Anglo-Saxon and Roman Criminal Jurisprudence. refute it, either by presenting his own wit nesses or by cross-examining such as have been presented by the other side, or called by the judge. RIGHT OF APPEAL.
Another right guaranteed to the accused under the Mexican law, and which in its broadest sense is unknown to the common law as such, is the right of appeal; that is to say, the right in every case to have both the law and the facts reviewed by a higher court. Under the Mexican laws this right is very broad. Our laws provide that no decision made by judge or jury condemning the accused can be executed until after it has been affirmed by a higher court. Not only is the accused given the right to ap peal once, and sometimes twice, from any decision against him, but it is also made the duty of the lower court to send the case with the record for review to the higher court in cases where the convicted person does not appeal. Such is the practice un der the Roman and Spanish law; but in the Federal District of Mexico, where the jury system has been adopted, the case goes to the higher court only on appeal of the aggrieved party, and said appeal only affects questions of law, and not the facts as stated before the jury, which cannot be controverted. It is true that under the common law system of criminal jurisprudence the accused or his lawyer can take exceptions to points decided by the judge duringthe trial, and that these exceptions may be reviewed by a higher court, but this can hardly be said to be an appeal, in the sense contemplated by the Mexican law, because the decision of the appellate court is only limited to those points which may be covered by the excep tions taken at the trial. It is true that in some States, as, for instance, New York, an appeal can now be taken which will bring before the court for review, questions of fact as well as questions of law; but in so far as
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this procedure has been adopted, it is a departure from the strict rules of the com mon law and an adoption of the principles of the Roman law, since, according to the theory of the common law, a jury can make no mistake, and its findings are there fore final. Our Constitution of 1857 is so careful not to allow anybody to be kept in prison for any extraordinary length of time, that Arti cle 19 specially provides that when a man shall have been arrested the judge shall hold a preliminary examination, and shall within three days from the time of his arrest decide whether there is cause to try him or whether he shall be set at liberty. If the judge shall find that there is sufficient ground for con tinuing the investigation, the prisoner shall be remanded; otherwise he shall be set at liberty. In the first instance the judge has to sign what is called in Spanish auto dc prision formal, meaning an order of formal commitment. In the second place, the pris oner is set at liberty. This proceeding cor responds in a measure to the grand jury in vestigation under the common law. As I have already stated, in some States, like New York, a committing magistrate is authorised to examine the case as a preliminary step to the investigation of the grand jury. Where such a practice prevails, two examinations take place before the criminal charge upon which the accused is to be finally tried is definitely formulated, while under our sys tem only one investigation is made, and even that must be completed within three days of the arrest. The assertion, often heard, that American citizens tried in Mexico are not notified of the cause of their arrest; that they are not confronted with their accusers; and they are not allowed to appear in self-defense, is in open contradiction to the express provisions of our statutes. As a matter of fact, Article 20 of our Constitution of 1857 grants the following guarantees to the accused, in crim inal cases : —
