636 THE AMERICAN JOURNAL OF SOCIOLOGY
bill has been introduced providing for the imprisonment of guilty, but acquitted, insane, and this should apply to any defense which questions mental responsibility. From society's point of view it can- not make the slightest difference whether the criminal is sane or insane, for in either case he is equally dangerous.
Kleptomania and intoxication are defenses which are demanding much thought, and legislation relative to them is being urged. In some few jurisdictions the former is admitted as a defense, while the latter is not so held, although it may mitigate the punishment.
In criminal trials the burden of proof is upon the state, to show that the accused is guilty, and there is thus a presumption of inno- cence. In justice to the state no presumption should exist, as it is as equitable to require one to exculpate himself as to require the state to inculpate him. The whole legal tendency of criminal anthropology is to place the state and the accused upon an equality. The rule as existing makes conviction more difficult by reason of the addi- tional and unnecessary burden upon the state. For this reason it has been suggested that the verdict of " not proven " be restored in cases where the accused was not free from guilt, although not convicted. It is urged also upon the ground that it would avoid the tendency upon the part of jurors to compromise in favor of guilt and lighten the pun- ishment. A committee of the American Bar Association, at the annual meeting of 1890, to which this suggestion was referred, reported unfavorably, and this is the only effort thus far made for its restora- tion.
The question of appeal is, perhaps, the strongest illustration of the inequality of the administration of justice, as applied to the state and to the criminal. As appeal now exists, a decision against the state is final, unless there be some error in the indictment, or the court has not jurisdiction. There are no other universal grounds common to both state and accused, although there are many technicalities upon which a criminal can secure an appeal.
It is argued, first, that the system of appeal is too elaborate and that one fair trial and one appeal satisfy justice, and much litigation would thereby be avoided. The same ground upon which an appeal is granted the accused should be extended to the state. Because one court acquits, it does not establish the innocence of the accused, espe- cially when the appeal is granted upon a legal technicality and deals only remotely with the question of guilt and innocence.
In the United States the tendency is in favor of the equality rule.
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