work. If the mountain will not come to Mohammed, Mohammed must go after the mountain. In other words, the function of the probation officer like that of the nurse, or the charity case worker, or of the hospital social service worker, is primarily and constantly education: education with regard to his particular clients or cases and education with regard to the large public which after all is his final resource in money, interest and preventive energies.

Now it is perfectly clear that no such large sized job of constructive education can be carried through by mediocre men and women. No uneducated person can educate either probationers or the community in the broad sense which I have been pointing out. Indeed, I am frank to say that nobody can be too well educated for probation work. We might as well confess here among ourselves, that many of us have not measured up fully to a high educational test, whether from the standpoint of ordinary fundamental elements in education or from the standpoint of strictly professional training. A good many of us have picked up both just as we happened to find them. There are still too many probation officers in practice who do not sustain the appeal of probation officers to be taken seriously as cultivated men and women, as broadly educated citizens, and as members of a skilled. profession. I, for one, cannot believe that ability to use good English, or to make an intelligent address, or to write a respectable report, is any disqualification for probation work. And I hope the day will come when these will be recognized as much more essential than a record of national guard service, or the friendship of some politician as a qualification for appointment as a probation officer. Moreover, I firmly believe that it is the duty of every probation officer to get proper professional training. Some of you are probably saying, "But I have been in this work for a long time and have never had any opportunity to get definite professional instruction, and more than that, I do not know where it would be possible to get this training you speak of." Here with becoming modesty, let me announce that at the University of Minnesota we are just finishing a professional course on juvenile court and probation work given jointly by Judge E. F. Waite of the Hennepin County Juvenile Court, and myself. So far as I know, this is the first attempt made by any state university to offer this type of training, but there is nothing peculiar or unusual about it to make it impossible for any of our great universities to follow suit. I am sure that many of the universities would be glad to offer either short institutes during the year or special courses in the summer school if a sufficient demand were manifested by the proba

tion officers. This would give us at least one opportunity of repairing our improper education. But whatever the method, we must achieve a better education if we ever hope to measure up with any of the other real professions, such as law or medicine or engineering.

I am very critical of probation officers and of probation work; I feel keenly our lack of education; I deplore the backwardness of some of our officers to share in community leadership; all because I am so deeply interested in raising and maintaining the whole level of probation technique. We have not been improving as fast as we might have hoped. The war gives us, perhaps, the opportunity for getting a sort of second wind for pulling ourselves together and taking advantage of the new social movements to justify ourselves and our work and to make for both a really dignified and valued place in the great work of social reconstruction which confronts us.

JUDICIAL DECISIONS ON CRIMINAL LAW AND

GRAND JURY.

PROCEDURE

CHESTER G. VERNIER AND WILLIAM HALE

Commonwealth v. Harris (Mass.), 121 N. E. 409. Secrecy of proceedings. Under a plea in abatement it was made to appear that while the cause was being heard before the grand jury, one or more persons, witnesses in the case, were present in the grand jury room while other witnesses were testifying. Held, that the plea in abatement should have been sustained, the law requiring that the deliberations of the grand jury be secret. The opinion quotes from Chief Justice Shaw, as follows:

"The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offenses, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty."

Continuing the court says: "It is manifest an examination of witnesses by the grand jury in the presence of others, witnesses, bystanders or judges, necessarily and inevitably subjects the accused to a public trial without right to testify in his own behalf or to be represented by counsel or attorney. It is equally plain such procedure destroys the force and vital principle of the oath which enjoins the grand jury to keep secret the commonwealth's counsel, your fellow's and your own."

SENTENCE.

People v. Siman (Ill.), 119 N. E. 940. Both fine and imprisonment imposed under a statute which provided for alternative penalty.

The defendant was sentenced to serve a prison sentence and to pay a fine of one dollar. He paid the fine and brought habeas corpus proceedings on the ground that the prison sentence was void. Held, that the prison sentence was void, when the fine was paid. Carter, J., dissenting.

See a note in 28 Yale Law Journal 292, approving the dissenting opinion.

VERDICT.

People v. Tananevicz (Ill.), 120 N. E. 766. Rejecting part of verdict as surplusage.

The defendant was indicted for receiving, as a banker, a deposit while knowingly insolvent. The jury returned a verdict of guilty and fixed the punishment at three years' imprisonment in the penitentiary and the payment of a fine of $280. Section 2 of the Parole Act requires an indeterminate sentence in such cases. The court in passing judgment, however, sentenced the defendant to serve an indeterminate term of imprisonment. Held, that the

portion of the verdict of the jury which lay beyond their legitimate province was properly rejected as surplusage and the judgment of the court was in full accord with the remaining and valid part thereof.

BURGLARY.

Sloan v. People, Colo. 176 Pac. 481. Allegation of ownership.

Under the statute, burglary includes the breaking and entering into an unoccupied as well as occupied dwelling house, thus making it an offense against property, and not merely against the habitation.

Where an indictment alleged that defendant burglarized the house of "W.," a conviction was proper on proof that "W.," did not occupy the house, was the agent for a non-resident owner, his duties consisting in the sale, renting, and care of the property generally.

CONSTITUTIONAL LAW.

Proctor v. State, Okla. 176 Pac. 771. Intoxicating liquors: Due process. The legislative act making it a crime "for any person . . . to keep a place with the intent of or for the purpose of manufacturing, selling, bartering, giving away, or otherwise furnishing, any spirituous, vinous, fermented or malt liquors, or compounds whatever, " is condemned by the constitutional provisions guaranteeing due process of law and the equal protection of the law.

A guilty intention, unconnected with an overt act or outward manifestation, cannot be made the subject of punishment under the law.

An unexecuted intent to violate the law amounts to no more than a thought, and is not punishable as a crime.

DEFENSE OF PROPERTY.

McLean v. Colf, Calif. (Sup. Ct.) 176 Pac. 168. Regaining possession. Where plaintiff seized paper, property of a defendant, she gained only a momentary custody, rather than its possession, and defendant had right to use force to protect his possession, or to regain his momentarily interrupted possession.

Defendant's right to use force, particularly as against plaintiff's person, in defending or recovering momentarily interrupted possession of a paper, was limited by condition that force must be no more than reasonably necessary.

In action for assault and battery in attempting to recover paper belonging to one defendant and taken by plaintiff, evidence held to sustain finding that amount of force used by defendants was unreasonable, excessive, and violent.

Question whether excessive force has been used by defendants in regaining possession of property momentarily interrupted is one of fact for trial court or jury, and, evidence sustaining finding. Supreme Court cannot interfere with conclusion reached.

DOUBLE JEOPARDY.

State v. Felch, Vt. 105 Atl. 23. Constitutionality of statute authorizing appeal by the state.

Defendant, charged with murder, was acquitted and the state asks for retrial under Gen. Laws, par. 2598. Held, the statute is constitutional and new trial ordered for errors prejudicial to the state. After holding that the double jeopardy provision of the 5th Amend. to U. S. Constitution does not apply to state action, and that the statute does not abridge the privileges or immunities of United States citizenship, the court also holds that a statute authorizing review by the state, though not limited to determination of legal points, does not violate the due process clauses of either the State or Federal Constitutions. The opinion of Powers, J., in part, follows: "On considering the constitutionality of the statute, we shall omit reference to statutes merely giving the prosecution the right of exception to such preliminary rulings as we have referred to, and shall pay no attention to statutes giving the prosecution the right of exception to other questions for the sole purpose of settling the law for future guidance, as decisions under them will afford us no assistance in the solution of the question here presented. We shall assume, though it has been doubted (State v. Lee, 65 Conn. 265, 30 Atl. 1110, 27 L. R. A. 498, 48 Am. St. Rep. 202; United States v. Sanges, 144 U. S. 310, 12 Sup. Ct. 609, 36 L. Ed. 445), that it was the well-recognized doctrine of the ancient common law that no man could be twice put in jeopardy for the same offense. We are mindful of the fact that this rule was deemed of such importance that it was given a place in Magna Charta, and that it was regarded so vital to the maintenance of the Anglo-Saxon concept of individual liberty that it was made a part of the Constitution of the United States by the Fifth Amendment, and in one form or another has found expression in the Constitutions of a majority of the states of the Union. Under such constitutional provisions it has been consistently and uniformly held that any legislative attempt to confer upon the state the right of exceptions for the correction of trial errors was futile.

A statute of California attempted to give the state a right of appeal to the Supreme Court on all questions of law arising in prosecutions for felonies. In People v. Webb, 38 Cal. 467, it was held that the respondent's acquittal in the court below was final, and that he could not again be put in jeopardy. A statute of Illinois attempted to give the complainant a right of appeal in prosecutions for illegal fishing. In People v. Miner, 144 Ill. 308, 33 N. E. 40, 19 L. R. A. 342, it was held that the respondent's acquittal below was a complete protection from another trial and that the statute was unconstitutional. In West Virginia an act of the legislature attempted to give the state a right of appeal in criminal cases, but it was held in Ex parte Bornee, 76 W. Va. 360, 85 S. E. 529, L. R. A. 1915F, 1093, that the act was unconstitutional.

By the provisions of a certain military order regularly promulgated for the government of the Philippine Islands, the right of the government to appeal from a judgment of acquittal in a court of first instance was recognized. But in Kepner v. United States, 195 U. S. 100, 24 Sup. Ct. 797, 49 L. Ed. 114, 1 Ann. Cas. 655, it was held that this was repugnant to a provision that no person for the same offense shall be twice put in jeopardy of punishment, contained in an act of Congress, subsequently passed for the administration of the affairs of the Islands, and was repealed by it. Though the question was not directly involved, it was said in State v. Hart, 90 N. J. Law, 261, 101 Atl. 278, L. R. A. 1917F, 985, that "it is clear that it is not within the constitutional