RB 54

42 lowed. Logically, it is in the inquisitorial procedure established by the Reformation that the Italian influence was at its most notable. The evidentiary requisites for torture {Folterungsvoraussetzungen) were treated apart from those necessary for a judicial decision (Urteilsgrundlagen). A list of indicia was ineluded in the statute.'^'* Although the first traces of Roman-canon procedure are found in the Wormser Reformation and the Bambergensis, it is with the Constitutio Criminalis Carolina that the theory is actually formulated at statutory level. Consistent with the contemporary notion of crime, the Carolina dealt only with the deeds that are to be punished with painful, corporal punishments {peinliche Strafsachen). Lesser infractions were adjudicated in the same way as civil cases and normally punished with monetary fines; they fall beyond the scope of the Carolina.'*^ According to the Carolina, the gathering of evidence took place in the Vorverfahren. This was the decisive element in the whole procedure, for it was there that the actual decision over the accused’s fate was made. The judge, assisted by two Schöffen, conducted the gathering of evidence. Perhaps the most striking feature of the Carolina’s procedure is connected to this phase: if sufficient circumstantial evidence, indicia, was at hand, the court was authorized to proceed on to torture to produce full proof, which was necessary to convict. In the Indizienlehre the influence of Roman-canon law is at its clearest. If torture had been initiated without sufficient evidence (“redliche anzeigung”), the confession extracted was useless. Moreover, two witnesses were required as proof of the indicia themselves. The circumstantial evidence was further divided into two main categories: general indicia that can be related to any crime, and special indicia that can serve as proof for certain crimes only. The general circumstantial evidence could, then, be divided into those that alone sufficed for judicial torture, and those which required other indicia to support them.-* Of indicia that would not alone suffice for torture, the Carolina mentioned a case where belongings of the accused were detected at the site of the crime. Concerning the most important types of crime,-- special indicia were enumerSchmidt 1965 pp. 123-125; Langbein 1974 pp. 159-162; Trusen 1984 pp. 90-92. Kleinhcycr 1984 p. 9. Schmidt 1965 p. 128. The mdicia were: 1. The accused has a bad reputation; 2. the accused has been observed close to the site of the crime (“ann gefehrlichen orten zu der that”); 3. the accused has been observed on the way to or fromthe site; 4. the accused has been observed in bad company; 5. the accused has a malicious relationship to the victim; 6. the victimon his or her deathbed, had accused the accused and supported his or her accusation bv taking an oath; 7. the accused has fled; and 8. a legal case had existed between the accused and the victimdealing with a “vmb gross gut, das dann dne merrern theil seier Narung, habe vnnd vermögens antrifft.” Ibid. pp. 128—129. -- The Carolina was not intended to be a comprehensive criminal code; instead, it takes material criminal law as being already known. Kleinheyer 1984 p. 25.

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