The Criminal Imbecile - An Analysis of Three Remarkable Murder Cases

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Title: The Criminal Imbecile - An Analysis of Three Remarkable Murder Cases
Author: Goddard, Henry Herbert
Language: English
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THE CRIMINAL IMBECILE

THE MACMILLAN COMPANY
NEW YORK · BOSTON · CHICAGO · DALLAS
ATLANTA · SAN FRANCISCO

MACMILLAN & CO., LIMITED
LONDON · BOMBAY · CALCUTTA
MELBOURNE

THE MACMILLAN CO. OF CANADA, LTD.
TORONTO

[Illustration: JEAN GIANINI.

(Upper picture taken in jail. Printed by permission of Zintsmaster and
Jones, Herkimer, N. Y., Photographers.)]

THE CRIMINAL IMBECILE

AN ANALYSIS OF THREE
REMARKABLE MURDER CASES

BY HENRY HERBERT GODDARD

DIRECTOR OF DEPARTMENT OF RESEARCH
VINELAND TRAINING SCHOOL

New York
THE MACMILLAN COMPANY
1915
_All rights reserved_

Set up and electrotyped. Published September, 1915.

Norwood Press
J. S. Cushing Co.--Berwick & Smith Co.
Norwood, Mass., U.S.A.

PREFACE

This book is offered to the public in the belief that the three cases
herein described are typical of a large proportion of criminal cases and
that the analysis and discussion attempted will help to make clear
important points which are often misunderstood, points relative to the
criminal and to the imbecile.

A clear conception of the nature of the imbecile and of his relation to
crime will inevitably result in a most desirable change in our criminal
procedure.

It should be noted that we use "imbecile" in the legal sense which
includes the moron and often the idiot as scientifically classified. This
usage is justified since much of the literature still describes all mental
defectives as imbeciles, idiots, or feeble-minded--according to the
preference of the writers.

These cases are unique in that they were the first court cases in which
the Binet-Simon tests were admitted in evidence, the mental status of
these persons under indictment being largely determined by this method.

It happens, also, that these cases well illustrate three phases of the
workings of defective minds. Jean Gianini shows the criminal imbecile of
high grade and of loquacious type working by himself. Roland Pennington,
equally high grade but of a quiet, phlegmatic temperament, shows how a
defective mind works under suggestion. Finally, Tronson shows the crude
brutality of a somewhat lower grade defective.

In the chapter on Responsibility we have tried to indicate the difference
between _verbal_ morality and deep-seated, appreciated, moral principle. A
child may have the former but the latter comes only with experience and
the age at least of the adolescent.

We would remind the reader that in the confessions and the appendices we
have had at hand only stenographic reports.

If this book shall help the lawyer to make a more successful defense of
the imbecile criminal, the judge to dispense justice to this much
misunderstood class of high grade imbeciles, and society in general to
realize its responsibility for the mental defective, it will have
fulfilled its mission.

H. H. G.

RESEARCH LABORATORY OF THE TRAINING SCHOOL
IN VINELAND, N. J.

CONTENTS

PAGE

PREFACE v

CHAPTER

I. THE CASE OF JEAN GIANINI 1

II. THE CASE OF ROLAND PENNINGTON 42

III. THE CASE OF FRED TRONSON 65

IV. THE CRIMINAL IMBECILE 83

V. RESPONSIBILITY 94

VI. THE PUNISHMENT FOR CRIMINAL IMBECILES 100

APPENDICES

A. GIANINI CASE. HYPOTHETICAL QUESTION PROPOUNDED BY
THE DEFENSE 109

B. GIANINI CASE. HYPOTHETICAL QUESTION PROPOUNDED BY
THE PROSECUTION 131

C. GIANINI CASE. DEFENDANT'S REQUEST TO CHARGE 139

INDEX 155

LIST OF ILLUSTRATIONS

JEAN GIANINI _Frontispiece_

FACING PAGE

ROLAND PENNINGTON 42

FRED TRONSON 66

THE CRIMINAL IMBECILE

CHAPTER I

THE CASE OF JEAN GIANINI

"We find the defendant in this case not guilty as charged; we acquit the
defendant on the ground of criminal imbecility."

Such was the verdict by the jury of the Supreme Court of Herkimer County,
New York, on May 28th, 1914, in the case of the people _vs._ Jean Gianini,
indicted for the murder of Lida Beecher, his former teacher.

The prosecution and, at first at least, the majority of the citizens of
the community held that this had been a carefully planned, premeditated,
cold-blooded murder of the most atrocious character, committed with a
fiendishness seldom seen among human beings. It was, on the other hand,
claimed by the defense that the boy was an imbecile, that he had only the
intelligence of a ten-year-old child, that he did not know the nature and
quality of his act, and that he did not have any true realization of the
enormity of his crime. For some reason unaccountable to a great many
people, the jury accepted the view of the defense.

Not infrequently have verdicts in murder trials been unacceptable to the
populace. In that respect this verdict is not an exceptional one, but from
other standpoints it is remarkable. Probably no verdict in modern times
has marked so great a step forward in society's treatment of the
wrongdoer. For the first time in history psychological tests of
intelligence have been admitted into court and the mentality of the
accused established on the basis of these facts.

The value of this verdict cannot be overestimated. It establishes a new
standard in criminal procedure. It recognizes that _weakness_ of mind, as
an excuse for crime, is of the same importance as _disease_ of mind; puts
feeble-mindedness in the same category with insanity, and requires that it
like insanity be considered in all discussions of responsibility. When we
add the now accepted fact that the feeble-minded are at least as numerous
as the insane, we see the far-reaching significance of this standard set
by the Supreme Court of Herkimer County, New York.

That the verdict has not been at once acceptable to the people is due to
the fact that the character and the limitations of the high-grade
imbecile are not understood. With a view to explaining this type of
defective, which the defendant so well illustrates, we propose in the
following pages to go over the history of this case, explaining the facts
in the light of present-day knowledge of the feeble-minded.

The facts in the case as established by testimony:--

On the morning of March 28th, 1914, Henry Fitch, a farmer of Herkimer
County, accompanied by his son, started on his usual work to deliver milk.
At a point in the highway, approximately one mile from the village of
Poland, Mr. Fitch saw blood and signs of a struggle in the snow and slush
in the road; he also found an umbrella and a hat. A bloody path led out of
the road to a point some hundred and thirty feet away. Following the
tracks he found the body, which proved to be that of Lida Beecher, one of
the school-teachers in the village of Poland. She lay at full length on
her face, both arms under her. The body was removed to Sprague's
undertaking rooms in the village.

On the same morning Jean Gianini, sixteen years old, left his father's
house on the edge of the village to go to the home of Sam Hutchinson,
where he was working and taking his meals. He had his breakfast, went to
the barn, and worked a short time. When Mr. Hutchinson went out a little
later, he could not find Jean. A Mr. Smith said he had seen him going down
the tracks toward Newport. William Taylor, the track foreman, said he
passed Jean near the bridge. Mr. Hutchinson then sent word to the boy's
father that he had gone. The father, supposing his son had run away as he
frequently did, telephoned to Newport asking that he be apprehended and
sent home. This was before anything was known of the crime. Peck Newman,
to whom the father telephoned, found Jean in a grocery store in Newport.
He had been apprehended at the depot. He was taken home and then to the
Justice of the Peace. Here he was stripped, presumably for the purpose of
discovering whether there was any blood upon his clothing or his body.
Although there is no evidence that any stains were found, yet he had no
sooner been stripped than he made a free and open confession. We shall
consider this confession in detail later. In substance he said that he
killed Miss Beecher to get revenge, because she had humiliated him in
school. He told in detail how he had accomplished this and what had been
his movements shortly before and after the deed. On the strength of this
confession and such corroborative evidence as could be obtained from
local witnesses the prosecution sought to convict this boy of murder in
the first degree.

It was understood at first that the defense would attempt to prove that he
was insane. There did not seem to be much evidence of insanity and it did
not appear that the prosecution was in great fear of such a verdict. As a
matter of fact, the real defense was imbecility. It is probable that this
defense was less intelligible to people who knew Jean Gianini than that of
insanity would have been. To one familiar with imbecility, however, there
is no shadow of a doubt of the correctness of this diagnosis. The only
possible question in the mind of any such person would be whether a
defective of such high grade knew the nature and quality of his act and
knew that it was wrong, and was therefore responsible for his act. This
point the jury decided, and we shall attempt to show by a study of the
case that they decided correctly.

Much of the confusion in the mind of the public and dissatisfaction with
the result in this case is due to a failure to understand the nature and
character of the imbecile. Most of the acts and the utterances of the
defendant, which seemed to many people to indicate his soundness of mind,
his premeditation and planning of the murder, are in reality so thoroughly
characteristic of the imbecile as to leave no doubt whatever of his low
mentality.

We have already given all that is known of the circumstances except
certain details which Jean claimed in his confession, and certain acts and
utterances which were testified to by local witnesses.

We may now examine these testimonies, reserving his confession for a later
discussion. So far as the crime itself is concerned but little testimony
was brought forward; so little, in fact, that without the boy's confession
he probably could never have been convicted of the deed.

On the evening of the tragedy Jean was seen by several people walking up
the street toward his home in company with his victim. Two days before
this he had been heard to ask her when she was coming to see his father
about his returning to school; to this she had replied, that she "did not
know"; and he had answered, "Aw, I don't believe you intend to come at
all, you will wait until summer time, and go home and then it will be too
late." On the following evening he again asked her to go up to his house.
She said she could not go then, as she was going to prayer meeting, but
she would go the next night. He had also inquired of certain persons
whether she went to the Post Office in the evening. On one occasion he
had been seen with an old rusty wrench in his pocket and when asked what
he was doing with it, he had replied, "I have use for it." This was the
wrench with which he struck his victim the death-blow, according to his
confession.

Previous to the tragedy he had told certain persons that he meant to get
even with Miss Beecher. The wrongs for which he claimed to have desired
revenge had occurred more than a year before the tragedy. For over a year
he had been out of school and had been working a part of that time. For
some months he had been an inmate of St. Vincent's School, to which
institution he was committed by a Justice of the Peace at the instigation
of his father because of his propensity to jump freight trains.

The evidence was strongly against the idea that Miss Beecher had ever done
anything to injure him or anything which would reasonably cause resentment
in his mind. He had not gotten along well in his studies after going into
her room, had been more or less disorderly, and she, at the suggestion of
the principal, had seated him facing the wall with his back to the rest of
the school. She had occasionally sent him up to the principal, who had
sometimes flogged him.

On the night of the deed Jean was seen walking up the street with Miss
Beecher at something after seven o'clock in the evening; before eight
o'clock he was at home in his father's house; there he was given an errand
to do and went down the street, returning shortly; spent some time in
reading and then went to bed. The next morning he was at his place of work
as already mentioned. The wrench which had been seen in his pocket was
found near the scene of the murder. These are the only known facts bearing
upon the case, previous to his own confession. For further items of
evidence see the hypothetical questions propounded by the prosecution and
by the defense--Appendix, pp. 109-138.

The fact that he was the last person seen with her, that the monkey wrench
at one time seen in his pocket was found at the scene of the deed, that he
left his place of work and went down the railroad track toward Newport,
was sufficient to arouse suspicion. It is more than doubtful whether the
evidence could have resulted in an indictment by a grand jury, and
practically certain it never could have resulted in a conviction. The
absence of any real motive for the act would have been fatal to such an
attempt. The absence of evidence of a prearranged plan is also a serious
lack. It is true that, when we have the confession and the later
explanations, the presence of the monkey wrench in his pocket and his
words that he "had use for it" sound like a prearranged plan, and yet
there is no real evidence here. He might have had the monkey wrench for a
dozen purposes and have given the same answer. Perhaps his threat to get
even with her, his remark "that if he had a revolver he would shoot her,"
may be considered more serious, but certainly no jury could convict him
merely on the basis of such statements.

It is reasonably certain then that, had he not confessed, he never would
have been convicted even if he had been indicted. Let us now examine the
confession.

_Gianini's Confession_: Jean Gianini, being duly sworn, deposes and
says he resides in the village of Poland and is sixteen years old;
deponent further says, "I went to school to Lida Beecher and had
trouble with her and wanted to get revenge.

"I met her above the hotel and walked up the street with her up beyond
the stone quarry; she had been a coming to see my folks about school
and was a coming up to see them last night and I told her they lived
up the hill, and when we got up there on the left side of the road, I
hit her with a monkey wrench that I got out of my father's barn. I had
the wrench in my pocket when I went up.

"After I had hit her about three times with the wrench, I hit her with
a knife several times, to be sure to finish her, and then I took her
over in the lot; I dragged her by the foot; and then I went home and
got there about 7:30.

"The knife I stabbed her with was one that belonged to my father and I
took it home and put it in the pantry drawer.

"I left the wrench somewhere near where I hit her. When I hit her
first, she did not scream but moaned.

"She said she thought it was quite a ways and she did not see any
house.

"I was not afraid when I got home; I was just as happy as I ever was
and didn't think anything about it as I thought I had revenge.

"I make this statement voluntarily and under no fear or threat and
knowing the same may be used against me.

"JEAN GIANINI.

"Subscribed and sworn to before me this 28th day of March, 1914.

"FRED MOORE,
"_Justice of the Peace of Town of Russia_."

In its main points the confession must be accepted as true. To refuse to
accept it would be to admit at once without further proof that the boy
was crazy or an imbecile, since, if it were not true, it is inconceivable
that any normal person would claim to have done such a deed. It is
accepted then by all that Jean Gianini killed Lida Beecher on the night of
March 27th, 1914. There is no difference of opinion on that point. It is
now only a question of his responsibility.

We may now review the facts and see what is the evidence: first, that he
is an imbecile; second, that being an imbecile, he did not know the nature
and quality of his act and that it was wrong.

Is Jean Gianini an imbecile? What is an imbecile? We cannot expect to
agree upon the question of whether Jean is an imbecile until we agree upon
the definition of imbecile. There are various ways of designating this
type of individual. Imbecility, as used in law in this country, may be
defined as "the state of mental defect existing from birth or from an
early age, due to incomplete cerebral development, in consequence of which
the person affected is unable to perform his duties as a member of
society." The high-grade imbecile, such as the person under discussion,
feeble-minded as he is called in England, or the moron as we are coming to
call him in the United States, is one who is "capable of earning a living
under favorable circumstances, but is incapable from mental defect,
existing from birth or from an early age, (_a_) of competing on equal
terms with his normal fellows, or (_b_) of managing himself or his affairs
with ordinary prudence." These definitions were formulated by the Royal
College of Physicians of England, and accepted by the Royal Commission on
the Care and Control of the Feeble-minded.

We may further designate this type of individual by saying that he has the
mentality of a normal child of from three to twelve years of age. These
age limits have been determined by examining thousands of the inmates of
institutions for the feeble-minded and comparing with normal children. The
inmates of the institutions are there because they were not capable of
managing their own affairs with ordinary prudence, because society has
discovered that they could not take care of themselves; they are
weak-minded; they must be cared for by the public. Careful examination of
such persons as have been determined by experience to be incapable of
managing themselves shows that they range in intelligence, as before
stated, from three to twelve years. There are practically none in these
institutions that have a mentality above twelve. Those under three are
called idiots.

Considered from the standpoint of the growth and the development of the
child, we say that the imbecile is a case of arrested development; he has
stopped growing mentally, and has stopped previous to the age of twelve,
so that no matter what may be his actual age his mentality is that of a
child under twelve years.

In the case of Jean Gianini, although he is sixteen years old, he has only
the mentality of a child of ten. Or, if a possible error of two years were
allowed, he would still have only the mentality of twelve and would be an
imbecile. As a matter of fact, there is probably nothing in the whole
career and history of Jean Gianini that is inconsistent with a mentality
under twelve; and on the other hand there are numbers of things in
evidence in connection with his crime that are so thoroughly typical of
high-grade imbeciles that any one with experience with this type of person
can have no doubt about it; but it is our purpose to show this by an
analysis of the case. We must first attempt to remove some of the
difficulties in the way of this view.

First, why does it seem absurd to call Jean Gianini an imbecile? Mainly
because in the popular mind the term imbecile connotes only the low-grade
imbecile, the person who shows in every movement and action, if not in
his very face, that he is "lacking," is "not all there," is "not quite
right," or whatever may be the expression that we apply to those
unfortunate ones, of whom there are, sad to say, always one or more in
every community.

Jean Gianini is not of that type; he is a _high-grade_ imbecile; he is of
the grade that is only recognized by those who are intimately familiar
with imbeciles of all types. He is only discovered when we make a close
comparison between him and normal boys of the various ages. We may perhaps
liken it to the question of tuberculosis: the average man never recognizes
a fellow being as suffering from consumption until he is afflicted with a
cough which does not yield to treatment, is constantly expectorating, gets
thin and pale, and has other marked outward symptoms; the average person
would not find more than one or two consumptives among a hundred persons;
the expert physician, however, experienced with tuberculosis, recognizes
many more by signs and symptoms which he can describe with great accuracy,
and when he is allowed to apply his physiological tests and his clinical
thermometer and his microscope, the number increases enormously, and he
assures us that every seventh person will die of tuberculosis.

It is hard then for many people to accept the verdict that Jean Gianini
is an imbecile, largely because they do not realize what a high-grade
imbecile is.

A second reason is found in the fact that we insist upon believing the
unbelievable. We view a crime like the one under discussion and say
frankly, "It is unbelievable that any reasoning, intelligent person could
commit such an atrocious act," and yet we believe that this boy did; we
believe that such a grade of villainy exists and that it can suddenly
appear in a boy who never before manifested anything approaching it. The
fact is, that our instinctive revulsion against such a thought is the
correct view. The fact that Jean Gianini committed such a crime is itself
the strongest kind of evidence that he is not a normal boy. But turning
from imbecility in the abstract, let us examine concrete instances in the
life of Jean Gianini, for we shall find there the best possible
illustrations of the characteristics of an imbecile.

We may begin at the most dramatic point--the crime itself. Since we know
practically nothing of the crime except through his admissions, we will
begin with the confession. And first, why was there a confession? It is
safe to say that there is not a sensible man or boy the country over who,
knowing the facts in the case, would not say, "What a fool Jean was to
confess!" Nobody but an imbecile would have confessed under those
circumstances; they had no evidence against him, nor did they pretend they
had; he testifies that they told him that they thought he was guilty of
the crime; they did not pretend that they knew he was guilty; there were
no third-degree methods used; they had taken his clothing off and examined
him, but they had not found any blood or any evidence, and the clothing
had only just been removed when Jean began to tell his story. He had not
been promised any immunity if he should confess; in fact, he had been told
that anything that he said would be used against him, but still he
persisted in telling the whole story. But we do not have to rely upon the
fact that it looks foolish to us for him to have confessed, because we
have the fact, well known to all who have to deal with imbeciles, that it
is characteristic of them to do just this thing. They do not always
confess, it is true. It seems to depend largely upon how proud they are of
their deeds--and frequently the more atrocious these are, the prouder they
are of them. It is perfectly clear that such was the case with Jean. He
made some little attempt to get away, at least he made what appeared like
an attempt to get away; there really is no evidence that he was doing
anything more than he had done many times before, going away from home to
seek work elsewhere, with that _wanderlust_ which is also characteristic
of imbeciles. He walked down the railroad track toward Newport, not going
very fast, not taking any precautions to avoid being seen, and when met by
some one whom he knew, he came willingly back to Poland.

There is the highest probability, perfectly clear to one who understands
imbeciles, that almost from the time the deed was done he had a strong
desire to tell somebody about it, to brag about it; but a certain
instinct, a certain feeling that he ought not to be caught, probably held
him back. But when at last he was taken back to Poland and into the
presence of the Deputy Sheriff; when his clothes had been removed and he
thought his story would get into the papers and he would become notorious;
then he began to talk. In spite of all the warnings and declarations that
he would suffer for it, he talked. At this point it is important to
remember that he is talking now to be heard; he is not confessing in order
to escape punishment, he is talking because he is proud of what he has
done; he wants to boast, wants to be talked about and written up, wants to
be notorious, a great criminal, as is evidenced in the course of the
trial. Remembering this, we _cannot believe all that he says in his
confession_.

As already stated, in so far as it relates to the basal facts of the
crime, it is undoubtedly true; but when it comes to the finer details of
what he did, how he prepared, and what he claimed was his motive, we
greatly err if we accept everything he said. It is not in the sworn
confession, but it was in evidence that he said he sharpened the knife for
the purpose; the fact that he said he sharpened the knife for the purpose
should have no weight. It is precisely the kind of thing that he would put
in for effect. In fact all that he said after the deed as to arrangements
or plans or details must ever be questioned unless his statements can in
some way be corroborated, for this tendency to elaborate is so strong that
there is no possibility of putting any trust in his words.

It is worthy of note that whereas the defense introduced many witnesses
who testified to Jean's sayings and actions that showed silliness and
indicated childish intelligence, the prosecution neither rebutted this nor
produced witnesses testifying to anything in his previous conduct that
gave evidence of good judgment or intelligence appropriate to his years,
or that he had any moral development that would be normal for his age.[1]

The evidences of his pride in the deed are scattered throughout the
testimony. For example, at one time he said, referring to the deed, "You
would not think anybody could do a deed like that so quick, would you?"
When asked how he could get Miss Beecher to go so far up the hill in the
dark with him, he replied with a good deal of pride: "That's easy! I told
her my father was building a house up on the hill and we went up there."

This leads us to another precaution which must be borne in mind in
considering this case. If Jean is an imbecile, then all our previous
conceptions must be changed, since the conclusions that we naturally draw
are based on the assumption that these facts relate to a normal man. To
illustrate: if Jean were a normal boy of sixteen, the fact that he
inquired as to the time of Lida Beecher's being at the Post Office, that
he talked with her the day before about her promise to go with him to see
his father, the fact that he went off with her that night, that when he
reached his father's house, he lied and said his father lived up over the
hill and led her up there, and then, as he said, struck her with the
monkey wrench, and so on, would all indicate premeditation and planning
and forethought; but the instant we conclude that Jean is an imbecile,
then these facts indicate nothing of the kind. It is not denied that such
may have been the case, or that it is impossible for an imbecile to carry
out such a plan. But it is claimed that there is no strong presumption
that such was the fact, because the result can be accounted for in another
way. Jean being an imbecile, _it is entirely possible that he had no
premeditation of murder at all_, that he not only did not grind that knife
for the purpose, but that he did not have the monkey wrench in his pocket
for the purpose. On the contrary, it is possible that as he walked up the
hill with Lida Beecher he had no more thought of killing her than of
committing suicide. Indeed, it is much more plausible from all we know of
imbeciles, and of boys of his physical development, that there was an
entirely different purpose. That purpose was probably sexual. The writer
is not alone in this thought. Hardly any of the persons with whom he has
talked of this crime has failed to ask the question, "Was there any sexual
offense in the matter?" The absence of any evidence of assault of this
character has been a surprise to many persons; but it again is no surprise
when we remember that Jean is an imbecile; we know also that he is a
masturbator.

While the writer has no theory to put forth in regard to this crime, yet,
for the sake of clearness and as an illustration of the imbecile type, let
us assume a plausible hypothesis; that is to say, an hypothesis which may
fit the case and is entirely plausible from the standpoint of imbecility.

Jean was sixteen years old, an age when sexual passion is strong. It is
the middle of the great adolescent period. The new physiological function
of sex is established, great psychic changes have occurred. The boy is
dreaming dreams, the imagination is active. In the normal boy this means
the evolution of ideals, ambitions, moral and religious ideas, attention
to dress and appearance, interest in the opposite sex. In the case of the
morally well-endowed boy, the sex impulses which have strengthened with
the development of the physical potency find their outlet in a kind of
vicarious functioning in the shape of polite and friendly association with
his girl friends, in chivalric attentions and devotions, with more or less
definite plans for future marriage and parenthood. In those with little or
no moral principle we see the impulse leaping over the social conventions
and attaining complete sexual gratification illegally.

With the imbecile the case is different. The fires of sexual passion may
burn as vigorously as in the better endowed, but he lacks both the power
of control and the courage and ingenuity to overcome the social barriers.
He masturbates. This banks the fires somewhat and requires no courage. If
stimulated by association with girls, he makes crude and imbecilic plans
for conquest. Lacking moral development and ignorant of the more subtle
means of accomplishing his purpose, he may resort to violence in some one
of the many possible ways. Often he is not conscious of what it is that is
driving him and hence does not know where satisfaction lies. Under these
conditions his violence may show no outward signs of being sexual. It may
show every degree from rough horseplay with girls, such as pushing,
pulling, grabbing hat, cloak, or other articles of dress, bantering,
teasing, and other forms of personal contact, up to physical injury,
torture, and even murder.

Volumes could be written--indeed volumes have been written--showing the
tremendous force of this sex impulse at this age, and the multifarious
ways in which it expresses itself--many of them not showing any of the
signs that are usually considered as indicating a sexual disturbance. That
is to say, such acts are, by the uninitiated, not considered sex acts at
all. One incident of this kind is in evidence. "At one time Jean took two
little girls to a piece of woods and started to take their clothes off,
and when asked why he did it, said he was going to play Indian and that
Indians were naked." Dismissing the possibility that his explanation was
invented to conceal a definitely conscious sexual impulse, let us admit
that he gave his real reason for the act. Still it is clear to all who are
familiar with sex psychology that the subconscious reason for playing
Indian in that way was a sexual one. The procedure also shows a lack of
judgment and appreciation of the proprieties which argues strongly for
mental deficiency--especially as he was then between ten and twelve years
old. (For further items the reader is referred to pp. 113-120 of the
Appendix, where the hypothetical questions have summed up the testimony.)

The imbecile is a coward. Jean Gianini is an imbecile. Unconsciously
impelled by that strong instinct he seeks the company of Lida Beecher. As
a matter of fact her friend, Miss Clark, testified that Miss Beecher had
been annoyed at his attentions. He contrives an excuse to get her to come
up to his house; when he reaches the house, he makes another excuse to get
her to go farther, not, as generally believed, with the purpose of
murdering her; perhaps only blindly following that instinct of sex and
desiring to be in her company; more probably with the half-conscious
purpose of satisfying his passion if he could find a suitable
opportunity. They walk on; where they were going or how far they would
have walked no one will ever know, but there came a time when for some
reason her suspicions were aroused, or at least her common sense told her
that it was foolish to go farther. Of course we have nothing but Jean's
statement, which may be true or may be false; instead of the simple
statement that she thought she would go back as she saw no light, there
may, for all we know, have been a strong argument; he may have made
improper proposals which she resented; this led to blows with the fatal
result. We have no means of knowing what actually took place at that spot.
But even taking Jean's own account, when she remarked that "she thought
she would not go any further," he saw that his plan was frustrated. Then
he struck her with the monkey wrench which he happened to have in his
pocket--for what purpose no one knows. Having struck her once, it was easy
to strike the second and the third time. It was only natural for an
imbecile to keep at it,--"finish the job" as he expressed it. According to
the evidence he struck her with the knife approximately twenty-four times,
finally hitting the jugular vein in the neck, as a result of which she
probably bled to death.

As already stated, the writer has no desire to advance this as _the
theory_ of the deed. But if Jean is an imbecile, this theory is fully as
good as that upon which the prosecution worked, and it eliminates entirely
all necessity for elaborate planning. Up to this point we have shown that
the fact of a confession and the character of the confession, both
difficult to explain on the basis that Jean is a normal boy of sixteen,
are entirely clear and perfectly characteristic of a high-grade imbecile.

Let us look now at his actions immediately after the deed. It is in
evidence that Jean said he took the murdered girl by the foot because
there was no blood there and he did not want to get blood on his hands for
fear they would take his finger prints. Holding her by the foot, he
dragged her out of the road behind some bushes and left her in the snow.
He then went back into the road, making new tracks, which he made no
effort to cover. Nor did he make any effort to cover the old tracks or the
blood spots that were left along in the snow. Neither did he make any
attempt to hide the hat nor the umbrella nor the broken comb which were
left in the road; his care to take her by the foot where there was no
blood is cited as evidence of forethought and judgment; but what shall we
say of his failure to cover up his tracks when it was easy to have done
so!

Again we must remind the reader that we have nothing but the boy's
testimony as to the fact that he took her by the foot or to explain why he
took her by the foot, but in accepting his testimony as true there is
nothing incompatible with high-grade imbecility.

The one peculiar thing about Jean is that he has read more than most
imbeciles even of this high grade. But this peculiarity does not save him
from being an imbecile, since there are cases of imbeciles who have read
as much or even more than he. Furthermore, there is plenty of evidence in
the case that Jean's interest in reading has gone along the line,
childlike, of crime. The various experts who examined him told of his
talking about the case of the New York gunmen, of the Pomeroy case, of a
murder in the South, and possibly others. He inquired about Mahoney, the
would-be assassin of Mayor Mitchell. In connection with these crimes his
reading of finger prints had made the same impression upon him that it
would have upon any boy. He remembered what he had read and perhaps acted
upon it, at least talked about it when the opportunity came, and pretended
that he considered it in his action.

It needs no argument to show that all the rest of his conduct in leaving
things as he did was imbecilic. Even many a high-grade imbecile would have
been much more thoughtful and more careful to cover up the tracks in the
snow. That Jean did not do so is in itself almost an unanswerable argument
that he was an imbecile.

He then went home, and having washed the knife in the snow, put it in the
pantry drawer. No evidence was produced, so far as the writer knows, to
prove that this was the fact; we do not know whether the knife belonged in
the pantry drawer and he put it back, or whether it belonged in his pocket
and when he was through, he put it back in his pocket or put it somewhere
else. Again, assuming that he told the truth, he certainly ran the risk of
being questioned as to what he had been doing with the knife. He then went
on an errand, and, according to his statement, went down to the railroad,
hoping to jump a freight train. When he found the freight had gone, he
hurried back home. These actions according to the prosecution indicate
careful planning and a desire to get away; realizing the enormity of his
deed he wanted to get out of town. Surely no normal youth of sixteen would
have failed to get out of town even though he had missed the freight
train; but his conduct is perfectly characteristic of an imbecile. One
simple thought having failed to materialize, without planning further he
goes back home, acts as no one but an imbecile could under such
circumstances,--goes to bed, sleeps soundly, gets up the next morning, and
goes to work. Then he makes another effort to get away. But how crude an
effort it is. He walks quietly along the railroad track and, as already
stated, makes no attempt to hide, but passes the trackman and goes into
the station at Newport. When he meets a person from his own town, comes
promptly and quietly back home. Surely an act much more befitting an
imbecile than a normal boy of sixteen!

The writer was asked upon the stand whether these incidents indicated to
his mind that Jean had intelligence and had planned this thing carefully.
The answer was emphatically, "No." At every turn they indicate an
imbecile. We could cite many instances of imbeciles in our institutions
who have done things of exactly the same character. Our high-grade boys
frequently plan to run away, and often their plans are much more
elaborately conceived and much better carried out than Jean's was.

In speaking of the confession it may be noted also that not infrequently
our boys when they have made a plan to run away cannot keep it until they
can carry it out, but make a confession. They go to some attendant or
officer and, without any compulsion, actually tell of their plan. In this
way a great many times their purposes are frustrated. When two boys plan
to run away, it is rare indeed if they carry out their scheme; it is
almost certain that one of them will confess to somebody.

Jean manifested throughout that love of display and notoriety, that
longing to be the center of observation and talk, which is so
characteristic of imbeciles. He asked the alienists who were examining him
if his picture would be in the paper and what the people were saying about
him. According to the testimony of the experts who examined him in jail,
every occasion on which he was examined was regarded by Jean with
pleasure, and his only thought apparently was that he was the center of
observation. Instead of showing some realization of his crime and that he
was exerting himself to make an appearance that would be favorable to his
case, all the evidence was of the opposite character. None of the
witnesses for the prosecution were able to hide the fact that he was
light-hearted and frivolous, and, in a word, "showing off," throughout
these various examinations.

Throughout the whole time of the writer's examination of him Jean never
for one moment evidenced by word or action any thought as to how his
conduct or his answers to questions would affect his case. As was pointed
out by the defense, quite in keeping with his mentality was his statement
to the experts employed by the prosecution, that he had been told not to
talk, in spite of which he talked incessantly and told everything that
they wanted. The fact of the matter was that his desire to show off so far
overcame any thought of self-preservation that he talked and acted freely
in spite of his lawyer's caution that he should not answer questions. His
conduct in the court room throughout the trial was that of an imbecile, of
a child, who had no realization of the predicament that he was in and no
purpose to make a good appearance. He was in the limelight and he enjoyed
it. Even when the most gruesome details of his deed were being recited, he
evidenced no feeling of horror or sorrow or fear; on the contrary he was
indifferent, and frequently even laughed at the incidents that were
related. He showed no excitement after he got home that evening; he slept
well. His only comment on his prison cell, which to a normal person would
have been loathsome in the extreme, was that it was better than St.
Vincent's, where he had been at school. Even when the experts introduced
by his own counsel were examining him, and when, had he been intelligent,
he should have known that it was to his advantage to make the best
possible appearance, to give them every possible help, yet when his dinner
was brought into his cell, he could think of nothing but eating and
ignored the people who had been sent to help him. As one of the experts
testified, "As between soup and safety, Jean prefers soup."

These facts and circumstances alone are enough to satisfy any person who
is familiar with the character of the inmates of our institutions for the
feeble-minded that Jean was an imbecile and really belonged in an
institution. But besides these circumstances several witnesses were
introduced who testified to the curious and childish actions of Jean in
his past history. Quite recently, he had tried to catch pigeons by putting
salt on their tails. The prosecuting attorney called attention to the fact
that almost every man remembers going through the same experience, but it
may be safely asserted that this is not done by any normal boy after the
age of twelve. It is a childish act, and indicates a mentality of less
than eleven.

Peter Black, the village blacksmith, testified that some one sent Jean to
him one day for "strap oil"; that he carried out the joke by slapping
Jean with a strap, but was unable to make him see that the whole thing was
a joke. He teased and bullied the other children in a way that is
characteristic of the high-grade imbecile. Mrs. Anna Newman testified that
he was a restless boy, and that sometimes he would answer her questions
and sometimes not. Every superintendent of an institution for the
feeble-minded would instantly recognize these characteristics as common
among his inmates. The reader will find more of these incidents in the
Appendix, pp. 113-119.

One of the unique features, so far as court procedure is concerned, was
the introduction into the case, of examinations by means of the
Binet-Simon Measuring Scale of Intelligence. The writer's examination of
Jean consisted largely of the use of these tests, and as a result he
estimated his mentality at approximately ten years of age. It was somewhat
difficult to estimate his mentality with the usual exactness since others
had already used the tests, and it was impossible to say how much Jean had
learned from his previous examinations. As a matter of fact, in some cases
at least, he had not profited by the experiences which should have helped
him greatly had he been a normal boy. For example, one of the tests is to
draw from memory a diagram which he has been allowed to study for ten
seconds. It is clear that if one were given this test two or three times,
at the last trial he should have a pretty good idea of it and be able to
draw it correctly. Although the writer's use of this test was in the last
of the series of those who tested him, yet he did not succeed in drawing
it. This is usually drawn by a child of ten years. When asked to repeat a
certain sentence, he replied, "Oh, I have been asked that a hundred
times." But in spite of the fact that he had heard it several times he
failed to remember it, and yet this sentence is generally remembered by a
child of twelve.

This is not the place nor is it necessary to discuss the Binet tests
themselves. A word, however, may be said as to why the experts for the
prosecution did not get the same results with the tests that those of the
defense obtained. Also it seems necessary to make a brief explanation,
since the prosecuting attorney failed so markedly to understand the tests
in spite of the fact that he had had the instruction of one of his own
experts who used them. One of the prosecution's experts told the writer
that he did not ask Jean any questions except those in the twelve-year
list, and he "seemed to do those satisfactorily." There are two sources of
error in this. In the first place, Jean's failures were not only in the
twelve-year, but in the eleven and ten. Secondly, if Jean seemed to do the
twelve-year tests correctly, it could only have been because they were
wrongly used. The Binet Scale is not, as the prosecutor insisted on
stating, an "arbitrary system." It is not a set of questions to which
there are definite and fixed answers that are correct, and from which any
deviation is marked a failure. Nor is it a set of questions the answers to
which can be judged as to their correctness by the so-called "common
sense" of the investigator. To illustrate: Jean was asked to give the
definition of the word "charity"; he said, "Charity is giving." The
prosecuting attorney insisted that this was a correct answer, because, as
he said, "Charity _is_ giving." This is mere sophistry. It is not a
question as to whether "charity is giving" is a theoretically correct
answer to the question; the important point is, that such an answer is
_not the kind of answer that is given by twelve-year-old children_. This
has been proved by asking hundreds of twelve-year-old children to define
"charity." Practically 75 per cent of such children include not only the
idea of giving, but the other necessary idea of giving to some one who is
in need. The answer, "Charity is giving," is characteristic not of
twelve-year mentality, but of something under that,--ten or less. So
throughout the system the scale must not be judged by what seem correct or
incorrect answers to the inexperienced adult. The value of an answer can
only be known by knowing the character of answers that are given by
children of the various ages. The point is not always that this answer is
or is not technically correct, but that it is not the kind of answer which
a child of the specified age should give. Therefore, it indicates that he
is not of that age, but below it. This was the error into which the
prosecutor and his alienists had fallen in their use of the tests in the
case of Jean Gianini.

Jean's school record was the serious stumblingblock to many persons who,
from the facts, notably those already cited, were inclined to think that
possibly he was an imbecile. To many of these persons that record seemed
to indicate a normal boy. The teachers and the principal testified that he
did his work well through the fifth grade and got excellent marks, even
getting 100 per cent in some studies. They lost sight, however, of the
fact that Jean was fourteen or fifteen years of age and in a grade which
he should have been in at eleven, namely, the fifth.

As a matter of fact, Jean's school experience, when taken as a whole, is
most confirmatory of his imbecile grade. It was proved in court, but not
fully appreciated, that Jean got along well through the fifth grade, but
_when he went into the sixth grade, he failed_.

Professor Robinson testified that when Jean was transferred to Miss
Beecher's room, his troubles began. The boy did not get along nearly so
well after the change and he dropped back in his studies. His teacher was
obliged to report him a number of times to the principal, who twice
whipped him with a piece of rubber hose. Failing to make his studies under
the new standard, he was made to occupy a special seat apart from the
other pupils, at the instance, if not the actual order, of Miss Beecher.

The witness further testified that in the last days of his school life
Jean dropped, _to a very marked degree_, in his standing in his studies.
This falling off in Jean's ability was _attributed to his teacher_. As a
matter of fact, the falling off was due to the fact that Jean had _reached
his limit_ in the fifth grade. He attained to that height because of a
good memory, which is characteristic of many imbeciles and is in no way
indicative of normal intelligence. It is also very common for children of
this type to get through the fifth grade and fail in the sixth. They have
mentality enough to carry them to that point, but not farther.

It is a satisfaction to realize that Jean's failure in school with Miss
Beecher is in no way due to the inefficiency of his unfortunate victim. It
was due simply and solely to the fact that Jean was an imbecile and had
reached his limit. These two facts of a good memory and of good school
work in a few school grades have deceived many people as to the
intelligence of a child.

It should be remembered that many imbeciles do not show their defect until
at the age of eleven or twelve when they are in the fifth or sixth grade.

One of the witnesses for the prosecution said that he considered that Jean
was normal and that his apparent backwardness was due to lack of
schooling. This is a common error in all such cases. If asked why a boy
should be backward through lack of schooling when he has been to school
and has had every opportunity to learn, it is common again to fall back
upon the idea that he has not studied. He has been a wild, wayward boy,
playing truant, more or less, and has never applied himself, therefore he
is behind his grade and is dull and backward. Again, while not denying
that there are children of perfectly normal intelligence who seem to be
misfits in school or who seem more interested in other things than in
their school work, or children who will not study because of dislike for
the teacher or for various other reasons, yet the reader must be reminded
that a study of the high-grade defective shows that he is continually
being confused with these very exceptional children who have the ability
but who do not study. In other words, when a boy does not get along in
school, even though it is evident that he does not study, the strong
probability is that he does not study because he has not mind enough to
appreciate the work, to understand it, hence to have that highest of all
incentives to work, success. The fact that the majority of boys do get
their lessons and get along well in school should be a strong argument
that there is something seriously wrong with those that do not succeed.

It may further be asked: How does the fact that the boy has not succeeded
in school affect his examination by the Binet test? Experience has shown
that the test is affected but slightly. In other words, the mind develops
regardless of school and school training. As long as we ask only such
questions as call for a general intelligence and do not call for specific
school instruction we are reasonably independent of such instruction. As a
matter of fact, nearly all of the questions of the Binet Scale are free
from this objection. Some of them, it is true, are a little helped if the
child has been to school and correspondingly hard if the child has not
been to school; but, on the whole, they do not affect the final rating to
any serious extent. This has been proven repeatedly by normal children
who, on account of sickness or for other reasons, have not been to school,
and yet can pass the Binet tests for their own age.

We must now turn to the question of cause. If we can account for Jean
Gianini's imbecility, it will be much easier to believe in it. Much has
been written on the subject of the causes of feeble-mindedness. Certain
fundamental principles have been agreed upon. It is now known that at
least 66 per cent of feeble-mindedness is hereditary; that is to say, the
individual is feeble-minded because he comes from stock in which
feeble-mindedness exists. There is another group in which there are
practically no other feeble-minded persons in the family or among the
ancestors so far as can be discovered, but there is, on the other hand, a
great deal of bad physical history; there may be epilepsy, alcoholism,
insanity, or other serious physical disturbances. Finally, we have a group
in which there is history of some accident, either to the child at the
time of birth or after birth, or to the mother previous to the birth of
the child.

In Jean's case we have no history of accident or injury to the child
himself. The pedigree or family tree has not been worked up and we do not
know what there may be. It was in evidence that the grandfather was born
on the south side of the Alps; and there was some slight attempt to imply,
since cretinism is very common in that region, that possibly there was
some cretinous condition in the family. All this is not impossible; and if
it existed in the grandfather or even in the great-grandfather, such a
condition might reappear in the grandson in the form of imbecility; yet in
view of our present knowledge, or rather our lack of knowledge on this
subject, this line of argument is too vague to enable us to draw any
conclusions.

The fact that the mother of Jean was insane and alcoholic justly had great
weight. Before her first child was born she broke down mentally and was
probably never "right" after that time. The first child lived to the age
of seven and from the description was clearly an idiot. The second child
is entirely normal. Jean, who is the third child, did not talk until he
was five years old.

Our general studies have not yet gone far enough, and certainly our study
of this particular family is far from sufficient, to enable us to decide
whether this is a matter of heredity or whether we shall say that Jean's
condition as well as that of the first child is traceable directly to the
mother's insanity or to her alcoholism.

For the present purpose, of course, it does not matter. We see in these
facts, whether we regard them as causes or merely as symptoms of a deeper
lying cause, sufficient reason for Jean's being an imbecile. There is
every reason to believe that Jean Gianini is an imbecile of high grade.
The next important question that arises is a legal one of whether, being
an imbecile of high grade, he knew the nature and quality of his act and
that it was wrong.

Before discussing this let us consider two other cases--after which we may
discuss the general proposition of whether high-grade imbeciles know right
and wrong.

CHAPTER II

THE CASE OF ROLAND PENNINGTON

On November 7th, 1913, Lewis S. Pinkerton, the manager of a certain farm
in Delaware County, Pennsylvania, suddenly disappeared. As it seemed
probable that he was the victim of foul play the detectives set to work
and in due time arrested George March, the dairyman on the farm, and
Roland Pennington, a farm laborer. Suspicion was directed to these two men
largely through the testimony of the woman who was supposed to be the
so-called common-law wife of March. At his trial it was shown that he had
another wife living, and consequently she did not even have that as a
claim upon him. This woman had heard groanings from the direction of the
barn, and later when March came into the house, had noticed blood on the
towel and on his clothing.

The body of the lost man could not be found. After being taken to prison
March accused Pennington of the crime, admitting that after the deed was
done he assisted young Pennington in disposing of the body, because, as
he said, he was afraid that he himself would be accused of the crime.
Having made this admission, he took the officers to a wood some miles away
where the body had been buried in a rude, shallow grave.

[Illustration: ROLAND PENNINGTON.

(By permission of "Alienist and Neurologist.")]

When Pennington was confronted with March's accusation, he too made a
confession, which, however, implicated March quite as much as himself.

March was tried in Delaware County, and convicted of murder in the first
degree. The defense was, in accordance with the above statement, "that he
had nothing to do with the crime itself, merely assisted in disposing of
the body."

Pennington's trial occurred in June, 1914, when he also was convicted of
murder in the first degree. The defense in this case was imbecility and
irresponsibility. Although the jury did not accept this view, the case is
a most interesting one from the standpoint of criminal imbecility.

The story of the crime is probably best given in Pennington's own words,
since his confession has all the marks of truthfulness and was evidently
accepted by the jury in the March case. It was almost exclusively on the
strength of this testimony that March was convicted.

_Statement of Roland Pennington as to the Pinkerton Homicide_

I, Roland Pennington, being duly sworn according to law depose as
follows:--

I went to work at the Wilson farm about October 7th; I boarded with
George March and his wife; George worked on the farm too; he was the
butter maker; from the time I went to the farm, George was always kind
and good to me; George had charge over me when Lew was not there;
George would loan me money when I wanted any, and several times took
me to Gradyville with him, when he would take me over to the hotel and
treat me to a drink; about a week or two after I went to the farm,
George had a fight with his wife at the dinner table; George told her
she was too intimate with Lew and a painter, who was working there;
she talked back to George and George threw things at her; after dinner
George told me that what he said to his wife was true; that was the
first I knew about George's trouble with his wife; after that George
talked to me about his wife all the time; once I told George I would
like to go West; one day George said he was going to take the painter
to law, and get some money from him, and if I would stick by him, he
would divide up with me and take me West. Afterwards he talked more
about Lew and his wife; one day he said if it didn't stop, he would
break up, sell the furniture, and go West, and that if I would save my
money to help out, he would take me with him; one day George's wife
was away all day, Lew was away that day too; they came home about the
same time; George told me afterwards that he accused his wife of being
with Lew; that night Lew came in the cow stable while George and I
were milking; they had some words, but I could not hear what they
said; George looked pretty mad and Lew was excited; George told me
afterwards that he had accused Lew of being with his wife and Lew
denied it; he also said it was as much as he could do to keep from
getting up and smashing Lew in the face. On several different times
when we were working together, George said that if Lew didn't stop
going with his wife, he would put a stop to it; George had charge over
me when Lew was not at the farm, and one time when I asked Lew for
some money to buy shoes, he would only give me two dollars, and gave
five dollars to George to buy shoes for me; after the first of
November, George said, "Lew hasn't paid me. I wonder why"; he said
this on two or three different occasions; on Thursday, November 6th,
George came to me and said, "Well, Rol, Lew paid me to-day." I said,
"Did he?" and he says, "Yes, he had a big bunch of money on him. Did
you ever see a thousand dollar bill?" I said, "No, I never saw one."
He says, "Well, neither did I. What figures ought a thousand dollar
bill have on it?" I says, "I don't know. A thousand is one and three
noughts after it." He says, "Well, I asked the Mrs. about it, and if
that's right he had one of them on him." This took place Thursday
afternoon about half past three in the stable. That night about
quarter after five while George and I were separating the milk down in
the milk house, George said, "How would you like to have that bunch of
money Lew's got on him?" I don't remember saying anything to that.
There was nothing more said about it that day. The next morning,
George and I were separating the milk down at the milk house before
breakfast, and George said, "Well, Lew will have that bunch of money
on him to-day. Let's get it." I said, "What do you mean?" He says,
"Why, do away with him." I says, "What? Kill him?" He says, "Yes." I
says, "No. I won't kill him." He says, "Well, you start it and I'll
finish it. I got a blackjack up at the house, I used one time myself
to knock a man in the head with out West, to get seventy-five dollars
from him to come East on." He said he was in a bank in the West and
saw this man get the money--the seventy-five dollars--and when the man
came out, he managed to get a ride with him, and while they were going
along the road, he hit the man in the head and knocked him out, and
went on his way. I didn't say anything.

That afternoon, about three o'clock, George came to me in the milk
house, while we were getting the milk buckets and cans ready to take
to the barn, and handed me the blackjack and said, "Here's the
blackjack; you can do it with that." I put it in my pocket. We then
went to the barn. From then up to about five o'clock, while we were
working about the barn, George kept saying to me, "Don't lose your
nerve. The first chance you get after the workmen are gone, get him."
Several times he said, "Don't miss your chance--Don't forget." Lew was
away that afternoon. He came home while George and I were milking.

After we finished milking, we took the milk down to the milk house;
then I went back to the barn to feed the horses. While I was feeding
them, George came up from the milk house to feed the calf. I generally
fed the calf. George seldom did it. In feeding the horse, I had to
carry hay around from the old horse stable to the new one. In going
around for some hay, I met George right outside the old horse stable
door. He said, "Lew will be around here pretty soon. You can get him
then." After I had finished feeding the horses, I took the fork over
to the old stable. As I was doing so, Lew went in the new stable. I
met George at the stable door when I came out from putting the fork
away. George said, "He's in the new horse stable; go get him." I went
in and told Lew there was a nail in the last stall next to the box
stall and that he had better look at it. He went up to look at it, and
while looking at the place I told him, I struck him on the head with
the blackjack. He turned part way around, threw up his arm, and said,
"Hey, what are you doing?" I struck at him some more; he rushed at me
and we clinched. This happened in the stall alongside a horse. After
we clinched we got out into the passageway, back of the horses. Lew
soon got the blackjack away from me. As we came out into the
passageway, I think I saw George near the door. He afterwards told me
he heard when I hit Lew first and that he came in, and that while Lew
and I were wrestling, Lew made a grab for him and knocked his glasses
off. Lew and I tussled quite a while up and down the passage back of
the horses; Lew was hollering all the time; I think we went down
once, got up again, and went down again, with Lew on top of me; then I
got on top of him. At about that time he called for George; George
must have gone out in the meantime, for when Lew called for him, I
remember the door being opened and George coming in. He came up and
asked Lew what was the matter, whether the horses kicked him. Lew
said, "Yes, yes, help me." George stooped over and whispered to me,
"Where is the blackjack?" I told him Lew had it. Lew then said,
"George, you are no kind of a man." Whether George got the blackjack
or not I don't know. He then went around by Lew's head and started
kicking. I had my hand on Lew's head and the first kick George made he
kicked my knuckles. I then left go of Lew and got up. While getting up
George was continuing to kick him in the head. After continuing to
kick him in the head after I got up, George went around and kicked and
stamped Lew in the side. Then he stopped--and said as though to
himself--"Which side is his heart on?" Then he started to kick him on
the other side. After a while he stopped. I don't remember whether he
said anything to me or not. Anyhow, George took him by the head and
shoulders and I by the feet and we carried him into the box stall.
Then George went up to the house for a lantern. I waited for him at
the stable door. He came down with the lantern and went in the box
stall, felt Lew's heart, and then stood up and stamped him some more;
then he searched him.

In tussling with Lew I had gotten blood on my coat, pants, and shirt.
After George searched Lew, we left the stable, and I asked George
where the overalls were that the whitewasher had worn. George said he
thought they were up at the wagon house. We went there, but could not
find them. George did find an old pair of Lew's pants and a shirt. He
gave them to me and I put them on. While I was putting them on George
went in the house. I went in later, went to my room, put on another
coat, and went down to supper. George finished his supper first; got
up and told the Mrs. he was going to Gradyville after some sulphur for
the pigs. He then asked me if I wanted to go along with him. I said I
would. Then we went to the barn; George got two bags in the old horse
stable and put one inside the other. Then we went in the new horse
stable where Lew was. George set the lantern down and told me to take
hold of his arms and lift his head and shoulders. I did so, and George
slipped the two bags over Lew's head and body. Then George tied a
cloth around the neck overtop the bags. Then he told me to hitch the
horse Dick to the milk wagon. I did so. Then I returned to the new
horse stable. George then said we will carry him up to the wagon. I
had left it in front of the wagon house at the barn. George said, "We
had better take him up through the barn." George took him by the head
and shoulders and I by the feet. We carried him up through the barn.
When we got to the wagon, George got some bags and put them on the
floor of the wagon. Then we put the body in. Then we got a blanket and
threw it over the body. Then George got two shovels and a grubbing
hoe, and put them in the wagon. Then we drove away.

After we got started George said we would bury the body in
Lauterback's woods. When we reached the road that he said led up to
that woods, he said it was too near home and kept on driving. After
driving for a long time we came to a pair of bars. He pulled up there
and said, "That wood over there looks pretty good." Then he drove on a
little piece further. Then he said we better go back to that woods.
Then we turned around and went back to the bars. George got out there,
handed me the lines, and he took down the bars. I drove in, he put in
the bars, and led the way, and I drove on across a field, till we came
to another pair of bars. He took them out and then led the way across
the fields to the woods. When we got there, George picked out a place;
said he thought it would be an all right place. Then we dug the grave.
Then we went back to the wagon, got the body, put it in the grave, and
covered it up. Then we returned home.

That night George suggested that we clean up the marks in the morning.
The next morning we got up early and cleaned up the marks on the floor
and washed the walls. George said to make sure there would be no marks
on the wall it would be better to whitewash it. He said he would do
that and for me to go to other work, so I started to haul stone.
George also said to take my clothes to the milk house and burn them. I
did take them there on Saturday morning. George was there and I gave
them to him. He said he would burn them. On Saturday, George came to
me and gave me seven dollars and a watch and a ring which he got off
of Lew when he searched him. He told me he had only gotten fourteen
dollars and five cents and to pawn the watch and chuck the ring. I
threw the ring away and took the watch to Philadelphia and pawned it
at Carver Reeds on Market Street near Fifteenth Street for four
dollars. When I saw George the next morning, Sunday, I gave him the
pawn ticket and said I would give him two dollars when I got the
change. He said never mind that.

(_Signed_) ROLAND PENNINGTON.

Here again is a crime so abhorrent in its details that it is unbelievable.
There is no excuse for it, no adequate motive, no justification whatever
so far as the boy, Pennington, is concerned.

For March, it is easy to believe, as the jury evidently did believe, that
he was actuated by what might be called an insane jealousy of the woman
with whom he was living. We are familiar with the lengths to which such
jealousy can lead a man. But why Pennington allowed himself to be made the
dupe of this jealous man cannot be explained; it is absolutely
incomprehensible on any theory that assumes that he is a normal boy of
nineteen years.

It was in accordance with this feeling that some one raised the inquiry as
to whether the boy was possibly a mental defective. This question having
arisen, the writer was asked to examine him and give an opinion as to
whether or not he was normal.

Accordingly the examination was made in the Delaware County jail in Media;
this showed that the boy had a mentality of about eleven years according
to the Binet Scale. He could not do any of the tests for age twelve and
failed on some of those in ten and eleven. This indicated an intelligence
scarcely up to eleven.

Further examination by other methods, the circumstances of his life, his
appearance, and his school history, all tended to corroborate this view.
The boy was nineteen years old when he committed the crime; two years
before he had left Westtown Boarding School, after an attendance there of
two and a half years. When he entered the school, the teachers graded him
as of a capacity equivalent to the fifth grade in public school; he,
therefore, began sixth-grade work. He never got out of that grade. For two
and a half years he studied and tried to pass. He was absolutely unable to
do sixth-grade work. Sixth-grade work, it will be remembered, is about the
grade for a twelve-year-old normal boy; thus we have a striking agreement
between his school experience and his Binet tests. By the Binet test he is
eleven; in school he cannot do twelve-year work!

Asked what he had done since he left the school, he said he had done "a
good many things." Asked where he had worked, he said he did not remember
all of the places. As a matter of fact, he had had exactly the career that
the high-grade imbecile usually has out in the world. He either gets
discharged from his positions because of incompetency or he leaves
because of his nomadic tendencies. The imbecile rarely stays long in a
place if free to move.

In addition to the above, the reader will see many evidences of
childishness in his confession. He talks like a child; he alludes to
George March as a child would; he says, "He has charge over me"--"He was
kind and good to me; he used to take me to Gradyville," etc. Even
Pinkerton gave the money to March to buy shoes for Pennington. Again
Pennington says, "George said he was going West and he would _take me with
him_." One cannot imagine a nineteen-year-old youth, or even a
fifteen-year-old, talking in this way. By the time a boy reaches the
latter age, he is in his own mind the equal of anybody. He would not say,
"George took me." He would say, "We went." He would say, "I got along all
right with George," or some other expression whereby he would assert his
own manhood and not take the rôle of a child.

While in jail he showed no realization of the seriousness of his
situation; showed no remorse for his deed; took no interest in his case.
For example, he was told by his lawyer not to allow himself to be examined
by any doctors without sending for his counsel; in spite of this warning
he allowed himself to be examined by four physicians at one time and by
two at another, and never mentioned the matter to his counsel even after
it was done.

In the confession made to the prosecuting attorney one notices, as in the
one we have quoted, that he appears simple and innocent; answers the
questions often in terms of the questioner instead of by a simple "Yes" or
"No," which would be natural for a normal young man; he is uncertain and
hesitates; he says, "I think," in a great many cases where it was strongly
to his advantage to speak positively.

After the deed was committed he _took no care to remove the evidence_;
everything that was done in that connection was done at the _suggestion of
George March_. All the way through this part of the confession it
reads--"He led, I followed," "I did as he told me."

Having satisfied ourselves that Roland Pennington is a high-grade
imbecile, the next question is, even as an imbecile, why did he do this
deed.

In the case of Jean Gianini we found that it was for revenge of a fancied
wrong, that is, according to his own statement. If not that, it may have
been a sexual matter. In this case neither motive applies, and we have
only two possible theories. The theory of the state was that it was for
robbery. Indeed, Roland himself seems to admit that this was the motive.
But this again is only a part of his imbecility. He was given a leading
question by the prosecution and was weak-minded enough to say, "Yes."

As a matter of fact one finds it very hard to get any evidence from the
whole situation that he really was lead by cupidity. There is no evidence
of any elaborate plans in regard to money, either as to getting it or as
to what was to be done with it when he got it. March had talked about a
thousand-dollar bill, and asked Pennington how he would like to have "that
bunch of money." Pennington says he does not remember saying anything in
reply. This does not look as though it aroused any great emotion in him.
Later March said--referring to the money Pinkerton was supposed to have
"on him"--"Let's get it." Pennington asks, "What do you mean?" He is
clearly thinking less of the money than of what he begins to dimly
understand they are to do. When he understands that they are to kill him,
he says distinctly, "No. I won't kill him." Never again is the subject of
money mentioned. In all March's urging him to do the deed he never says,
"Remember the money," or alludes to money in any way.

Perhaps we are begging the question. If Pennington were really intelligent
and shrewd, he would not say anything in his confession that would supply
a motive for the crime. Not only does the whole confession give ample
evidence that he was not sufficiently intelligent to protect himself in
this way, but the conclusion of the matter shows clearly that it was of
practically no importance to him. After the deed, March gave him seven
dollars! He said, "I thought there was more." That is all. He did not
insist or complain. He accepted it calmly and without protest. He even
proposed to give March half of the four dollars received for the pawned
watch. Imagine a nineteen-year-old boy with full consciousness and
responsibility killing a man for his money and being so complacent over
receiving seven dollars! The theory is not convincing. Even the
prosecution, whose whole case depended upon showing a motive, never
pretended that Pennington made any stir because the amount was so small.

There is not the slightest evidence, external or internal, that the idea
of getting money played any part in Pennington's share of the crime.

Why then did he consent to begin the matter which George was to finish? It
is clearly a case of suggestion. A suggestion, it is true, which never
would have worked with a normal nineteen-year-old youth. With this
weak-minded boy it is easily understandable. As we study the confession we
discover that George March, either consciously or more likely
unconsciously, used suggestion most adroitly. Undoubtedly he had learned,
through association with Roland for six weeks, that this boy was very
simple-minded and easily led. Having reasons of his own for desiring to
get rid of Lewis Pinkerton, he first suggests the matter of money, hoping
to appeal to Roland's cupidity. It will be noticed that he nowhere uses
the word "murder" or "kill"; even the mild expression, "Make away with
him," he uses only once. When Roland at one time almost takes fright and
asks, "Do you mean kill him?" and he admits that he does and Roland says
he won't do that, the older man lulls him to sleep by the suggestion,
"Well, you begin and I'll finish it."

March tells a story about a blackjack; then he brings the blackjack and
gives it to Roland, saying nothing except, "You can do it with that."
Roland is so weak-minded that he takes the blackjack and puts it in his
pocket. When the right time comes and the opportunity is near at hand,
March stations himself at a convenient place where he will see Roland as
he goes back and forth at his work, and for some little time he
constantly coaxes and dogs him, pouring into his ears a stream of
suggestion such as, "You will have a chance pretty soon"; "Don't forget";
"Don't lose your nerve"; "Now you can get him"; "Now nail him."

It is an interesting little point, possibly only a coincidence but
nevertheless a perfectly natural imbecilic association, that the one
seemingly original thing that the boy did in connection with the matter
was to invent a little trick in regard to the nail in the stall. It is
quite likely that even this was suggested by George's previous expression,
"Nail him."

Even the blow itself does not seem to have been given with normal vigor;
having every advantage,--the victim bending over, Roland being behind him
and with a blackjack which is capable of thoroughly stunning, if not
killing at one blow,--he apparently did not strike with force enough to
even produce unconsciousness. His victim was able to talk and to struggle
for some minutes, until March, the companion in crime, came up and, as he
expressed it, "finished him."

As to motive, then, we conclude that the defendant had none. He was acting
upon the suggestion of George March. Even the poor mind that he had, which
under other circumstances might possibly have rebelled at such a
suggestion, was lulled to sleep by this man of better intelligence for
whom he had been working and who he had learned to think was "good and
kind" and on whose judgment he thought he could rely.

Since the Pennington case is typical of the way weak minds work under
control of normal minds, it will be worth while to analyze somewhat more
fully this idea of _suggestion_.

How does suggestion work? Why does it indicate a weak mind and how does it
affect our ideas of responsibility? Let us see.

We have already seen that Roland Pennington was under the control of
another mind; we do not mean that he was actually hypnotized--a
nonsensical plea that is sometimes brought into court cases. Roland
Pennington was a victim of suggestion. An illustration will make this
clear.

If I were to take a city man to a third-rail electric road and ask him to
stand on one rail and put his hand on the third rail, he would resist the
suggestion, because there would immediately come into his mind visions of
himself burned to a crisp or instantly killed. But suppose I take a man
who has come from the rural districts and who never heard of third rails.
He has lived, let us assume, in my house and worked under my direction a
month and has come to regard me as a friend. We have worked together and
talked together; I take him out and say, "Touch that third rail." Will he
resist the suggestion? Not at all. Why not? What is the difference between
the two men? The first has ideas about third rails. His past experience
has filled his mind and memory with thoughts and with knowledge which
instantly come to consciousness when I suggest touching the third rail.
The other man has no such experience. He has known me long enough to have
some faith in me. In fact from the very nature of things he is in the
habit of doing what I tell him. I tell him to do this, and he does it.

Coming back to the first case, one perhaps can conceive that the city man
and I might come upon the third rail under such conditions that he was not
thinking of it. Instead of saying "third rail" to him I might say, "My!
that rail is hot" and he would almost instinctively put his hand upon it
to verify my remark. If he survived and could talk about it afterwards, he
would say, "Of course I ought to have known and did know that was the
third rail, but I did not think." That is the way suggestion works.

To illustrate still further, we may speak of hypnotism itself. All of the
wonders that are produced under hypnosis are to be explained in exactly
this way. The subject is so nearly asleep that nothing gets into his
consciousness except the ideas suggested by the operator. Accordingly he
is utterly unable to resist any suggestion that is given him.

Now coming nearer to our problem, children are naturally very suggestible
because they have not the experiences, the ideas. One may easily believe
that an eleven-year-old child could be induced to touch the third rail.
Furthermore, authority plays an enormous rôle with children. I might take
my ten-year-old boy out for a walk. He knows all about third rails and
would not touch one. But if I were to say to him, "Son, you can put your
hand on this, because there is no current on," he would probably obey
without question, because of his implicit trust in me. That confidence in
a superior, either in age, intelligence, or position, is one of the
characteristics of immature minds and one of the conditions that makes us
all suggestible. In the hypnotic terminology again, this is the being _en
rapport_. The hypnotized subject obeys the operator and no one else
because it is the operator with whom he is _en rapport_--in other words,
in whom he has confidence.

Now let us come to the situation. It is perfectly clear that Roland
Pennington was under strong suggestion and that any vague concepts that he
might have had of the wrongfulness of murder or of killing a man were very
carefully allayed by the man who had the influence over him and who had
the motive for this homicide.

The whole statement shows that Roland recognized George as a superior, as
one in authority over him and at the same time as a friend, as one on
whose word he could absolutely rely. It is a perfect picture of the child
following the man.

CHAPTER III

THE CASE OF FRED TRONSON

Our third case is that of Fred Tronson of Portland, Oregon. What we know
of the history of Tronson is brief, but amply sufficient to prove that he
belongs to the group that we are considering. He had lived in Portland for
two years and in that time had held seven different positions as elevator
man. He was twenty-four years of age, when, in August, 1914, he met and
became infatuated with Emma Ulrich, a stenographer who worked in the same
establishment where he ran the elevator. He asked her to marry him, but
she refused. Later he was arrested for threatening her and was ordered to
leave town and not to annoy her any further. On November 16th of the same
year he waited for her outside of her home with two loaded revolvers. When
she stepped off the street car, he again asked her to marry him. She
became frightened and ran toward her home. He followed her, shooting as he
went. He followed her into her own house and there shot her down. On
Wednesday, December 9th, 1914, Tronson was tried and convicted of murder
in the second degree. Oregon having abolished the death penalty on
November 3d, only a second-degree verdict, which carries with it
imprisonment for life, could be returned. The trial was very brief, and
the jury returned within fifteen minutes. There was practically no
defense, except the claim on the part of Tronson's attorney that the man
was weak-minded and, therefore, in strict justice, should be placed in
custody, not in the penitentiary but in some other institution more suited
to his condition. He had been examined by two alienists and pronounced
sane, but of low mentality. He was also examined by a psychologist who
used a modification of the Binet tests, which showed him to have a
mentality of nine years.

[Illustration: FRED TRONSON.]

This rating obtained by the psychologist was confirmed in many ways. His
mother said he had never been able to hold a job more than two or three
months. He left school shortly before he was twenty, but we have no record
of what success he had or what grade he was in. His conduct at the trial
and before was that of an imbecile. When he was examined in the police
station, he seemed to be in constant fear that some one outside would do
him harm. When he had displayed uneasiness about an open window, the
detectives told how they closed it and sat between him and the window to
assure him that no one in the street would harm him. During the impaneling
of the jury and the taking of the testimony, Tronson sat slouching in his
chair, with sunken eyes, glaring at each witness, and with his mouth
hanging half open as though he barely understood what was going on. The
deep lines in his face and the dark circles beneath his eyes gave a vision
of sleepless nights and haunting memories. Like the other two imbeciles
whom we have discussed, he made a confession. The following is his
statement:--

Statement of Fred Tronson taken in the office of Detective Captain Baty on
Thursday, November 19th, 1914, in the presence of Deputy District
Attorneys John A. Collier and Thomas G. Ryan, Detectives Pat Moloney and
Tom Swennes.

_Question._ What is your name?

_Answer._ Fred Tronson.

_Q._ How old are you?

_A._ Twenty-four.

_Q._ How long have you lived in Portland?

_A._ One year and seven months.

_Q._ What have you been doing?

_A._ Running elevators.

_Q._ Now, Fred, I am a deputy district attorney representing this state,
Mr. Ryan here is a deputy district attorney, and these other men are
officials and officers. You have been charged with a crime, and of course
you have your rights. You have a right to make a statement here to me if
you want to tell us what the facts are. You are not forced to make a
statement, but you may do so if you want to. There isn't any use of your
getting nervous, and there is nobody going to bother you here. You needn't
be afraid. You cannot be forced or compelled to make a statement, and any
statement you make must be voluntary. Do you want to make any statement
about this shooting affair?

_A._ Yes.

_Q._ You may go ahead and just tell me what happened, commencing at the
first of it, and tell me how it came about.

_A._ Well, that time I accosted the girl in the street, it was last August
the 3d, I asked her if she would have me and she didn't give me any
satisfactory answer. She said she would wait outside at noon. In the
meantime she had me arrested. Of course I threatened to shoot myself if
she wouldn't have me. She says, "No, don't do that; I would rather have
you leave town," she says like that. She says, "I will write to you." She
says, "You are going to be a man, aren't you?" I said, "Yes, if I can't
have you." She said she would meet me out there at twelve, and before that
she phoned the police or the other girl up there, I don't know.

_Q._ That was last August?

_A._ Yes.

_Q._ You were arrested on that charge?

_A._ Yes.

_Q._ What did they do with you?

_A._ Well, they kept me here about a week and then let me go with the
understanding that I go out of town. Judge Stevenson says go out in the
harvest fields and take a good sweat and when you come back, look for some
other job and you will be all right. Come back in the fall. So I went out
next Monday and stayed a couple of days and couldn't get anything and came
back and waited about a week and stayed another week and then went to Hood
River, and picked apples and stayed up there about ten days and then came
back and I couldn't get anything. I was hoping the girl would kind of come
to me after awhile and I found after a few months that she wasn't, so I
thought I would get rid of her so somebody else wouldn't have her.

_Q._ When did you make up your mind to do that?

_A._ Last week.

_Q._ After you made up your mind to do that, what did you do?

_A._ I went off and got the guns.

_Q._ Where did you get the guns?

_A._ At Vancouver.

_Q._ What kind of a gun was it?

_A._ You got it there. That's the one I shot her with (pointing to a gun
on Captain Baty's desk just opposite Mr. Ryan), but I had another one,
too.

(This gun, marked #5308 on gun itself and marked "Exhibit A--Ryan," was
thereupon handed to the prisoner.)

_Q._ This gun marked "Exhibit A," here, is that the gun you shot her with?

_A._ Yes.

_Q._ Where did you get that gun?

_A._ Vancouver.

_Q._ For what purpose did you get it? What did you intend to do with it?

_A._ I intended to shoot her. I intended to hold on to it, but in my
excitement I dropped it in the weeds there, I guess.

_Q._ Where did you get the gun at Vancouver? Do you know the name of the
store?

_A._ No, it was a hardware store.

_Q._ How long before you did the shooting did you get this gun?

_A._ About three hours, something like that.

_Q._ Do I understand that you went to Vancouver and got this gun and then
came over to Portland, and did the shooting?

_A._ Yes.

_Q._ Where did you get this other gun? (Gun numbered 2506 was thereupon
marked "Exhibit B" by Mr. Ryan, and handed to Mr. Tronson.)

_A._ This second-hand gun?

_Q._ At a second-hand store?

_A._ Yes.

_Q._ Did you buy that at the same time you bought the other gun?

_A._ Yes.

_Q._ Where did you buy this gun?

_A._ Well, I didn't want to buy them both at the same place. I thought
that they might get suspicious. I didn't want to get two five-dollar guns.
I bought that for three.

_Q._ What did you have in mind when you bought this?

_A._ Well, if one didn't work, the other would.

_Q._ Do I understand you to say that you bought this to kill her with?

_A._ Yes.

_Q._ If the new gun didn't work, that would?

_A._ Yes.

_Q._ When you came over from Vancouver, did you have the guns loaded?

_A._ No.

_Q._ When did you first load the guns and prepare to do the shooting?

_A._ Down there along the river some place.

_Q._ Out in South Portland?

_A._ Yes.

_Q._ Did you load both of them?

_A._ Yes.

_Q._ You knew where Miss Ulrich lived, did you?

_A._ Yes.

_Q._ Had you ever visited at the house?

_A._ No.

_Q._ Had you ever kept company with her?

_A._ Yes, I walked around the streets with her once in awhile.

_Q._ You never went to her home?

_A._ No.

_Q._ Did you know her folks?

_A._ No.

_Q._ Where did you stay out there until she came along?

_A._ I didn't get out there any too soon. I didn't stand round two
minutes.

_Q._ What time did you leave town here to go out to the scene of the
shooting?

_A._ I came right from Vancouver and went through.

_Q._ What time did you get over to Portland from Vancouver?

_A._ About five o'clock.

_Q._ After you got over to Portland what car did you take then?

_A._ I walked out.

_Q._ Which way did you go out?

_A._ First Street.

_Q._ How far out First Street did you go?

_A._ Until I struck some of those other streets down there, Front Street I
guess, Water or Corbett.

_Q._ How long did you wait out there before you saw Miss Ulrich?

_A._ I didn't wait at all, I just walked around the block and she got off
the car.

_Q._ Did you see her get off the car?

_A._ Yes.

_Q._ What time was it when she got off the car?

_A._ A little before six.

_Q._ What car did she get off?

_A._ North and South Portland.

_Q._ Did you speak to her when she got off?

_A._ Yes, I said, "Wait a minute." I wanted to talk to her, and asked her
for the last time; she started running, hollering.

_Q._ Just what did you say to her?

_A._ That's all I said to her. I wanted to talk to her and she started
running and hollered.

_Q._ Did you have the gun in your hand at that time?

_A._ No, in my pocket.

_Q._ All loaded and ready for action?

_A._ Yes.

_Q._ How far was her house from the car?

_A._ Not quite half a block.

_Q._ Was there any one else got off the car at that place?

_A._ No.

_Q._ What did you do next?

_A._ I followed her around the house.

_Q._ Did she run around the house?

_A._ Yes.

_Q._ Did you run after her?

_A._ Yes.

_Q._ When did you commence shooting?

_A._ Just before she went in the door.

_Q._ What door did she go in?

_A._ The back door.

_Q._ How many shots did you fire?

_A._ One before she went in.

_Q._ How many after that?

_A._ Four; I think there are only five in the gun.

_Q._ Did you know that the last bullet struck her?

_A._ I knew one must because she fell down after I began firing the other
bullets. She was in the bathroom; then she began to crunch down; then she
fell on her face like a board and struck her head on the floor. I thought
she must be dead or unconscious or something like that. I left then. I
took it for granted she was dead.

_Q._ You didn't leave or didn't stop shooting until you thought she was
dead?

_A._ No.

_Q._ You went out there for the purpose of killing her if she didn't
accede to your wishes?

_A._ Yes, I am sorry I had to do it.

_Q._ Why did you feel that you had to do it?

_A._ I didn't want anybody else to have her if I couldn't. I thought I
should have her. She told me once she liked me, and I didn't see any
reason for turning me down. I acted like a gentleman. I had given her one
present already.

_Q._ After you thought she was dead and that you had completed your job,
where did you go?

_A._ I ran down on Hamilton Street.

_Q._ This gun that you used to do the shooting, was this gun (marked
"Exhibit A") the new gun numbered 5308 (handing it to him for inspection)?

_A._ Yes.

_Q._ Where did you go?

_A._ I ran out of the way kind of on a trot down into Hawthorne Bridge and
then North on Union Avenue and caught the Vancouver car and went to
Vancouver.

_Q._ Did you take both of these guns with you?

_A._ No, just one. I dropped the other one.

_Q._ Which one did you drop?

_A._ The new gun.

_Q._ That is, you dropped that after all the bullets were fired out?

_A._ Yes.

_Q._ After you got to Vancouver where did you go?

_A._ I went to a picture show over there and stayed about half an hour,
and then I went to a rooming house.

_Q._ Stayed all night in Vancouver?

_A._ Yes.

_Q._ Did you feel pretty nervous, knowing that you killed her?

_A._ Yes, I sat up. I didn't sit up; I laid awake. I didn't sleep at all.

_Q._ Where did you go when you left Vancouver?

_A._ Went right out the next morning, went right out the Pacific Highway.

_Q._ Why did you run away?

_A._ Well, I wanted to get the papers and see if I had killed her and then
I was going back and shoot myself at the same place I shot her. I didn't
want them to get me until after I went around another way and shot myself
down there.

_Q._ Did you intend to come back?

_A._ Yes.

_Q._ Did you read the papers at Vancouver?

_A._ Yes.

_Q._ Did you see in the papers that Miss Ulrich was dead?

_A._ Yes.

_Q._ Why did you keep going the other way?

_A._ Well, I didn't want to come back this way and run into the police. I
was going around Seattle and Tacoma and cross over and come back around.

_Q._ When you read in the papers that you had killed her, did you feel
satisfied?

_A._ Well, yes, but I was afraid there would be bloodhounds after me, and
I would get shot down in the road.

_Q._ You weren't worrying so much about her as you were afraid somebody
might do you an injury?

_A._ Well, I didn't want them to get me until the job was completed and I
had shot myself.

_Q._ Did you think there was somebody else interfering to keep her from
marrying you?

_A._ I guess there was.

_Q._ Did you have in mind to shoot any one else?

_A._ No.

_Q._ You knew she was engaged to marry another fellow?

_A._ Yes.

_Q._ Was that what made you decide to kill her?

_A._ I thought she gave him up. Well in a way I did and in another way I
thought it was a bluff.

_Q._ When did you make up your mind to get these guns--on the day of the
killing?

_A._ Yes.

_Q._ You knew at the time what you were doing,--what you were getting the
guns for?

_A._ Yes.

_Q._ You got the guns with the idea that if she refused to marry you why,
then, you would kill her?

_A._ Yes.

_Q._ You knew what you were doing at that time?

_A._ Yes,--I don't think a man in his right mind would do it.

_Q._ You knew that it was wrong to kill her, didn't you?

_A._ Yes, but all I was thinking was about her.

_Q._ You knew it would be wrong to kill her?

_A._ That's what the law says.

_Q._ You realized that fact at the time?

_A._ Not as much as I do now.

_Q._ You were in possession of your senses and you knew it was wrong to
kill her?

_A._ Oh, yes, it was wrong to kill her--take her life.

_Q._ You know it is wrong to take that which you cannot give, and you knew
at the time that you were doing wrong, and you knew that when you went
over there to get guns?

_A._ I didn't take it very serious then like now.

_Q._ Did you ever drink liquor to the extent of getting drunk?

_A._ No.

When this confession was read to the jury, Tronson leaned over and asked
the clergyman, "Well, what do you think of it?" When the verdict of the
jury was given, he did not understand what it meant and asked to be told.
When he was answered, he showed no appreciation of its significance, but
remarked that there wasn't so much of a crowd out as at the trial.

This is the third case in which the Binet tests have been admitted in
evidence and the findings in accordance with these tests practically
accepted. No one seems to have denied that Tronson is an imbecile. He is
of lower grade than the other two that we have discussed, and enough lower
so that his defectiveness was much more apparent and easily admitted by
all of the judges. As will be noted, there was no reasonable motive for
the crime. In his own words: "She wouldn't marry me. That's why I killed
her--so that no one else could have her." In the case of Gianini we are
possibly dealing with the sex impulse, perhaps hardly recognized even by
the criminal himself. In Tronson's case we have that impulse definitely
recognized and asserting itself and, being uncontrolled, leading to an
action of the crudest and most savage kind. Under other conditions, it
would very likely have shown itself in a different way. If Tronson could
have gotten the girl off by herself, it is very probable that he would
have committed violence in the gratification of his sex impulse. But since
she refused to marry him and kept out of his reach, he shot her down in
order that "no one else could have her."

It is unnecessary to discuss the case further. We need nothing more to
convince us that the diagnosis of imbecility was correct. It remains only
to point out two facts. First, that this man has been an imbecile at least
since he was twelve years of age, that he could have been recognized as an
imbecile and cared for, and thus this atrocious murder prevented. Second,
that there are hundreds of just such persons, now in their youth, who are
potential criminals. Unless their mental condition is recognized and they
are cared for in such a way as to make crime impossible, many of them will
repeat the career of Tronson.

Fred Tronson is in prison for life. He will in all probability never be
pardoned. He will never have an opportunity to commit another murder. But
that does not restore the life of Emma Ulrich and it is small comfort to
her friends and relatives. It does not in the least remove the blot upon
society, which has allowed such a murder to be committed. Society should
have taken him in hand twelve years ago. It should be further noted that
Tronson had been before the Court at least once before he committed this
crime. At that time had the Judge realized that he was dealing with an
imbecile he might have sent the boy to an institution for the
feeble-minded instead of simply ordering him to leave the town. Shall we
learn the lesson and take care of the other Fred Tronsons who are now in
our public schools and on our streets?

CHAPTER IV

THE CRIMINAL IMBECILE

From the description already given it will be seen that Roland Pennington
is very different from Jean Gianini. Both are imbeciles, but each is an
example of a special type. Gianini is of a nervous, impulsive, irritable,
loquacious type, fond of show and excitement, a braggart and a coward,
with an excellent memory, a great reader--particularly interested in
stories of excitement and crime. Pennington, on the contrary, is a slow,
dull, relatively stupid boy, of poor memory and slow perception. While
having made the fifth grade in school work, he has done it slowly and with
not so much success as in the case of Gianini. He is not so much given to
talk or to showing off; is somewhat addicted to drink and is exceptionally
fond of playing pool.

Gianini's confession is colored by his desire to show off and shine in the
limelight; Pennington's, on the contrary, is a plain, unelaborated
statement of the facts. He is driven to his confession, not by his desire
to show off, but in self-defense. His colleague, March, is trying to throw
the entire responsibility upon him in order to escape from any
condemnation. In the face of this Pennington is prompted to tell his own
story. He is not intelligent enough to make up a plausible story which
would incriminate March and save himself. But in telling the facts as they
occurred he incriminates himself quite as much as March, so far as the
actual occurrences are concerned. His whole conduct, from the beginning of
the crime until his arrest, is that of a dull, stupid person. He does not
even wield the blackjack with intelligence, and after the man is killed by
his comrade, he takes no precaution to save himself from suspicion, to
dispose of the body or to clean up about the barn and remove the evidences
of a crime. And finally, when it comes to a statement of the case, he
apparently makes no attempt to shield himself, but acknowledges his part
in it, although that part was, as a matter of fact, so slight that a
little variation in his testimony would have thrown the entire burden upon
March and relieved him from any complicity in the matter.

If the foregoing statement of the case is correct, we ask at once, how it
happened that the jury did not see it in this light, but instead brought
in a verdict of "Guilty in the first degree"? While there are many
elements in the answer, such as the demand of the public for revenge on
the murderer of the man who was more or less of a favorite; a hastily
drawn jury; a hurried trial, etc., the burden of the explanation falls
back upon the same condition which we discovered in the case of Gianini,
namely, the ignorance of the general public in regard to this type of
feeble-mindedness. Almost every one thinks that he knows an imbecile. We
have so long considered these high-grade cases as _normal but vicious_
persons, that it is difficult to change the point of view suddenly and
realize that they are not responsible for their deeds.

This failure to recognize the high-grade type of imbecile extended even to
the "experts" in the case; for whereas there were three who testified to
the feeble-mindedness of the prisoner, there were four or five who
testified to his normality. These were four general practitioners of
medicine, including the jail physician, and the fifth, a professor of
neurology and neuropathology. These gentlemen are all familiar with what
we should call the low-grade type of imbecile. They were perfectly correct
in declaring that Roland Pennington is not a low-grade imbecile. Not one
of them had had experience with the high-grade type. They were,
therefore, not qualified to pass upon a case of this kind. It was as
though four general practitioners had been brought in to decide a case of
obscure insanity. Every one of them could have testified that he had had
more or less to do with insane people, meaning persons who are maniacal or
strongly melancholic or katatonic, but what would be the value of the
testimony of such men in such a case, for instance, as that of Thaw?

These men all thought they knew something about high-grade
feeble-mindedness. They all testified that Pennington was a normal man.
Compare this with the statement of Dr. Martin W. Barr, one of the foremost
authorities on feeble-mindedness in the United States--indeed, in the
world. Dr. Barr says (_Alienist and Neurologist_, November, 1914, page
367):--

"The courts simply do not go far enough back; they fail in that they do
not reach the inception--the root of the matter. They often punish without
careful investigation of the causes from which criminal instinct
springs--the environment, family history, inherited tendencies, physical
disability, and that susceptibility to suggestion which makes them the
ready tools of the vicious.

"In the case of Roland Pennington, tried in Media last June, for aiding
in the murder of a man, it was proven that the boy, although almost twenty
in actual age, yet coming from a neurotic stock, with three first cousins
imbecile, had mentally only attained some 11 or 12 years; still he was
adjudged responsible, and murder in the first degree was the verdict.

"Is it not a poor law that first permits a person to commit a crime, and
then punishes him for it, not recognizing that an ounce of prevention is
worth a pound of cure?

"Pennington had sufficient intelligence to comprehend the enormity of the
deed, but, susceptible to suggestion in exaggerated degree, he had not
sufficient inhibition to resist the volitional act.

"Early recognition of his mental defect and separation would have
protected him alike from tempter and temptation."

It is unfortunate that Dr. Barr did not testify in the case, but his
assistant did testify and was understood to express Dr. Barr's views.

It was unfortunate, indeed, that men who really knew so little about the
type of case before them were allowed to pass as experts and their opinion
allowed to carry more weight with the jury than the opinion of those who
have spent years in intimate association and study of the problem of
high-grade imbecility. It should be recognized that there are very few
persons who are expert with this type. The superintendents of our
institutions for the feeble-minded, after a few years of experience, have
a knowledge of this matter which far surpasses that of any physician who
has not had institution experience, however great a specialist he may be
in nerve diseases, in insanity or epilepsy. It is not enough to find out
that a physician has had some experience with imbeciles. The real problem
is: Has he had experience with this high-grade type? Is he able to pick
them out? Is his knowledge as well as his experience confined to the
medium and low grades, which every one meets? Failure to make this
distinction had much to do with the verdict in the case of Pennington.

Another element in the result was the failure to make clear to the jury
the precise situation, the real point at issue. The defense in the case
had no desire to free Roland Pennington from all the consequences of his
deed. It was not a case of the electric chair or freedom. The imbecile,
especially one who has shown the tendency toward crime or willingness to
be led into crime, should never be at large where it is possible for him
again to go wrong. On the other hand, it is abhorrent to think of a child
(in mind) going to the electric chair for the deed which he committed
while under the influence of a superior intelligence, or while impelled by
the hidden forces of his nature over which he had no control on account of
his weak mind. It should have been made very clear to the jury that what
was wanted was to save the commonwealth the shame of officially putting to
death a person who had only a child's intelligence. In an ideal state such
a person should doubtless be kept in an institution for the feeble-minded
under a life commitment, unless his impulses are such that he proves to be
dangerous to the other inmates, in which case a different kind of
institution should be provided. Until we arrive at a condition where we
treat such persons ideally, one cannot object to the state prison for life
for the imbecile manslayer. This, unfortunately, was not made very clear
to the jury, and it seems probable that many of them thought that their
verdict was either to condemn him to the electric chair or to set him
free. Having only these alternatives, one can perhaps understand their
decision.[2]

Another somewhat nice legal point was involved and brings up a matter
which calls for some discussion. As already stated, March had been
convicted largely upon the testimony of his accomplice, Roland Pennington.
If now the jury should acquit Roland Pennington on the ground of
imbecility, what would be the effect of such a decision upon Pennington's
testimony against March. Every one felt that March was guilty and
consciously guilty and should be punished to the extent of the law. To
bring in a verdict in the case of Pennington which would result in
annulling his testimony and thereby taking away the one sure means of
convicting March, was a serious matter. One may well believe that the jury
felt that it was safest to convict Pennington of murder in the first
degree and thus avoid raising this confusing question.

As a matter of fact, although the question would undoubtedly have been
raised and attempts made to free March on the basis of Pennington's
feeble-minded testimony, yet such a procedure would not have been
warranted.

Pennington, as we have claimed, is an imbecile with a mentality of about
eleven years. We have a right to judge him largely on the basis of an
eleven-year-old child. The testimony of eleven-year-old children is often
admitted into court, and many a person has been convicted on such
testimony. It is true that it is a somewhat moot question as to how much
credence should be placed in children's testimony. The real criterion in
such cases is the nature of the child, a matter which we have already
considered. A child may testify to simple facts, and may be relied upon
where he has no particular interest, where there cannot be shown any
tendency or desire on the part of the child to show off or to say
something for effect or to exercise childish imagination and invent a
large story for the sake of the pleasing sound.

It is perfectly clear to any one who studies the confession of Pennington
that he must have told a straight-forward story. As already stated, he
would not have incriminated himself as he did if he had been falsifying.
He is not the type of person that runs on in an imaginary tale without
regard to the facts. In short, his testimony bears every evidence of being
entirely credible.

On the other hand, as already pointed out, Gianini's testimony is
unreliable, because he was talking for effect. He is of the type that
loves show and notoriety. His testimony was only to be trusted where it
could be corroborated by facts or the testimony of others.

Careful study of the testimony and the nature and the character of the
child will almost always enable one to decide very accurately as to how
much credence is to be placed in the evidence. In other words, the fact of
high-grade imbecility does not of itself make the child's testimony
acceptable or non-acceptable. It must be judged on its merits. We have in
these two cases excellent examples of the trustworthy and untrustworthy.

The testimony of Pennington at the March trial was a most marvelous
performance. To those unfamiliar with high-grade imbecility, it was almost
unexplainable. Many thought that he must have been very carefully and
elaborately coached; that he had been told just what to say, and had
learned his lesson well. Those, however, who know the imbecile understood
perfectly what was happening. This eleven-year-old boy was telling a
plain, unelaborated tale. He was not intelligent enough to try to escape
himself, and so he had nothing to hide and, consequently, got into no
confusion. He answered, "Yes," "No," or, "I don't know" with a wisdom and
a consistency that was simply amazing, and, as said, could only be
explained on the understanding that he was telling the truth. No amount of
cross-examination confused him, no sudden coups of the lawyer for the
defense could entrap him. For example, when asked with considerable heat
on the part of the attorney why he had forgotten a certain point while he
remembered very vividly a certain other point, the witness made no attempt
to explain; simply remarked that he did not know. In truth, he did not
know. Any such psychological matter was as far beyond him as the heavens.
Without imagination, without ability to reason out the effect of his
answer on his own future, he could simply answer in the plainest kind of
"Yes" or "No" as he knew the facts.

With these considerations, we pass on to consider the larger and more
difficult problem, "Can an imbecile of the mentality of eleven years know
the nature and quality of his acts and understand that it is wrong?"

CHAPTER V

RESPONSIBILITY

All students of the psychology of childhood agree that not until the dawn
of adolescence does reasoning as such begin to show itself in the child
mind; that judgment and foresight and self-control, such as enable a
person to counteract his natural impulses and make himself fit into the
conventions of society, are practically unknown previous to this age. It
is true that many children are taught to say what the adult alone can feel
in connection with such matters. But as for having the real feeling and
the understanding of the situation, we seem to have no right to expect it
before the beginning of this adolescent period, from twelve to fifteen
years of age. Everything points to the correctness of the conclusion that
during this early period of pre-adolescence the child is a creature of
impulse and instinct and is controlled largely by counteracting one
instinct by another. For example, the instinct to love and obey a parent
impels the child to do what that parent says, when he tells him not to
yield to some impulse which would lead him into trouble according to the
canons of modern society. Without going further into a discussion of the
point, which would necessarily lead to many philosophical considerations,
the writer may express his conviction, born of a study both of normal
children and also of mental defectives of twelve years and under in
mentality, that persons of this mentality do not know much about right and
wrong. They act upon impulse and upon instinct, without very much thought.
Even the child of the best opportunity and the most elaborate training in
a good home may quite likely not know the wrongfulness of an act of
homicide in the sense of having a real feeling of that wrong. He can
doubtless, as already stated, _say_ that the thing is wrong, because he
has learned that this is the right thing to say.

Let us turn now to the other part of the legal phrase, "Does such a person
know the nature and quality of his act?" If the writer understands these
terms, the first may be translated into the expression, "Does he know what
he is doing?" We take it that the expression originated in the attempt to
cover those cases where persons, either momentarily or permanently
deranged, literally do not know what they are doing. If this is correct,
then one cannot, as a rule, say that a high-grade imbecile does not know
what he is doing. He is not like the lunatic who acts blindly and is
probably no more responsible for his acts than a person walking in his
sleep. The imbecile is not in this condition. He has, so to speak, full
possession of all the mind that he has ever had and that, in the case of
these high-grade imbeciles or morons, is certainly sufficient to enable
him to know what he is doing. In the case of Jean Gianini, the writer
testified that in his opinion he knew what he was doing. He knew the
nature of his act. One cannot speak, it is true, with certainty in such
cases. It is entirely possible that, as already intimated, the situation
at first may have been a simple altercation or discussion which finally
got to a point where the anger of the boy was aroused to such an extent
that he acted without really knowing what he was doing. However, there is
no more argument for that theory than against it, and without definite
evidence on the question it is probably going too far afield to make any
such claims of immunity on that ground. We are frank to admit that the
probabilities are high that the boy knew the nature of his act. Did he
know the quality of his act?

By the quality of a thing is meant that which distinguishes it from all
other things. This implies a complete and extensive knowledge of the thing
in question. To know the quality of an act--murder, for example--means to
know all of the elements, forms, or modes of being or action which seem to
make it distinct from all other acts. To know the quality of an act of
murder is to know that it is unjustifiable; it is to know that it differs
from the killing of a rat in that different consequences follow; that
human suffering is involved, both that of the victim and of the victim's
friends and associates. It is to know, at least in some vague way, that
human society could not exist if murder were the rule. To know the quality
of an act of murder is to know enough to be able to distinguish it from
justifiable homicide, from killing in war, not to mention more obvious
necessary distinctions.

Did Jean Gianini know the quality of his act? On the stand, under
cross-examination, the writer was led to express the opinion that he did.
Later study of the problem and consideration of the circumstances leads to
the conclusion that this was erroneous. Such knowledge implies mental
capacity which is not possessed by a boy under twelve years of age. It
involves experience; it involves abstraction, which is notoriously lacking
in such persons. If there is one characteristic more noticeable than
another among the high-grade imbeciles or morons, it is their failure to
deal with abstract ideas; to draw generalizations from specific instances.

Did Pennington know the quality of his act? There is not the slightest
evidence that he did. Indeed, in his case we may go farther and hold very
probably that he did not even know the nature of his act. It is easily
conceivable that he struck the man with the blackjack without knowing that
he was committing murder, without knowing that he might kill him. His
stupidity was clearly of such a character that it is a perfectly tenable
position that he thought he was to strike the man and stun him until they
could rob him and escape.

Did Tronson know the nature and quality of his act? Using revolvers as he
did, it seems undeniable that he knew the nature. He was familiar with
revolvers; he knew what they would do. He, undoubtedly, knew that he was
killing Emma Ulrich. That he did not know the quality of his act is
equally certain. She would not marry him, he did not want her to marry any
one else, and he had no conception that he had no right to put her out of
the way so that she could not marry another if she would not marry him.

Again, we might go further and deeper into the philosophy of the
question, the logic and ethics of it. But these few considerations seem
sufficient to make it of the highest probability that persons of a mental
age under twelve years, like the normal boys or girls of the same age, do
not know and cannot be expected to know the quality of their acts. And
this is sufficient, because the law requires no more than a reasonable
doubt, and there certainly is a very reasonable doubt as to whether such
persons know the quality of an act of murder and know that it is wrong.

CHAPTER VI

THE PUNISHMENT FOR CRIMINAL IMBECILES

In the foregoing chapters we have discussed the problem involved in these
murders from the standpoint of the law in order to show that even under
the law, as it now exists, such persons are not guilty of murder in the
first degree. In the present chapter, we propose to discuss the matter
from another standpoint and from a different angle. It is not now a
question of responsibility or of some kind of justice to be satisfied. Let
us face the practical question of what is to be done in these cases.

After all, what we want is protection for society. We cannot have innocent
people killed in accordance with the whim of the irresponsible. These
imbeciles have killed innocent members of society. What shall the living
do to prevent these particular persons from repeating the crime and to
prevent other imbeciles from ever committing such a crime? This, of
course, involves the whole problem of punishment or the treatment of the
wrongdoer. Upon one thing everybody is agreed--we must make it impossible
for these persons ever to do such a deed again. The surest way to
accomplish this is to destroy them. Dead men commit no crimes. Society
feels safe when a desperado is killed. If we can agree upon this solution,
the problem is easily solved and further discussion is unnecessary. But
society is not at one on this question. We are already seriously debating
the question whether any wrongdoer should ever be officially executed.
Indeed, many States have already decided that they should not be, and
imprisonment for life has replaced capital punishment.

It is somewhat difficult to draw a line of distinction between the persons
involved in these crimes and the so-called responsible murderers. It
certainly is no great loss to society if Tronson is put out of the way.
The same is true in varying degrees of Gianini and Pennington. It may be
very successfully argued that the matter of responsibility is a fiction
and that all persons should be treated alike, either all executed or none
executed. Nevertheless, at the present time, we do draw the distinction,
and many feel that the person who has full power over his action, who
knows the nature and quality and wrongfulness of his act, should be
executed, while those who do not know should not be executed.

If we take the latter view, the question still remains, What shall be done
with these criminal imbeciles? The alternative to capital punishment is
incarceration for life. Here at least we find a distinction between these
persons and the normal intelligent wrongdoers. Of all persons in the
world, the criminal imbecile should be placed in custody under conditions
that will forever make it impossible for him to repeat his offense. The
man who commits murder in a fit of insanity may recover from his insanity
and be a useful citizen for the rest of his life. The man who commits
murder under a strong impulse of anger or in calm meditation as the result
of perverted reasoning may recover normal reasoning and be a useful
citizen. This is not true of the imbecile. He will never recover; he will
never have more mind than he has now; he will never be free from the
danger of following the suggestion of some wicked person or of yielding to
his own inborn and uncontrolled impulses. It will never be safe for him to
be at large. This is so obvious that it is highly probable that the
imbecile once committed to life custody would never be released, and even
that there would never be any attempt at such release. When these facts
are understood, the public will undoubtedly be satisfied to have such
persons imprisoned for life or committed to an institution for mental
defectives, where they will be constantly guarded and prevented from doing
injury.

This was well brought out in the case of at least two of the persons
described in this book. In the case of Jean Gianini, the lawyer made
emphatically plain that there was no desire on the part of the defense to
procure the complete liberty of the defendant. John F. McIntyre, the
counsel, stated clearly to the jury that he had no desire except to save
the boy from the electric chair, a punishment which he considered unjust.
He even went so far as to state that if at any time in the future efforts
should be made to secure the release of this defendant from any
institution to which he might be committed, he himself would make as
strenuous an effort to have the boy kept in custody as he was now making
to save him from the electric chair. Apparently this made a deep
impression upon the jury and went a long way toward helping them to return
the verdict that they did. On the other hand, in the case of Roland
Pennington this point was not made so clear, and the jury and the
prosecution did not realize that the defense only wished to save the boy
from execution and would be quite content with a verdict that would
result in his being incarcerated for life. An institution for
feeble-minded would seem at first glance to be the logical place to which
such a person should be committed. But no one need seriously object to
commitment to a penitentiary or a state prison. Perhaps, in view of the
fact that an imbecile has committed crime, that he has, as one may say,
begun a habit in that direction, the state prison is the proper place for
him, because here he can be absolutely controlled and saved from any
future acts of this kind. This is precisely what happened in Tronson's
case.

We are learning in these days that the old adage, "An ounce of prevention
is worth a pound of cure," is something more than a witticism. These are
days of prevention--in medicine and in morals. The most important part of
our problem is yet to be discussed. It is true we must come to some
decision as to what is to be done with these persons who now infest
society and who, because of their imbecility which is unrecognized, may
become criminals. But vastly more important, because more far-reaching, is
the problem of how to prevent imbeciles from becoming criminals. We may
save the Gianinis and the Tronsons and the Penningtons from murdering any
more people, but how much better if we save them from killing anybody. No
one of these persons had, probably, any more instinct to kill than have
you or I. As children in years they were harmless and innocent. They could
have been cared for and led into paths of harmlessness if not of
usefulness. All of them could have been recognized as mental defectives
long before they arrived at the age when they committed crime. As dull and
backward children at school, they were at once suspicious characters.
Attention was called to them. Careful examination, such as is now
possible, would have revealed the fact that they were mental defectives
and as mental defectives were potential criminals. Then was the time that
they should have been carefully guarded and watched and saved from an
environment that would lead them to prey upon their fellows. If we wish to
save our teachers from the possibility of being murdered by their pupils
or our daughters from being killed by their wooers or business men from
being struck down by the blows of feeble-minded boys, we must be on the
watch for symptoms of feeble-mindedness in our school children. When such
symptoms are discovered, we must watch and guard such persons as carefully
as we do cases of leprosy or any other malignant disease. For fear that
some one should feel that these are rare and exceptional cases, let us
remind the reader that the best estimate and the result of the most
careful studies indicate that somewhere in the neighborhood of 50 per cent
of all criminals are feeble-minded. Whether this holds for murderers is
indeed not known. But many persons acquainted with feeble-mindedness
recognize from the newspaper descriptions of murders that many of the
murderers are feeble-minded.

These facts certainly warrant us in taking seriously the problem of the
feeble-minded and the criminal imbecile.

One thing more. Careful studies have shown beyond the peradventure of
doubt that at least two thirds of these mental defectives have inherited
their defect; in other words, that they belong to strains of the human
family whose intelligence lies below that which is required for the
performance of their duties as citizens. This points to a further
precaution necessary in looking toward the ultimate prevention of
feeble-mindedness and the solution of a large part of our prison problem,
and that is the prevention of the further propagation of this race of
defectives. If it is true--and there is every evidence that it is--that
children are daily being born of such a mentality that it requires the
attention and thought of an army of normal people to prevent their
growing up into criminal lives and that all of the best efforts can never
make them able to take their place in society as useful citizens, then it
certainly is our duty to see that such children are not born. How this is
to be accomplished has not yet been worked out in detail. The colonization
and segregation of all such people in institutions where they will not be
allowed to propagate is one solution that is proposed. The other is by
surgical interference, to render such people physically incapable of
propagating. Probably both these methods and still others must be utilized
to help solve this problem.

The intelligence of men is often measured by the amount of foresight that
they have. The little child has little or none, as is also true of men of
low intelligence. There are men who can look forward and plan their
affairs for a few months in the future, others who can look forward a few
years, still others a lifetime, and a few who can look forward into the
coming generations. We shall demonstrate a high degree of intelligence if
we look not only to the amelioration of present conditions in our
prisons--which _must_ be done; not only to the removal to more suitable
environment of those persons who are unjustly confined because of their
irresponsibility--which ought to be done; if we not only see to it that
from now on persons who come before the court, either juvenile or adult,
are first studied to discover whether they are mentally responsible or
not, which is of utmost importance; but if we go still farther and put
forth efforts to determine how many and which of the children who are in
the public schools to-day are mentally defective and therefore need care;
and going still farther, if we have studies made and laws passed that
shall, as soon as possible, lead to the reduction in the birthrate of
these mentally defective individuals. A certain amount of
feeble-mindedness we must expect to have with us for long years to come,
because there will be sporadic cases and cases due to accident. But
feeble-mindedness as related to crime may be exterminated in a few
generations if we will but use our intelligence to attack this problem at
its root.

APPENDIX A

GIANINI CASE

HYPOTHETICAL QUESTION PROPOUNDED BY THE DEFENSE

Assuming the following circumstances to have been established by the
evidence in this case:--

That the defendant was on the 5th of December, 1897, born in the City of
New York; that his father was Charles A. Gianini, who also was born in
said city, and the paternal grandfather of the defendant was born in the
said city and the paternal great-grandfather of the defendant was born on
the south slope of the Alps in the republic of Switzerland.

The defendant's mother was born in the City of New York, her maiden name
being Sara Cecelia McVey. That the defendant's mother was married to his
father when she was about twenty years of age; that prior or previous to
the said marriage she was bright, vivacious, stylish, and accomplished in
music; that shortly after her marriage she began to become untidy in her
appearance, morose, depressed, and indifferent.

At the time of the birth of the first child (Charles), to-wit, on the 13th
day of November, 1891, about eleven months after her marriage, she was
suffering from melancholia as the evidence in this case discloses.

Assuming that the child, Charles, lived to be but seven years of age and
during his lifetime did not learn to speak, but merely made guttural
sounds; that he did not walk, but moved about when seated on the floor,
pushing himself sidewise, and finally shortly before his death tottered
about. His death occurred when he was about seven years old. That he ate
gluttonously and his death was due to asphyxiation, choking due to taking
in trachea foreign matter while vomiting contents of an overloaded
stomach.

Assuming that after the birth of Charles his mother's melancholia
continued, she became indifferent to her child, took no care of him, and
said that while she wanted to die, she was going to live forever; that she
also said she thought that her face was black and that she was a negress,
that she would not go into the street because she was black.

Assuming, too, that she became addicted to the use of liquor, first lager
beer and subsequently whisky and brandy; that she made pledges,
administered by priests, only to be broken. That at times she would
brighten up, and during one of these periods, namely, July 12, 1894, a
second child, called Catherine, was born, which child still lives.

Assuming that thereafter she began to drink again more than before; that
for eight months preceding the birth of the defendant she was drunk a
great many times, that she was found in a drunken stupor, that she was
brought home in a drunken condition by detectives, on which occasion she
had with her her second child Catherine. That about six months before the
birth of this defendant his mother was drunk, that the seventh month
before the birth of this defendant she was drinking, and on one occasion
threw her husband's books out of the window on an adjoining roof, during a
rain storm. And in the eighth month before the defendant's birth she drank
and the same condition prevailed.

Assuming that from the June before the defendant was born, which was on
December 5, 1897, she was attended by Dr. Charles N. Weeks of New York
City, and he found her depressed, morose, and in a melancholic condition
most of the time, at times hysterical; that she would refuse to talk to
him, for one half a day at a time; that she would refuse to answer
questions, that she would pay no attention to questions, and that she was
also inclined to stare right past him; that she would weep; that she paid
no attention at all. At times the pupils of her eyes were dilated, at
times contracted, their expression at times was wild and sometimes vacant.
These conditions continued during the time Dr. Weeks was treating her. He
prescribed bromide for her liquor and the same condition continued after
the birth of the defendant.

The general appearance of the defendant's mother was untidy, and these
conditions remained unchanged after defendant's birth. That when born the
defendant was poorly nourished, under weight, weighed about five pounds,
and was inclined to be emaciated; that at the time of the death of the
first born (Charlie), to-wit, on the 21st day of March, 1899, she was
again observed by Dr. Weeks, and then she was absolutely indifferent as to
the conditions so far as the boy was concerned; showed no grief, and her
general condition was such as he described at the time he was treating
her.

And assuming that after the birth of the defendant he was a bottle-fed
baby, not nursed by his mother, and when about a year old placed in the
care of Mrs. Leigh, with whom he remained until he was about six years
old. That the defendant's mother died on June 3, 1899, in a Sanitarium,
known as St. Anne's Retreat in the City of New York, the cause of death
was meningitis, alcoholic heart failure.

Assume that up to the time the defendant was five years of age he didn't
speak, and made sounds which resembled yells. Assume that about 1906 or
1907 the defendant's father took him from Mrs. Leigh's, he was then able
to talk and walk, and for several weeks he was taken care of by Mrs.
Hoberg and from there was taken to Lady Cliff Academy on the Hudson, where
he remained for one term. While there he usually appeared dirty, but
seemed to be making some progress.

In 1907, assume when the defendant was ten years of age he went to live in
the Bronx, where he lived for two years and attended school during this
period. At one time he took two little girls to a piece of woods and
started to take their clothes off, and when asked why he did it, said he
was going to play Indian and that Indians were naked.

On one Sunday afternoon he was observed in a group of children eating mud
pies, and the children were calling him "Loonie" and were telling him to
eat another one.

During these two years that the defendant lived in the Bronx he was
observed to tease children. He would take a little boy's wagon and run
away with it. He would take his hat and throw it over a neighboring
fence. He would take the caps of girls and toss them over fences, pull
their curls, take away their hoops when they were rolling hoops, and take
the ball away when they were playing ball. He would do these things quite
often. On one afternoon he was brought home with a gash on his right
temple. It was bleeding and at least one inch in length. He stated that he
had received it from a fall from a stone wall while he was playing
"thief." On another occasion he chased a young girl who was stopping at
the house around the room with a table knife because she was trying to
correct him because he ran home from school without her. He did not
attempt anything against that girl again, although she remained in the
room the balance of the day.

In 1910 defendant's father moved from the Bronx, to Poland, and brought
the defendant with him, and the defendant attended the Poland School which
he entered in April of 1910, and there remained until February or March,
1913. After leaving school defendant worked in a knitting mill in Newport
from about the first half of April until the second half of May, 1913,
when he ran away and went to Ilion. At Ilion he was found working by his
father and Mr. Frank Newman wiping dishes in the hotel. He was then taken
home. In the middle of August, 1913, the defendant again ran away, this
time to Albany, and stated that while he was there he had been shot at two
or three times by a policeman and was arrested. From Albany the defendant
again went to Ilion, where his father and Frank Newman again found him at
the same hotel, and when he saw them, he said that they were "swindlers."

At another time the defendant ran away to Herkimer, in the summer of 1912,
and he stated that he had gone to the moving pictures. He said that he
went to the store, the Poland Union, and bought a can of beans and a bunch
of bananas for his trip to Herkimer. He left in the afternoon and did not
return until the following afternoon, when he said that he ate the bananas
going along the track before he ate the beans because he was afraid the
bananas would melt. He said he ate the beans at night, opening the can
with a nail, and ate them with a nail.

On another occasion in Poland he chased his sister with a table knife
although she had not done anything to him. In the summer of 1910 the
defendant was at Morehouseville, and one day while there he was fishing at
the stream that passes in front of the Mountain Home, when the flies and
the punkies were biting very fiercely. He stood down there in his bare
legs and bare head fishing and the flies biting him until the blood ran
down his face and neck and legs. He was fishing there for fully an hour,
and when asked if the flies had bothered him, he said "No."

In 1911, when the defendant's father's stepmother was in Poland, the
defendant was overheard to say to her, "Why didn't you marry my father, I
would like you better than this stepmother."

When the defendant was fifteen years of age, in the month of September,
1913, the defendant's father had him committed to the St. Vincent's
Industrial School for juvenile delinquency, presided over by Christian
Brothers, where he remained for about six months, coming home in February.

A few weeks before the commission of the alleged crime, he was observed to
be quarreling on Main Street in Poland with two very small children.

At the age of sixteen years, in the early part of March, 1914, the
defendant was noticed playing with a toy railroad car and building some
tracks with some little irregular pieces of wood. He was also observed to
play tag with children apparently from two to four years younger than
himself.

In the early part of 1912, the defendant's father observed that he was
practicing masturbation.

The defendant's father thereupon slept in the same room with him in order
to watch him. The defendant continued this practice until the time he left
home in the spring or summer of 1913 and admitted that he did it
frequently.

Assuming that on the 25th day of March, 1914, Mrs. Ethel Beecher and the
deceased Lida Beecher met the defendant at the Post Office in Poland, and
the defendant asked the deceased when she was coming to see his father,
and that she replied that she did not know, and the defendant said,
speaking impatiently, "Aw, I don't believe that you intend to come at all;
you will wait until the summer time and go home and then it will be too
late." That they spoke about school, and the deceased said to the
defendant that it would be better for him to wait until the beginning of
another term because he would be behind the other pupils in his work; that
on another occasion, on about the middle of February, 1914, the defendant
came on an errand to get yeast to the place where the deceased and Mrs.
Beecher were boarding and the defendant then said to them that he wanted
to get away from Poland, and would rather be in New York in the Great
White Way; that he thought he would like to act in moving pictures as he
did not like his home and he hated his father, and would not care to be a
"sod-buster"; that the deceased asked him whether he would like to return
to school, and he said that he would, but that his father would not let
him; that he never stole but once in his life and that was twenty-five
cents from a lady in New York, and she had given him twenty-five cents to
buy some candy and he bought the candy and ate it himself. On the same
visit the defendant asked Mrs. Ethel Beecher if there was a state prison
in Rochester, and she told him no; he wanted to know if there was not some
sort of a reform school there. She said that there used to be, but that
the reform school had removed to Industry, and he asked what the reform
school was like at Industry and she told him that the boys lived in
cottages under the care of a matron, a man and wife generally, and that
was as much as she knew about it. The defendant said he would like to be
there and asked her about the state prison at Auburn and different
prisons, what the sentence was and whether they had an electric chair or
whether they hung. The defendant told them that they worked awfully hard
at Sing Sing. The defendant also stated on that occasion that his father
used to thrash him for stealing apples that other men put him up to
stealing.

Assuming at the time Mrs. Ethel Beecher and the deceased and the defendant
were talking together, that the deceased told the defendant that she
thought he would like to go in the country to work on a farm and asked him
why he did not continue his school work another year; and that her tone
was kindly and her whole deportment towards him on that occasion was such
as to incline one to believe that she desired to help him and to well
advise him; and that the defendant's conversation concerning prisons and
industrial schools was such that it caused them to laugh, at the time; and
that on other occasions when the defendant was with the deceased her
conduct towards him was always kindly and that she was kindly and
generously disposed towards the defendant and showed considerable interest
in him.

Assuming that on the 27th day of March, 1914, at about quarter after seven
the defendant was observed on the street in Poland with some children,
with whom he had been seen at different times playing hide and seek and
tag and I spy, and that he caught hold of the toque of one of the little
girls and pulled it down over her face and that he poked another one of
the little girls in the back and that he called a girl by the name of
Grace Palmer, "Palmer House," and said, "Leonard is the proprietor, isn't
he?" and kept calling her Palmer House, and that he was snowballing the
girls, and that while he was engaged the deceased passed him on the street
and said, "Hello, Jean," and that he then joined her and shortly
afterwards was seen to come back with the deceased, going up the road
towards Buck Hill. That later in the same evening, at about ten minutes to
eight, he returned home, showing no trace of excitement or nervousness,
and that he received some books of wall paper to be delivered to a
neighbor and that he took these books and threw them so that they fell
with a noise on a neighbor's veranda and was seen running near the
railroad station and later returned home in the vicinity of eight o'clock,
showing no trace of any agitation, excitement, or nervousness. That he
took off his shoes, put on a pair of slippers, went to bed, and slept
quietly all night. That on the following morning he reported for work at
Sam Hutchinson's as usual, worked for about twenty minutes doing his
chores, ate his breakfast, and nothing unusual was observed about him.

Assuming further that he was seen going along the railroad track in the
direction of Newport; that he met two men, one by the name of Smith, and
that he shouted, "Hello, Smithy"; that later he was spoken to by a man
named Sweet at Newport on the railroad track about four miles from Poland,
and that when Sweet caught up to him and asked him where he was going, he
said to Herkimer to see a moving picture show; that he had stolen a dollar
from his father; that he accompanied Sweet to Autenrith's store and while
there the murder of the deceased was talked about in his presence and that
he ate peanuts and smoked a cigarette and asked where they had found the
body and stated that he had gone to school to her; and subsequently was
taken back to Poland by one Frank Newman, and thereafter was turned over
to the Sheriff of Herkimer County and one of his deputies.

Assuming that on the 26th day of March he asked an acquaintance by the
name of Morris Howe, a boy of fifteen years, if the deceased came to get
her mail nights, and said that he would get even with her; that on
Tuesday, March 24th, he told a man by the name of Estes Compo, with whom
he was working, that the deceased had tried to send him to school and that
if he had a revolver he would kill her, and asked this same man if he had
read of a murder down South, of a colored man killing a white girl and
laying it on the superintendent of a factory and that the man was
sentenced to the chair and the colored man confessed the crime; that on
the preceding night he had been in Compo's room, where he saw a revolver
and a knife, and on the following day he said if he had a revolver, he
would kill the deceased; that about a week before the 27th day of March,
while defendant was working for Sam Hutchinson, he told a boy he would
some day put an end to the deceased.

Assuming that between the hours of seven and eight o'clock on the night of
March 27th, 1914, Miss Beecher was killed at a dark and lonely spot on the
Buck Hill road and that she had come to her death by being struck on the
head with a monkey wrench and had been cut repeatedly to the extent of
about 24 times with a knife in various parts of the body and that she was
dragged from the place where she was killed to a clump of willows near the
road and that her umbrella and hat were found the following morning in the
road and that by following the track where her body had been dragged over
the snow the body of the deceased was found.

And assuming that on the morning of the 28th day when the defendant was
brought to Poland he was taken to a house of a Justice of the Peace and
was taken into a room by the Deputy Sheriff and told that he was
suspected and was accused of being a party to the crime. That after he was
completely stripped of his clothing he stated to the Deputy Sheriff that
he had gone to school to the deceased and had trouble with her at school
and wanted revenge and that he had met her the day before near the Post
Office and asked her to go up to his house and see his folks about having
him go to school again, and that the deceased told him that she would go
the next night. That the next night he did meet her near the hotel and she
said that she was ready to go up. They walked up the street, and when they
got near his father's house, the defendant told her that his father did
not live there, that they had moved up the hill, that he then stated in
detail how he committed the crime and disposed of the body and what he did
with the wrench and the knife. That he said, "You would not think any one
could do a job as quick as that." He said he supposed they would talk
insanity, but he was not any more insane than the Deputy Sheriff was, and
he did not want them to talk about it.

He also said, "Gillette got the chair, didn't he?" and upon the Deputy
Sheriff replying, "Yes," the defendant said, "He had no reason to kill the
girl, but I did; I wanted revenge."

That at the same time the defendant signed a sworn statement before the
Justice of the Peace, in which he stated that he went to school to Lida
Beecher, and had trouble with her and wanted revenge; that he was not
afraid, and when he got home, he was just as happy as he ever was, and did
not think anything about it, as he thought he had revenge; that at the
time he made these statements he was cool and quiet and spoke connectedly;
that he was not nervous or excited.

Assuming that the defendant had not attended the Poland school since
February or March, 1913, and that while there he had studied under the
deceased for about one year, and that during this period the only
punishment he had received from the deceased was a seat facing the wall
with his back towards the other pupils, and was occasionally sent upstairs
to the Professor of the school for punishment. And that the deceased had
always manifested a friendly interest in him, was mild, kind, gentle, and
good to him.

And further assume that when he left school, he was in the sixth grade.

Assume that he had frequently been detected in telling lies, that he had
spoken of hatred of his father, that he manifested no affection towards
him, referring to his father as "Old Man" and "Him." That on the morning
of the 28th when he was being brought back to Poland by Newman, Newman
stated to him, "You have got something beside skipping out now staring you
in the face," to which he replied, "They can't give me but ten years"; he
used no words, when informed it might be a long time, that expressed fear
or fright; and when he was informed that he had murder staring him in the
face, he acted no different than ordinary.

That less than a year before the birth of Charles, the first child, the
defendant's mother suffered from an attack of diphtheria, for which she
was treated by Dr. Quinlan.

Further assume that in the summer of 1910, at Morehouseville, while
quarreling with a little boy named Arthur Jones, the defendant said he
would go up to his father's room and get his hunting knife and kill him.

That while the defendant was at St. Vincent's Industrial School for
juvenile delinquency, at work in the laundry, he told Mr. Minor that if
his father didn't get him out in February, he would burn his father's
buildings when he got out.

Now, doctor, assuming all these facts to have been proven in this case,
from your experience in the treatment of and knowledge of imbeciles and
idiots, from your skill and expert knowledge, can you express an opinion
concerning the mental condition of Jean Gianini at the time of the killing
of Lida Beecher, on the 27th day of March, 1914?

By Mr. Thomas: If the Court please, I object to the question as improper
in form and that it concludes with assuming all these facts to have been
proven in this case, and that it is not an inquiry which can be properly
permitted to be put to the witness here. That, in addition, it does not
correctly state the evidence, and that especially this part of the
question is improper--"That she showed no grief, and her general condition
was such as he described at the time he was treating her," referring to
Dr. Weeks, and further it assumes incorrectly the time that the defendant
encountered Miss Beecher, near the Post Office on the 27th day of March,
1914, which is stated here to be about a quarter after seven.

By Mr. Hirsch: What time do you say it was, Mr. Thomas?

By Mr. Thomas: The proof varies from seven to seven six. And it is
incorrect in assuming facts not established upon the evidence, that he cut
her repeatedly to the extent of about twenty-four times with a knife; and
in those respects to which I have called your Honor's attention, the
question is improper, in that it assumes facts not proven, that it is
improper in form, and the concluding paragraph, with reference to which I
have called your Honor's attention, is improper and incompetent; and that
the question is incompetent in that it does not call upon the witness to
express an opinion as to the knowledge of the defendant of right and
wrong, or his knowledge of the nature and quality of the act in killing
the deceased.

By Mr. McIntyre: That is a question, if your Honor please, which was
passed upon yesterday.

By the Court: I suppose it is preliminary to some extent, as far as this
information is concerned.

By Mr. McIntyre: It is precisely the same as yesterday, but the question
has had some additions.

By the Court: Was that indicated by the last part of it?

By Mr. McIntyre: Yes, sir.

By Mr. Thomas: He should be asked, "Can you now form an opinion assuming
all these facts?"...

_Q._ Now, Doctor, assuming all these facts contained in the hypothetical
question to have been established by evidence in this case, from your
experience in the treatment and knowledge of imbeciles and idiots, from
your knowledge and skill as an expert, can you express an opinion as to
the condition of Jean Gianini at the time of the killing of Lida Beecher
on the 27th day of March, 1914?

Same objection

By the Court: Objection overruled. He may answer.

_A._ I can.

_Q._ What is your opinion?

Same objection.

By the Court: I think it should conform now to the language of the
statute, shouldn't it?

By Mr. McIntyre: Well, I have, your Honor; I first asked him if he could
express that opinion. Now if he doesn't express an opinion that comes
within the provisions within the statute, why then of course his opinion
is incompetent in this case. Now let's look at the code. Will you give me
the section, please?

Section 1120.

"Offense committed by an idiot or lunatic. An act done by a person who is
an idiot, imbecile, lunatic, or insane is not a crime. A person cannot be
tried, sentenced to any punishment, or punished for a crime while he is in
a state of idiocy, imbecility, lunacy or insanity, or is incapable of
understanding the proceeding or making his defense. A person is not
excused from criminal liability as an idiot, imbecile, lunatic, or insane
person except upon proof that at the time of the committing of the alleged
criminal act he was laboring under such a defect of reason as not to know
the nature and quality of the act he was doing or know the nature of the
act as wrong."

By the Court: Well, now, my suggestion is why not embody that in your
question.

By Mr. McIntyre: That is the second question, your Honor....

_Q._ I asked you what was your opinion concerning his mental condition.

_A._ That he is an imbecile.

_Q._ Now, Doctor, assuming that all the acts recited in the hypothetical
question to have been established by evidence, to be true, in conjunction
with the physical and mental examination made by you in the County Jail on
the 17th day of May this year,--from your experience and your knowledge of
imbeciles and idiots, in your opinion was Jean Gianini at the time of the
killing of Lida Beecher in such a mental condition as to know the nature
and quality of the act he was doing or that the act was wrong?

By Mr. Thomas: I object to it as improper in form and copulative.

Objection overruled.

_Q._ Your opinion, Doctor?

_A._ He was not in such condition.

APPENDIX B

GIANINI CASE

HYPOTHETICAL QUESTION PROPOUNDED BY THE PROSECUTION

_Q._ Doctor, kindly assume that the defendant had been a pupil taught by
Lida Beecher in the public school at Poland and harbored against her a
desire for revenge because she had punished him; that he stated to people
of his acquaintance that he would get even with her; that on Tuesday,
March 24th, 1914, he stated to a man with whom he was working that if he
had a revolver he would shoot her; that several days previously he had
this wrench, Ex. 45, in his possession and stated to a man who asked him
what he was going to do with it, that he had use for it; that he met Miss
Beecher, who was a young lady about twenty years old, five feet three
inches in height, weighing about 126 pounds, wearing upon the head this
cap, Ex. 26, and as an outer garment, this raincoat, Ex. 29 (showing to
witness), Wednesday, March 25th, 1914, about seven P.M. in the Post
Office at Poland, Post Office in the village of Poland, the location of
which is indicated on this map, Ex. 1, to which I now call your attention
(indicating); walked with her and Miss Clark, a teacher, from the Post
Office along Cold Brook Street to a point on the southerly side of the
street opposite the residence of James D. Countryman, the location of
which is also shown on the map at a point to which I now call your
attention (indicating), and that during that walk the defendant asked Miss
Beecher when she was coming up to see his father, and upon receiving the
answer that she did not know, said, "Aw, I don't believe you intend to
come at all; you will wait until summer time and go home and then it will
be too late"; that on the following evening, Thursday, he again met Miss
Beecher at or near the Post Office and asked her to go up to his house and
see his folks about going to school and she replied that she could not
that night, that she was going to prayer meeting, that she would go the
next night; that on the following day, Friday, he provided himself with
the knife, Ex. 48, for the occasion, and with the intention of killing
her, sharpened it for that purpose; that he met Miss Beecher about seven
P.M. on the evening of Friday, March 27th, near the Post Office and walked
with her along the south side of Cold Brook Street to the foot of Buck
Hill, which Buck Hill road is also shown on this map, a distance of 2006
feet; that they then proceeded together along up Buck Hill, he getting her
to accompany him by telling her that his father lived up over the hill,
had moved up there two or three weeks before; that they went on part way
up the hill, and Miss Beecher hesitated and said it was farther up than
she thought it was, she did not think she would go any farther, and the
defendant said to her, "It is not but a little ways farther"; that when
they got to a point on the hill distant about 4198 feet from the Post
Office, she hesitated and said, "It is dark and I see no houses, no light,
don't think I will go any farther, will write your father a letter in
regard to this school matter"; that as she stopped he stepped back of her,
hit her on the head with this monkey wrench, Ex. 45, which weighs 2 pounds
7-15/16 ounces, which I now show to you, he at that time having as an
outer garment this coat, and wearing this shirt, Ex. 49, which I now show
to you; knocking her down, he hit her twice with it after she was down;
that when he first hit her with the wrench, she did not cry out but
moaned; that he then threw the wrench up over the fence on to the top of
the bank, about 35 feet; that it was so dark he could not see; took the
knife, Ex. 48, and as she was lying on the ground, hit her with it several
times to be sure to finish her, inflicting punctured wounds, one on the
back of the neck just below the hair line 3/4 of an inch in length, one on
the left side of the neck about 1/2 of an inch long, cutting a hole in the
external carotid artery 3 inches above the bifurcation of the common
carotid artery; that he then grabbed the body, which was face down, by the
right foot and dragged it across the road under a barbed-wire fence, down
the hill back of a bush to the swale; that he took hold of the right foot
because he did not want to get blood on his hands so that his finger
prints could be taken; that he ran immediately from the body to the Buck
Hill road and came out on to it a few rods nearer Poland than the point
where he dragged the body under the fence, ran down the road some
distance, and a team or sleigh came along and he stopped running and
waited until after that team got by him; that he reached his father's
house, which is shown on this map, Ex. 1, and the location of which I call
your attention to (indicating), at 7:30 and would have reached it sooner
if he had not fallen down four or five times on the way home; that he went
into the house and put the knife, off from which he had wiped the blood in
the snow, in the pantry drawer; that he was sent on an errand to the
house of Thomas Owens, on Cold Brook Street, which is also shown on this
map, Ex. 1, to the location of which I now call your attention
(indicating), to return some books of samples of wall paper, and to give
Mr. or Mrs. Owens a one-dollar bill and a soap order, to which it was
pinned; that he ran down the street, threw the books on to the veranda
floor near the kitchen door, ran down Cold Brook Street to South Main
Street, and tried to get the freight train which passed south on the M. &
M. railroad; that he ran back to his father's house and arrived there a
little after eight, took off his shoes, put on his slippers, read the
newspaper a little while, and went to bed; that he arose about six o'clock
the next morning; left his father's house, went to Sam Hutchinson's, by
whom he was employed, and whose residence is also shown on this Ex. 1, at
the location to which I now call your attention (indicating), went to the
barn, assisted in doing the chores, went in to breakfast, said nothing,
left there the coat, Ex. 41, which was then substantially in the same
condition as it is now, and to its condition, especially on the back, I
call your attention, and this being the coat which he wore the evening
before, which I now hand to you and call your attention to (indicating)
the condition of, put on another coat, and started down the railroad
track towards Herkimer, which is on the line of the New York Central and
Hudson River railroad, and some fourteen miles from Poland, intending then
to go away from Poland; that he was apprehended at Newport, a place
distant about four miles from Poland and between there and Herkimer, and
brought back in a cutter by Mr. Newman, whom he had known for several
years; that on the drive from Newport to Poland Newman asked him if he had
heard what happened at Poland, and defendant replied he hadn't; when asked
if he had seen anything of Miss Beecher the night before, said he had not;
when asked by Newman if he had heard that Miss Beecher was murdered or
killed, defendant said, "No," and on Newman's saying, "They are looking
for you for it," defendant said, "They can't give me but ten years, can
they?"; that as they drove into the village of Poland and turned from
South Main Street into Cold Brook Street, near the Post Office, there were
some rigs coming down the hill, and defendant said, "They are coming off
the hill with her now"; that in the afternoon of the same day he
voluntarily made, signed, and swore to the following statement with
reference to the matter.[3]

State, Doctor, basing your reply upon the hypothesis stated in the
question, whether or not, in your opinion, the defendant, at the time he
struck Miss Beecher with the wrench, understood that he had no right to do
it?

Mr. McIntyre: Don't answer. We object to the question in that it only
recites the revolting details of the alleged crime and that when the
question was being propounded to the witness upon the stand, counsel for
the State exhibited the knife, the wrench, the coat, the hat, and other
things in evidence in rather a dramatic way before the jury.

We object to the question upon the ground that it does not contain all the
essential features in this case bearing upon the crime.

We object to the question upon the ground that the hypothetical question
fails to include the condition of the defendant's mother at the time of
his birth; it fails to include the fact that the first child was an idiot
during his lifetime; it fails to disclose the conduct and deportment of
the defendant from the time of his birth down to the commission of this
crime.

We submit respectfully that the hypothetical question is a garbled
statement of that which has transpired during this case and can have but
one effect--to bias and prejudice the minds of the jurors. And I submit
it is incompetent, immaterial and irrelevant and improper, in addition.

The Court: Objection overruled.

Mr. McIntyre: Exception, sir.

_Q._ Have you got the conclusion, the concluding portion of my question in
mind?

_A._ Would you repeat it?

_Q._ Yes. State, Doctor, basing your reply upon the hypothesis stated in
the question, whether or not, in your opinion, the defendant, at the time
he struck Miss Beecher with the wrench, understood that he had no right to
do it.

_A._ I cannot get any evidence from the facts recited there to enable me
to determine.

_Q._ Well, can you determine from this question an opinion as an expert?

_A._ No, I cannot.

APPENDIX C

GIANINI CASE

DEFENDANT'S REQUEST TO CHARGE

Defendant requests your Honor to charge the jury that, in determining the
guilt or innocence of the defendant of the offense charged in the
indictment, the jury are to consider only the evidence of the case and are
to disregard any statement made during the course of the trial, by counsel
or the Court, and are not to be influenced or governed by any expression
of opinion or action of either the Court or counsel for defendant or the
people.

Defendant requests your Honor to charge that the jury are not to be
influenced, in the consideration of this case, by any comment or
expression of opinion in the newspaper reports of this case, and they must
disregard any statement or comment contained in any such report, if same
has in any way been brought to their attention.

III

Defendant requests your Honor to charge the jury that, in considering this
case, after its submission to them, the jury must proceed upon the
presumption that the accused, the defendant herein, is innocent of the
crime charged in the indictment and that it is necessary for the
commonwealth to overcome this presumption by evidence to convince them,
beyond a reasonable doubt, that the defendant is guilty of the crime
charged against him in the indictment.

Defendant requests your Honor to charge the jury that, in consideration of
this case, the jury are bound to act and proceed upon the presumption that
the accused is an innocent boy, and this presumption must continue
throughout the trial.

Defendant requests your Honor to charge the jury that, the defendant being
charged with the crime of murder, the commonwealth is bound to prove
every and all the essential facts necessary to constitute this crime
beyond a reasonable doubt before the jury can convict the defendant of the
crime charged in the indictment.

Defendant requests your Honor to charge the jury that, upon the whole
case, if the commonwealth has failed to prove all of the facts beyond a
reasonable doubt, the defendant is entitled to be acquitted.

VII

Defendant requests your Honor to charge the jury that the burden in this
case rests with the commonwealth, from the beginning to the end of the
trial, to establish, beyond a reasonable doubt, every fact essential to
the conviction of the defendant, and if the commonwealth has failed to
prove such charge beyond a reasonable doubt, the defendant is entitled to
an acquittal.

VIII

Defendant requests your Honor to charge the jury that the unintentional
killing of a human being by another without motive, intent, premeditation,
is neither murder nor manslaughter.

Defendant requests your Honor to charge the jury that the questions of
deliberation and premeditation, intent and motive, are purely questions of
fact, to be determined by the jury from the evidence alone.

Defendant requests your Honor to charge that if the jury cannot say,
beyond a reasonable doubt, that the defendant was sane at the time of the
commission of the act, and cannot say whether, at that time, he was sane
or insane, the defendant must be acquitted.

Defendant requests your Honor to charge the jury that if, at the time the
defendant committed the act charged against him, upon seeing the deceased,
he was thrown into a state of mind from which he was deprived of his
understanding, so as to be unaware of the nature and quality of the act he
committed, or so as to be unable to distinguish between right and wrong in
reference to that particular act at the time of its commission, this
defendant must be acquitted.

XII

Defendant requests your Honor to charge the jury that, although sanity is
assured and presumed to be the normal and natural state of the human mind,
when imbecility is once shown to exist in a person, it is presumed to
exist and continue until the presumption is overcome by contrary or
repelling evidence proving sanity.

XIII

Defendant requests your Honor to charge the jury that if defendant was
deprived of his reason at the time the act charged against him was
committed, and which resulted from a settled and well-established mental
alienation, or from the pressure and overpowering weight of circumstances
occurring before and at the time of the commission of said act, the said
defendant is legally irresponsible for it and must be acquitted.

XIV

Defendant requests your Honor to charge the jury that if, at the time of
the commission of the act, the defendant was under the influence of a
diseased mind, and was really unconscious that he was committing a crime,
this defendant must be acquitted.

Defendant requests your Honor to charge the jury that the insanity of the
defendant need not be proven beyond a reasonable doubt.

XVI

Defendant requests your Honor to charge that the jury, in considering this
case, are bound to act upon the presumption that the accused, the
defendant, is innocent, and should endeavor, if possible, to reconcile all
the circumstances of the case with that of innocence.

XVII

Defendant requests your Honor to charge the jury that the burden of proof
rests with the commonwealth in this case, from the beginning to the end of
the trial, and the commonwealth are bound to prove that the defendant
committed the crime charged in the indictment beyond a reasonable doubt,
otherwise the defendant is entitled to be acquitted.

XVIII

Defendant requests your Honor to charge that the jury must be satisfied
beyond a reasonable doubt, from the evidence of the case, of the sanity of
the defendant at the time of the commission of the act charged in the
indictment, and if the people fail to establish the sanity of the
defendant at the time of the commission of the act charged in the
indictment, this defendant cannot be convicted of any crime and is
entitled to an acquittal.

XIX

Defendant requests your Honor to charge the jury that the law does not
require that the insanity, imbecility, or mental aberration which absolves
from crime should exist for any definite period, and only that it existed
at the moment when the act occurred.

Defendant requests your Honor to charge the jury that if the insanity,
imbecility, or mental aberration which absolves from crime operated at the
moment that the act was committed, that is sufficient in law to absolve
from guilt, and this defendant cannot be convicted of the offense charged
in the indictment, or any other offense.

XXI

Defendant requests your Honor to charge the jury that the commonwealth
must satisfy the jury beyond all reasonable doubt, that, at the moment
the act alleged in the indictment was committed by the defendant, he had
reason, perception, and understanding sufficient to enable him to discern
right from wrong, and that if he had not, it is the duty of the jury to
acquit this defendant.

XXII

Defendant requests your Honor to charge that if the jury believe that the
defendant did not suffer from any mental aberration which would absolve
him from punishment for the act charged in the indictment prior to the
commission of the act, or subsequent thereto, but that such state of
mental aberration did exist at the moment when the act occurred which the
defendant stands charged with, this defendant cannot be convicted of the
crime charged in the indictment, or any other crime, and must be
acquitted.

XXIII

Defendant requests your Honor to charge the jury that if there is a
reasonable doubt in the minds of the jury as to whether the act charged in
the indictment was committed by the defendant while he was unable to
discern between right and wrong, or if the evidence is equally balanced
as to this, so that the jury cannot safely and conscientiously determine
whether the killing of the deceased was intentional, or was committed by
the defendant while he was unable to discern between right and wrong with
respect to the act, then this defendant is entitled to the benefit of that
doubt and entitled to an acquittal.

XXIV

Defendant requests your Honor to charge the jury that if it finds that the
defendant is of a mental age of under twelve years, he is presumed to be
incapable of the commission of crime. (_Refused_)

XXV

Defendant requests your Honor to charge the jury that if it finds that the
defendant is of a mental age of under twelve years, he is presumed to be
incapable of crime and that presumption is not removed by proof that he
had sufficient capacity to understand the act charged against him and know
its wrongfulness, except by evidence that satisfied the jury beyond a
reasonable doubt. (_Refused_)

XXVI

Defendant requests your Honor to charge that if the jury finds that the
defendant is of a mental age of under twelve years, the evidence that he
understood the nature or quality of the act charged against him and knew
its wrongfulness must be strong and clear beyond a reasonable doubt.

XXVII

Defendant requests your Honor to charge the jury that it must find that
the understanding of and the capacity for committing a crime is measured
not by the chronological years of the defendant, but by the strength of
the defendant's understanding and judgment. (_Refused_)

XXVIII

Defendant requests your Honor to charge that if the jury find that the
defendant was of a mental age of under twelve years, he was incapable of
committing the crime charged in the indictment, unless the commonwealth
has made strong, clear, and convincing proof beyond a reasonable doubt
that the defendant was capable of discerning the difference between right
and wrong or knew the quality and nature of his act. (_Refused_)

XXIX

Defendant requests your Honor to charge that the burden is upon the
commonwealth to show that the defendant has intelligence and maturity of
judgment sufficient to render him capable of harboring a criminal intent.

XXX

Defendant requests your Honor to charge that if no motive has been
established for the crime, the jury must regard it as important in its
bearing upon the question of the defendant's mental condition at the time
of the commission of the act charged against him.

XXXI

Defendant requests your Honor to charge the jury that if the commonwealth
have established merely a slight, trifling, and inconsequential motive for
the commission of the act charged in the indictment, they should regard it
as important and give it more consideration in connection with the
question of the defendant's mental condition.

XXXII

Defendant requests your Honor to charge the jury that the commission of
the crime charged in the indictment by a child of tender years from its
very nature raises the question of abnormality of the defendant's mind and
in the absence of clear, strong, and convincing evidence on the part of
the commonwealth, it must conclude that the defendant's mental condition
was such that he did not understand the wrongfulness of his act or
understand the nature and quality of his act.

XXXIII

Defendant requests your Honor to charge that evidence of the want of a
rational and reasonable motive on the part of the defendant for the
perpetration of the act charged in the indictment is to be considered by
the jury as strong corroboration of the fact of his mental
irresponsibility.

XXXIV

Defendant requests your Honor to charge that the perpetration of the act
charged in the indictment without any apparent motive or object, but
against every motive which would appear to be naturally influential with
the defendant, that they must at once inquire whether or not the defendant
was of sound mind and take into consideration with the other evidence of
this case that he was not of sound mind, the absence of sufficient motive
must lead them to conclude that he was of unsound mind and could not
distinguish between right and wrong or know the nature and quality of his
act.

XXXV

Defendant requests your Honor to charge that the absence of a clear and
convincing motive in itself is evidence of an unsound mind.

XXXVI

Defendant requests your Honor to charge that if the defendant acted
without any reasonable or rational motive or object, but against every
motive and object, which it would appear should have been influential with
him, that fact in itself raises a presumption that the defendant was of
such unsound mind that he could not distinguish between right and wrong or
know the nature or quality of his act.

XXXVII

Defendant requests your Honor to charge the jury that they have no right
to presume a motive from the mere commission of the crime and have no
right to speculate, guess, or surmise or supply any motive for the
commission of the act charged in the indictment.

XXXVIII

Defendant requests your Honor to charge that the failure of the
commonwealth to call as witnesses Drs. Maybon and Palmer, who made
examinations of the defendant, to testify as to his mental condition,
raises the inference that if they had been called as witnesses, they would
have testified adversely to the commonwealth in respect to the defendant's
mental condition.

XXXIX

Defendant requests your Honor to charge that from the failure of the
commonwealth to call as witnesses Drs. Maybon and Palmer, who examined the
defendant, the jury may infer that they would have testified that the
defendant was a high-grade imbecile who was laboring under such defect of
reason as not to know the nature and quality of the act of which he is
charged in the indictment or not to know the act was wrong at the time it
was committed.

Defendant requests your Honor to charge that from the failure of the
commonwealth to call as witnesses Drs. Maybon and Palmer, the jury may
infer that had they been called they would have testified unfavorably and
adversely to the commonwealth, especially in the absence of any
explanation made under oath as to why they were not called.

XLI

Defendant requests your Honor to charge that if the jury acquit the
defendant on the ground of insanity, in that event the jury should specify
in its verdict that it acquits him on the ground of insanity.

XLII

Defendant requests your Honor to charge that if the jury acquit the
defendant upon the ground of insanity, it will become the duty of the
Court to order him committed to a State Asylum.

XLIII

Defendant requests your Honor to charge that if the jury acquit the
defendant on the ground of insanity, in this case such insanity will mean
imbecility, and that as imbecility cannot be cured, it will become the
duty of the Court to order him committed to a State Asylum for the rest of
his actual life.

XLIV

Defendant requests your Honor to charge the jury that the denial of the
several motions made by defendant's counsel throughout the trial, and the
rulings of the Court upon objections, and refusals by the Court to charge
as requested, are not to be taken as any expression of opinion on the part
of the Court upon the facts of this case, but are only rulings upon the
law, about which the jury has nothing to do.

NOTE. Requests XXIV, XXV, XXVII, and XXVIII, the Court refused to charge.

INDEX

Abstract ideas, lack of, in morons, 98.

Actions after crime, Gianini, 25, 27.
Pennington, 50-52.
Tronson, 76-78.

Alcoholism, 110.

Barr, Dr. Martin W., statement of, 86.

Beecher, Miss, annoyed by Gianini, 23.

Binet tests, and school experience, 35, 38, 54.
use of, in Gianini case, 32-35.
in Pennington case, 53.
in Tronson case, 80.

Capital punishment, 101.

Cause of Gianini's condition, 39-41.

Causes of feeble-mindedness, 39.

"Charity" in Binet tests, 34.

Children, testimony of, 90.
actions of, 94.
suggestibility of, 63.

Code quoted, 128.

Colonization, 107.

Confession, Gianini, 4, 9, 10.
Pennington, 44, 53.
Tronson, 67-80.
characteristic of imbeciles, 16, 29.
childishness of Pennington's, 55, 56.
not necessarily true, 17.
why Gianini made a, 15.

Confessions compared, 83, 90-93.

Courtroom, conduct in, 30, 67, 92.

Coward, the imbecile, 23.

Cretinism, 40.

Crime, details of, Gianini, 122, 132.
Pennington, 47.
Tronson, 74.

Criminal imbeciles, what should be done with, 102.

Criminals, 50 per cent feeble-minded, 106.

Defense in case of, Gianini, 2, 5.
Pennington, 43.
Tronson, 66.

Delinquencies, previous, of Gianini, 7, 37, 115, 116.
of Tronson, 68, 69, 82.

Display, love of, 29.

Experts, qualifications of, 85.

Feeble-mindedness, causes of, 39, 106.
may be exterminated, 108.

Feeble-mindedness in family, Gianini, 40.
Pennington, 87.

Finger prints, 26.

Gianini, Jean, case of, 1-41.
actions after the deed, 25, 27.
attitude of Miss Beecher toward, 7, 119.
disregards counsel's warning, 30.
evidences of pride in deed, 16-19, 29, 123.
facts as established by testimony, 3.
incidents in life of, 113-125.
indifferent to crime, 10, 29, 120, 125.
interest in stories of crime, 26, 118, 121, 123.
mentality of, 13.
mother of, 40, 109-112.
previous delinquencies of, 7, 37, 115, 116.
stories about, 31, 113.
teased little children, 32, 116, 119.
threats made by, 121, 125, 131.

Great White Way, 117.

Hypothetical question, defense, 109-126.
prosecution, 131-136.

Idiot, defined, 12.

Imbecile, career of an, 54.

Imbecility defined, 11.
not curable, 102.

Imbecility, defense of, Gianini, 2, 5.
Pennington, 43.
Tronson, 66, 80.

Imprisonment for life, 89, 101, 104.

Indian, Gianini plays, 23.

Insanity in relation to crime, 102.

Instinct to kill, 105.

Institution for feeble-minded, the logical place, 104.

Intelligence, tests of, admitted into court, 2, 32-35, 53, 80.

Interest in crime, Gianini's, 26, 118, 121, 123.

Jail, attitude in, Gianini, 30;
Pennington, 55.
examined in, Gianini, 29;
Pennington, 53, 56.

Jealousy of March, 53.

Liberty of defendant not desired, 88, 103.

McIntyre, John F., 103.

March, convicted, 43.
convicted upon Pennington's testimony, 90.
Pennington's relation to, 55, 56, 64.

Masturbation, 117.

Melancholia, 110-112.

Mental defectiveness, inherited, 39, 106.
recognized early, 105.

Mentality of, Gianini, 13.
Pennington, 53.
Tronson, 66.

Money as motive, 57.

Moron, defined, 11.
abstract ideas lacking in, 98.

Mother of Gianini, 40, 109-113.

Motive, Gianini's, 4, 20-25.
March's, 53.
Pennington's, 53, 56-60.
Tronson's, 76, 80.

Pennington, Roland, case of, 42-64.
actions after the deed, 52-53.
conduct at trial, 92.
confession, 44-53.
disregards lawyer's caution, 55.
mentality of, 53.
relation to March, 55, 56, 64.
testimony against March, 43, 90, 92.
trial, 43.

Preparations for crime, Gianini, 6.
Pennington, 47.
Tronson, 70.

Prevention, 82, 87, 104-108.

Propagation, prevention of, 106-108.

Psychologists, testimony of, 32, 53, 66.

Punishment for criminal imbeciles, 88, 100-108.

Quality of an act, meaning of, 96.

St. Vincent's School, 7, 116.

School, failure in, sign of mental defect, 37.
Gianini case, 35-37, 124.
Pennington case, 54.
Tronson case, 66.

Segregation, 107.

Sexual theory of Gianini's crime, 20.

Society, duty of, 82.
protection for, 100.

Speech development retarded, 113.

State prison for the imbecile manslayer, 89, 104.

Sterilization, 107.

Stories about Gianini,
"Indian," 113.
"Soup and safety," 31.
"Strap oil," 32.
teased little children, 32, 113, 116, 119.
"Thief," 114.

Suggestion, discussed, 61-63.
Pennington, victim of, 56-64.

Superintendents as specialists, 88.

Testimony of, children, 90.
experts, 85.
Pennington against March, 43, 90, 92.
psychologists, 32, 53, 66.
witnesses, 3-8, 18, 31, 35-37.

Trial, Gianini, 1, 30, 31.
Pennington, 43, 92.
Tronson, 66, 67.

Tronson, Fred, case of, 65-82.
actions after the deed, 76-78.
confession of, 76-80.
mentality of, 66.
previous delinquencies of, 68, 69, 82.

Types considered, of imbecility, 83.
of feeble-mindedness, 12-14.

Verdict, Gianini case, 1, 2.
Pennington case, 43.
Tronson case, 66.

Witnesses, children as, 90.

Wrench asked about, 7.

Printed in the United States of America.

FOOTNOTES:

[1] See prosecution's hypothetical question--Appendix, pp. 131-138.

[2] See Gianini Case, Defendant's Request to Charge, Nos. XLII, XLIII,
Appendix, p. 153.

[3] For statement see p. 9.

*** End of this LibraryBlog Digital Book "The Criminal Imbecile - An Analysis of Three Remarkable Murder Cases" ***

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