may be fined in any sum from five to one thousand marks, plus the costs.1 The various steps in the process of choosing jurors for any session of the Schwurgericht may be indicated, then, by the four lists which are formed: (1) the primary list of all persons who are eligible to serve; (2) the Vorschlagsliste of names proposed as jurors for the ensuing year; (3) the year-list of Hauptgeschworenen and the year-list of Hülfsgeschworenen; and (4) the Spruchliste of thirty chief jurors, from which the jury of twelve men is to be drawn for the trial of a specific case. III. The jurors named in the Spruchliste having responded to the summons, the president of the Schwurgericht makes known to them the name of the accused person and informs them of the nature of the act of which said person is accused. He then states the grounds upon which a juror is to be excluded from participation in a particular trial, and calls upon each juror to declare any circumstances which would exclude him from service in the cause about to be tried. The omission of such a request on the part of the president will not support a demand for revision of sentence, unless it can be shown that a juror who should have been excluded actually took part in the trial. The president then calls the roll, and the names of the jurors present (leaving out, of course, any who should be excluded) are written upon tickets and deposited by the president himself, or by the clerk, in an urn. The law expressly declares that in no circumstances can the court proceed to the selection of a jury, unless at least twentyfour jurors are present who are qualified to sit in the case. This 1 GVG, secs. 96, 56. It is assumed that no juror is present against whom a charge of incompetence would properly lie. That question has already been disposed of in constructing the year-list. The grounds of exclusion referred to in the text do not go to the competence of the person to serve as juror in any case, but only to the appropriateness of his serving in this particular case. Grounds of exclusion, e.g., would exist where a juror had an interest, direct or remote, in the case, or where he was related to one of the parties, etc. See StPO, secs. 22, 32 and 317, cl. 3. See StPO, sec. 377, nos. 1, 2; Löwe, pp. 817-819. rule cannot be waived, even by agreement of the parties to proceed with a less number of names in the urn. Should it be found, upon counting the tickets, that there are not twenty-four jurors present and qualified, a sufficient number of names is drawn from the year-list of substitute jurors (Hülfsgeschworenen) to fill out the number to thirty. The drawing is by lot and must take place in open court. If twenty-four or more names be found in the urn, the president states the exact number and informs the public prosecutor and the defendant of the number of challenges to which each is entitled. There may be as many challenges as the names in the urn exceed twelve in number. This rule, however, admits of an exception. For, in addition to the twelve who constitute the regular jury, one or more persons may be drawn by lot at the same time to act as supplementary jurors. These men sit in the case, take part in the trial, and have the same right in proposing motions as the other jurors. Under ordinary circumstances they are not allowed to retire with the jury for deliberation, and they do not participate in finding the verdict; but should one of the regular jurors be suddenly incapacitated for service, by reason of illness or from some other cause, his place is taken by a supplementary juror, and the trial (the necessity for a new one being thus avoided) proceeds without delay. It need hardly be said that, in such a contingency, the supplementary juror becomes a regular juror and participates both in the deliberation and in the finding of a verdict. When supplementary jurors are drawn, the number of challenges is reduced by as many as there are supplementary jurors chosen. 1 That is, at least seven Hülfsgeschworenen must always be drawn. 2 Most of the German jurists are agreed that, if it appears that the requisite number of jurors will not be present on the opening day of the session, a number of substitute jurors may be drawn before that day, provided the drawing takes place in the court. This would save a subsequent delay. See Löwe, note 70 to StPO, sec. 280, cl. 2; von Schwarze, Komm. StPO, p. 444; Dalcke, Komm. p. 190; H. Meyer, in Holtzendorff's Handbuch des dt. Strafprozessrechts, vol. ii, p. 121; Keller, Komm. p. 359; Stenglein, Komm. p. 486, note 3; Isenbart, Komm. note 13 to StPO, sec. 280. For contrary view, Puchelt, Komm. p. 454. For example, if one supplementary juror is to be drawn, there will be as many challenges allowed as the number of names in the urn exceeds thirteen. Each additional supplementary juror reduces the number of challenges by one. The challenges are divided equally between the prosecution and the defense. If there be an odd challenge remaining, it goes to the defense. Where there are several defendants, and no agreement can be reached among them as to the distribution of the challenges, the court divides the challenges due to the defense equally between the defendants, assigning the odd challenge, should one exist, by lot. The names are drawn from the urn by the president of the court, in the presence of the defendant, of the prosecutor and of the clerk of the court. The name is at once read aloud, whereupon the prosecutor must declare, by calling out the word "angenommen" or "abgelehnt," his acceptance or rejection of the juror. Following the declaration of the prosecutor comes the declaration of the defendant. By the observance of this order the defendant is given an advantage; for, should the prosecutor reject a name which chanced also to be unacceptable to the defendant, the challenge of the defense is saved for subsequent use. The challenges are all peremptory. Causes for rejection may not be given. When a declaration is once made, it cannot be withdrawn if another name has been already drawn or if the drawing is ended. The drawing is ended when twelve men (thirteen, fourteen, etc., if supplementary jurors are chosen 2) have been accepted, or when the number of challenges has been exhausted. The jury, including the supplementary jurors, is sworn, not as a body but individually, by the president in open court and in the presence of the accused. With the seating of the jurors, which takes place in the order in which they have been accepted, the court is ready to proceed with the trial. An attempt to follow the procedure through its various stages would transgress the limits set for the present paper. A single word, however, must be inserted. When a witness is under ex 1 1 The number of challenges due the prosecutor is wholly independent of the number of defendants. The division is between the prosecution and the defense, not between the persons concerned. Where the word "prosecutor" is used in this paper, the public prosecutor (Staatsanwalt) is of course meant. 1 Whether, and in what number, supplementary jurors shall be chosen lies wholly within the discretion of the court. The parties have no right to be heard in the matter, although it involves a material limitation of the right of challenge. See Löwe, notes 6 and 7 to GVG, sec. 194. amination, any juror may request the president of the court to have a certain question or certain questions put to the witness. Such question must be put and must be answered, unless in the opinion of the president it be "irrelevant, incompetent or immaterial." IV. The case goes to the jury in the form of a list of questions which the jury must answer in bringing in its verdict. These questions are prepared by the president, and must "exhaust the indictment." That is to say, in framing the questions no material element of the crime with which the defendant is charged should be left out; for since the jury, in rendering its verdict, is confined to answering the questions submitted to it, a failure to incorporate in these questions certain essential elements might easily result in at least a partial acquittal. The decision of the question of guilt (Schuldfrage) in all its phases belongs to the jury alone. The exercise of the judicial power in such a way as to affect even indirectly, that is, by a manipulation of the questions, this function of the jury, would be regarded as an unwarrantable interference in the prerogatives of that body. It would amount to a participation of the court in finding the verdict, a practice which the law of criminal procedure excludes on principle in trials before the Schwurgericht. For this reason the law requires that the questions submitted to the jury shall cover all the material points in the accusation, not alone that the full measure of guilt may be reached, but that the determination of the existence and of the degree of such guilt may be made by the jury rather than by the court. A further safeguard is found in the right granted to the prosecutor, to the defendant and to each juror to move an amendment to the questions, either by way of correction or addition. The questions are to be so worded that they may be answered by "yes" or "no." Three kinds of questions are mentioned in the law 2: principal 1 1 A motion to include contingent or subsidiary questions can be denied only on the ground that the proposed question is not legally permissible, or is in content of no legal significance and can have no influence on the judgment. It should be remarked that a juror cannot demand the putting of a question relating to the existence of mitigating circumstances. 2 StPO, secs. 293, 294, 295. 1 questions (Hauptfragen), auxiliary questions (Hülfsfragen) and subsidiary questions (Nebenfragen). The Hauptfrage must go directly to the question of guilt. It begins always with the words: "Is the defendant N. N. guilty . . .?" and it must define the crime in the exact phraseology of the criminal law, as well as specify the elements which serve to identify the act, e.g. time, place and the person accused. The evidence, however, may develop circumstances and conditions which make it doubtful whether the degree of guilt is that asserted by the prosecutor. This makes it necessary to append to the Hauptfrage auxiliary questions, designed to fix the exact nature of the crime or, as the Germans express it, the "Schuld form." These contingent questions are to be answered, of course, only in case the Hauptfrage is denied. Should it appear, further, from the evidence that circumstances exist which may affect the penalty, increasing or diminishing it, or which may, in fact, annul the penality (Strafbarkeit) of the act altogether, subsidiary questions so framed as directly to develop these points must be appended to the principal or auxiliary question to which they are related. Each question, of whatever sort, must relate to one defendant only and to but one criminal act, even if several identical acts are charged. A failure to observe this rule will render the judgment void. All the questions are drafted by the president of the court and must be read aloud in open court. Should a motion to that effect be made by the prosecutor, by the defendant or by one of the jurors, the questions must be reduced to writing and a copy furnished to the prosecutor, the defense and the jury. On request of these parties a brief recess may be taken for scanning the questions. 1 If, e.g., the defendant is accused of murder, and it appears from the evidence that he may have been guilty of manslaughter only, then an auxiliary question would be submitted to the jury: "If N. N. is not guilty of murder, is he guilty of manslaughter?" The decisions of the courts are not in accord as to the permissibility of such questions as the above. The latest decisions favor it, however, on the ground that in submitting such an auxiliary question no new and different act of the accused is brought under examination. Both Hauptfrage and Nebenfrage deal with an alleged killing. The difference is in the element of premeditation. 1 A refusal on the part of the president will not render the proceeding void. The fact that copies of the questions are furnished to the parties and to the jury does not release the president from the obligation to read the questions aloud in open court. |