duties set forth above for the Commissaire du Gouvernement in cases of flagrant m;sdemeaor, shall hold good also in all cases of a crime or misdemeanor even non-flagrant, committed in the interior of a house or habitation and when the head of such house or habitation shall have requested the Commissaire du Gouvernement to verify it.- I. C. 21. to 27,31, 32 and fob, 37, 39.
Art. 37. Outside, of the cases set forth in articles 22 and 36, the Commissaire du Gouvernement being informed by a denunciation or by any other means that there has been committed, within his juridiction, a crime or a misdemeanor, or that a person accused therefor is found in his juri-
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sdiction. shall he obliged to request the juge d'Instruction to order that he be informed thereof, or even that he may visit, it necessary, the premises, in order to draw up the necessary proces-verbal as set forth in the Chapter on Juges d'lnstruction.-I. C. 13, 20, 21, 48 and fol.,C. P. 145.
Officiers and Agents of the Rural and Urban Police as Auxiliaries to the Commissaire du Gouvernement.
Art. 38. The Juges de Paix and the agents of the rural and urban police shall receive the denunciations of .'he crimes and misdemeanors committed in the places where they habitually exercise their functions. 1. C-9, 20, 21, 30 and fob," 123.
Art. 39. In the case of flagrant misdemeanor, on in case of requisition by the chief of a house or a habitation, the juges de paix shall draw-up the proces-verbaux,receive the declarations of witnesses, make the visits and acts which are, in the said cases among the attributions of the Commissaire du gouvernement ;all in the forms and following the rules estal lished in the Chapter on the Commissaire du Gouvernement I. C. 22 and fob, 32, and fob, 36.
In the same cases, the agents of the rural and urban police shall make their reports to the juges de paix who shall draw-up the proces-verbaux therefor.
Art. 40. In case of concurrence between the Commissaire du Gouvernement and the juges de paix and the agents of the police as set forth in the preceding articles, the Commissaire du Gouvernement shall do the acts attributed to the judicial police ; if he has been anticipated, he may continue the procedure, or authorise the officer who has commenced continue. I. C. 13 and fob, 41, 50,51,
Art. 41. The Commissaire du Gouvernement in the exercise of his functions in the cases of article 22 and 36, may if he judges necessary, charge an officer or an agent of the auxiliary police with a part of those acts attributed to him. I. C. 22, 36, 38 and fol.
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Art. 44. The Officer and agents of the auxiliary police shall forward without delay, the denunciations, proces-verbaux and other acts, done by them, in such cases, to the Commissaire du Gouvernement who shall be required to examine without delay the procedure and to transmit it, with such requisitions as he judges proper to the Juge d'Instruction.- I. C. 13, 19, 20', 38. 44, 80, 51.
Art. 43. In case of denunciations of crimes or misdemeanors other that those which they have been directly charged to verify, the officers of the judicial police shall transmit also without delay, to the Commissaire du Gouvernement, the denunciations made to them, and the Commissaire du Gouvernement shall remit them to the Juge d'Instruction, with his conclusions.-- I.C. 12, 20. 35, 38, 43, 44, 50, 51.
CHAPTER IV. Juges d'Instruction.
SECTION I. Juge d'Instruction.
Art. 44. There shall be one or more Juges d'Instruction for the jurisdiction of each court of the First Instance. He is named by the Hredident d'Haiti for three years ; and his functions may not be continued for a longer time except with his express consent. He will take session in the jud-ment of civil affairs and may not take cognizance of the correctionnal or criminal affairs which he has had under examination.- I. C. 43, 101, 104 and fob, 261, 320, 332, 378, 397, 400, 447.
Art, 45. If the Juge d'Instruction is absent, sick or otherwise prevented, the general assembly shall name one of the judges to replace him.- Pr. C. 90.
SECTION II. Functions of the Juge d'Instruction. First Distinction. In case of flagrant Misdemeanor.
Art. 46. The Juge d'Instruction, in all cases reputed
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flagrant misdemeanor, may himself, directly, do all the acts attributed to, the Commissaire du Gouvernement, conforming therein to the rules established for the Commissaire du Gouvernement.
The Juge d'Instruction, may require the presence of the Commissaire du Gouvernement. without retarding however the operations prescribed I. C. 13 and fol., 26, 31, 47, 48, 49.
Art. 47. When the flagrant misdemeanor shall have already been verified, and the Commissaire du Gouvernement shall transmit the acts and documents to the Juge d'Instruction, he shall be required to make, without delay the examination of the procedure.-- I. C. 22 and fol.
He may remake all the acts or those of the acts which to him do not appear complete' I. C. 46.
Far 1 General Dispositions.
Art. 48. Outside of the case of flagrant misdemeanor, the Juges d'Instruction shall not make any act of examination or prosecution which he has not communicated to the Commissaire du Gouvernement he shall also communicate to him when it shall have been terminated, and the Commissaire du Gouvernement, shall make the requisitions which he shall judge proper without retaining the procedure more than three days. I. C. 13, 3h, 42, 51, 57, 196.
Nevertheless, the juge d'Inssruction shall deliver, if necessary the warrant to conduct and even the warrant to confine without these mandats being preceded by the conclusions of the Commissaire du Gouvernement. I. C. 30 77 and, fol.
Art. 49. When the Juge d'Instruction shall visit the scene he shall be always accompagnied by the Commissaire du Gouvernement and assisted by the clerk of the Court.- I. C. 13, 46.
Par II. Complaints.
Art 50. Any person who claims to have been wronged
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by a crime or a misdemeanor, may make complaint thereof and become plaintiff before the Juge d'Instruction. of the place of the crime or misdemeanor, or the place of residence of the accused, or of the place where he may be found. I. C. 11. 14, 15. 47, 51 and fol., 58 and fol 159, 288, 350
Art, 51 Complaints which have been made before the Commissaire du Gouvernement shall be transmitted by him to the Juge d'Instruction with his finding*; those which have been presented to auxiliary officers of the police, shall be forwarded by them to the Commissaire du Gouvernement and transmitted by him to the Juge d'Instruction also with his findings. I. C. 35. 37, 42, 43. 48.
In matters within the juridiction of the Correctional police, the wronged party may address himself directly to the correctional court, in the form which shall be her-inafter set forth.- Pr, C. 78.- I. C. 53. 153, 155.
Art. 52. The dispositions of article 21, concerning denunciations, shall be also applicable to complaints.
Art. 53. The complaintants shall not be reputed plaintiff if they have not so formally declared in their complaint or by subsequent act, if not having by the one or the other taken conclusions as to damages, they may desist-within twenty-four hours ; in case of desistence, they are not liable to costs, since it shall have been signified ; without prejudice, however to damage reclaimed by the defendant, if there be cause. C. C, 939. 1168, rr. C. 78, 939, and fob, I. C. 14, 50. 54 and fol ; 288. C. P. 318.
Art. 54 The complaintants, may come forward as plaintiff, at any state of the ease, until the close of the trial ; but in no case may their desistence after the judgment be valid, even though it may have been given within twenty-four hours after their declaration that thev are plaintiff.--I. C. 1. 53, 55.
Art. 55. Any plaintiff not residing in the commune where the examination is made, shall be required to choose a domicile bv act passed before the clerk of the court. C. C. 98.
In default of choice of domicile by the plaintiff, he may not oppose, the failure to serve notice against acts, notice of which should be served upon him according to the law. Pr. C. 78.- I. C. 98. 160.
Art 56. In case the Judge of Instruction shall not be that of the place of the crime or misdemeanor, nor that of the place of residence of the accused, nor that of the place where he may be found, he shall forward the complaint
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before the juge d'Instruction who may take cognizance of it.I. C. 14. 15, 19.
Art. 57. The Juge d'Instruction competent to take cognizance of the complaint, shall order its communication to the Commissaire du Gouvernement, for action in accordance with is attributions. I. C. 37, 48.
Par III. The Hearing of Witnesses.
Art. 58 The Juge d'Instruction shall cause to be summoned before him the persons who shall have been indicated by the denunciation, the complaint, the Commissaire du Gouvernement, or otherwise as having knowledge of a crime or a misdemeanor or the circumstances thereof. I.C. 22, 23, 36, 37,39 andfol.,399 andfol.-C. E. 28,29.
Art. 59. The witnesses shall be summoned by a huis-sier, or by an agent of the public force, upon- the demand of the Commissaire du Gouvernement. Pr. C. 78. I. C. 13. fit, 83, 124, 188, 286, 396 and fob*
An. 60. They shall be heard separately out of the'pre-sence of the accused, bv the Juge d'Instruction assisted by his clerk. Pr. C. 263. 1. C. 49, 62, 249, 263.
Art. 61. They shall present, before being heard, the summons to testify which has been given to them, and mention thereof shall be made in the proces-verbal. L C. 59, 64.
Art. 62. The witnesses shall take oath to tell whale truth and nothing but the truth ; the juge d'lnstrnction shall ask them their names, surnames, age, nationality, profession residence, if the}' are domestics relative or kinsmen of the parties and in what degree : mention shall be made of the questions and the reponses of the witnesses.--C. G. 19.Pr. C. 263. 1. C. 60, 64, 135, and fob, 249 and fob C. P. 28 and 29.
Art. 63 The depositions shall be signed by the Judge, thegreffier, and the witness, after it shall have been read to him and he has declared that he persists therein; if the wituesdoes not wish to or cannot sign, mention thereof shall be made.
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Each page of the, document of information shall be signed by the juge and the greffier. 1. C. 64.
Art. 64. The formalites prescribed by the preceding articles shall be observed under penalty of ten gourdes fine against the greffier and even, if there be cause, of prosecution against the Juge d'Instruction,
Art. 65. No interlineation may be made ; the words scratched out and the marginal insertions shall be approved and signed by the Juge d'Instruction, by the Greffier and by the witness, under the penalties set forth in the preceding article.
The interlineations shall be held invalid as well as the erasures and the marginal inserts which have not been approved.
Art. 66. Children of either sex under fifteen years of age may be heard in the form of declaration and without taking oath,
Art. 67. Any person summoned to he heard as a witness shall be required to appear and' to satisfy this summons, otherwise he may be so Constrained by the Juge d'Instruction, who upon the. conclusions of the Commissaire du Gouvernement. without other formality, nor delay and without appeal, shall pronounce a fine which shall not exced forty gourdes ; the person shall be compelled by the public; force to come and give his testimony. Pr. C. 264 and fob, 682,- I. C. 68, 72, 137, 138, 285.-0. P. 194, 323.
Art. 68. The Witness thus condemned to a fine upon the first default, and who. upon the second summons shall produce before, the Juge d'Instruction, legitimate excuses, may upon the motion of the prosecuting attorney, be discharged of the fine.- rY.' C. 266.- I. C. 21, 67, 76. 138, 286.. .
Art. 69. When it .shall be verified, by the certificate of a physician, surgeon or a health officer, that it is impossible for the witnesses to appear upon the summons given them, the Juge dTnstruction shall visit their residences, should they live in the same commune as that where the Juge dTnstruction resides.- I. C. 58. 67. 68. 7b 72. .
If the witnesses live outside of the commune, the Juge dTnstruction may commission the Juge de Paix of the commune where they live to receive their depositions, and he will send to the Juge de Paix, notes and instructions which will make known to him the facts upon which the witnesses should testify.- Pr. C. 956.- I. C. 70,71, 76, 207.
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Art. 70. If the witnesses live outside of the jurisdiction of the court, the Juge d'Instruction shall request the Juge d'Instruction of the jurisdiction in which the witnesses reside to visit them and to receive their depositions. I. C. 69. 71, 72, 76, 397.
In case the witnesses do not reside in the commune of the Juge dTnstruction thus requested, he may commission the Juge de Paix of their residence to receive their di positions, as set forth in the preceding article. Pr. C. 956.
Art. 71. The Juge de Paix who shall have received the the depositions in consequence of articles 69 and 70, shall send them under sealed cover to the Juge d'Instruction of the court in charge of the case. I. C. 72.
Art. 72. If the witness visited by the Juge d'Instruction in the cases set forth in the three preceding articles, was not in a situation which made it impossible for him to appear upon the summons given to him, the Juge d'Instruction shall issue an order for the confinement of the witness, and the physician, surgeon, or health officer who shall have delivered the certificate mentioned above. I. C. 69, 77. 80.
The penalty set forth in such cases shall be pronounced by the Juge dTnstruction of the same place and upon the motion of the ('ommi^snire du Gouvernement, in the form prescribed in article 67.- I. C. 13. 48.- C. P. 121 arid fob. 194.
Written proofs and Evidence for Conviction.
Art. 73. The Juge d'Instruction shall, if he be requested, and may even by virtue of his office, visit the domicile of the accused to search for such papers, effects and in general such objects as shall be judged utile for the manifestation of the truth; I. C. 26 and fob, 74 and fob, 209,260, 352 and fol 406 and fol.
Art. 74. The Juge d'Instruction may visit any other places where he may presume there has been hidden any of the objects spoken of in the preceding article.
Art 75. The dispositions of articles 25. 26. 27, 28, and 29, concerning the seizure of objects the search for which may be made by the Commissaire du Gouvernement, in case of flagrant misdemeanor, are common also to the Juge d'Instruction.
Art. 76. If the papers or effects for which search should
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he made are outside of the jurisdiction of his court, the Juge d'Instrction shall request the Juge dTnstruction of the place where they may be found to proced whith the operations set forth in the preceding articles. Pr. C. 956. I. C 69. 70, 207.
Warrants to Appear, to Conduct, to Confine and to Arrest
Art. 77. When the accused shall have a fixed residence and the fact shall be of a nature to give place only to a correctional penalty, the Juge d'Instruction may if he deems proper, issue against the accused only a warrant to appear, and after having interroga ed him, convert this warrant into any other kind of warrant necessary. I. C. 81, 94.
If the accused defaults the Juge dTnstruction shall issue against him a warrant to conduct.I. C. 30.
He shall also issue the warrant to conduct against any person of whatever character accused of any act incurring an afflictive or ignominious penalty I. C. 78 and fob, C. P. 7, 8..
Art. 78 He may also issue warrants to conduct against the witnesses who refuse to appear upon summons given them, in accordance whith article 67 and without prejudice to the fine set forth in that article I. C. 58 and fol.
Art. 79 In case of a warrant to appear, he will interrogate at once ; in case of warrant to conduct, within twenty four hours at the latest.
Art. 80. After the interrogation the Juge may issue the warrant for confinement, In the course of the examination, he may, upon the motion of the Commissaire du Gouvernement, and whatsoever be the nature of the accusation, cause the withdrawal of any warrant for confinement, charging the accused to present himself at every act of the procedure anil for the execution of the jud-ment as soon as he sh ill be required to do so.
The ordonnance of withdrawal may not be attacked 1 y opposition.
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The Juge may also, after having heard the accused and the Commissaire du Gouvernement, issue, when the act involves afflictive.-* or ignominious penalty, or a correctional imprisonment, a warrant to arrest in the form hereinafter determined.
Art. 81 The warrants to appear, to conduct and to confine, shall be signed by whoever shall have issued them and sealed whith his seal. 1 C. 94.
The accused shall be named and designated therein as eleariy as possible.
Art. 82* The same formalties shall be sbserved in the warrant to arrest;this warrant shall fountain furthermore, the enunciation of the fact for it is issued, and the citation of the law which declares that such fact is a crime or. misdemeanor. I. C 77, 80 83 and fob, 94.
Art. 83. The warrant to appear, to conduct, to confine and to arrest ; shall be served by a huissier, or by an agent of the public force, who shall exibit it to the accused and shall deliver to him a copy. Pr. C. 78. I. C. 18, 59, 228 and fol. -- Const. 1918, Art. 9.
Art. 84. The warrants to conduct, to appear, to confine and to arrest may be executed in any part of the Republic.
If the accused is found outside of the jurisdiction of the officer who shall have issued the warrant he shall be conducted before the Juge de Paix or his suppleant who shall vise the warrant, without power to prevent its execution. I. C. 89, 91, 92
Art 85. ~ The accused who shall refuse to obey a warrant to conduct or who, after having declared that he is ready to obey, shall attempt to escape, .-hould de constrained.- I. C. 92.
The bearer of a warrant to conduct shall employ, if need be, the public force of the nearest place ; which whall be obliged to go,upon the requisition contained in the warrant to conduct. 1. C. 20, 16, 88, 90, 306.
Art. 86. If in the course of the examination, the Judge charged with the case issue, the warrant to arrest, he may order by this warrant that the accused be transfered to the jail of the place where the examination is held. I. C. 92, 444 and fol.
If he does not set forth in the warrant to arrest that the accused shall be so transferred, he shall remain in the jail
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of the commune in whieh he shall have been found, until it has been passed upon by the Juge d'Instruction in accor-pance with the provisions of Chapter IX of the present law.
Art. 87 If the accused againt whom there has been issued a warrant to conduct, can not be found, the warrant shall be exhibited to the Juge de Paix of the residence of the accused, who shall put his vise upon the original of the act notification. -- I. C. 66,67. 83, 91, 128 and fob, 160 and fob, 179, 365 and fol., 466.
Art. 88. Every depositary of the public Force, and even every person, shall be obliged to sieze the accused surprised in flagrant misdemeanor, or pursued by public clamor, or in any of the cases assimilated in flagrant misdemeanor and to conduct him before the Juge de raix, the Commissaire du Gouvernement or the Juge d'Instruction, withodt need of a warrant to conduct. I. C. 10, 20, 30, 85.
Art. 89. Upon the exhibition of a warrant confine, the accused shall be received and confined in the house of arrest established for the correctional court ; and the jailor shall remit to the agent of public force charged with the execution of the warrant, an acknowledgement of the delivery of the accused.-- I. C. 81, 83, 84, 86. 93, 440 and fol.
Art. 90. The officer charged with the execution of a warrant to confine, or to arrest, shall cause himself to be accompanied by a force sufficient to assure that the accu-shall not escape the law. I. C. 10, 16, 85. 88, 306
This force shall be taken from the place nearest to that where the warrant to confine or to arrest is to be executed, and it shall be obliged to go, upon- the direct1 requisition made to the commandant and contained in the warrant.
The bearer of a warrant to arrest shall then cause his proces-verbal to be vised by the Juge de Paix or his sup-pleant and shall leave him a coppy.- I. C. 84, 87.
The warrant to arrest and the proces-verbal shall then be delivered to the, registry of thecourt. Pr. C. 79, 5.
Art. 92. The accused siezed by. virtue :f a warrant to
arrest or to confine, shall be conducted, without delay, t the house of arrest indicaded by the warrant I. C. 86, 89, 438 and fol., 440 ane fol
Art. 93.The officer charged whith the execution of a warrant to arrest or to confine, whall deliver the accused to the guardian of the house of arrest who shall give him a receipt, in the form prescribed in article 89.
He shall then deliver to the court registry, the documents relative to the arrest and receive acknowledgement therefor.
Art. 94. The inobservation of the formalities prescribed for the warrants to appear, to conduct, to confine and to arrest shall always be punished with a fine of twenty gourdes at least against the clerk, and if necessary a formal Warning to the Juge d'Instruction and the Commissaire du Gouvernement, or, if there be cause prosecution against them.- C. C. 438 and fol. I. C. 64.
CHAPTER VIII. Provisional Liberty and Bail.
Art. 95. Provisional liberty shall never be accorded to the accused when the accusation involves an afflictives or ignominious penalty, or when it be an accusation of theft. I. C. 96 and fol., 446 and fob- C. P. 7. 8.
Art. 96. If the act in volves neither an afflictive or ignominious penalty, but only a correctionnal penalty^ the Juge dTnstruction shall order, upon the demand of the accused and upon the motion of the Commissaire du Gouvernement, that the accused be given provisional liberty, in consideration of a security sufficient to assure his presence at all the acts of the procedure, and the execution of the judment, as soon as he shall be requested therefor. C. C. 1807.-- Pr. C. 442.- I. C. 99 and fob
Provisional liberty under bail may be requested at'any Stage of the procedure. ;
Art. 97-- Nevertheless, vagabonds and old offenders who have been recaptured, may not in any case, be-given provisional liberty.I. U. 196.
Art. 98. Notice of te request for provisional liberty shall be served to the plaintifat his domicile or that which he has selected.- C. C. 981- I. C. 4, 55, 99 and fol.
Art. 99.- The The sufficiency of the bail offered shall be debated by the Commissaire du Gouvernement and the plaintiff, duly notified.
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It should be secured by real estate free of debt, for the amount of the bail and one-half more; if desired the amount of the bail may be deposited in money with the court clerk. C. C. 1784. 1. C. Shi, 100, 101. 103.
Art. 100. The accused shall be allowed to furnish his own security, either by depositing the amount of the bail, or securing with unengaged real-estate, the amount of the ball and one half more, and in either agreeing to the provisions which shall be hereinafter set forth. I. C. 96, 98, 99, 102 and fob
Art. 101. The security may never be less than four hundred gourdes. If the correctional penalty be at the same time imprisonment and a fine the double of which exceeds four hundred gourdes, bail may not be fixed in a sum grater than the double of this fine.
If there result from misdemeanor a civil damage which may be estimated in money, the bail shall be triple the value ot the damages, as estimated for this purpose only by the Juge dTnstruction howcwer, in this case the bail may not be less than four hundred gourdes. C. C. 1168 and fol.r I. C. 96, 93, 99.
Art. 102. The accepted security, shall agree, before the clerk of the court or before notaries, to pay to the clerk the amount of the bail, in case ol default on the part ot the accused to present him self. C. C. 1102. 1. C. 96, 100.
This submission involves the eonfinemont of the sureties ; a copy with writot execution shall be delivered to the plaintiff before the accused be given provisional liberty. CO. 1829. Pr. C. 133.- I C. 1, 98,99, 103, 171.
Art. 103. The money deposited and the real estate serving as security for the bail, shall he subject to the following claims : 1. for the payment
Art. 104 Cpon the motion of the Prosecuting Attorney, or upon the demand of the plaintiff the Juge dTns-
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t'ntn shall render it' the case o requires, an ordonnance for the payment of the amount of the hail. 1. C 13,44 1U3, 105, 107.
This payment shall be prosecuted at the request of the Prosecuting Attorney, and under the direction of the treasurer. The .-urns recovered shall be (>aid into the hands of the court clerk, without prejudice to the prosecution and the right of the plaintiff
Art. 105. The Juge dTnstruction shall deliver in the same form and upon the same demands, an ordonnance of consiraint against the surety or sureties of an individual placed under the surveillance of the high police of the state, when such individual shall have been condemned by a judment irrevocably passed, for a crime or misdemeanor commi ted in the interval set forth in the writ of bail. I. C. 104, 107. G. P. 10,31, 32.
Art. K't). The accused shall not be given provisional liberty under bail until after having selected domicile in the place where the correctional court is situated, by an act deposited with the registry of this court. C. C. 98. I. C. 55, 9tb
Ait. 107., In addition to the prosecution of the-surety if need be, the accused shall be siezed and confined in the house of arrest, by virtue of an ordonnance of the Juge dTnstruction. 1 O 92, 104 and fol.
Art. 108. An accused who shall have alfowed bis surety to be compelled to the payment of his bail, may not iigain, in any case, be admissible to provisional Tibertv under bond l.C. 9(5, 184.
Ordonnances of the Juge d'Instruction when the Proceedure is complete
Ait. 109. The Juge dTnstruction shall pass in one single decision, upon misdemeanors in joinder the evidence of which shall have been produced before him at the same time. 1. C, 110, 212, 323, 411, 423.
Art. 110. Misdemeanors are in joinder whan they shall have been comitted by different persons, even at different times and in different places, but following agree-
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ment formed between them ; or when the culprits shall have committed certain ones to procure the means to commit the others, to facilitate them, to consumate the execution thereof, or to secure immunity there from. I. O. 211 andfol.,322,411, 428.
Art. 111. Upon the demand of the Commissaire du Gouvernement or even upon his own authority, the Juge d'Instruction may proceed if the case requires, to open a new examination, which shall be done with the briefest delay.
Art. 112. If the Juge d'Instruction is of the opinion that the fact presents neither crime,misdemeanor nor eon-contravention, or that there exists no charge againts the accused, it shall be declared that there is no reason for prosecution, and if the accused has been arrested he shall be set at liberty.- I. C. 77 and fob, 86, 118, 139, 167, 288, 296.
However, in any case, the Prosecuting Attorney and the plaintiff may, within twenty-four hours, oppose the release.
Their oposition shall be referred to the Court of Appeals, which shall decide, all action suspended meanwhile.
This delay of twenty four hours shall begin, with the Prosecuting Attorney, counting from the day of the ordonnance for release, and, with the plaintiff, counting from the day of the notification of the said ordonnance at the residence selected by him in the place where the court is located.
The expedition of the documents shall take place within twenty fours hours after the oposition, under penalty of a fine of fifty gourdes I G 50 ) against the clerk, except in case of impossibility, and prosecution of the Prosecuting Attorney if there be cause. C. C. 939, 1168. Pr. C. 135.- I. C. 55, 98.
The documents shall be communicated to the plaintiff if he so requests.
The plaintiff who succumbs in the opposition, may be condemned to damages toward the defendant by the Court authorised to pass thereon. I. C. 336.
Art. 113.--- If the Juge dTnstruction is of the opinion that the fact is only a simple contravention, the accused shall be sent before the police court, and shall be released if he has been arrested. I. C. 109, 120 and fol.
Art. 114. If the misdemeanor is recognized as of a nature to lie punished with correctional penalties, the ac-
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cused shall be sene before a correctional court. I. C. 153 and fol., 157
If in this case, the misdemeanor may involve imprisonment, and the accused is under arrest he shall so remain temporarily.- I. C. 77 and fob, 109.
If the misdemeanor is not of a nature to involve the penalty of imprisonnement, the accused shall be set at liberty under charge to present himself, at the date fixed, before the proper court.- I. C. 109, 115.
Art. 115- In case of expedition to the police court or to the correctional court, the Commissaire du Gouvernement is obliged thin twenty-foer hours to forward to the clerk of the court which should try the case, all the documents, after having endorsed them.-- I. C. 13, 79, 153.
Art. 116. If the Juge d'Instructiom esteems that the fact if of a nature to be punished by afflictive or ignominious penalties, and that the charge against the accused is sufficiently established, the accused shall be sent to the Criminal Court, and the evidence shall be forwarded without delay, to the Commissaire du Gouvernement for procedure as set forth in the chapter on accusation. I. C, 25 and fol., 170 and fob,- C. P. 7, 8.
Art. 117. In this case the Juge d'Instruction shall issue a warrant for the arrest of the accused which shall be delivered with the other documents to the Commissaire du Gouvernement.
This warrant shall contain the name of the accused, his description, his residence, if this be known, and the fact and nature of the misdemeanor.
Art. 118- The accused in regard to whom the Juge d'Instruction shall have declared that there is no gounds for sending the case before any court,once such ordonnance shall have acquired the authority of a judicial decision, may not again be. prosecuted because of the same fact, unless there be brought forward new charges. I. C. 113.
Art. 119.- Nevertheless, and in all cases, the accused may oppose before the clerk, the ordonnance remanding him for trial, within a delay of twenty four hours, from the time communication is made to him by the clerk, if he be confined and within ten days, from the date of notifi-crtion at the residence chosen by him in the place where the tribunal is located, if he is not confined.
The communication prescribed in the preceding paragraph shall be made within twenty-four hours of the date of the ordonnance and notice shall be served within the week.
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The opposition shall be referred to the Court ot Appeals, which shall decide, all action suspended meanwhile.
Witin twenty-four hours, all the documents of the examination shall be forwarded by the clerk to the Commissaire du Gouvernement of the Court of First Instance, who, in turn shall forward them within twenty-four boui'9, at the Latest, to the Commissaire du Gouvernement at the Court of Appeals, under penalty of a fine of twenty-five gourdes ( G. 25 ) against the cleik and pio-eeution of the Commissaire du Gouvernement at the Court of first Instance. The accused shall have ten days from the date of his declaration to depose a petition in support thereof if he thinks necessary.
The same right of appeal belongs eqnally to the Prosecuting Atorney.
The decision of the Court of Appeals rendered upon this opposition shall be susceptible to plea for annulment in accordance with article 57 of the law upon appeals
Art. 120. There are considered as new charges, statements of witnesses documents and proces-verbal, which not having been submitted to the examination of the Juge dTnstruction, are however, of a nature to fortify proofs found insufficient, or to give to the facts some new development which may serve for the manifestation of the truth.- I. C. 119.
Art. 121. The police officer or the Juge dTnstruction, who shall have gathered new charge, shall forward without delay, copies of such evidence to the Commissaire du Gou vernement, upon whose requisition the Council of Judges may designate a judge before whom there shall be made a supplementary examination. 1. C. 118, 120.
LAW No 3.
Police Courts CHAPTER I. Simple Police Courts.
Art. 122. There are considered as Police Offenses, the acts enumerated in Law No. 5 of the Code Penal. 1. C. 153, 464, 465. C. P. 1, 384 to 401.
Art. 123. The cognizance of pollice offenses is attributed to the Juge de Paix who shall judge alone, as a police court, I. C. 9, 10, 11, 38, 39, 41.
Art. 124. Citation for police offenses shall be made at the request of the police agent who denounces the fact, or the reclainanl I. C. 1, 53, 59, 125, 132, 142, 135,156.
They shall be served by a huissier of the justice of-the Peace, or in default of a huissier, by an agent of the public force ; a copy shall be left with the accused, or with the person legally responsable, or if they be absent, with the police authority of the place ; receipt shall be given for the citation.C. C. 1170, 1566. Pr. C. 78. I. C. 51, 125.- -C. P. 56.
Art. 125. The citation may not he given for a delay ot less than tw7enty four hours, and one day additional for each five leagues, under penalty of nullity of the citation as well as the jndment which sha'l be rendered by default. Nevertheles, this nullity may not be proposed except at the first hearing, before any exception or defense. I. C. 124, 129. 130, 136. 143, 150, 313.
In urgent cases, the delays may be abriged and the parties cited to appear the same day at the hour indicated, by virtue of a cedule delivered by the Juge de Paix.Pr. C. 11,37.
Art. 126. .The parties may appear voluntarily and upon simple notice, without need of citation.
Art. 127.--Before the day of the hearing, the Juge
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de Paix, may upon the request of the plaintiff, or even by his own authority, estimate or cause estimated the damages, draw up or cause to be drawn up the proces-verbals, do or order done, all acts requiring celerity. C. C 939,1168. Pr. C. 38, 42 I. C. 1, 33, 34, 53, 124.
Art. 128. If the person cited does not appear at the day and hour fixed by the citation or cedule, he shall be judged by default. I. C. 129 to 131, 158 to 162, 177, 363 and fol., 466.
Art. 129.- The person condemned by default, is no longer admissible to oppose the execution of the. judment, if he does not appear at the hearing indicated in the following article, except as shall be hereinafter provided for appeal and petition for annulement. I. C. 128, 130, 146 and fob, 151. 161, 164.
Art. 130. Opposition to the judment by default may be made by a declaration in response placed at the bottom of the act of notification, or by notice served within three days after the signification of the judment, plus one day for each five leagues.- Pr. O. 78, 180, 954. I. C. 129, 161. 162.
Opposition involves of itself citation to the first hearing after the expiration of the delays and shall be >null and void if the opposant does not appear.
Art, 131.- The person cited shall appear in person or by attorney. C. (J. 1751. I. C. 128, 159.
Art. 132. The examination of each affair shall be public under penalty of nullity.I. C. 163, 241. 313, 404.
It shall done in the following order.
The proces-verbaux, if there be any, shall be read by the clerk.
The witneses, if any have, been called by the plaintiff or the Judge shall be, heard, if necessary ; the plaintiff shall present his conclusions. I. C. 1, II, 53, 128, 135and fol., 249.
The person cited shall be questioned or interrogated ; he shall present his defense, and cause his witnesses to be heard, if he has called or caused any to be cited, and if, in view of the terms of article 136, it be admissible for him to produce them.
The police court shall pronounce judment in the hearing of the day on which the examination shall be finished, or at the latest, in the following hearing.
Art. 133 The offenses shall be proved by proces-verbaux or reports, or by witnesses, in the absense of reports or proces-verbaux to support them. I. O 1. C. P. 1.
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Art. 134.It shall not be admissible to produce proof by witnesses outside of or against the contents of proces-verbaux or reports of the officers or agents of the police whose autheority to investigate crimes, misdemeanors or offenses is upheld by law to the point of formal allegation or falsity. As to proces-verbaux and reports made by agents, pre poses or officers to whom the law has not accorded the right to be believed up to formal allegation of falsity, they may be debated by contrary proofs, either written or verbal, if the court judges proper to admit them. I. C. 11, 25, 139, 136, 143, 150, 263, 313.
Art. 135. The witnesses in the hearing shall take oath under penalty of nullity, to tell the whole truth and nothing but the truth, and the clerk shall draw up a proces-verbal which shall relate this formality, as well as the names, surnames, ages, professions and residences of the said witnesses and their principal declarations.
This proces-verbal shall be signed by the Juge de Paix and the clerk.
Art. 136.- The ascendants or descendants of the defendant, his brothers and sisters or kindred of like degree his spouse, even after divorce, shall neither be called nor heard as witnesses, without, however, the hearing of the above mentioned persons operating for nullity, when neither the plaintiff nor the defendant shall have opposed their being heard. C. C. 2, 15.I. C. 127, 137, 251,256.
Art. 137.Witnesses who shall not respond to a summons, may be compelled to do so by the court, which, for this purpose shall pronounce in the same audience, upon the first default a fine, and in case of a second default confinement. 1. C. 67, 68, 138, 163, 285. C. P. 121,174.
Art. 138. The witnesses thus condemned to a fine for a first default, and who, upon a second citation, shall produce before the court, legitimate excuse, may be discharged of the fine.
If the witness is not summoned again, he may appear voluntarily, either in person or by attorney, at the following audience, to present his excuse and obtain, if necessary, discharge from the fine.
Art. 139. If the fact presents neither misdemeanor nor contravention, the court shall annul the citation and all that has followed, and pass, by the same judment, upon the pleas for damages.
Art. 140. If the fact is a misdemeanor which involves a correctional penalty or one more grave, the court
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shall send the parties before the Commissaire du Gouvernement.
Art. 141__If the accused be convicted of a police
offense the court shall pronounce the penalty and pass, in the same judgment, upon the pleas for restitution or damages.
Art. 142. The party who shall succumb, shall be condemned to costs, even toward the state.
The costs shall be liquidated by the judgment.
Art. 143. The grounds upon which all definite judgments of condemnation are rendered shall be stated, and the terms of the law applied thereto shall be inserted, under penalty of nullity.
Mention shall be made therein, as to whether the judgment is rendered without appeal or in first Instance.
Art. 144. The original of the judgment shall be signed within twenty-four hours at the latest, by the judge who shall have presided at the session, under penalty of a fine ot ten gourdes ( G. 10 ) against the clerk and if there be cause, of prosecution of the clerk as well as the judge.
Art. 145.The plaintiff shall prosecute the execution of the judgment in so far as he is concerned., I. C. 1 and fob, 13, 53.
Art. 14fb Judgments in police matter may be appealed, when they pronounce imprisonment, or when the tines, restitutions and other civil reparations, exceed the sum of fifty gourdes, outside of costs. I. C. 24 149 and fol., 193,
Art. 147. The appeal shall be suspensive.
Art. 148. Appeals from judgments rendered by the police courts shall be carried to the correctionnal courts-
This appeal shall be made within ten days after the notification of the sentence to the person or to his residence ; it shall be followed and judged in the same form as the appeals from sentences of the jus ices of tiui peace. Hr C. 78, 150, 401.
Art. 149 When upon appeal, the Prosecutiug Attorney, or one of the parties request it, the witnesses may be heard again, and even other witnesses may be heard. I. C. 1, 13, 53, 132, 134.
Art. 150. The Dispositions of the preceding articles upon the solemnity of the trial, the nature of the proofs,
the form, the autheneity and the signature of the definite judment, the condemnation to costs as well as the penalties which these articles pronounce are common to judgments rendered upon appeal, by the correctional courts. I. C. 132, 133, 135 to 145.
Ait. 151. The plaintiff and the defendant may, if be cause appeal in cassation against judgments rendered in last ressort by police courts ; and the same parties and the Piosecitting Attorney may appeal in cassation against judgments rendered by the correctional courts upon appeal from police courts judgments. I. C. 1, 13, 53.
This recourse shall be taken in the form and within the delays prescribed., I. C. 90, 173, 184,303, 318, 319, 329 and lob, 331.
Art. 152. At the beginning of each month the Juges de Paix shall forward to the Commissaire du Gouvernement, an extract of the judgments of police cases which have been rendered in the preceding month and which shall have pronounced the penally ot imprisonment. This extract shall be made without cost by the clerk.
The Commissaire du Gouvernement shall deposit itat the registry of the correctional court and render a summary thereof to the Secretary of Justice.
CHAPTER II. Corectional Courts
Air. 153. The courts of First Instance shall take cognizance under the title of Correctional Courts, of all the misdemeanors, cognizance of which is not attributed to the simple police courts, and which are not of a nature to involve afflictive or ignominious penalties. Pr. C. 57 and fob C. C. 3f>5. I. C- 114, 148.
Art. 154. If within the court and during a hearing, there be committed a misdemeanor, the judge shall draw up a proces-verbal of the fact, shall hear the accused, whosoever he be, as well as the witnesses, and without raising the session, shall apply the penalties authorised by the law. The execution may take place, but with right of appeal.
Art. 155. Tn correctional matter, the court shall take
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cognizance of the misdemeanors within its jurisdiction-either by their being sent before it in accordance with articles 114 and 140 or by citation given directly to the accused and the persons legally responsable for the, misdemeanor, by the plaintiff or the Commissaire du Gouvernement.
Art. 156. The plaintiff, by the act of citation shall make a selection of domicile, in the city where the, court is located ; the citation shall set forth the facts and shall take the place of complaint. C. C. 28.- I. C. 4, 53. 55. 155.
Art. 157. There shall be a delay of at least three days, and in addition one day for each five leagues, between the citation and the judgment, under penalty of nullity of the condemnation pronounced by default against the person cited, Pr. C,51, 954. I. C. 159, 313.
Nevertheless, this nullity may be proposed only at the first session, and before any exception or defense. Pr. C. 124.
Art. 158.-- In cases relative to misdemeanors which do not involve the penalty of imprisonment the accused may be represented by an attorney ;the court may,nevertheless, order his appearance in person. C. C. 1751.-- Pr. C.86.-I. C. 128, 131, 298, 348.
Art. 159. If the accused does not appear he mav be judged bv default. I, C. 128 to 130, 160, 163, 177. 363, and fob, 466.
Art. 160.-- The condamnation by default shall be null and void if, within five days after the notification of the judgment to the accused or to his domicile, he shall file opposition to the execution of the judgment, and give, notice of his opposition to the, Prosecuting Attorney and to the, plaintiff. Pr. O. 78. I. C. 55, 98. 129 130, 157. 161.418.
However, the costs of the copy, of serving notice of the judgment by default, and of the filing of opposition, shall be at the expense of the accused. C. C. 1169. I. C. 142.
Art. 161.- Opposition of itself entails, citation to the first hearing ; it shall be null and void, if the. opposant does not appear, and the judgment which the court shall have rendered upon the opposition, may not be attacked by the party which shall have filed it, except by appeal. I. C. 130, 157, 159 and fob, 293 and fol.
The court may. if necessary accord a provision and this disposition shall be executory, notwithstanding appeal. C. C. 933. Pr. C. 142.
Art. .162.The proof of correctional misdemeanors shall
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be made in the manner prescribed by articles 133, 134, 135 and 136, concerning police offenses. The provisions of articles 137, 138 139, 140 and 141 are common also to correctional courts. I. C. 249, 250, 255,256.
Art. 163. The trial shall be public, under penalty of nullity.
The Prosecuting Attorney, or the plaintiff or his attorney shall state the case.
The proces-verbaux or reports, if any have been drawn up shall be read by the clerk.
The witnesses for and against shall be heard, if there be any, and the objections proposed and passed upon.
The evidence which may serve for conviction or acquittal, shall be presented to the witnesses and the parties.
The accused shall be examined.
The accused and the persons legally responsable shall propose their defense.
The Commissaire du Gouvernement shall set forth his conclusions.
The accused and the persons legally responible for the misdemeanor shall always have the last word.
The judgment shall be pronounced at once, or at the latest, in the session following that in which the trial shall have finished I. C. 11, 30, 53, 67, 132, 135 and fob, 146. 162. 279 C. P. 18, 28.
Art. 164. If the fact is reputed neither misdemeanor, nor police offense, the court shall annul the trial, the citation, and all that shall have followed, shall acquit the accused and pass upon the demands .for damages.-- C. O. 939, 1168. P. C. 135, I. C. 112, 139, 296.
Art. 165. If the fact be only a simple police offense, and if the plaintiff or the prosecution has not requested remandment, the court shall apply the penalty and pass, if necessary, upon the demands for damages. In this case its judgment is in last resort.
Art. 166 If the fact be of a nature to merit an afflictive or ignominious penalty, the court may at once issue a warrant for the confinement of the accused or a decree to take him him into custody ; and if the court has received the case trough remandment. it shall remand the case and the accused to the Criminal Court; and if the case has been received by direct citation, it shall send the accused before the Juge dTnstruction. I. C. 44.80 and fob C. P. 7. 8.
Art. 167. Every judgment of condemnation rendered the against the persons legally responsible for the misde-
meanor, or against the plaintiff, slia'l condemn them to costs, even toward the prosecution.
The costs shall be determined wy the same judgment. C. C. 1170.Pr. C. 137. I. C. 142, 160, 296, 298, 336, 314.--C. P. 56.
Art. 168. In the enacting part of each judgment of condemnation, shall be set forth the facts for which the defendants have been tound guilty or rcsponsable, the penalty and the civil condemnations.
The tex. of the law of which application is made shall be read at the trial by the judge.
Mention of this reading shall be made in the judgment, and the text of the law shall be inserted therein.
The inobservance of the above prescriptions shall involve a fine of ten gourdes ( G. 10 ) against the clerk, and if there be cause,prosecution of the judge.l.C. 143,299.
Art. 169. The record of the judgment shall be signed within twenty-fours hour at the latest by the judge who shall have rendered it.
The clerk who shall deliver a copy of a judgment before it has been signed shall be prosecuted as a forger. pr C. 146. I. C. 347 and fob, C P. 107 and fol.
The Cominitsaires du Gouvernement shall require that all the originals of judgments be submitted to them every three nionfhs ; and in case of contravention to this article, they shall make official report thereof in order that the necessary action be taken. 1 G. 131.
Art. 170. 1 he judgment shall be executed at the request of the Prosecuting Attorney and the pl.uutiff, each in such part as he is concerned. l.C. 1. 13, 53, 145.
Nevertheless, prosecntion for the recovery of fines and confiscation shall be made in the name ot the Prosecuting Attorney, b\- the clerk.
Art. 171. The Commissaire du Gouvernement shall be required within fifteen days after the pronouncing of the judgment, to send an extract thereof to the Secretary of Justice.- I. C. 13, 152, 190,
Art. 172.- The provisions >of articles 39 and 57 of the law of September 4, 1918 upon the orgnanisation and attributions of the Courts of Appeal shall be observed in appeals taken from judgments of the Courts of First Instance, rendered in correctional matter.
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Art, 173. The plaintiff, the defendant, the prosecution, and the persons legally responsable for the misdemeanor, may appeal in cassation against the decision of the Court of A ppeals.
LAW No 4. The Criminal Courts and the Jury.
FIRST CHAPTER. Indictment.
Art. 174. The order of remandment shall be served upon the accused within a delay of five days of its date, and a copy shall be left with him. Pr. C.78.-- I. C. 18, 175, 176.
Art. 175 -- In every case when the accused is remanded to the Criminal Court the Commissaire du Gouvernement shall be required to draw up an indictment.
The indictment shall set forth : 1. The nature of the crime which forms the basis of the accusation ; 2. The fact and all the circumstances which may tend to aggravate or diminish the penalty. The accused shall be named therein and clearly designated.
The indictement shall terminate with the following
summary : In consequence, N______ _______ is accused of
having committed such a murder, such a theft, or such other crime with such and such circumstances ~ I. C. 190,
Art. 176- The indictment shall be served upon the eccused at least eight days before that on which he should appear before the Criminal Court, and a copy shall be given him.- Pr. C. 78.-I. C. 18,175.
Within twenty-four hours after this notification the accused shall be transferred to the gaol of the Commune where he will be tried, if such had not already been done. I. C. 440 and fol.
Art. 177. If the accused can not be taken, or does not present himself, he shall be proceeded against in default, as set forth in the Chapter on Contumacy.
~ CHAPTER II. Formation of the Criminal Courts
Art. 178. There shall be established a Criminal Court
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in every city where there is a court of the First Instance.
Art. 179.- The Dean of the Court of First Instance shall preside over the Criminal Court. He may also designate for each session, one or two judges as subtitutes. according to the number of cases. Such designation shall be made at at least fifteen days before the opening of the session.
Art. 180.There shall be a criminal session every three months, and more often if necessary.
Art. 181. The day on which the criminal session opens is fixed by the Doyen of the Criminal Court. The ordonnance rendered for this purpose is published in the official journal and posted before the justice court and the town hall of each of the communes of the juridiction, eight days at least before the opening.
Art. 182. The session shall not close until after all cases ready for trial at its opening have been disposed of. The Commissaire du Gouvernement, is personally respon-sable for the observance of this formality.
Art. 183. Accused persons who shall not have arrived in the gaol until after the opening of the, criminal court, may not be tried before it except when the, Prosecuting Attorney shall have so requested, the accused shall have consented thereto, and when the doyen of the, Criminal Court shall have so ordered I. C. 180.
In this case the Prosecuting Attorney and the accused shall be considered as having renounced the right to demand the annulment of the ordonnance of remandment, to the criminal court. I. C. 200, 201. 202. and fob, 416,
Art. 184.The Judgments of the Criminal Court may not be attacked except by plea in cassation, and in the form determined by the law.-l.C. 313 and fo). .321 and fol.
Functions of the Doyen of the Criminal Court
Art. The Doyen of the Criminal Court is charged ;
1. To hear the accused upon his arrival in the gaol.
2. To convoke the jurors and to draw them bv lot.--I. C. 182, 183. 186 and fol., 197, 200, 309 and fol."
Art. 186.- The Doyen of the criminal court is charged to direct the jurors in the exercises of their functions, even to remind them of their duties ; to direct the examination and to determine the order in which the speakers shall have the floor.- I. C. 241, 270, 279, 280, 283.
He shall control the policing of the court. Pr. C. 15
and fol., 94 and fol.- I. C. 154, 390 and fol. C. P. 183 and fol.
Art. 187. The doven is invested whith discretionary powers, in virtue of which he may take upon himself all measures which he thinks necessary and permissible to discover the truth ; and the law charges his honor and his conscience to employ all his efforts to bring forth the manifestation thereof.- I. C. 186, 188 259. 375.
Art. 188. He may in the course of the hearing, call, even by warrant to conduct, and hear all persons, or cause to be brought forward all new pieces of evidence which concern the case, following new developments brought out in the hearing either by the accused or the witnesses, which may throw necessarv light upon the facts in question, I. C. 27. 67,187, 247, 259.
The witnesses thus called shall not take oath and their declaration shall be considered only as information.
Art. 189.- The Doyen of the criminal court should reject all that which tends to prolong the hearing without giving hope of greater certitude in the results.
Functions of the Prosecuting Attorney
Art. 190. The prosecuting attorney shall prosecute all persons indicted in the form prescribed in the first chapter of the present law. He may not bring before the criminal court any other accusation, under penalty of nullity and if there, be cause, of orosecution.-- Pr. C. 438 and fol.- I. C 173, 183, 191, and fol 210 and fol., 247 and fob, 260, 263. 298, 292, 303, 306, 309, 313, 364, 370, 377. 405, 447, 452.- G. P. 91.
Art. 191 As aoon as the Prosecuting Attorney shall have received the evidence, he shall bring to bear all his energies in order that the preliminary acts shall be done and that all will be ready for trial upon the opening of the criminal court. 1. C. 176, 182.
Art. 192. He may not be absent during the trial ; after the declaration ot guilt he shall request the application of the penalty ; he shall be present at the pronouncing of judgment. l.C. 193 and fob, 203, 288, 292, 294. 295.
Art. 193. He makes in the name of the law any requi-
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sition lie judges needful : the criminal court shall heohli-. ged to take' official note thereof and to pass upon the said requisitions.-. I. C. 194, 195, 315.
Art. 194. The requisitions of the prosecuting attorney shall be signed by him ; those which he makes in the course of a trial shall he retained by the clerk in the record, they shall be signed by the Prosecuting Attorney.
All decisions made in consequence of these requisitions shall be signed by the Doyen ot the Criminal court and bv the clerk.I C. *193, 195, 261, 304.
Art. 195. When the criminal court shall not defer to the requisitions of the Prosecuting Attorney the examination nor the judgment, shall not be arrested or suspended ; but after the judgment, if there be cause, the Prosecuting Attorney may appeal in Cassation -- I. C. 193, 194, 203, 313 and fob* 321 and fol.
Art, 196. All officers of the judicial police except, the juges d'Instruction are under the supervision of the Coni-mis.-aire du Gouvernement.
All those who in accordance with article 9 of the present code, are, by reason of their functions, even those administrsiive, called by law to perform acts pertaining to the judicial police are because of this fact alone, under the same supervision. I. C. 9, 44.
In case of negligence on their pait, the Commissaire du Gouvernement shall give them a first warning, a copy of which shall be kept, in case of repeated offense he shall denounce them to the Secretary of Justice.
There shall be accounted repeated offense when the same functionary shall have repented the same offense before the expiration of a year counting from the date of the previous warning.
In regard to the juge d'Instruction, who is independent of the Commissaire du Gouvernement, the bitter shall be under obligation to report to the Department of Justice all delay and all negligence by the examining magistrate in the expedition of the cases submitted to him.
CHAPTER III. Procedure before the Criminal Court.
Ait. 197 Within twenty-four hours at the latest after the transfer of the accused to the gaol, the Commissaire
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du Gouvernement shall forward all evidence in the case to the Doyen of the Criminal court. I. C. 79, 185.
In case the accused shall have been confined in the gaol from ihe beginning of the examination, this transmission shall take place at least eight days before the opening of the assizes.
The Doyen or one of his substitutes shall examine the accused within twenty-four hours after the reception of the papers in his case.
Art. 198. The accused shall bo asked to declare his choice of counsel to aid in his defense, otherwise the judge shall designate one for him upon the spot, under penalty of nullity of all that which shall follow. This designation shall be null and void and nullity shall not be pronounced if the accused chooses his counsel. I. C. 199, 200, 2(9, 232, 243, 266, 313, 366.
Art. 199. The counsel for the accused may be named by the judge only from among the lawyers of the jurisdiction.
The accused may choose his counsel within the- jurisdic. tion or outside of it ; he may even take for his counsel one of his relatives or friends, with the consent of the Doyen of the criminal court. Er. C. 86.
The counsel for the accused may communicate with him immediately after the ordonnance remanding him for trial.
lie may examine the evidence of the procedure without removing a part of it and without interfering with the examination. The accused himself shall have the same right. Every new piece of evidence shall, before being submitted to the jury, be communicated to the accused and to his counsel-To this end the accused or his counsel may require of the prosecuting attorney or the clerk at the time of examining the documents a certified copy of the documents composing the evidence.
Art. 200. The judge shall notify the accused, moreover, that in case he believes he has cause to make a plea for annulment of the procedings, he should make such a declaration within five days, and that after this delay such declaration shall not be admissible 1. C. 183, 201 and fob, 203 and fob, 313.
The execution of this article and the two preceding shall be verified by a proces-verbal, which shall be signed by
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the accused, the judge and the clerk ; if the accused does not know how or does not wish to sign mention shall be made therein.
Art. 201. It the accused has not been notified in accordance with the preceding article, the nullity shall not be obscured by his silence ; his rights shall be conserved to be urged after the definite judgment.
Art. 202. The Proseeuting Attorney is required to make his declaration within the same delay, from the date of the examination, and under the same penalty of forfeiture asset forth in article 200. I. G. T97. 203'Hnd fol.
Art. 203. The declaration of the accused and the Prosecuting Attorney should set forth the ground* of their plea for annulment.I. C. 184, 200, 202, 313, 321 and fol.
This plea may be formed only against the ordonnance of remandment to the criminal court and in the three following cases :
1. II the fact is not qualified as a crime by the law.
2. If the Prosecuting Attorney has not been heard.
3. If the ordonnance has not been rendered by the number of judges fixed by law.
Art. 204. The declaration should be made to the clerk.
As soon as it shall have been received by the clerk, a copy of the ordonnance shall be forwarded within three days by the Prosecuting Attorney of the Criminal Court to the Prosecuting Attorney at the Court of Cassation, under penalty of fine against the clerk and, if there be cause, of prosecution of the Prosecuting Attorney.
The court of cassation shall be obliged to pass thereon all action suspended. I. C. 172.
Art. 206. Notwithstanding the plea for annulment, the examination shall be continued up to the trial.- I. C. 207.
Art, 206. The counsel may not communicate with the accused until after his examination by the doyen ; he may however examine the pieces of evidence, without removing them or withont impeding the examination.- I. C. 23, 73, 188, 198, 209.
Art. 207. If there be new witnesses to be heard and these live outside of the place where the criminal court is sitting, the doyen of the said court may commission the juge de paix or of onother commune or the Juge dTnstruction of another jurisdiction to receive their depositions, who after having received them shall send them under sealed cover to the clerk ot the criminal court. Pr. C.96"> I. C. 68 to 70, 76, 266, 333.
Art. 208.-- Witnesses who shall not have appeared upo11
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the summons of the Doyen of the criminal court or the judge legally appointed by him and who shall not have proved that they were legally hindered, or who shall refuse to made deposition, shall be tried by the criminal court, and punished in accordance whith article 67.
Art. 209. The counsel for the accused may make or cause to be made at their expense copies of such pieces of evidence as they think necessary for their defense. l.C. 198. 206, 207.
In all cases there shall be delivered to the accused persons whatever their number, only one copy of the proces-verbal reporting the misdemeanor, and the written declaration of the witnesses,- I. C. 32, 73, 250.
The doyen of the criminal court, the judges and the Prosecuting attorney are obliged to see that this article is executed.
Art. 210. If the Prosecuting Attorney or the accused have any reasons for requesting that the case be not brought up at the, firt meeting of the jury, they shall address to the Doyen of the criminal court before the day appointed for the trial of the case a petition asking that the delay be prolonged. This magistrate after hearing the Prosecuting Attorney and the accused shall decide if a longer delay should be granted. He may also prolong the delay ex-officio.-- I. C. 185.
Art. 2ll.-: When, because of the same crime there have been issued indictments against different persons, the prosecuting Attorney may request their trial in joinder and the president of the assizes may so order by virtue of his office. The whole in council of judges, after hearing the counsel for the accused and before the day set for the trial.- I. C. 109. 175. 212.
Art. 212. When the indictment shall contain several crimes not connected with one another, the Prosecuting Attorney may request that for the present the accused be tried for only one or more of the crimes, and the Doyen may so order by virtue of his office, in the council of judges, after hearing the counsel for the accused, and always before the day set for the trial.-- I. C. 109, 110, 193, 333,415 and fob, 423.
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The Jury and the Manner of its Formation.
SECTION 1. The Jury
Art. 213. Every citizen who has readied his twety-fifth year and is in full possession of political rights, with the exception of those incapacited, incompatible,or exempted as hereinafter indicated, shall be obliged to perform the duties of juror. I. C. 11 and fol, 18 and fob, 23. l.C. 185, 214, 241, 244, 273 and fob, 313, 368, 404.
Art. 214.--There are incapacitated as jurors :
1. Individuals who have been condemned to an ignominious penalty.
2. Those who have been condemned to correctional penalties for acts classed as crimes by the law.
3. Those condemned to an emprisonment for three monts at least, except this sentence shall have been pronounced for political offenses.
4. Those condemned to fine or imprisonment, whatever may have been the duration of the imprisonment,- for theft, swindling, breach of trust, abstraction committed by public depositaries, offenses agaisnt morals set forth in articles 278 and 282 of the Code Penal ; vagabondage and mendicity, misdemeanors set forth in article-s 105, 136, 250 to 252, 307 to 312- par 2 of the Code Penal.
6. Those under indictment or in default.
6. Notaries and other public officials dismissed by judicial decision.
7. Lawyers stricken from the rolls of the bar by virtue of definite decision of the disciplinary council.
8. Bankrupts not rehabilitated.
9. Those who have been forbidden the right to serve as jurors by virtue of article 28 of the Code Penal.
10. There arc ineligible as jurors for a period of five years only from the date of the expiration of their sentence those who have been condemned to imprisonment for a term ot less than three months for any offense whatsoever, except political offense? ;
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11. Interdicts and those who have reeeived judicial warning.
12. Hired Servants.
13. Persons unable to read and write.
14. Members of the Communal Council.
15. Members of the school teaching staff'.
The functions of juror are incompatible with those of members of the legislative and judicial bodies, Secretaries of State, Magistrats Cotr.munaux or their suppleants and of agents of the public force.
Art 215. There are exempt from jury duty : septuagenarians day-laborers, heads of public administrations and members of the comptrollers office, if they so request.
Art. 216. A soon as the present dispositions shall go into effect, a coinmision in each commune comoosed of the Magistrat Communal or his subtitute, ot the Juge de Paix and one of the notaries of the commune, designated by the Juge de Paix, shall draw up in alphabeti cal order the general list of the citizens living in the commune for one year at least, eligible for jury duty. This commission shall be presided over by the Juge de Paix.
This list slinll give the name and surname of each citizen, his age, his residence and his profession.
The public officials and all citizens, when required to do so shall he obliged to furnish to the commission all information which may facilitate their work.
This list shall be immediately posted before the principal door of the town hall and the justice court*
This work shall be accomplished within a maximum delay of one month from the date of promulgation of the present law.
Art. 217.- This commission shall, moieover, meet each year from the 1st to the 15 Ih of August for the purpose of making such modifications in the general list as have been rendered necessary by the events of the preceding year.
Art 218. This general 'ist as well as the claims of the interested parties, if there by any, shall be sent, hetween the 15'th and the 31 of August, by the Juge de Paix to the Doyen of the critninial court arid to the Commissaire du Gouvernement of the jurisdiction. Failure to
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forward this list within this beriod shall subject the Juge de Paix to the loss of the 30 th of his salary for each day in retard.
In case of second offense he shall be liable to dismissal.
The Commissaire du Gouvernement, under penalty of suspension and even of dimissal, shall be obliged, upon the expiration of this delay to demand the lists and to denounce those in retard to the Department of Justice with a view to the application of the penalties above mentioned.
Art. 219. -- One month before the opening of each criminal session, the Doyen of the criminal court shall convoke a commission composed of the said doyen, chairman; the Commissaire du Gouvernement, and the Magistrat Communal of the chief town of the jurisdiction.
Art. 220.The duties of the commission shall be :
1. To pass upon the claims of persons inscribed upon the general list ; to inscribe thereon persons who may have been ommitted and to strike off the name of persons who may have been inscribed by mistake.
2. To determine the number of jurors necessary to try the cases that are ready for trial, and to apportion them among the various communes of the jurisdiction in proportion to the number of citizens inscribed upon the various lists. This number may not be less than forty.
3. To draw by lot from each list the number to be fur-' nished by each commune.
A proces-verhal of these operations shall be immediately drawn up.
Art. 221.--The list for the session thus determined the doyen of the criminal court shall forward without delay to the Juge de Paix of each of the communes of the jurisdiction the names of the jurors to be furnished by the said commune, informing hun of the date set for the opening of. the session.
The juge de Paix shall give notice to each of the jurors by registered letter, requiring a notice of reception, to present himself at the seat of the criminal court the day and hour fixed for the opening of the. session. The penalties incurred by failure to obey shall be indicated in the letter of notification. This notification shall be made eight days at least before the opening of the session.
The Juge de Paix shall forward to the Commissaire du Gouvernement the postal receipts duly signed by each juror.
Art. 222.-- The juror who shall have figured in the list of a session and who shall have responded to the convoca-
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tion shall be exempted from participation in subsequent drawings, until the general lists haveheen exhausted. Their names shall be eliminated before the drawing of lots, as they come from the box.
However, those of the jurors who reside in the place where the court of assizes has its seat may always be called upon by the doyen of the criminal court in the case foreseen in article 226.
Art. 223. A copy of the list prepared for each session shall be adressed by the Commissaire du Gouvernement to the Department of Justice He shall add thereto the names of those who, at the preceding session did not respond to the convocation. I. C. 229.
The names of these jurors shall be placed on the list for for the following session without further formality and without drawing of lots.
Art. 224. In addition to the penalties hereinafter provided, no one may be appointed to any office or employ of the administrative or judicial order or maintained in such office is he has refused to perform the duties of juror.-I. C. 213, 228, 229.
Art, 225.No one may sit as juror in a case where he has been agent of the judicial police, witness, interpreter, expert or party to the cause, under penalty of annulment, of the judgment.
Art 226 On the day set for the trial of each ease if there be less than thirty jurors present this number shall be completed by supplementary jurors chosen by lot by the doyen of the criminal court from the general list of the commune where the court has its seat, even from among the jurors who sat in the preceding session. These supplementary jurors shall be obliged to present themselves immediately at the court upon exhibition to them of the original of the order signed by the president, under the same penalties provided in article 229. I. 0. 216,221,224.
This drawing shall take place in the presence of the Commissaire du Gouvernement, the accused and his counsel. Mention thereof shall be made in the record of the trial ; the jurors thus called may sit only in the case for which they have been specially called. This case finished their duties end.
The Manner of Forming and Composing the Jury. Art* 227 Twelve jurors are necessary to form a jury.
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When it appears that any process is likely to bring forth a long trial,the doyen of the criminal court may order, before the choosing ot the jurors, and alter consulting with the Prosecuting Attorne}', that in addition to the twelve jurors,there shall be chosen two or three others who shall be present at the trial. In case one or two of the twelve jurors, be prevented from following the trial until the definite decision of the Jury they shall be replaced by these substitute jurors. The substitute jurors shall be called in the same order in which they were chosen by lot.
Art. 228. The lest of the jurors shall he given by the Commissaire du Gouvernement to each of the accused at least three days before the date fixed for the trial. This notification is null and void if made after this delay.
Within the same delay there shall be given him a citation to appear before the criminal court ; this citation shall state the day and hour at which he is to appear.
On the day appointed, if the accused refuses to appear he shall be summoned in the name ot the law, by a huissier, appointed by the president, to obey the order ot the justice. The huissier shall draw up a proces-verbal of this summons and the response of the accused,
If the accused does not obey the summons, the president may order that the trial proceed notwithstanding the absence of the accused.
In this case, after each hearing, the clerk of the court shall read to the to the accused the minutes of the hearing. The judgment shall be deemed contradictory.
The doyen may cause to be withrawn from the hearing and conducted to prison any accused who,by his clamors or by any other means which may cause disorder, shall put obstacle in the course of justice, and in this case the pnice-dings shall be the same as provided in the preeedioug paragraph and the judgment shell still be deemed contr dictoiy.
Art. 22!1. Any juror who shall not have presented himself at his post upon having received notification, shail be sentenced by the criminal court to a fine of five gourdes for the first inexcusable absence, ten gourdes for the second, twenty gourdes for the third, and so on doubling the fine for each new oflense. He may, moreover becon-demned in accordance with article 7 of the constitution, to the suspension of political rights for six months at least
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and two years at most, without prejudice, if there be cause to the provisions of article 424.
The judgment shall, moreover, be printed and posted at the principal'door or the town hall and the justice court of his residence,
Art. 230, Those who shall prove that it was impossible for them to be present at the day appointed shall be excused.
The court shall pass upon the validity of such excuses.--I. C. 229. 231, C. P. 221 and fol.
Art 23l.~ The penalties provided in article 229, are applicable to any juror who, even having been present at his post shall have retired before the expiration of his duties without valid excuse ; he shall also be tried by the court.-1. C. 229,230.
Art. 232.- Ontheday appointed and for each case the roll of jurors not excused nor exempted shall be called, before the opening of the court, in their presence, in the presence of the accused and in the presence of the Prose- cnting Attorney. I. C. 182, 185, 220. 221, 227 and fol.
The name of each juror answering to his name shall be placed in the urn.
The accused first and then the Commissaire du Gouverne- ment shall challenge Mich jurors as they think necessary as they come from the urn, under the following limitations.
Neither the accused nor the Commissaire du Gouvernement may give the reasons for their challenge.
The jury shall be complete the mutant there shall have come from the urn the names of twelve unchallenged jurors I. C. 226. 233 and fol 241.
Art 233.The challenges which may be made by the accused and the Commisaire du Gouvernement,must cease when there remain but twelve, jurors. I. C. 232, 234, and
If there should arise any incident in the course of the, drawing of lots, the doyen shall stop it. The minutes of the ttial shall mention all of the above ooerations as well as any incidents which may have arisen.
Art. 234. The accused and the Commissaire du Gouf vernement may each have an equal number of challenges; however, if the jurors are in unequal number the accused shall have one more challenge than the Commissaire du Gouvernement. I. C. 232.
Art. 234. If there be several accused they may make
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their challenges in concert, choice by lot shall determine the order in which they shall make their challenges in this case the jurors challenged by one in this order, shall be for all, until the number of challenges, is exhausted.---I. C. 232 and fob,237.
Art. 237. The accused may combine to make one part of the challenges, and make the surplus according to the order fixed by lot.- I. C. 232 and fol.
Art. 238. A proces-verbal shall be drawn up of all the formalities prescribed for the formation of the panel of twelve jurors..
Art. 239 The examination of the accused shall begin immediately after the formation of this panel. I. C. 240,241, 242 and fol.
Art. 240. If through any circumstance, the examination of the accused for the crimes or several of the crimes mentioned in the indictment or indictments be held over until the next session there shall be another list prepared, new challenges and the formation of a new panel of twelve jurors, in accordance with the rules set forth above, under penalty of annullment. I. C. 222, 228, 313.
In this case the criminal court shall pass upon the pleas for temporary liberty which may be presented by the accused.
CHAPTER V. The Examination, the Judgment and its Execution.
Art. 241. Upon the day fixed for the opening of the criminal court, the court having opened, the twelve jurors composing the* panel, shall place themselves in the order determined by lot upon seats separated from the public, the parties, and the witnesses, facing the one who is to be accused. I. C. 182, 185-2, 213, 221, 224 and fob, 239, 242 and fol.
Art. 242.- The accused shall appear free, and accompanied only by guards to prevent his escape.
The doyen of the criminal court shall ask him his name, surname, age, profession, residence and place of birth. I. C. 185 and fob, 243, 287 and fol.
Art. 243. The Doyen of the criminal court shall warn the counsel for the accused that he may say nothing against his conscience or against the respect due to the law, and that he should express himself with decency and modera-
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tion. Pr. C. 957 1. C. 198 and fol., 251,26(3, 267. CP. 322.
Art. 244.The doyen of the criminal court shall address to the jurors, standing and uncovered, the following oath. t. .0. 241, 267, 273-
" You swear and promise, before God and before man, to examine with the most scrupulous attention
" the charges brought against N___________________ .... ;
" to betray neither the interests of the accused, nor those ot society who accuses him ; to communicate with no one until after your declaration ; to listen to neither hatred nor spite, nor fear nor affection ; to decide according to the charges and the means of defense, according to your conscience and your firm conviction, with that impartiality and firmess which becomes a free and upright man." Each of the jurors called individually by the doyen shall respond, holding up his hand, I swear": this under penalty of nullity. I. C. 312.
Art 245. Immediately thereafter, the Doyeri of the criminal court shall warn the accused to attend closely upon what he shaH hear.
lie shall then order the clerk to read the ordonnance remanding the case to the criminal court and the indictment. 1. C. 175
The clerk shall read the.-e in a clear voice. Ait. 246. After this reading, the doyen of the criminal court shall remind the accused of the contents of the indictment and shall say to him; You have heard of what you are accused ; you shall now- hear the charges produced against you."
Art. 247. The Comm-'ssaire du Gouvernement *shall then state the grounds of the accusation; he will then present the list of witnesses who should, be heard, ither at his request, at the request of the plaintiff, or that ot the accused. 1. C. 67, 190, 253, 255.
This list shall be read in a clear voice by the clerk. It may contain onty those witnesses who names, professions and residences shall have been given twenty-four hours before the examination, to the accused by the Commissaire du Gouvernement or the plaintiff, and to the Commissaire du Gouvernement by the accused ; without prejudice to the right accorded to the Doyen of the crimi-
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naV court in article 188.- Pr. C. 78, 954. I C. 13,18.
The accused and the Commissaire du Gouvernement may, in consequence, oppose the hearing of any witness who shall not have been indicated or who shall not have-been clearly designated in the act of notification.
The criminal court shall at once pass upon this opposition.
Art. 248, The doyen of the criminal court sh .1! order the witnesses to retire to the room set aside for them.from which they shall come forth only to testify. The doyen shall take precautions if necessary to prevent the witnesses from conferring among themselves of the offense or of the accused before their testimony.-- I. C. 135 and tol., 163, 249 and fol,, 252, 258, 397-
Art.. 249. The witnesses shall testify separately, one after the other in the order established by the Comtnissni-rc du Gouvernement.
Before testifying, they shall take, under penalty of nullity the oath to "speak without hatred and without fear,to tell the whole truth and nothing but the truth." I. C. 135, 163, 248, 250, 361, 311, 397. C. P. 23, 28.
The doyen of the criminal court shall then ask them their names, surnames, age, profession, domicile or residence,if they knew the accused before the act mentioned in the indictment ; if they are relatives or kinsmen either of the accused or the plaintiff, and in what degree, and shall further ask them if they are in the service of the one or the other.
However, it is lawful for the doyen of the criminal court to invert this order. The dispositions of article 66 of this code are applicable to the criminal courts.
This-done the witnesses shall testify orally.rPr. C.263. l.C. .60' 62, 66, 136, 187, 254."
Art. 250. The Doyen of the criminal court shall cause note to be taken by the clerk, of additions, changes or variations between the testimony of a witness and his pre-vions declarations.
The Commissaire du Gouvernement and the accused may request the Doyen to have note taken of these changes additions and variations. I. C, 2<-9, 260, 312, 303.
Art. 251. After each testimony the Doyen of the criminal shall ask each witness if it is the accused present of whom he was speaking ; he shall then ask the accused
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if he wished to reply to what has been said against him.
The witness may not be interrupted ; the accused or his -counsel may question him by means of the Doyen of the criminal court, after his testimony, and say against him as well as against his testimony, whatever, they think necessary for the defense of the accused.- I. C." 243, 259,266.
The Doyen of the criminal court may also ask of the witness and of the, accused any explanations which he thinks necessary for the manifestation of the truth.
The Commissaire du Gouvernement and the Jurors shall have the same right by requesting speech of the Doyen of the criminal court. The plaintiff may question the witness or the accused only by means of the Doyen of the criminal court
. Art. 252.Each witness after his testimony shall remain in the court room, if the Doyen of the criminal court does not order otherwise, until the jury shall retire to give-its declaration. I. C. 243, -258, 273. '"
Art. 253. After the hearing of the witnesses produced by the Commissaire du Gouvernement and by the plaintiff, the accused shall cause to be heard those, the list of whom he has given, either upon the facts mentioned in the indictment, or to attest that he is a man of honor, probity and irreprqchable, conduct. I. C. 247, 256.
The citations made at the request of the accused shall be at their expense, however, the accused may give to the Doyen three days at least before the trial, the list of witnesses whom he wishes to be heard, and who shall be summoned at the request of the Commissaire du Gouvernement if the. Doyen thinks necessary.
Art. 254, The testimony of the following may not be received.-I. C. 136.- C. P. 23, 28, 323. '
1. The father, the mother, the grand-father, the grandmother, or any other ascendant of the accused or of one of the accused present and submitted to the same trial-;
2. Of the son, the grandson, daughter, grand-daughter,or any other descendant;
3. The sisters and brothers ; '
4. Relatives by marriage, in the same, degree ; 0. 0. -623 and fol. "r c---;.'
5. The spouse, even after divorce or separation.0."'6. 212, 249 and fob.,252 and fob, 277 and fol,, 12 33 and fob
6. Denunciators, whose denunciations are pecuniarily recompensed by law. l.C, 20,355,288. '
Nevertheless, the hearing of the persons above ^mentioned may not not operate for nullity, when the Commissaire
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du Gouvernement, the plaintiff nor the accused have not opposed their being heard.
Art, 255. The denunciators may be heard as witnesses; but the jury shall be warned of their character as denunciators, under penalty of nullity. I. C. 20 and fol 254.
Art. 256. The witnesses produced by the Commissaire du Gouvernement or by the accused shall be heard in the trial even though they shall not have given deposition previously in writing,.or shall not have received subpoena, provided in any case that these witnesses shall be borne upon the list mentioned in article 247. I. C. 59, 249. and fob,253.
Art. 257.- The witnesses, by whatsoever party the may be called, may never question each other.I. C. 251.
Art. 258. The accused may demand, after the wisnes-ses have testified, that those whom he shall indicate shall retire from the court room, and that one or more may be recalled and heard again, either separetely or in the presence of the others 1. C. 248, 252.
The Commissaire du Gouvernement may have the same right-
The Doyen of the criminal court may so order of his own authoriiy.
Art, 259.The Doyen of the criminal court may,before. during or after the hearing of a witness, cause to retire one or more of the accused, and examine them separately upon cartain circumstances of tha case, but he shall have care not to take up the trial again until he shall have com" municated to each of the accused what has passed in his absence, and what has resulted therefrom. I. C. 186.
Art. 260. During the examination, the jurors, the Commissaire du Gouvernement and the judges, may take note of whatever appears important in the testimony of the witnesses, or the defense of the accused provided, that the discussion is not interrupted thereby. l.C. 250,302.
In the course of or the end of the testimony, the Doyen of the criminal court shall cause to be presented to the accused all the pieces of evidence relative to the offense, and which may serve for conviction ; he shall call upon him to answer personnally if he recongnizes them ; the Doyen of the criminal court, shall also cause them to be presented to the witnesses, if need be. I. C. 25,73.
Art. 261. If according to the hearing, the testimony of a witness appears false, the Doyen of the criminal court, upon the requisition of the Commissaire du Gouvernement, the plaintiff, the accused or upon his own
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authority, shall upon the spot cause the witness to be accused ; a proces-verbal of the incident shall be immediately drawn up and the case referred to the Juge d'Instruction.
Art. 262.- In case of the preceding article, the Commissaire du Gouvernement,the plaintrff or the accused may immediately request and the criminal court may order on its own authority the remandment of the case to the next session.
Art. 263.^ In a case where the accused, the witnesses or one ot them shall not speak the same language or the same dialect, the doyen of the criminal court shall by virtue of his authority, and under penalty of nullity, name an interpreter, aged twenty-one years at least, and shall, under the same penalty, cause him to take oath to translate faithfully the speech to be transmitted between those who speak the different languages. 1. C. 26*5.
The accused and the Commissaire du Gouvernement may challenge the interpreter, making knownthe grounds of their challenge Pr. C. 308 and fob, 375 arid fol. I. C. 252 and fol
The coutt shall pass upon the challenges.
The interpreter,, may not, under penalty of nullity,even with the consent ot the accused or the Commissaire du Gouvernement,be taken from among the judges and jurors sitting on the case, nor from among the witnesses. -I. C. 60, 313.
Art. 264. If the accused be deaf and dumb and does not know how to write, the Doyen of the criminal court, by virtue of his office, shall name for his interpreter, the person most accustomed to converse with the accused deaf mute.
It shall be the same in regard to a deaf and dumb witness.
The rest of the provisions of the preceding article shall be executed.
In case the deaf mute can write, the clerk shall write the questions and observations which shall be submitted to him ; they shall then be submitted to the accused or witness, who shall give in writing their responses or declarations. The whole shall be read by the clerk.
Art. 265., The Doyen of the court shall determine which of the accused shall be first submitted to trial,
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commencing with the principal accused, if there be one, I. C. 186, 266.
He shall then cause a separate (rial for each of the other accused.
Art. 266. After the testimony of the witnesses and the observations to which they shall have given rise, the plaintiff or his counsel and the Commissaire du Gouvernement shall be heard and shall develop the grounds of the accusation. f. C. 53, 190. .
The accused and his counsel may reply. I. C. 200, 245.
A reply shall be permitted to the Prosecuting Attorney or the plaintiff, but the accused and his counsel shall always have the last word. I. C. 163.
The Doyen of the criminal court shall then declare the trial ended.
He shall recall to the jurors the duties which they shall have to fulfill and shall put to them questions, as hereinafter stipulated. 1. C. 186, 267.
Art. 267. The questions which result from the indictment shall be put in these terms :
" Is the accused N___________________________ Guilty as au-
thor or complice of having committed such and such a murder, such a theft or such other crime."
" Has the accused committed this crime under the circumstances set forth in the indictment. "
A special question shall be put for each of the aggravating circumtances. There shall be, moreover, stipulated in questions as. to complicity, receiving of stolen goods, and attempts at crimes, the elements, which constitute these crimes.
Art. 268. If there be brought out in the trial one or more aggravating circumstances not mentioned in the indictment the Doyen shall add the following question :
"Has he committed it with such and such circumstances."
He shall take care to specially draw the attention of the accused and his counsel to this new question.
Art. 269. When the facts set forth in the indictment are found modified by the trial, for example, when the one accused of a crime as author shall be recognized as the complice of the crime, or the complice shall be designnted as. the principal author, or the facts shall he badly quali-
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fied by the ordounance, supplementary questions shall be posed to the jury by the Doyen of the Criminal Court following the principal questions resulting fiom the indict ment.
Art. 270.When the accused shall have proposed as excuse a fact admitted as Such by the law, the question tion relative thereto shall be put thus :
' Is such and such a tact true "I. C. 277, 297, 313. C. P. 49, 266 and fob, 271 and fol.
Art. 271., If the accused is less than sixtern years of age, the Doyen of the Criminal Court, under penalty of nullity, shall put the following question :
Has the accused acted with discerment ?
Art. 272. In all criminal matter, even in case of repeated offense, the Doyen, after having put the questions resulting from the indictment and the trial, shall put a special question in these terms :
" Are there extenuating circumstances in favor of the accused."
The Doyen shall deliver the questionins writtens form to the jurors in the person of the foreman of the jury ; he shall give them at the same time, the indictment, the proces-verbaux which reports the crimes and the documents of the proces, except the written declarations of the witnesses. 1. C. 275, 276, 287, 313.
Ho shall cause the accused to retire from the courtroom: Art. 273.- The questions having been put and delivered to the jurors, they shall retire to their room to deliberate.
The foreman ahall be the first juror chosen by lot, or one who shall have been designated by them with consent of this first.
Before beginning their deliberations, the foreman of the jurors shal 1 read to them the instructions followig, which shall also be posted in large characters in the most conspi-cions place in the room.
"The law prescribes that the jurors, question themselves in silence and meditation, and seek in the sincerity of their conscience what impression has been made upon their reason, by the proofs brought against the accused, and his means of defense. The law asks of them this one question, which includes the full extent of their duties. Have you n Firm conviction ? "
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" It is very essential not to lose sight of the fact that the entire deliberation of the jury bears upon the questions submitted to it ; that it is the facts brought out by the trial only that the jurors should bear in mind ; and they fail in their first duty when thinking of the penal laws, they consider the effect upon the accused, which their decision may have. Their mission is not the prosecution and punishment of offenses, they are required only to declare if the accused is or is not guilty of the crime imputed to him. n
Art. 274. The jurors may not leave their room until after having formed their decision.
Entry may not be permitted during their deliberations, for any reason whatsoever, except by the Doyen of the Criminal Court for urgent reasons given in writing. The Doyen himself may not enter unless called by the foreman of the jury and accompagnied by the counsel for the accused, the prosecuting attorney, and the clerk. Mention of such incident shall be made in the record.
The Doyen of the Criminal Court is required to give to the chief of the guard in service, a special order in writing to guard the entrances to the room. This chief shall be named and qualified in the order.
The court may punish the juror infringing this order with a fine of twenty-five gourdes at most. Any other who shall have infringed the order or who shall not have caused it to be executed may be punished with imprisonment for forty-eight hours.I. C. 283.
Art. 275.The jurors shall deliberate upon the fact or facts submitted to them, and then upon each of the circumstances ; the whole in the order of the questions put to them.- I. C. 272, 282.
Art. 276. The foreman of the, Jury shall read successively each of the questions put as in article^ 267, and then vote by secret ballot shall be taken upon the principal fact and the aggravating circumstances as Well as upon the existence of extenuating circumssances.
Art: -277.A secret ballot shall be taken in the same way upon the, questions put in the cases provided in articles 268, 261 and the votes shall be counted by the 12 jurors.
Art. 278.- The decis^ion of the jury against the accused as well as upon the extenuating circumstances is formed by the absolute majority.- The declaration of the 'jury verifies this majority, but the number of votes may not be given. .
Art. 279. The jurors shall then, return to the court
room and'resume tlieii'place.'The Doyen shall ask what has been the result of their deliberations.
The foreman of the jury shall rise and placing his hand on his heart, shall .say;
"Upon my honor and my conscience, before1 God and before man, the declaration of the jury is ; Upon the first question, by absolute majority of votes ; Yes, the fact is true ; or the fact is not true."
"Upon the second question, by absolute majority of votes: Yes, the accused is guilty as author : or the accused is not guilty as author "; and thus on the other questions, if there be any.
Art. 280. The declaration of the jury shall be signed by at least the absolute majority ; the abstention of one juror or of the minority may not invalidate it.
The Doyen of the criminal court shall communicate it to the other judges, shall sign it and cause it to t>e signed by the clerk ; after this signing the jurors may retire.
Art. 281. The declaration of the jury may never be submitted to any appeal.
Nevertheless, if the criminal court considers that the declaration is incomplete, equivocal, contradictory or irregular, it may, by a decision on stated grounds, return, the jurors to their room for further deliberation.
Art: 282. If on'the other hand the criminal court is convinced that the jury in observing the forms has been deceived in the facts, it shall de.cclare bv a decision on stated grounds that they are suspended from further -judg-1 mentand shall remand the case to the following session, to be submitted to a new jury, in which none of the first jurors shall be included.
No one may invoke this measure, the court may order it only by virtue of its authority immediately after the declaration of the jury shall ;have been publicly pronounced, and in case the accused shall have been convicted, never when the accused shall not-have been declared, guilty.
The court-shall be obliged to pronounce ; immediately after the declaration of the second jury even trough it.shall have conformed to that of the first.
Art. 283. The examination and the trial, once begun, the Doyen of the criminal court may not suspend them except during intervals necessary for the repose of the judges, the jurors, the witnesses and the accused.' And once the jury shall have entered its room for deliberation-, it may have no communication with !the outside* until after its declaration shall have been given. I. 0. 274.
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Ait. 284. Wben a witness who has been cited does not appear, the court, upon the motion of the prosecuting attorney, and before the trial shall have been opened by the testimony of the first witness on the list,may remand the case to the next session.
Art. 285. If because, of the non-appearance of a witness, the case is redemanded to the following session, all the costs of the citations, documents and other expenses, having for their object the judgment of the case, shall be at the expense of the witness ; and order of constraint, and even to take him into custody shall be issued against him, upon the motion of the prosecution attorney, by the same judgment which remands the case to the following session.
The dame judgment shall order, moreover that this wit-nes shall be'brought before the court by public force, to be heard.
And nevertheless, in all cases, the witness who shall not appear, or who shall refuse, either to take oath or to give his testimon}' shall be condemned to the penalties prescribed in aiticle 57.
Art. 286. Right of opposition is open against these condemnations, during ten days following the serving of notice to the witness so condemned or to his residence, with one day additionnal for each five leagues ; and the opposition shall be allowed if he prove that he was legitimately prevented, or that the fine pronounced against him should be moderated. Pr. C. 78, 954.
The Judgment and its Execution.
Art. 287. The Doyen of the criminal court shall cause the accused to appear, and the clerk shall read, in his presence, the declaration of the jury. I. C. 288 and fob, 301, 306.
Art. 288. When the accused shall have been declared not guilty, the court shall pronounce that he is acquitted ot the indictment, and shall order thai he be set at liberty if he is not held for other cause-
The court shall then pass npon the damages respectively claimed, after the parties shall have proposed their
exceptions or their defenses and the prosecuting attorney shall have been heard.C.C.939, 1168. I C. 19,21,289-Th c court may, nevertheless, if it judge necessary, remand to a later hearing,- even beyond the session, the examination and judgment of the pleas for damages.
The accused, once acquitted, may obtain damages against his denouncers for calumny. Constituted authorities, may not bethus prosecuted because of information which they were obliged to give concerning infractions, the knowledge of which they acquired in the exercise of their duties, and unless formal demand be made to procecute, if there be cause.-C.C. 939. 1168.- Pr. C. 135, 438.-I. C. 19, 21,289.
The Commissaire du Gouvernement shall be obliged upon the demand of the accused to make known to him his denunciators. ,
Art. 289. The claims for damages formed by the accused against his denunciators or the plaintiff, or by the plaintiff against the accused or the condamned, shall be brought before the the criminal court. C. C. 939, 1168 Pr. C. 135. I C 20 and fol., 53.
The plaintiff shall be obliged to form his plea for dam^ ages before the, judgment : later it shall be inadmissa-ble. 1 C. 292.'
It shall be the sam with the, accused, if he shall have"'" know his denunciators before the judgment. If he shall have known them only after the judgment, he shall make his plea before the court of First Instance-in the ordinary form.
Third parties, who have not been party to the process, hall also address their claims to the court of First Instance.
Art. 290. Any person, legally acquitted, may not again be arrested nor accused, because of the same fact.C.C. 1135, 1136. I. C. 291. 294, 314.
Art. 291. When in the course of a trial, the accused shall have been incriminated upon another faet, either by the evidence or by the testimony of the witnesses, the ; Doyen of the criminal court, after having pronounced him acquitted of the indictment, shall, upon the requisition of the prosecuting attorney, or even ex-officio, order that he be prosecuted for this new fact; in consequence he shall send him, under arrest, if necessary, before the Juge d'Instruction of the jurisdiction for a new-examination I. C. 268, 290, 309.
Art. 292. When the accused shall have been declared guilty the Commissaire du Guvernement shall demand of the court, the application of the law.--- I. C. 142, 293 and fol., 365 and fol.
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The plaintiff shall then present his pleas for damages and restitution. O. 0. 929, 1168. I. C. 53, 289.
Art. 293.The Doyen shall ask of the accused if he has anything to say in his defense. The accused nor his counsel may no longer plead that the fact is false, but only that it is not punishable by the law, or that it does not merit the penalty demanded by the prosecuting attorney, that it does not involve damages toward the plaintiff, or that the damages reclaimed by the plaintiff are greater than he is entitled to. I. G. 198, 292.
Art. 294. The court shall pronounce the absolution of the accused, if the fact for which he if declared guilty is not prohibited by a penal law.-- I. C. 203-1, 291, 316.
Art. 295. If the fact is prohibited, the court shall pronounce the penalty established by the law, even though, according to the trial it be. no longer within the province of the criminal court. I. G. 166, 294, 296, 305 and, fob,
In case of conviction for several crimes or misdemeanors, only the most severe penalty shall be pronounced.
Art. 296. In case of absolution, as in that of acquittal, or condamnation, the court shall pass upon the damages claimed by the plaintiff or the accused, it shall determine them in the same judgment or subsequently, as set forth in the third paragraph of article 288. C. C. 939, 1168. Pr. (J. 135.- I. (J. 112, 143. 145.-C. r\ 39.
The shall also order that the effects taken be returned to their proprietors. I. C. 372.
However, if there has been conviction, this restitution shall not be made, until it shall have been proved by the proprietor that the condemned has allowed to pas the prescribed delay without appeal in cassation, or provided that the case is definitely terminated. 1. C. 305, 812, 314 and fol.
Art 297.- When the accused shall have been declared excusable, the court shall pronounce according to the Code Penal.- Pr. C. 73. 320 and fob I, C. 270. C. P. 49. 266, 271.
Art. 298. The accused or the plaintiff who shall succumb, shall be condemned to costs toward the state and toward the other party. I. C. 170.
Art. 299 The judgment shall be pronounced in a clear voice by the Doyen of the criminal court, in the presence of the public arid of the accused; before pronouncing, the Doyen of the criminal court is required to read the text of the law upon which it is founded. Pr. C. 121. I. C. 143, 168,316.
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The clerk shall write the judgment; he shall insert therein the text of the law applied, under penalty of eighty gourdes fine. I. C. 300.
Art. 300. The record of the judgment shall be signed by the judges who shall have rendered it, under penalty of eighty gourdes fine against the clerk and if there be cause, of prosecution of the clerk and the judges as well. Pr. C. 439and fol., I. C. 64, 144,169, 299, 349.
It shall be signed within twenty-four hours after the pronounciation of the judgment.
Art. 301. After having pronounced the judgment, the Doyen of the criminal court may, according to circumstances, exhort the accused to strength, resignation or to reform his conduct.
He shall advise him of the right to appeal in cassation, and of the term within which the exercise of this right is limited.
Art. 302. The clerk shall draw up a proces verbal of the hearing, for the purpose of verifying that the formalities prescribed have been observed.
No mention shall he made in the proces-verbal of the responses of the accused nor of the contents of the depositions ; this without prejudice to the execution of article 250 concering changes, contradictions and variations in the declarations of the witnesses.
The proces-verbal shall be signed within twenty-four hours after the pronunciation of the judgment, by the Doyen as well as by the clerk.
Failure to make this proces-verbal, will in case of con demnation, involve the nullity of the judgment, this without prejudice to a fine of one hundred gourdes ( G. 100 )at the most, against the clerk.
Art. 3('3.r-The condemned shall have three full days, sifter that on which judgment shall have been pronounced, to declare before the clerk that he will appeal in Cassation. 1. C. 175, 301.
The Commissaire du Gouvernement ma)' within the same delay declare before the clerk that he demands the annulment of the judgment. 1. C. 190.
The plaintiff shall also have the came delay ; but he may appeal only insofar as his civil interests are concerned.I. C, 53 292, 304, 317,324,336.
If the decision relative to the civil interests has hot been comprised in the judgment of the criminal court the
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plaintiff, for his appeal from the judgment which shall regnlate the said interests shall have the ordinary delays provided in the Code de Procedure Civile.
During these three days,and if there has been an appeal in cassation, until the reception of the decision of' the Court of Cassation, there shall be suspension of the judgment'of the criminal court. 1. C. 305 and fol.
The condemned shall have five days to petition for pardon beginning from the date of the expiration ot the delay of his appeal in cassation, and in case appeal has been made, from the date he shall have received notice of the rejection of his appeal.
During this delay and it petition for pardon has been made until the decision of the President of the Republic, the execution of the judgment shall be suspended.
Art. 304. In the cases prescribed in articles 314 and 31() of the present code, the Commissaire du Gouverne-mant or the plaintiff shall have the same delay of-three full days tor appeal.
Art. 305.The condemnation shall be executed within three days following the delays mentioned in the preceding articles if there has been no appeal in cassation or for pardon, on in case of such appeal,'within twenty-four hours after the reseption of the decision'of the Court of Cassation which shall have rejected the appeal or the decision of the President of the Republic upon the appeal for pardon. I. C.292, 306, 308,309.
Art. 306. The sentence shall be executed by order of the Commissaire dii Gouvernement, lie shall have the right to demand for this purpose th assistance of the public force.-- I. (.. 10.14,85,90,190,309.
Nevertheless, no sentence of death may' be executed except upon order of the President of Haiti.
Art. 307. If the condemned wishes to make a declaration it shall be received by one of the judges of the place of execution, assisted by the clerk.
Art. 308. The proces-verbal of execution, shall be, under penalty of twenty-five gourdes fine, drawn up, by the clerk and transcribed by him within twenty-four hours at the bottom of the original' of the judgment. This transcription shall be signed by him ; and he shall make mention of the whole, under the same penalty, on the
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margin of the proces-verba I. This mention shall also be signed, and the transcription shall be accepted proof,even as the proces-vei bai itself. I. C. 300, 302, 305.
Ait. 309. When during the trial which shall have preceded the judgment of conviction, the accused shall have been incriminated either by the evidence or by the testimony of witnesses, for other crimes than those for which he was accused' if the.7e crimes vewly brought out merit a more severe penalty than the first, or if the accused has accomplices under arrest, the court shall order they be prosecuted because of these new facts, in accor dances with the forms prescibed in the present code. I. C. 291.
In these two cases the Commissaire du Gouvernement shall suspend the execution ot the judgment which has pronounced conviction, until the second case shall have been passed upon. 1. C. 305, 343, 347.
Art. 310.All the minutes of the judgments rendered in criminal matter shall be gathered together and deposited at the registry of tha court.
Affairs of which the Criminal Courts Should take cognizance without the assistance of the Jury.
Art. 311., Is repealed by article 19 of the Constitution of 1920 which is as follows :
" Art. 19. The jury is established in criminal matter and for political offenses and these committed by the press".
LAW No. 5.
Upon the manner of Taking Appeal against decisions or judgments.
Nuilities of the Examination and of the Judgment.
Art. 312.The decisions and judgments rendered in last resort in criminal, correctional or p.'lice m iter, as
well as the examination, and the procedure which shall have preceded them may beannuled in the following cases.
SECTION 1. Criminal Matter
Art 313. When the accused shall have suffered a conviction and when in the order of remandment before the criminal court, in the examination and the procedure which shall have taken place before this court, or even in the judgment of conviction there has been violation or ommission of some ot the formalities which the present codes prescribed under penalty of nullity, this ommission or violation shall give rise, upon prosecution by the condemned party or the Prosecuting Attorney, to the annulment of the judgment of condemnation and of that which shall have preceded it, beginning with the earliest null act. 1. C. 320, 325, 374.
It shall be, the same, in case of incompetence as well as when the court shall have ommitted or refused to pass upon one or more of the demands of the accused,or upon one or more of the requisitions of the Prosecution Attorney, tending to make use of it faculty or right accorded by the law, even though the penalty of nullity w:>s not textually attached to the absence of the formality, the execution of which shall have been demanded or requested I. (J. 193, 195,321, 326, 426.
Alt. 314. In case of acquittal of the accu-ed, the annulment of the ordonnance which shall have pronounced acquittal and of that which which shall have preceded it, may not be prosecuted by the Prosecuting Attorney except in the interest of the liw and without jeopardising the party acquitted. I. C. 190, 290, 304, 315, 341.
Art. 315. When the nullity shall como from the tact of the judgment having pronounced a penalty other than that applied by the law to the nature of the crime, the annulment of the judgment may be prosecuted by the firosecuting attorney and the condemned partv as well. 1. C. 190,"295, 313, 315 and fol. 344.
The same action appertains to the Prosecuting Attorney against the judgments, of absolution, mentioned in article,
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294, it the absolution, has been grounded upon the nonexistence of a penal law which however shall have existed.
Ait. 315. When the penalty pronounced shall be the same as that of the law applied to the crime, none may demand the annulment of the judgment, under pretext that there has been errror in citing the text of the law. 1. 0.143. 168, 299, 315, 319.
Art 317. In no case may the plaintiff prosecute for the annulment of an ordonnance of acquittal or a judgment of absolution ; but if the judgments pronounces against him civil condemnations, greater than the demands of the party acquitted or absolved, this disposition of the judgment may be annuled upon the demand of the plaintiff.C. C.939, 1168.-Pr. C 416-3 I. C. 53, 302, 303, 315, 324, 336-
SECTION II. Correctionnal and Police Matter
Art. 318 The ways of annulment set forth in article 312 are, in correctional and police matter, respectively open to the person prosecuted for a misdemeanor or a contravention, to the Prosecuting Attorney, and to the plaintiff if there be one. against all the decisions or judgments rendered in last resort, without distinction between those which shall have pronounced the discharge of the party or his condemnation. Nevertheless, when the discharge of that party has been pronounced none may prevail against him for the violation or ommission of the forms prescribed to assure his defense.- 1. C. 1. 13. 145, 173, 319. 320.
Art. 319.- The, provisions of article 316 are applicable to decisions or judgments in last resort rendered in correctional or police matter.
SECTION III. Provisions common to the two preceding sections.
Art. 320. In case the court of Cassation, a Court-of Appeals, or a Court of First Instance, shall annul an examination, it may order that the costs of the procedure which is to be recommenced, shall at the expense of the
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officer or the Juge d'Instruction, who shall have committed the fault.-I. C. 312.
Nevertheless, the application of the present provision shall take place only for very grave faults.-- C. C. 1168, 1169. Pr. C. 81, 135, 139, 359. I. C. 313.
CHAPTER II. Pleas for Annulment.
Art. 321. Recourse in Cassation against preparatory decisions and examination or judgments in last resort of this nature shall not be open until after the definite decision or judgment, the voluntary execution of such decisions or judgments may not in any case, be proposed as a plea of exception. I. C. 151, 173, 203, 305, 342 and fob, 344, 346, 377, and fob, 384, 410 and fol. 422 and fo]., 425.
This provision does not apply to decisions or judgments rendered as to jurisdiction.
Art. 322. The declaration of appeal shall be made to the clerk by the condemned party, and signed by him and by the clerk, and if the declarant cannot, does not know how or does not wish to sign, the clerk shall make mention of the fact. I. C. 173, 303 and fob, 313. 318. 321.
This declaration may be made in the same form by the counsel for the condemned party or by one possessing his power of attorney, in this last ca?e the power shall remain annexed to the declaration.-- C. C. 1751.- Pr. C. fcC.--I.-C. 158, 199, 396.
It shall be inscrided upon a register kept for this purpose; this register shall be public, and all persons shall have the right to cause extract therefrom delivered to them.
Art- 323. When appeal in cassation against a decision or judgment rendered in last resort in criminal, correctional or police matter shall have been taken by the plaintiff, if there be one or the Prosecuting Attorney, notice of such appeal, in addition to the inscription prescribed in the preceding article, shall be served on the party against whom it shall be directed within three full days. Pr. C. Pr. C 78. 954.- I. C. 13, 53, 190.
W7hen this party shall be confined the document containing the declaration of appeal shall be read to him by the clerk ; he shall sign it, and if he cannot does not know how or does not wish to sign it, the clerk shall make mention thereof.
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When lie shall be at liberty, the appelant in cassation shall serve notice of his appeal by means of a huissier either to the person, or to the domicile chosen by him ; and the delay in this case shall be augmented by one day for each five leagues.- I. G. 18, 59. 83, 227 and fol.
Art. 324,-- The plaintiff who makes appeal in cassation is obliged to attach thereto an authentic copy of the decision or judgment.- I. C. 53, 303, 317, 336.
He is required, under penalty of forfeiture to deposit a fine of fifteen gourdes or the half of that sum if the judgment is rendered in contumacy, or the decision in default I. C. 138. 160, 325 and fol.
Art. 325. The fine may be dispensed with for : 1. those condemned in criminal matter ; 2, public agents foraffairs which directly concern the administration. I. C. 324.
In regard toad other persons, the fine shall be incurred by those who shall fail in their appeal, nevertheless, whosoever shall attach to their appeal a certificate of indigence delivered to them by the juge de paix of their commune and vised by the officer of the administration, shall not be required to deposit the fine. I. C. 203,-1.
Art. 326. Those condemned, even in correctional or police matter, to a penalty involving privation of liberty, shall not be admitted to appeal in cassation if they be not or shall not have been given provisional liberty with or without bail. The evidence of their confinement or their bbertation shall be produced before the court of cassation at the moment the case shall be called, or at the latest, immediately after deliberation thereon shall have been ordered, under penalty of inadmissibility of the appeal.
It will be sufficient for the appelant, in order that his appeal be received, to prove that he has been committed to the gaol of the place where the court of cassation sits ; the gaoler of that place may receive him upon the representation of his request addressed to the Commissaire du Gouvernement of the court and vised by that officer.
Art. 327. The condemned or the plaintiff, either at the time of his declaration, or within ten days after, may deposit at the registry of the court which shall have rendered the decision or judgment thus attacked, a statement containing his grounds for cassation ; the clerk shall give him a receipt therefor and shall send this statement at once to the MagFstrat charged with the prosecution.I. O. 1,53 324,328 and foi.
Art. 328.-- Within the ten days following this declaration, this magistrate, shall send to the Commissaire du
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Gouvernement at the court of cassation the documents of the case and the statements of the parties, if any have been deposited.- I. C. 327, 329.
Within the three days preceding the expiration of this delay the clerk ot the court which shall have rendered the decision or judgment attacked, shall remit the documents of the procedure or copies thereof, accompanied by an inventory to the Prosecuting Attoiney, under penalty of a fine of twenty gourdes, which shall be pronounced by he Court of Cassation. 1. C 330.
Art. 329.r- Within twenty-four hours after the recep-tien of these documents, the Commissaire du Gouvernement at the Court of Cassation, shall forward them to this court, and shall give notice to the Magistrate that this has been done.
Those condemned may also forward directly to the clerk of Cassation their statements, or copies ot the judgment as well as of their appeals in Cassation. L. C. 151,324, 327.
Art. 330. The Court of Cessation in all criminal, Correctional and polices cases, may pass upon the appeal in Cassation at once after the expiration of the delays prescribed in the present chapter, and should pass thereon, within one month, at the latest, counting from the day when ihese delays shall have expired.
Art. 331 When the Court of Cassation shall have annulled a decision or judgment rendered in criminal, correctional or police matter,it shall send the case and the parties thereto before a court of the same jurisdiction as that which shall have rendered the decision or judgment thus annulled.I. C. 141, 146, 148, 151, 173, 318 and fob
It shall send the case and the parties before the judges who should have cognizance thereof, if the decision or judgment shall have been annulled tor incompetence.
Ait.332. When the case shall have been sent before a criminal court,and, there are complices who shall not have been under indictment, this court shall send them before the juge dTnstruction who shall make the examination according to the law. I. G. 109,190,207, 334, 386.
Art. 333. When the decision or judgment shall be annulled because the tact which has brought forth the condemnation is not classed as a misdemeanor by the law,
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if there be a plaintiff, the case shall be sent before a court of the First Instance ; if there be no plaintiff, no remandment shall he made. I. C. 1, 53, 203 1, 290, 294, 324.
Art 334 If the judgment has been annuled for having pronounce a penalty other than that applied by the law to the nature of the crime, the criminal court to whom the case shall be sent shall render ifs judgment upon the declaration already made by the jury. I. C, 190, 280, 313, 315.
If the judgment has been annulled for other cause, there shall be a new trial before the criminal court to which the judgment shall have been sent.I. C* 242,335.
The Court of Cassation shall annul only a part ot the judgment when the nullity vitiates but one or several of its provisions.
Art. 335.-- The accused whose condemnation has been annuled and who should submit to a new trial in the criminal court, shall be taken, under arrest or under execution of an ordonnancs of detention, before the court to which his case has been sent. I. C. 334.
Art. 336. The plaintiff who shall fail in his appaal, either in criminal, correctionnal or police matter, shall be condemned to a fine of fifteen gourdes and costs toward the paity acquitted, absolved or discharged ; the plaintiff shall moreover be condemned toward the state to a fine of fifteen gourdes or seven and one half gourdes if the judgment has been rendered in contumacy of the decision by default.1. C. 1, 53, 112* 285, 303, 317, 324, 337.
Art. 337. When the decision or judgment shall have been annuled, the fine deposited shall be returned without delay, whatsoever be the terms of the decision which shall have passed upon the appeal, and even though it shall have omtnitted to order restitution.-- 1. C- 331, 334, 336.
Art. 338,- When an appeal in Cassation shall have been rejected, the party who shall have made it may no more appeal in cassation against the same decision or judgment, on any pretext or any grounds whatsoever.
Art. 339 The decision which shall have rejected the appeal shall be delivered within three days to the Commissaire du Gouvernement at the Court of Cassation, by a copy signed by the clerk. This copy shall be forwarded to the Secretary of Justice and shall be sent by him to the
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officer charged with the prosecution at the court which shall have rendered the decision or judgment thus attacked. I- C. 305, 306, 319.
Art. 341, When upon the exibition of a formal order given to him by the Secretary of Justice, the Commissaire du Gouvernement at the Court of Cassation shall expose to the Court of Cassation, any judicial acts, decisions or judgments contrary to law, these acts, decisions or judgments may be annulled, and the police officers or judges prosecuted, if there because, in the manner set forth in Chapter III of Law No. 6.- Pr. C. 917-27. I. C. 314.
Art.341.-- When there shall have been rendered by a court of appeals,acriminal,correctionnal or police court,a decision or judgment in last resort, subject to Cassation,and against which none of the parties have appealed within the delays determined,the Commissaire du Gouvernement at the court of Cassation, may upon his own authority, and notwithstanding the expiration of the delay, give notice thereof to the Court of Cassation ; the decision or judgment shall be annulled, without either of the parties being able to oppose its execution.- I. C. 314, 340.
Pleas for Revision.
Art. 342. When an accused shall have been condemned for a crime and another accused shall have also condemned, by another judgment as author of the same crime, if the two judgment do no agree, and are proof of the innocence of one or the other of the persons condemned, the execution of the two judgments shall be suspended, even though the the plea for cassation of one or the other of the judgments shall have been rejected.-I. C. 303, 305, 309 343 and fob. 414, 417.
The Secretary of Justice, either by virtue of his office, or upon the reclamation of the condemned, or, in case of incapacity that of his legal representative ; after his death or his declared absence, that of his spouse, his children, his relatives, his residuary legates, or by residuary title, of those who have received from him the express mission shall charge the Commissaire du Gouvernement at the Court of Cassation to expose the two judgments to this court, which after having verified that the two judgments cannot agree, shall annul the two judgments and remand the accused persons, for trial upon the existing indictments,
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he fore a court other than those which shall have rendered the two judgments. 1. C. 332 and fol.
Art. 343. When after a condemnation for homicide, there shall be, by express order of the Secretary of Justice, addressed to the Court of Cassation, evidence brought forth subsequent to the condemnation, and calculated to give rise to sufficient indications of the existence of the person whose supposed death shall have caused the condemnation this court may temporarily designate a court to recognize the existence and the identity of the person supposed to have been killed, and to verify it by the examination of this person, the testimony of witnesses and by any other means calculated to bring into evidence the fact destructive of the condemnation.Pr. C. 253and fo. I. C. 187. CP. 240, 241.
The execution of the condemnation shall be automatically suspended by the order of the Secretary of Justice, until the Court ot Cassation shall have decided, and, if there be need thereafter, by the preparatory decisron of this court. I, C. 303,305 309, 342, 344, 414.
The court designed by the court of Cassation shall pronounce simply upon the identity or non-identity of the psrson ; after its judgment with its procedure shall have been forwarded to the Court of Cassation, this court may annul the judgment, or even, if necessary, forward the case to a criminal court other than that which shall have first taken cognizance thereof. I. C. 332 and fol.
Art. 344. When alter the condemnation of an accused, one or more of the witnesses who shall have testified against him shall be prosecuted for having given false testimony in the process and if the accusation of false testimony is admitted against them, or even it there be issued against them warrants to arrest, the execution of the judgment shall be suspended, even though the Court of Cassation shall have rejected the appeal of the condemned. I. C. 261,303, 305", 309, 342, 343, 343, 414,417.
If the witnesses are then condemned for false testimony against the acccused or the defendant, the Secretary of Justice, either by virtue of his office, or upon the reclamations of the person condemned by the first judgment, shall charge the Commissaire du Gouvernement at the Court of Cassation to expose this fact to the said court.
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The Court of Cassation, after having verified the declaration of the Jury, upon which the second judgment shall have been rendered shall annul the first judgment, if by this declaration the witness shall be convicted of false testimony against the first condemned ; and, for procedure againsl the accused upon the existing indictment, it shall remand him to a criminal court other than that which shall have rendered the first or second judgment. 1. C. 332 and fol.
If the persons accused of false testimony are acquitted the suspension shall be automatically lifted and the judgment of condemnation shall be executed
Art. 345. The witnesses coudemned for false testimony may not be heard in the new tria1. I. C. 263.
Art. 346. When it shall be necessary to revise a condemnation for the cause set forth in article 342, and if this condemnation shall have been given against a person subsequently dead, the Court of Cassation shall create a trustee to his memory, with whom the examination shall be made and who shall exercise till the rights of the condemned.
If, as a result of the new procedure, the condemnation shall have been found to have been unjustly given, the new judgment shall acquit the memory of the condemned of the accusation brought aliainst him. I. C. 343.
LAW No.. 6. Certain Special Procedures.
CHAPTER I. Forgery.
Art. 34 7. In all process for forgery in writing the document alleged false shall,, as soon .is it shall have been produced, be deposited at the court resistry, signed and initialed on all its pagel y the clerk, who shall draw Up a detailed proces of the material condition of the document, and by the person who shall have deposited it if he can sign, of this mention shall -be' made ; all under penalty of twenty five gourdes fine against the clerk who
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shall have received it without observing this formality.--Pi- C. 194 and fol., 214 and fol.- 1. C. 134, 541 and fol. C. P. 97 and tol.
Art. 348. If the document alleged to be false is tuken-frotn some public depository, the functionary from whom it is taken shall sign and initial it as indicated above, under penalty of a like fine. I. C. 349, 350.
Art. 349. The document shall moreover be signed by the off icer of the judicial police and by the plaintiff or his attorney, if they be present I. C. 1, 19, 53, 159, 199,322.
II shall be also signed and initialed by the accused when he shall have appeared.
If the parties, present, or any one of them cannot or does not wish to sign, the proces-verbal shall so mention.
In case of negligence or ommission, the clerk shall be punished with a fine of twenty gourdes.- I. C. 209, 302, 348,353,361,
Art. 350. -Complaints and denunciations of forgery may always be prosecuted, even when the documents which are the object thereof shall have served as grounds for civil or judicial acts. Hr. C. 215, 238, 241. 251.- I. C. 50.
Art. 351. Every depository, public or private, possessing documents alleged to be false is obliged, under penalty of arrest, to remit them, upon order being giyen by the officer of the prosecutoin, or by the Juge d'Instruction. C. C. 1829.-Pr. C. 133.-. I. C. 44, 348. 349, 353, 355.
This ordonnance and the act of deposit shall serve him as discharge toward all who shall have interest in the document.- I. C. 12, 32 58.
Art. 352. Documents furnished to serve for comparison shall be signed and initialed, as required by the first three articles,of : tlie chapter,for documents alleged to be false, and under the same penalty.- I. C. 347, 348, 349.
Art 353. All public depositories, may be constrained, even by imprisonnement, to furnish documents for comparison which shall be in their possession ,; an order in writing and the act act of deposit shall serve them as dis-, charge toward all who may have interest in these documents.-" Pr. C. 22 and fol.
Art. 354. If it be. necessary to remove an original document, a true copy shall be left with the >depositary.,-which shall be verified upon the original by the Doyen of the Court of First Instance in the jurisdiction where the depositary resides '; the Doven shall draw up a proces-verbal thereof, and if the depositary is a public officer, ,
this copy shall be placed by him in its proper place in his files, and he may deliver copies of the whole or extracts therefrom by making mention of the proces-verbal. C. O. 1102.- Pr. C. 204.
However, if the document form part of a register in such a way that it may not be temporarily removed, the court may by ordering the producing of the register, dispense with the formality set forth in the present article. Pr. C. 246.
Art. 355. Private documents may be also produced for comparison, and may be admitted as such if the. interested parties recognize them.
However, private persons, who even by their avowal, are in possession of such documents, may not be immediately constrained to remit them ; but if, after having been cited before the court charged with with the securing of such documents or passing aoon the refusal of their pos-sesors, they shall succumb, the judgment may order that they shall be so constrained, even by arrest. 0. G. 1829. Pr. C. 78, 133.I. C. 361, 353.
Art. 356. When a witness gives some explanation regarding a document in the case, he shall sign and initial it. and if he cannot sign, the proces-verbal shall make mention thereof. Pr. C. 213, 235, 236. I. C. 67.
If in the course of an examination or a procedure, a document produced is alleged false by one of the parties, he shall call upon the other to declare whether or not he nvans to make use of the document Pr. C,78, 216, 217. I.O. 351, 353.
Art. 357. The document shall be rejected from the case, if the party declare that he does not wish to make use of it, or if within eight days, he has made no declaration ; and it shall be disregarded in the examination and the judgment.
If the party declares that he intends to make use of the document, the examination upon the forgery shall be followed incidentally, before the court charged with with the principal case.I. C. 356,358 and fol.
Art. 358.If the party who has alleged the falsity of the document sustains that he who has produced it is the author or the complice of the forgery, or if it result from the procedure that the author or complice of the forgery is still alive and that the prosecution' is not annuled by limitatiion, the accusation shall be prosecuted in the criminal court in the form above provided. I. C. 347 and fol.
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If the case is in process in the civil courts, there shall be suspension of judgment until decision shall have been rendered upon the forgery.Pr. C. 215 and fol.
if it be question of crimes, misdemeanors or contraventions, the court charged with the case is olliged, after having heard the officer charged with the public prosecution, to decide whether or not there be grounds for suspension. pr. C. 240, 241.
Art* 359. The defendant or the accused may be required to produce or make an example of his writing ; in case of refusal or silence, the proces-verbal shall make mention thereof. Pr. C 207.
Art. 360. If a court finds in the examination of a case, even civil, indications of forgery and of the person who has committed it, the officer charged with the public prosecution, or the Doyen, shall forward the documents to the Commissaire du Gouvernement of the place where the misdemeanor appears to have been committed, or the place where the accused may be taken, and it may even deliver the warrant to conduct. Pr. C. 240. l.C. 30, 44, 77. 349.
Art. 361. When original documents shall have been declared false, in whole or in pari, the court which shall have recognized the falsity shall order that they be restored, stricken out or corrected, and a proces verbal shall be drawn up the whole.
Documents for comparison shall be returned to the archives from which they have been taken, or shall be returned to the persons who shall have produced them ; within a delay of fifteen days from the date of judgment, under penalty of ten gourdes against the clerk. Pr. C. 244, 245.- I. C. 348"to 349, 352.
Art. 362. The rest of the exami-iation upon the forgery shall be made as for other misdemeanors, with the following exception. 1. C 44 and fol.
The do3rens of criminal courts, the prosecuting attorneys, the Juges dTnstruction and the Juges de Paix may continue outside of their jurisdiction to make the necessary visits upon the persons suspected of having fabricated, introduced or distributed false national papers, false cash notes or false bank notes.I. C. 6, 311.CP. 97 and fob, 101 and lol
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This provision shall be equally in force for the crime of false money or counterfeituing of state seals.- C. P. 97 and fol., 101 and fol.
CHAPTER II. Contunacy
Art. 363. When after indictment, it shall not have been possible to sieze the accused or he shad not have presented himself within the ten days following notice at his residence, or when, after having presented himself, or having been captured he shall escape, the Doyen of the Criminal Court or in his absence one of the judges delegated by virtue of article 179, shall render an ordonnance obliging the accused to present himself within a new delay of ten days, otherwise, that he shall be declared outlaw, that he shall be suspended from the exercise of his rights as a citizen, that his property shall be sequestrated during the examination for contumacy, that all action in justice shall be forbidden him during the same time, that procedure shall be instituted against him,and that all persons hall be obliged to indicate the place where he may be found. CP. 11 and fol.
This ordonnnance shall moreover mention the crime and the order to take into custody. I. C. 34, 77, 11Y, 118. 175, 177, 364 and fol.
This order shall be published the following Sunday and posted at the door of the residence of the accused, at that of the justice court, and that of the court room of the court which shall shall have rendered it. I. C. 363,365.
The Commissaire du Gouvernement shall also address this ordonnance to the Administrator of Finances of the residence of the defaulter.
Art. 365.- After a delay of ten days, judgment for contumacy shall be proceeded with.
Art. 366. No counsel nor lawer may preseut himself to defend the accused defaulter. If the accused in absent from the territory of Haiti, or if it is absolutely impossible for him to present himself, his relatives or friends may present bis excuses and plead their legitimacy I. C. 367.
Art. 367.- If the court finds the excuse legitimate it shall order suspension of the judgment of the accused and the sequestration of his property, during a time fixed
with regard to the nature of the excuse and the distance of the place. I. C. 366, 368.
Art. 368. Outside of this case, it shall proceed at once to the reading- of the order of remandment to the criminal court, the proof of notification of the order having for its object the representation of the defaulter, the proces-verbal which verify the publication and the posting thereof. I. C. 175. 363.
After this reading the court, upon the summing up of the Prosecuting Attorney, shall pronounce upon the contumacy.- I. 0. 369.
If the examination does not conform to the law, the court shall declare it null, and shall order that it be recommenced from the earliest illegal act. I. C. 372.
If the examination is regular, the court shall pronounce upon the accusation, and shall pass upon the civil interests; all without the assistance or intervention of jurors.-- G. C. 939, 1168.- Pr. C. 135.- I. G. 1, 53, 289, 374, 404.
Art. 369. If the defaulter is condemned, his property shall be, counting from the execution of the judgment, considered and administered as the property of an absentee; and the account of the sequestrator shall be rendered to whoever is responsible, after the condemnation shall have become irrevocable by the expiration of the delay allowed to clear himself of contumacy.C. C. 28, 29 and fol.,106 and fob, 1728 and fol.-Pr. C. 253 and fob- I. C. 372, 376.
Art. 370. Extracts of the judgments of'condemnation shall be, within three, days after its pronunciation,'under the direction of the Prosecuting Attorney, posted at the doors of the courts and upon the public squares of the places where the crime shall have been committed. C. C. 27.28, 29 and fob- I. C. 305.- C. P. 13.
A like extract shall be forwarded within the same delay to the Administrator of Finances of the residence of the defaulter. I. C. 364.
Art. 371.Appeal in Cassation against the judgment for contumacy is open only to the Prosecuting Attorney and the Plaintiff, insofar as he is concerned. I. C. 1, 53, 393 and fob 313, 321 and fol.
Art. 372. In no case shall the contumacy of one accused suspend or retard the examination in regard to those present accused with him.
The court may order after the judgment of these, the return of the effects deposited as evidence, when they shall be reclaimed by the proprietors or those having right thereto.
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It may also order their return only upon condition that they be produced again if necessary.
This delivery shall he preceded by a proces-verbal of description drawn up by the clerk under penalty of twenty-five gourdes fine.
Art. 373.- During the sequestre, succor may be accorded to the wife, the children, the father and the mother of the accused, if they are in need.
This succor shall be regulated by the administrative authority exception case of recourse of those interested, before the competent court, if occasion arise.
Art. 374. If the accused gives himself up, or if he be arrested before the penalty shall be extinguished by limitation, the jugdment rendered in contumacy and the procedures against him from the order to arrest, or the order to appear shall be quashed, and he shall be preceded against in the ordinary form
If. however the condemnation for contumacy was of a nature to cause privation ot civil rights, and the accused has has not been arrested or has not appeared until after the five years following the day fixed for the execution of such judgment, the judgment shall conserve, for the past, the effects which the privation of civil eights shall have produced in the interval between the expiration of the five years and the day of the appearance ot the accused in justice.
Art. 375.In the case foreseen in the preceding article, if for any reason whatsoever, the witnesses cannot be produced at the trial, their written depositions and the written responses of the other persons accused of the same misdememeanor, shall be read at the hearing ; there shall be the same procedure with any other documents which are judged by the Doyen of the criminal court to be of a nature to throw light upon the misdemeanor and the culprits.
Art. 376. The defaulter who, after having appeared, shall obtain his discharge from the accusation, shall always be condemned to the costs occasionned by his contumacy.
Crimes Committed by Judges Outside of their Functions, and in the Exercise of their Functions. Art. 377. When a juge de paix, a member of a court
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of First Instance, si member of a court ot Appeals or an officer charged with the public prosecution at one of these courts, or an entire court shall be accused of having committed outside of their functions, or in the exercise of their functions, a misdemeanor incurring a penalty, correctional, afflictive or ignominious the officer who shall have received such deounciations and complaints shall be obliged to forward at once copies thereof to the Secretary of Justice, together with copies of the evidence I. C. 152, 389, 379, and fob
Art. 378. The Secretary of Justice shall forward these documents to the Court of Cassation which, if there be cause shall designate the magistrate who shall fulfill the functions of juge dTnstruction and that who shall exercise the function of officer of the judicial police. I. C. 13, 44. 387.
Art. 379. After having heard the witnesses and terminated the examination delegated to him, the Juge dTnstruction shall forward the proces-verbaux and the other documents, under staled cover to the President of the Court of Cassation.
Art. 380. Upon examination of the evidence forwarded by the Secretary of Justice or produced by the par-tics, or on information subsequently procured, the court shall, if Necessary, older the apparance of the accused,and after having heard or duly called him, shall, if there be cause, remand the case before the correctionual or crimi nal court. In this last case, the president of the court shall issued the order to take into custody. I. C. 81,83, 383, 385.
Art. 381. The Secretary ot Justice may, by virtue of his office, give knowledge thereof to the Court of Cassation, which shall proceed in the manner set forth above.
Art. 382. The fact may also be denounced directly to the Court of Cassation by the persons who claim to have been injured ; but only when they shall present demand to institute procedings against the accused or when the denuneiation shall be incident to a case pending in the Court of Cassation.-- Pr. C. 438 and fob
Art. 383. If the fact denounced is of a nature to incur an afflictive or ignominious penalty and the accusation shall be sufficiently estallished, the president of the
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Court of Cassation may, upon the requisition of the Prosecuting Attorney, issue an order for the confinement of the accused, proceeding thereafter, in accordance with the preceding articles. 1. C. 81, 88 .'581.
Art. 384. The president shall at once order the communication of the procedure to the Commissaire du Gouvernement, wdio within five days thereafter shall forward to the Court of Ctissation his statement of charges. T. C. 20, 50, 377, 385.
Art. 385. Whether the statement of charges shall have been preceded by an order for confinement or not, the court in Council Chamber, shall pass thereon, all action suspended meanwhile. I. C. 175, 384.
Art 386. The examination thus made before the Court of Cassation may not be attacked as to form.
It shall bear equally upon the complices of the magistrate or the court under prosecution, even though they exercise no judicial functions.l.C. 109,C. P. 44 and fol.
Art. 387. Moreover, the other provisions of the present code which are not contrary to the forms of procedure prescribed in this chapter shall be observed.
Art, 388. Appeal directed against the judgment of the criminal court to which the case has been remanded, may be brought before the same judges who have passed upon the remandment
Art. 389. When in the examination of a case, and even though there has been no denunciation, the Court of Cassation preceives same infraction of such nature as to cause the criminal prosecution of a court or of a magis-trat, it mav proceed ex-officio as set forth above I. C. 377.
Misdemeanors contrary to the Respect due to Constituted Authorities.
Art. 390.- When at a trial or in any ony other place where a public judicial examination is in course, one or more of the persons present, shall give outward signs of approbation or disapproval or shall cause a disorder in any manner whatsoever, if the first warning shall have no effect, the president shall order that they be arrested and
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conducted to the w-aol ; mention of this order shall be made in the proces-verbal ; and upon exibition thereof the authors of the distribuance shall be received by the gaoler and held for twenty-four hours.-- Pr. C. 15, 16, 17, 94, and .fob I. C. 154. 186, 391 and fol, 395.- C. P. 38.
Art. 391. When such disorders shall have been accompanied by insults or assaults giving rise to the subsequent application of correctional or police penalties, these penalties may be pronounced at the same, session and immediately after the fact shall have been verified ; the simple police penalties may be pronounced without appeal; and those of correctionnal police may be appealed if the condemnation has been given by a court subject to appeal, or by one judge alone.- I. C. 24, 123, 146, and Job, 153.-C. P. 183 and fol.
Art. 392. In case of a crime committed at the audience of a single judge or of a court subject to appeal, the judge or the court, after having caused the arrest of the delinqents and drawn ud a proces-verbal of the facts, shall forward the evidence and the accused before the competent court.- Pr. C. 98.- I. C 19, 22, 30, 395.- G. P. 188.
Art. 393. la regard to assaults which have degenerated into crimes, or all other flagrant crimes committed at a session of the Court of Cassation or a court of Appeals, the court shall proceed with their judgment without raising the session.
It shall hear the witnesses, the delinquent and the counsel he shall have chosen or which shall have been designated for him by the. Doyen ; and after having heard the facts and heard the Prosecuting Attorney, all publicly, it shall apply the penalty by a decision, the grounds of which shall be stated therein.- I. C. 243, 295, 299, 394.
Such condemnation shall be pronounced only by unanimous vote.
Art. 394. In the case set forth in the preceding article, if it be a criminal court, the judgment shall take place with the assistance of the jury present and in the form indicated above.
Art. 395. Officers of the administrative or judicial police, wheu fulfilling publicly acts of their office, shall also exercise the function of police set forth in article 390 and after having caused fhe arrest of the authors of the disorder, they shall draw up a proces-verbal of the infraction and send this proces-verbal, if there be cause, as well as the accused, before the competent jurisdiction I. C. 19, 22, 30, 390.
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The manner in which the Depositions of Certain State' Officials shall be received in Criminal, Correctional' and Police Matter.
Art. 396. The high functionaries of'the state may never-be summoned as witnesses, even for trials in the presence of a jury, unless the President of Haiti, upon the.demand of one of the parties and upon the report of the Secretary of Justice shall have, by special ordonnance, autorised such appearance.- Pr. C. 78. I. C. 18, 58.67, 397 and fol.
Art. 397. The depositions of persons of this quality shall with the exceptions abqve set forth, be drawn up in writing and received by the president of the Court of Appeals or the Doyen or the Court of First Instance, or in case they are prevented, by the judges delegated by them ;. if the persons designated in the preceding article reside or are to be found in the city where the court has its seat; otherwise by the juge de paix of the commune in which they shall have their residence or in which they happen to be. The ordonnance of the president or the Doyen shall indicate the legal cause of their hindrance.
To this end there shall be addressed by the president, the doyen or the Juge d'Instruction charged with the case, to the doyen of the juge de paix above designated, a statement of the facts, demands and questions upon which testimony is required.
This magistrat shall visit the residence of the person in question to receive his deposition, and if necessary he shall pose any other questions in concurrence which may serve to throw more light on the case.
Art. 398. The depositions thus received shall be immediately remitted to the clerk or sent under sealed cover to the clerk of the court or jugde who shall have requested them, and communicated without delay to the officer charged with the public prosecution.- I. C. 71, 207, 405.
In the examination before the jury, they shall be read publicly to the jurors and submitted to trial, under penalty of nullity.- I. C. 242 and fol., 313, 375.
Art. 399. In case the president of Haiti shall have ordered or authorised the appearance of any of the above designated persons before a jury, the ordonnance shall determine the ceremonial to be observed in their regard.--I. C. 396.
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Art. 400. With regard to generals act ually in service, employes on missions, agents accredited by the president ot Haiti to foreign powers, there shall be the following procedure : If the deposition is required by the criminal court or the Juge dT nstruction of the place of their residence or the place where the}' happen to be, they should give it in the ordinary form.
If it be a deposition relative to an affair prosecuted outside of the place where they reside for the exercise of their functions and that where they happen to be and if this deposition is not required before the jury, the president, the doyen or the juge dTnstruction in charge of the case, shall address to that of the place where these functionaries reside because of their functions, a statement of the facts, demands and questions upon which their testimony is required.
If it be question of the testimonay of a resident agent at a foreign government, this statement shall be forwarded to the Secretary of Justice, who shall forward it at once and shall designate the person who shall receive the deposition.
Art. 401. The Doyen or the Juge dTnstruction to whom the statement mentioned in the preceding article shall be addressed shall summon the functionary before him and receive his deposition in writing. Pr. G. 78.
This deposition shall be sent under sealed cover to the clerk of the court or the judge who shall requested it,communicated and read, as set forth in articles 398 and under the same penalties i. C. 71, 207, 313, 379.
Art. 402. If the functionaries of the quality set forth in article 400 are cited to appear as witnesses before a jury assembled outside of the place where they resde for the exercise of their functions, or that where they happen to le, they may be excused therefrom by an ordonnance of the President of Haiti.
In this case they shall give their depositions in writing anil the provisions of articles 400 and 401 shall be observed.
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Recognition of the Identity of Individuals Condemned, Escaped and Retaken.
Art. 403 Recognition of the indentity of an individual condemned, escaped and retaken, shall be made by the court which shall have pronounced his condemnation. I. C. 404, 405.
It shall be the same as to the identity or an individual condemned to banishment, who shall have broken his ban and shall be retaken ; the court in recognizing his identity, shall moreover, apply the penalty provided by the law for his infraction. C. P. 8.
Art. 404. All these judgments are rendered without the assistance of the jury, after the court shall have heard the witnesses callad by the Prosecuting Attorney as well as those of the individual retaken, if he shall have called any.
The trial shall be public, and the individual retaken shall be present under penalty of nullity. Pr. C. 93. I. C, 132, 313.
Art 405.- The Prosecuting Attorney and the individual retaken, may appeal in Cassation in the forms and within the delays determined in the present code, against the judgment rendered upon the prosecution in recognition of identity. I. C. 303 and fol., 313 and fob, 407, 408.
Manner of Proceding in case of the Destruction or Removal of the Documents or the Judgment of a Case.
Art. 406 When as the effect of fire or flood, or any other extraordinary cause, the original of a judgment rendered in criminal or correctional matter and not yet executed, or procedure still unfinished,shall have been destroyed, removed or found missing, and it shall not be possible to restore them, the following procedure shall be followend. I. C. 407, and fob- C. P. 207 and fob, 212 and fol.
Art. 407.If there exists an authentic extract or copy of the judgment, it shall be considered as the original, and in
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consequence placed in the files destined for the conservation of judgments.
To this end. all public officers or all individuals possessing an authentic extract or copy of the judgment, are obliged under penalty of being constrained thereto by impri-sonnement, to deliver it to the registry of the court which shall have rendered it. upon the order given bv the Doyen of the court I. C. 07, 139, 351.
This order shall serve at discharge toward all who have interest in the document.
The possessor of the authentic extract or copy of the original so destroyed, lost or missing, shall have the right, in delivering it to the public archives, to cause to be delivered to him a copy, without cost.- C. C. 119 and fol.
Art. 408 When there shall not exist an authentic extract or copy of the judgment, if the declaration of the jury still exists in the original or in authentic copy, they shall proceed, in accordance with the declaration, to a new judgment.- I. C ,409.
Art. 409. When the declaration of the jury can -not be presented, or when the case shall have been judged without jury, and there shall remain no written record thereof, the examination shall be recommenced, from the point where the documents are found missing, either in the original or in authentic extract or copy.I. C. 313, 408.
LAW No. 7.
Determination of the Jurisdiction of Judges and Transfer from one Court to Anothef
Determination of Jurisdiction.
Art. 410. All demands for the determination of the jurisdiction of judges, shall be examined and judged summarily and upon simple memorandum. Pr. C. 362 and fobI. C. 413 and fol.
Art. 411. The Court of Cassation shall be required to determine the jurisdiction of judges in criminal, correctional or police matter when courts of Juges d'Instruction, not depending the one upon the other shall be charged with the cognizance of the same misdemeanors, of correlated
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misdemeanor, or of the same contravention. I. C. 109, 110, 212, 332, 423.
The Court of Cassation shall also be required to determine, jurisdiction when a Gendarmeeie court martial or any other special court, for one part, and a criminal court, a court of Appeals, a court of First Instance, a police court or a Juge d'Instruction, for the other part,shall be charged with the cognizance of the same misdemeanor, of correlated misdemeanors or of the same contravention.I. C. 414 and fol.
Art. 412.--Upon viewing the request and the evidence, the Court of Cassation shall order that the whole shall be communicated to the parties, or shall pass upon it definitely, except there be opposition. Pr. C. 78. I. C. 428 and fol.
Art. 413. In case the communication shall be ordered upon the conflicting apoeals of the defendant, the accused or of the plaintiff, the decision shall enjoin both officers of the prosecution before the authorities concurrently charged with the case to transmit the'documents of the proces and their opinions and the basis for such opinions upon the conflict.--1. C. 1, 53, 414, 416.
When the communication shall be, Ordered upon the appeal of one of these officers, the decision shall order the other to transmit the evidence and his opinions upon the conflict. I. C. 416.
Art. 414. The decision ordering communication shall give a summary of the acts which give rise to the conflict and shall fix, according to the distance of the places, the delay in which the evidence and the opinions shall be brought to the court registry.
Serving of notice of this decision upon the parties, shall automatically involve suspension of the judgment of the process ; and in crimiual matter, of the indictement, or, if it has already been pronounced' of the formation of the jury, or of the the trial, but not of conservatory acts or procedure nor of the examination. Pr. C. 78, 363, 364.
The defendant, the accused and the plaintiff [may present their gounds upon the conflict in the form provided in Chapter II of Law No. 5, for appeal in Cassation.- I. C. 1, 53, 415, 433.
Art. 415. When upon a simple demand,, there shall have intervened a decision which shall have passed upon the demand for determination of jurisdiction, notice of this decision shall he given by the Commissaire du Gou-
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veniement of the C mrt of Cassation to the officer of the prosecution of the court or magistrate dispossessed.
Notification shall be also made to the defendant, the aceused and the plaintlff.if there be one.I. C.413,421,431.
Art. 416.- The defendant or the accused and the plaintiff may form opposition to the decision within three days, and in the form provided by Chapter II of Law No. 5, lor appeal "in Cassation.- L C. 1, 53, 413, 414, 420, 424, 432.
Art. 417 The opposition set forth in the preceding article shall automatically cause suspension of the judgment of the case as stated in article 414. *
Art. 418. The defendant not yet arrested or the accused who has not been confined to the house of justice, and the plaintiff may not be allowed the benefij of opposition, if they have not previously, or within the delay fixed by article 414, selected residence at the place where one of the authorities in conflict is seated.C. C 98.
In default of such selection, they may not, moreover, plead exception, in that no communication has been made to them, the prosecution being exempt therefrom in their regard. I. C. 55 78 98, 161.
Art. 419. The Court of Cassation in deciding such cases shall pass upon all the acts which may have been done by the court or magistrat from whose jurisdiction the case has been removed. 1. C, 312, 414,424.
Art. .420.The decision rendered upon such conflicts may not be attached by means of opposition, when they shall have been preceded by a decision ordering communication and duly executed. 1. C. 414, 421.
Art. 421. The decision rendered after an order of communication or upon an opposition, shall be served upon the same parties and in the same form as the decision which shall have preceded it. P.t. C. 78. i. C. 415.
Art. 422. When the defendant or the accused, the officer charged with the prosecution, or the plaintiff shall have offered exception as to the competence of a court of First Instance or of a Juge dTnstruction or proposed a declinatory plea ; be the exception admitted or rejected, none may have recourse to the Court of Cassation tor determination of jurisdiction though petition may be made to the court of Appeals against the decision of
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the court ot the First Instance or a Judge dTnstruction, or appeal may be made in Cassation against the decision rendered bv the Court of Apeals Fr. C. 171.- I. C. 313.
Art. 423. When two judges dTnstruction or two courts of First Instance esta! lished within the jurisdiction of the same court of Appeals, have cognizance of the same offense or of correlated offenses, the jurisdiction shall be determined by this court, following the forms provided in this chapter. There may, however, be recourse, if there be cause, to the Court of Cassation.
When two police courts shall have cognizance of the same offense or of correlated offenses the determination of jurisdiction shall be made by the court of First instance in whose jurisdiction the two courts are, and if they are within the jurisdiction of different courts subject to the same court of Appeals, determination shall be made by the is eourt, except that appeal may be made to the Court of Cassation, if there be cause.
Art. 424. The plaintiff, the defendant or the accused who shall succumb in the demand for the determination of jurisdiction which he shall have instituted, may be condemned to a fine which shall not exceed the sum of one hundred and twenty gourdes, the half of which shall be for the other party.Pr. C. 366.-1. C. 1, 53, 413, 414,416.
Transfer from one Court to Another.
Art 425.In criminal correctional or Police matter, the Court of Cassation may, upon the demand of the Commissaire du Gouvernement at this court, transfer a case from one court of Appeals, criminal court, correctional court or police court to another court of the same competence, or from one Juge d'instruotion to another Juge dTnstruction for reasons ot public safety or legitimate suspicion.
This transfer may also be ordered upon the,demand of the parties interested, but on]y upon grounds of legitimate suspicion.- Pr. C. 367 and fol.-I. C. 426 and fol.
Art. 426.- The interested party who shall have pro-
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ceeded voluntarily before a court or a Juge d'Instruction shall not be admitted to request transfer except for reason of circumstances which have subsequently arisen, when they shall be of such nature as to give rise to legitimate suspicion.- Pr. C. 368. 369.- I. C. 183, 427.
Art 427. Officers charged with the prosecution may immediately appeal to the Court of Cassation to demand the transfer of a case on grounds of legitimate suspicion ; but when the demands for transfer is made for reasons of pnblio safety, they shall be obliged to address their claim, their grounds and the supporting evidence to the Secretary of Justice, who if there be reason, will, forward them to the Court of Cassation.
Art. 428. Upon seeing the request and the evidence, tha Court of Cassation shall decide thereon definitely, unless there be opposition, or shall order that communication be made of the whole I. C. 414 and fob
Art. 429.- When transfer shall have been demanded by the defendant, the accused or the plaintiff, and the Court of Cassation judges necessary to neither receive nof reject the demand at once, the decision shall order its communication to the officer charged with the proseeution before the court or juge d'Instruction charged with cognizance of the misdemeanor and shall enjoin this officer to forward the evidence with his opinions and the grounds therefor upon the demand for transfer. The decision shall order, if necessary that communication shall be made to the other party, I. C. 1, 53, 413, 430.
Art.430.When the demand for transfer shall have been made by the officer charged with the prosecution, and the Court of Cassation shall not pass definitely thereon it shall order, if there he cause, that communication be made to the parties, or it shall pronounce such other preparatory dispositions as it shall judge necessary.
Art, 431. Every decision which, in view of the request and the evidence, shall have definitely passed upon a demand for transfer, shall, under the direction of the Commissaire du Gouvernement at the Court of Cassation, and by intermediary of the Secretary of Justice, be notified to the Officer of the prosecution before the court or Juge d'Instruction dispossessed, or to the plaintiff, the defendant or the accused in person or at their chosen residences. Pr. C. 78.--1. C. 415.
Art. 432 Opposition shall not be admitted, if it be not formed in accordance with the rules and
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within the.delays fixed in the first chapter of the present law.-- I, C. 416. and fol.
Art. 433.-- Opposition admitted involves automatically the suspension of the judgment of the process, as set forth in the first chapter of the present law. I. C. 414 and fol.
Art. 434.- Articles 410, 413, second par., 414, 417, 418, 419, 420, 421 and 422 are common to demands for transfer from one court to another.
Art. 435. -- The decision which shall have rejected a demand for transfer shall not exclude a new demand for transfer, founded upon facts subsequently disclosed. I. C. 425, 426.
LAW No. 8.
Upon Objects of Public Interest and General Surety.
General Depository of Notices of Judgment.
Art. 436. The clerks cf the courts of First Instance are required, under the surveillance of the Commissaire du Gouvernement, to consign, in alphabetic order, in a special register, the names, surnames, professsions, ages, and residences, of all the individuals condemned to a correctional imprisonment or a more severe penalty ; this register shall contain a summary notice of each affair and of the condemnation, under penalty of a fine of ten gourdes for each ommission.
Art. 437. Every three months, the clerks shall forward under penalty of twenty gourdes fine, a copy of these registers to the Secretary of Justice and the Secretary of the Interior, who shall have kept in the same form, a general register composed of these various copies.
Prisons, Houses of Arrest and of Justice.
Art. 438.-- Independently of the houses established for penalty, there shall be in each Arrondissement where there is a court of First Instance a house of Arrest and of Justice for the detention of accused persons and those against whom warrants for detention have been given.
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The. houses of arrest and of justice shall he entirely district from prisons established for penalties.
The Commissaire du Gouvernement shall verify that these different house are not only secure, 1 ut clean, and such that the health of the prisoners shall not. be in any way altered. i. C. 443, 446.
Art. 439. The guardians of the'houses of arrest and of justice and of the prisons shall lie obliged to keep a register.
This register shall be signed and initialed on all its pages, by the Juge d'f nsstruction and the Doyen of the court of First Instance, for the houses of arrest and of justice, and by the Commissaire du Gouvernement of the Court of First Instance tor the prisons.l.C.438,440,448.
Art. 440, Every4executor of a warrant to arrest, order of detention decision or judgment of condemnation, is obliged before delivering to the guardian, the person in his charge, to cause to be inscribed upon the register the document of which he is the bearer ; the receipt for delivery shall be written before him. 1 C. 116, 1 17, 141. 164. 168, 299, 441.
The whole shall lie signed hv him as well as by the guadian
The guardian shall deliver him a copy signed by him for his discharge.
Art. 441. No guardian may, under penalty ot being prosecuted and punished as guilty of arbitrary detention, receive or detain any person, except, by virtue, of an order to confine, a warrant to arrest, an order of remandment before a criminal court, a decree of accusation, or a judgment of condemnation to an afflictive penalty or to imprisonment, and without transcription having been made on his register. I. C. 80, 81, 116, 141, 164, 168, 299, 440,^448. CP, 7, 26,89, 91, 289.
Art. 442. The above mentioned register shall contain also, on the margin of the certificate of delivery, the date on which the prisoner leaves the prison, as well as the order or judgment in virtue of which it has been done. I. C. 440,441.
Art. 443. The Juge de Paix is required to visit at leart once each month, the persons detained in the house of arrest in his commune : and the Doyen of the court,
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the judge d'Instruction and the Commissaire du (rouverne-ment or his substitute, at least once each month, all houses of detention containing persons accused or condemned, in the city where the court of First Instance is located. I. C. 44, 185, 439.
Art. 444. The magistrates designated in the preceding article shall see that the nourishment of the prisoners is sufficient and healthy, I. C. 9, 438. 446.
The Juge dTnstruction and the Doyen of fhe Criminal ccurt, may give all orders which should be executed in the houses of arrest or of justice, which they think necessary for the examination or the judgment. I. C. 44, 185.
Art.'445. If a prisoner uses menaces, insults or violence toward the guardian or one of his supervisors, or toward the other prisoners, he shall be, upon orders of the one responsible for him, confined more closely, confined in solitary, even put in irons, in case of fury or grave vionlence, without predjudice to prosecution to which he may have given cause. I. C. 448 C. P. 170 and fol.
Means to Assure Individual Liberty Against Illegal Detention or Other Arbitrary Acts.
Art. 446.- Whosoever shall knowledge that an individual is detained in a place which has not been destined to serve as a house of arrest, of justice or a prison, is obliged to give notice thereof to the Juge de Paix, to the Prosecution Attorney or to the Juge d'Instruction. Pr.C. 688. I. C. 438 and fob, 447 and fol.
Art. 447.-- Every Juge de Paix. every officer charged with public prosecution, every Juge dTnstruction, is required by virtue of his office, or upon notice which he shall have received, under penaltv of being prosecuted as accomplice to arbitrary detention, to visit, as soon as possible, and to cause to be set at liberty, the person detained, or, if there be alleged some legal cause for detention, to cause him to be conducted at once before the competent magistrate.- I. C. 446.- C. P. 88, 90.
He shall draw up a proces-verbal of the whole.
If it be necessary he shall render an ordonnance in the form prescribed by article 81 of the present code.
In case of resistance he may cause himself to be assisted
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by the force necssary ; and every person so requested is obliged to assist him.-- I. G. 80, 90.
Art. 448. Any guardian who shall have refused to show to the bearer of an order of the magistrate having Surveillance over the houses of arrest, of justice, or of prisons, the person detained, upon requisition being made therefor, or to show the order forbidding him to do so, or to exhibit to the Juge de Paix his registers, or to allow the copying of any part of his registers which this officer shall think necessary shall be prosecuted as guilty of arbitrary detention.- 1.0.439.441.-0, P, 89.
CHAPTER IV. Rehabilitation of Condemned Persons.
Art. 449. Any one condemned to an afflictive or ignominious penalty or to a correctional penalty and who shall have suffered such penalty may be rehabililated.-Demand for rehabilitation may not be made by persons condemned to hard labor or solitary confinement until five years after the expiation of such penalty. C. Com. 596.-I. 0. 456, 458.- C P. 7.
The delay is reduced to three years for those condemned to a. correctional penalty.
Art. 450. None may demand his rehabilitation if he has not lived for five years in the jurisdiction of the Court of First Instance which should take cognizance of his demand, if he has not resided for two years in the same commune and if he does not attach to his demand attestations of good conduct which shall have been delivered to him by the Juges de Paix of all the Communes in which he shall have resided during the time which shall have preceded his demand. C. C. 91.
The attestations of good conduct may not delivered to him until the moment he quits his abode, or residence. They should be approved by the Commissaire du Gouvernement. I. C. 451.
Art. 451. The plea for rehabilitation, the attestations required by the preceding article and a copy of the judgment of condemnation shall be deposited with the registry of the Court of First Instance in whose jurisdiction the condemned person resides. I. C. 450, 459.
452.. 452. The request and accompaning documents shall be communicated to the Commissaire du Gouverne-
merit, who shall give his conclusions and the grounds therefor in writing. I. G. 190, 451. 455.
Art 453. The court and proceeuting attorney may at any stage of the case, order new information, except there result therefrom a delay of six months. I. O. 452.455, 456.
The comdemned person, except in case of prescription,' should prove the payment of costs, fines and damages or that these have been remitted. In default of such proof, he should establish the fact that he has undergone the imprisonment determined by the law, or that the injured party has renounced this form of execution.
If he be condemned for fraudulent bankruptcy, he should prove the payment of the liabilities of failure, in principal, interests and costs, or that these have been remitted to him. Nevertheless, if the applicant prove that he is not able to pay the costs of justice, the court may accord him his rehabilitation, even though the said costs shall not have been paid or paid only in part. In case of condemnation co-jointly the court shall fix that part of the cost of justice the damages and the liabilities which should be paid by the applicant.
Art. 454. Notice of the plea for rehabilitation shall be posted at the principal door of the Justice Court of the place where the condemnation shall have been pronounced. It shall moreover, be inserted in the Official Journal.
Art. 455. The court, after hearing the Procecuting Attorney, shall give its opinion. This opinion may not be given until three months at least after the presentation of the plea. I. C. 452, 456, 467.
Art. 456. If the court is of the opinion that the plea may not be allowed, the condemned may present a new plea after a new interval of two years.
If the court thinks that the plea may be allowed it shall pronounce the rehabilitation of the condemned person. The judgment shall be forwarded to the Commissaire du Gouvernement and to the Secretary of Justice.
Art. 457. If reabilifation be pronounced a certified copy thereof shall be forwarded to the couit which shall have pronounced the condemnation and the executive portion of the judgment of condemnation, this under direction of the Commissaire du Gouvernement. I. C. 399.
Art. 458. lieabilitation eflaces the condemnation and causes to cease for the future all disqualifications resulting therefrom. C P. 7. 8. 23. 24.
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Art. 459. A poison condemned for repeted offense may never be admissible to rehabilitation.
Individuals who, atter having obtained rehabilitation, shall have incurred a new condemnation and those who, condemned by contiadictory judgment or by contumacy to an afflictive of ignominious penalty, have obtained exemption from their penalties by the statute of 'imitation, shall not be admissible to the benefits of rehabilitation until after a delay of ten years from the date of their liberation orthe date of the limitation.
CHAPTER V. Prescription.
Art. 460 Penalties inflicted by judgments rendered in criminal matter are extinguished by limitation in fifteen complete years, form the date of the judgment. -C. C. 33 1897.-I. C. 299,375,461 and fob C. P. 6 and fol.
The condemned person may not, howeover, reside in the arrondissement, where lives the person against whom or againts whose property the crime has been committed, nor his direct heirs.
The Government may assign to the condemned a place of residence. C. C. 91.
Art. 461. Penalties inflicted by decisions or judgments in correctional matter are extinguished by limitation in five years complete from the date of the decision or judgment.-I. C. 164, 166, 463, 467.- O P. 69.
Art. 462.- Public and Civila ction resulting from a crime of the nat ure to inflict the penalty of death or afflictive or ignominious penalties are extinguished by limitation after ten years complete from the day the crime was committed, if in this interval, there has been made no act of examination or prosecution.I. C. 2. C. P. 7, 8.
if there has been done, in this interval, acts ot examination or prosecution not followed by judgment, the public and civil actions are not extinguished by limita-tation until after ten years complete from the date of the last act, even in regard to persons who shall not have been implicated in this act of examination or prosecution. C. C. 2012. Pr. C. 240. 1. C. 460, 463, 466, 467.
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Art. 463. In the two cases set forth in the preceding article, and following the distinctions as to time established therein, the time of limitation shall be reduced to three complete years, in case of a misdemeanor of a nature to be punished correctionally. 1, C. 153, 461, 466, 467.
Art. 464u The penalties inflicted by judgments rendered for police offenses, shall be extinguished by limitation after two complete years as follows : for penalties pronounced by judgments in last resort, counting from the date of the judgment ; and in regard to penalties pronounced by judgments susceptible to appeal, counting from the date when they may no longer be appealed. I. C. 121, 142,148, 150, 465, 466, 467.
Art. 465 Public and civil action for police offenses, shall be extinguished by limitation after one complete year, from the day the offense was committed, even though there shall have been proces-verbal, seizure, examination and prosecution, if, in such interval, there has not intervened any condemnation. If there has been a definite judgment of a nature to be attacked by appeal, the public and civil actions shall be extinguished by limitation after one complete year from the notification of appeal which shall have been taken. l.C. 122, 464, 466, 467.
Art. 466. In no case may those condemned by default or by contumacy whose penalty has been extinguished by limitation, be allowed to present plea to clear themselves of the default or contumacy. C. C 34. I. C. 128, 160, 374.
Art. 467. Civil condemnations inflicted by decisions or judgments rendered in criminal, correctional or police matter and become, irrevocable, shall be extinguished by limitation in accordance wih the rules established by the Code Civil.C.C. 939, 1168,2030.-1.C. 1, 53, 460, 464.
LAW No. 1. General Dispositions.
Art. 1. That infraction which the laws punish with police penalties is a contravention. C. C. 5. I. C. 1, 11, 122, 133, 464 and fol O- h*. 4. 383 and fol.
The infraction which the laws punish by a correction al penalty is a misdemeanor.- C. C. 1095, 1133. 1168 and fol., 1812. I. C. 1 to 4, 153 and fob. 463 465fob,C. P. 3, 4, 9. 26 and fob. 41. 42 and fol.
The infraction which the laws punish with an afflictive or ignominious penalty is a crime G. P. 2, 4, 6. 7, 42 and sob. 40 and fol.. 44 and fol., 57 and fol.
Art. 2. Any attempt at crime which shall have been manifested by outward acts and followed by a commencement of execntiou, if it has not been suspended or has not failed of its effect only by chance or circumstance independent of the will of the author, is considered as a crime and shall be punished by solitary confinement, of which the duration shall be proportioned to the gravity of the case. C. P. 1, 74, 20, 58.
Art. 3. Attempts at misdemeanors are not considered as misdemeanors exepts in caes determined by a special disposition of the law. C. P. 29, 34, 140, 337.
Art. 4. No conf ravention, no misdemeauor. nor no crime may be punished with a penalty which was not pronounced by the law before it had een committed.- G. G. 2. C, P. 1, 7, 8, 26, 382, 383.
Art. 5. The dispositions of the present code do not apply to military contraventions, misdemeanors or crimes. C. P. 40. Censt. 119,
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LAW No 2.
Penalties in Criminal and Correctional Matter and their Effects.
Art. 6. The penalties in criminal matter are at once afflictive and ignominious or only afflictive, C. P. 1, 2, 4, 7, 8.
Art. 7.The penalties at once afflictive and ignominious are.-- C. P. 10, 17, 18.
1. -- Death.- C. P. 12, 13, 14, 22, 25.
2. Hard labor for life. C. P. 15, 16, 18, 25, 53 and
3. Hard Labor.- C. P. 15, 16, 19, 25, 33, 53,54.
4. Imprisonment- C. P. 17, 25, 33.
5. Solitary confinement within a prison.C P. 17,25,33. Art. 8. The penalties onlv ignominious are.--C. P. 10. 1 -- Banishment, C. P. 41.
2. Civic degradation.- C. P. 22, 23 25.
3. Placing for life under the special surveillance of the
high police of the state. C. P. 31 and fol. Art. 9.The penalties in correctional matter are. C. P. 1, 3, 4, 10, 36 and fol.
1. Imprisonment in a place of correction. C. P. 26 and
fol. 41 and fol.
2. The suspension of certain political, civil and family
rights.- C. P. 28
3. Dismissal from office.- C. P. 30.
4. Placing for a stated time under the surveillance of
the high police of the state.- O. P. 24, 31, and fol. Art. 10. Fine and special confiscation, be it of the Corps du Delit", when the property belongs to the condemned, the things produeed by the misdemeanor, or those which have served or have been destined to serve to commit the misdemeanor, are penalties common alike to criminal and correctional matters I. C 153 and fob, 174 and fob, 185 and fol.. 190., and fol.- C. P. 36, 37 and fob, 466, 470.
Art. 11. Condemnation to penalties established by the law is always pronounced without prejudice to restitution or damages which may be due the injured parties.C. C. 939, 1168.- I. C. 1, 53.- C. P. 10, 35 and fol.
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CHAPTER I. Penalties in Criminal Matter.
Art. 12. Any one condemned to death shall be shot. C. P. 7, 12, 13. 14, 25.
Art. 13. The execution shall take place upon one of the public places which shall be designated in the ordonnance of condemnation.
The bodies of the exeeuted shall be delivered to their families, should they reclaim them, with the charge that they shall cause them to be buried without display.
Art. 14. If a woman, condemned to death declare, and it be verified that she is pregnant, she shall not suffer such penalty until forty days after her delivrance.- C. P. 12,16.
Art. 15.Men condemned to hard labor shall be employed upon public works. C. P. 7-2-3-, 16 to 19, 53 and fol.
Art. 16.-- Women and girls condemned to hard "labor shall not be so employed except within the prison. C. P. 14, 15, 33, 40. 53.
Art. 17. Condemnation to life penalties, at the same time afflictive and ignominious, carry the loss of civil and political rights from the day fixed for the execution. C.C. 18 and fol C. P. 7, 15. 53, Const. 7.
Art. 18. Condemnation to temporary penalties, afflictive or ignominious, carry the suspension of civil and political rights during the duration of the penalty. C. C. 25,26. C. P. 19.
There shall be allowed to the condemned a trustee named in that form provided for the nomination of trustees named to interdicts.-C. C. 410,418. Proc. Civ. 783. and fobCP. 19.
Art. 19. Condemation to the penalty of hard labor shall be pronounced for three years at least and fifteen years at most.- C. P. 7-3, 15, 16, 18,21, 24, 53, 54.
Art. 20. Any individual of either sex condemned to the penalty of solitary oonfinement, shall be employed in a prison at a work the product of which may be applied in part to his own profit as it shall be regulated by the government.-C. P. 7-4.
The duration of this penalty shall be for three years at-least and nine years at most. C. P. 21, 23 and fob, 25, 33, 40, 52, 54, 159.
Art.-- 21. The duration of all penalties shall count from