Title: The Prisoner at the Bar - Sidelights on the Administration of Criminal Justice
Author: Train, Arthur Cheney
Language: English
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THE PRISONER AT THE BAR


BOOKS BY ARTHUR TRAIN



 THE PRISONER AT
 THE BAR

 SIDELIGHTS ON THE ADMINISTRATION
 OF CRIMINAL JUSTICE

 BY
 ARTHUR TRAIN
 Assistant District Attorney, New York County

 SECOND EDITION
 REVISED AND ENLARGED

 NEW YORK
 CHARLES SCRIBNER'S SONS
 1915



 Copyright, 1906, 1908, by
 CHARLES SCRIBNER'S SONS

[Illustration]



 To
 ETHEL KISSAM TRAIN



PREFACE TO THE SECOND EDITION


The favorable reception accorded to the "Prisoner at the Bar," not
only in the United States but in England, and the fact that it has
won a place in several colleges and law schools as a reference book,
and in some instances as a sort of elementary text-book upon criminal
procedure, have resulted in a demand for a new edition. When the book
was written the author's sole intention was to present in readable form
a popular account of the administration of criminal justice. Upon its
publication he discovered to his surprise that it was the only book of
its exact character in the English language or perhaps in any other.
Reviewers pointed out that whereas there were annotated text-books
of criminal procedure and isolated articles on special topics, most
of them relating to the jury system, there was in existence no other
sketch of criminal justice as a whole, from arrest to conviction, based
upon either actual experience or hearsay.

This new edition has been indexed and is supplied with cross-references
to other works on allied subjects. A chapter has been added upon
"Insanity and the Law," and such statistics as the book contains have
been brought down to date. It is satisfactory to add that these show a
greatly increased efficiency in the jury system in criminal cases in
New York County, and that the tabulations of an eight years' experience
as a prosecutor only serve to confirm the conclusions set forth in the
first edition.

The author desires to express his thanks to Prof. John H. Wigmore, of
the Northwestern University Law School, for his many kind suggestions
and flattering references to this book in his masterly work upon the
law of evidence; to Augustin Derby, Esq., of the New York bar, who
most unselfishly gave much time to the examination of references, and
voluntarily undertook the ungrateful task of compiling the index; and
to those many others who, by comment or appreciation, have made a
second edition necessary.

 _Bar Harbor, Me._,
 Sept. 1, 1908.



PREFACE TO THE FIRST EDITION


The prisoner at the bar is a figure little known to most of us. The
newspapers keep us steadily informed as to the doings of all sorts of
criminals up to the time of their capture, and prison literature is
abundant, but just how the criminal becomes a convict is not a matter
of common knowledge. This, however, does not prevent the ordinary
citizen from expressing pronounced and, frequently, vociferous opinions
upon our methods of administering criminal justice, in the same way
that he stands ready at any time to criticise the Darwinian theory,
free trade or foreign missions. Full knowledge of any subject is
inevitably an impediment to forcible asseveration. Generalities are
easy to formulate and difficult to disprove. The man who sits with his
feet up and his chair tilted back in the "drummer's" hotel will inform
you that there is no such thing as criminal justice and that the whole
judiciary, state and federal, is "owned" or can be bought; you yourself
doubtless believe that the jury system is a failure and successfully
evade service upon it; while your neighbor is firmly convinced that
prosecutors secure their positions by reason of their similarity to
bloodhounds and retain them by virtue of the same token.

The only information available to most people on this exceedingly
important subject is that offered by the press, and the press (save
in the case of sensational murder trials) usually confines itself
to dramatic accounts of the arrest of the more picturesque sort of
criminals, with lurid descriptions of their offences. The report or
"story" concludes with the statement that "Detective-Sergeant Smith
immediately arraigned his prisoner (Robinson) before Magistrate Jones,
who committed the latter to jail and adjourned the hearing until the
following Tuesday." This ends the matter, and the grewsome or ingenious
details of the crime having been served up to satisfy the public
appetite, and the offender having been locked up, there is nothing,
from the reporters' point of view, any longer in the story. We never
hear of Robinson again unless he happens to be the president of a
bank or a degenerate millionaire. He is "disposed of," as they say in
the criminal reports, without exciting anybody's interest, and his
conviction or acquittal is not attended by newspaper comment.

If on the other hand the case be one of sensational interest we are
treated daily to long histories of the defendant and his family,
illustrated by grotesque reproductions from the ancestral photograph
album. We become familiar with what he eats and drinks, the number of
cigars he smokes and his favorite actor and author. The case consumes
months in preparation and its trial occupies weeks. A battalion of
"special" talesmen marches to the court house,--"the standing army of
the gibbet," as one of my professional brethren (on the other side of
the bar) calls them. As each of the twelve is chosen his physiognomy
appears on the front page of an evening edition, a tear dropping from
his eye or his jaws locked in grim determination, in accordance with
the sentiments of the editor or the policy of the owner. Then follows
a pictorial procession of witnesses. The prosecutor makes a full-page
address to the public in the centre of which appears his portrait,
heroic size, arm sawing the air.

"I am innocent!" cries a purple defendant, in green letters.

"Murderer!" hisses a magenta prosecutor, in characters of vermilion.

Finally the whole performance comes to an end without anybody having
much of an idea of what has actually taken place, and leaving on the
public mind an entirely false and distorted conception of what a
criminal trial is like.

The object of this book is to correct the very general erroneous
impression as to certain phases of criminal justice, and to give a
concrete idea of its actual administration in large cities in ordinary
cases,--cases quite as important to the defendants and to the public as
those which attract widespread attention.

The millionaire embezzler and the pickpocket are tried before the same
judge and the same jury, and the same system suffices to determine the
guilt or innocence of the boy who has broken into a cigar store and
the actress who has murdered her lover. It is in crowded cities, like
New York, containing an excessive foreign-born population, that the
system meets with its severest test, and if tried and not found wanting
under these conditions it can fairly be said to have demonstrated its
practical efficiency and stability. Has the jury system broken down?
Are prosecutors habitually vindictive and over-zealous? It is the hope
of the writer that the chapters which follow may afford some data to
assist the reader in formulating an intelligent opinion upon these
and kindred subjects. It is needless to say that no attempt is made
to discuss police corruption, the increase or decrease of crime, or
penology in general, and the writer has confined himself strictly to
that period of the criminals' history described in the title as "AT THE
BAR."

To my official chief, William Travers Jerome, and to my associates,
Charles Cooper Nott, Charles Albert Perkins, and Nathan A. Smyth, I
desire to acknowledge my gratitude for their advice and assistance;
to my friend, Leonard E. Opdycke, who suggested the collection and
correlating of these chapters, I wish to express my thanks for his
constant interest and encouragement; but my debt to these is naught
compared to that which I owe to her to whom this book is dedicated,
who, with unsparing pains, has read, re-read and revised these chapters
in manuscript, galley and page and who has united the functions of
critic, censor and collaborator with a patience, good humor, and
discretion which make writing a joy and proof-reading a vacation.

 Arthur Train.

 _Bar Harbor, Me._,
 Sept. 1, 1906.



CONTENTS


                                                       PAGE

  Introduction. By Prof. John H. Wigmore              xvii

  CHAPTER I

  What Is Crime?                                        1

  CHAPTER II

  Who Are the Real Criminals                           19

  CHAPTER III

  The Arrest                                           31

  CHAPTER IV

  The Police Court                                     42

  CHAPTER V

  The Trial of Misdemeanors                            62

  CHAPTER VI

  The Grand Jury                                       81

  CHAPTER VII

  The Law's Delays                                    102

  CHAPTER VIII

  Red Tape                                            129

  CHAPTER IX

  The Trial of Felonies                               148

  CHAPTER X

  The Judge                                           178

  CHAPTER XI

  The Jury                                            205

  CHAPTER XII

  The Witness                                         224

  CHAPTER XIII

  The Verdict                                         241

  CHAPTER XIV

  The Sentence                                        261

  CHAPTER XV

  Women in the Courts                                 279

  CHAPTER XVI

  Tricks of the Trade                                 303

  CHAPTER XVII

  What Fosters Crime                                  334

  CHAPTER XVIII

  Insanity and the Law                                350

  Index                                               377



INTRODUCTION

By Prof. John H. Wigmore, Dean of the Law School of Northwestern
University.


Mr. Train's book, "The Prisoner at the Bar," as an entertaining and
vivid picture of the criminal procedure of to-day, and a repertory of
practical experience and serious discussion of present-day problems
in the administration of justice, is, in my opinion, both unique and
invaluable. I know of no other book which so satisfyingly fills an
important but empty place in a modern field. At one extreme stand
the scientific psycho-criminologists, usefully investigating and
reflecting, but commonly severed from the practical treatment of any
branch of the subject until the prison doors are reached. At another
extreme are the professional lawyers, skilled in the technique of
present procedure, but too much tied by precedent to take anything
but a narrow, backward-looking view. Off in a third corner are the
economists, sociologists, physicians, and serious citizens in general,
who notice that some things are going wrong, but have no accurate
conception of what is actually seen and done every day in courts of
justice; these good people run the risk of favoring impracticable fads
or impossible theories.

Now comes Mr. Train's book, casting in the centre of the field an
illumination useful to all parties. It enlightens the serious citizen
as to the actual experiences of our criminal justice, and shows him the
inexorable facts that must be reckoned with in any new proposals. The
professional lawyer is stimulated to think over the large tendencies
involved in his daily work, to realize that all is _not_ necessarily
for the best, and to join and help with his skill. The scientific
criminologist is warned against trusting too much to the cobwebs of
his ideal theories, or adhering too implicitly to the Lombrosan school
or other foreign propaganda, and is forced to keep in mind a living
picture of the practical needs of American justice.

I do not hesitate to say that every thoughtful American citizen ought
to know all the things that are told in this book; and if he did, and
as soon as he did, we might then begin to work with encouragement to
accomplish in a fashion truly practical as well as scientific the
needed improvements in our criminal justice. Such effort is likely to
be hopeless until people come to realize _what the facts are_. Judging
by my own case, I feel that most people will never really know and
appreciate the facts unless they read Mr. Train's book.



THE PRISONER AT THE BAR



The Prisoner at the Bar



CHAPTER I

WHAT IS CRIME?


A crime is any act or omission to act punishable as such by law. It is
difficult, if not impossible, to devise any closer definition. Speaking
broadly, crimes are certain acts, usually wrongful, which are regarded
as sufficiently dangerous or harmful to society to be forbidden under
pain of punishment. The general relation of crimes to wrongs as a whole
is sometimes illustrated by a circle having two much smaller circles
within it. The outer circle represents wrongful acts in the aggregate;
the second, wrongful acts held by law to be _torts_, that is to say,
infractions of private rights for which redress may be sought in the
civil courts, and the smallest or inner circle, acts held to be so
injurious to the public as to be punishable as crimes.

This does well enough for the purpose of illustrating the relative
proportion of crimes to torts or wrongful acts in general, and, if a
tiny dot be placed in the centre of the bull's-eye to represent those
crimes which are actually punished, one gets an excellent idea of how
infinitely small a number of these serve to keep the whole social
fabric in order and sustain the majesty of the law. But the inference
might naturally be drawn that whatever was a crime must also be a tort
or at least a wrong, which, while true in the majority of instances, is
not necessarily the case in all. In a certain sense crimes are always
wrongs or, at least, wrong, but only in the sense of being infractions
of law are they _always_ wrongs or wrong.

[Illustration]

The word wrong being the antithesis of the word right, and carrying
with it generally some ethical or moral significance, will vary in
its meaning according to the ideas of the individual who makes use of
it. Indeed, it is conceivable that the only really right thing to do
under certain circumstances would be to commit an act designated by
law as a crime. So, conversely, while a wrong viewed as an infraction
of the laws of God is a sin, that which is universally held sinful
is by no means always a crime. Speaking less broadly, a wrong is an
infraction of a right belonging to another, which he derives from the
law governing the society of which he is a member. Many wrongs are
such that he may sue and obtain redress therefor in the courts. But
it by no means follows that every crime involves the infraction of a
private right or the commission of a tort. Thus "perjury" and most
crimes against the State are not torts at all. It will thus be seen
that no accurate definition of a crime can be given save that it is an
act or omission which the State punishes as such, and that technically
the word carries with it no imputation or implication of sin, vice,
iniquity, or in a broad sense even of wrong. The act may or may not
be repugnant to our ideas of right. Numerically considered, only a
minority of crimes have any ethical significance whatever, the majority
being designated by the law itself as _mala prohibita_, rather than
_mala in se_.

It is the duty of a prosecutor to see that infractions of the criminal
law are punished and to represent the public in all proceedings had
for that purpose, but, in view of what has just been said, it will
be observed that his duties do not necessarily involve familiarity
with vice, violence or even sin. The crimes he is called upon to
prosecute may be disgusting, depraved and wicked, or they may be, and
frequently are, interesting, ingenious, amusing or, possibly (though
not probably), commendable. For example, a man who chastises the foul
slanderer of a young woman's character may have technically committed
an assault of high degree, yet if he does so in the proper spirit, in a
suitable place, and makes the offender smart sufficiently, he deserves
the thanks and congratulations of all decent men and honest women. Yet,
indubitably, he has committed a crime, although, thanks to our still
lingering spirit of chivalry, he would never be stamped by any jury as
a criminal.

A prosecutor is frequently asked if he does not find that his
experience has a "hardening" effect.

"Why should it?" he might fairly reply. "I have to do with criminals,
it is true, but the criminals as a rule are little or no worse than
the classes of people outside from which they have been drawn. Their
arrest and conviction are largely due to accidental causes, such as
weak heads, warm hearts, quick temper, ignorance, foolishness or
drunkenness. We see all of these characteristics in our immediate
associates. A great many convicted persons have done acts which are
not wrong at all, but are merely forbidden. Even where their acts
are really wrong it is generally the stupid, the unfortunate, or the
less skilful who are caught. For every rogue in jail there are at
least ten thousand at large. The ones who escape are wiser and very
likely meaner. Last, but not least, a very great number of the most
despicable, wicked, and harmful deeds that can be committed are not
crimes at all. The fact that a man is a criminal argues nothing at all
against his general decency, and when I meet a convict I assume, and
generally assume correctly, that to most intents and purposes he is a
gentleman. The code which puts one man in stripes and allows another
to ride in an automobile is purely artificial, and strictly speaking
proves not a whit which is the better man."

Now while such an answer might seem frivolous enough to the lay reader,
it would nevertheless be substantially true. Your criminal, that is
to say, strictly, the law-breaker who is brought to book for his
offence, is very likely a pretty good sort of fellow as fellows go. If
he has been guilty merely of an act which is prohibited, not because
of its inherent wrong, but simply on grounds of public policy--_malum
prohibitum_--he is probably as good as anybody. His offence may be due
to ignorance or accident. Assuming that his crime be one which would
seem to involve moral turpitude--_malum in se_--there are very likely
mitigating circumstances which render his offence, if not excusable, at
least less reprehensible than would appear at first glance.

Crimes bear no absolute relation to one another. A murderer may or may
not be worse than a thief,--and either may be better than his accuser.
The actual danger of any particular offender to the community lies not
so much in the kind or degree of crime which he may have committed as
in the state of his mind. Even the criminals who are really criminal,
in the sense that they have a systematic intention of defying the law
and preying upon society, are generally not criminal in all directions,
but usually only in one, so that taken upon their unprofessional
side they present the same characteristics as ordinary and, roughly
speaking, law-abiding citizens. The bank robber usually is a bank
robber and nothing more. He specializes in that one pursuit. It is his
vocation and his joy. He prides himself on the artistic manner in which
he does his work. He would scorn to steal your watch and is a man of
honor outside of bank-breaking hours,--"Honor among thieves." Often
enough he is a model husband and father. So, too, may be your forger,
gambler, swindler, burglar, highwayman, or thief,--any in fact except
the real moral pervert; and of course murder is entirely compatible
on occasion with a noble, dignified and generous character. "There
is nothing essentially incongruous between crime and culture." The
prosecutor who begins by loathing and despising the man sitting at the
bar may end by having a sincere admiration for his intellect, character
or capabilities. This by way of defence to crime in general.

Our forefathers contented themselves with a rough distinction
between crimes as _mala prohibita_ and _mala in se_. When they
sought to classify criminal acts under this arrangement they divided
them accordingly as the offence carried or did not carry with it a
suggestion of moral turpitude. Broadly speaking, all felonies were and
are regarded as _mala in se_. Murder, arson, burglary, theft, etc.,
in general indubitably imply a depraved mind, while infractions of
Sunday observance laws or of statutes governing the trade in liquor
do not. Yet it must be perfectly clear that any such distinction is
inconclusive.

There can be no general rule based merely on the name or kind of crime
committed which is going to tell us which offender is really the
worst. A misdemeanor may be very much more heinous than a felony. The
adulterator of drugs or the employer of illegal child labor may well
be regarded as vastly more reprehensible than the tramp who steals
part of the family wash. So far as that goes there are an alarming
multitude of acts and omissions not forbidden by statute or classed
as crimes which are to all intents and purposes fully as criminal as
those designated as such by law. This is the inevitable result of the
fact that crimes are not crimes merely because they are wrong, but
because the State has enjoined them. For example, to push a blind man
over the edge of a cliff so that he is killed upon the rocks below is
murder, but to permit him to walk over it, although by stretching out
your hand you might prevent him, is no crime at all. It is a crime to
defame a woman's character if you write your accusation upon a slip of
paper and pass it to another, but it is no crime in New York State to
arise in a crowded lecture hall and ruin her forever by word of mouth.
It is a crime to steal a banana off a fruit-stand, but it is no crime
to borrow ten thousand dollars from a man whose entire fortune it is,
although you have no expectation of returning it. You can be a swindler
all your life--the meanest sort of a mean swindler, but there is no
crime of being a swindler or of being a mean man. It is a crime to ruin
a girl of seventeen years and eleven months, but not to ruin a girl of
eighteen. The "age of consent" varies in the different States. It is a
crime to obtain a dollar by means of a false statement as to a past or
existing fact, but it is no crime to obtain as much money as you can by
any other sort of a lie. Lying is not a crime, but lying under oath is
a crime,--provided it be done in a legal proceeding and relates to a
_material_ matter. The most learned jurists habitually disagree as to
what is material and what is not.

Even when the acts to be contrasted are all crimes there is no way of
actually discriminating between them except by carefully scrutinizing
the circumstances of each. The so-called "degrees" mean little or
nothing. If you steal four hundred and ninety-nine dollars out of a
man's safe in the daytime it is grand larceny in the second degree. If
you pick the same man's pocket of a subway ticket after sunset it is
grand larceny in the first degree. You may get five years in the first
instance and ten in the second. If you steal twenty-five dollars out of
a bureau drawer you commit petty larceny and may be sent to prison for
only one year.

If the degree of any particular crime of which a defendant is found
guilty is no index to his real criminality or of his danger to society,
still less is the name of the crime he has committed an index to his
moral character, save in the case of certain offences which it is not
necessary to enumerate. Most men charged with homicide are indicted for
murder in the first degree. This may be a wise course for the grand
jury to pursue in view of the additional evidence which often comes
to light during a trial. But it frequently is discovered before the
case goes to the jury that in point of fact the killing was in hot
blood and under circumstances which evince no great moral turpitude
in the slayer. For example, two drunken men become involved in an
altercation and one strikes the other, who loses his equilibrium and
falls, hitting his head against a curbstone and fracturing his skull.
The striker is indicted and tried for murder. Now he is doubtless
guilty of manslaughter, but he is less dangerous to the community
than a professional thief who preys upon the public by impersonating
a gasman or telephone repairer and by thus gaining access to private
dwellings steals the owner's property. One is an accidental, the other
an intentional criminal. One is hostile to society as a whole and the
other is probably not really hostile to anybody. Yet the less guilty
is denominated a murderer, and the other is rarely held guilty of
more than petty larceny. A fellow who bumps into you on the street,
if he be accompanied by another, and grabs your cane, is guilty of
robbery in the first degree,--"highway" robbery,--and may get twenty
years for it, but the same man may publish a malicious libel about
you, and by accusing you of the foulest practices rob you of your good
name and be only guilty of a misdemeanor. Yet the reader should not
infer that definitions and grades of crime capable of corresponding
punishments are not proper, desirable, and necessary. Of course they
are. The practical use of such statutes is to fix a maximum sentence
of punishment. As a rule the minimum is anything the judge sees fit.
Hence you may deduce a general principle to the effect that the charge
against the prisoner, even assuming his guilt, indicates nothing
definite as to his moral turpitude, danger to the community, or general
undesirability.

But we may honestly go much further. Not only are the names and degrees
of the crimes which a defendant may have committed of very little
assistance in determining his real criminality, but the fact that
he has committed them by no means signifies that he is morally any
worse than some man who has committed no so-called crime at all. Many
criminals, even those guilty of homicide, are as white as snow compared
with others who have never transgressed the literal wording of a penal
statute.

"We used to have So and So for our lawyer," remarked the president
of a large street railway corporation. "He was always telling us what
we _couldn't_ do. Now we have Blank, and pay him one hundred thousand
dollars a year to tell us how we _can_ do the same things." The thief
who can have the advice of able counsel "how to do it" need never go to
jail.

Many of the things most abhorrent to our sense of right do not come
within the scope of the criminal law. _Omissions_, no matter how
reprehensible, are usually not regarded as criminal, because in most
cases there is no technical legal duty to perform the act omitted.
Thus, not to remove your neighbor's baby from the railroad track in
front of an on-rushing train, although it would cause you very little
trouble to do so, is no crime, even if the child's life be lost as a
result of your neglect. You can let your mother-in-law choke to death
without sending for a doctor, or permit a ruffian half your size to
kill an old and helpless man, or allow your neighbor's house to burn
down, he and his family peacefully sleeping inside it, while you play
on the pianola and refuse to ring up the fire department, and never
have to suffer for it--in this world.

Passing from felonies--_mala in se_--to misdemeanors--generally only
_mala prohibita_--almost anything becomes a crime, depending upon the
arbitrary act of the legislature.

It is a crime in New York State to run a horse race within a mile of
where a court is sitting; to advertise as a divorce lawyer; to go
fishing or "play" on the first day of the week; to set off fire-works
or make a "disbursing noise"[1] at a military funeral in a city on
Sunday; to arrest or attach a corpse for payment of debt; to keep a
"slot machine"; to do business under any name not actually your own
full name without filing a certificate with the county clerk (as, for
example, if, being a tailor, you call your shop "The P.D.Q. Tailoring
Establishment"); to ride in a long-distance bicycle race more than
twelve hours out of twenty-four; to shoe horses without complying
with certain articles of the Labor Law; to fail to supply seats for
female employés in a mercantile establishment; to steal a ride in a
freight car, or to board such a car or train while in motion; to set
fire negligently to one's own woods, by means of which the property of
another is endangered; to run a ferry without authority, or, having
contracted to run one, to fail to do so; to neglect to post ferry
rates (under certain conditions) in English; to induce the employé
of a railroad company to leave its service because it requires him
to wear a uniform; to wear a railroad uniform without authority;
to fish with a net in any part of the Hudson River (except where
permitted by statute); to secretly loiter about a building with intent
to overhear discourse therein, and to repeat the same to vex others
(eavesdropping); to sell skimmed milk without a label; to plant oysters
(if you are a non-resident) inside the State without the consent of the
owner of the water; to maintain an insane asylum without a license; to
enter an agricultural fair without paying the entrance fee; to assemble
with two or more other persons "disguised by having their faces
painted, discolored, colored or concealed," save at a fancy-dress ball
for which permission has been duly obtained from the police; or to wear
the badge of the "Patrons of Husbandry," or of certain other orders
without authority. These illustrations are selected at random from the
New York Penal Code.

Where every business, profession, and sport is hedged around by such
_chevaux-de-frise_ of criminal statutes, he must be an extraordinarily
careful as well as an exceptionally well-informed citizen who avoids
sooner or later crossing the dead-line. It is to be deprecated that our
law-makers can devise no other way of regulating our existences save by
threatening us with the shaved head and striped shirt.

The actual effect of such a multitude of statutes making anything and
everything crimes, punishable by imprisonment, instead of increasing
our respect for law, decreases it, unless they are intended to be and
actually are enforced. Acts _mala in se_ are lost in the shuffle among
the acts _mala prohibita_, and we have to become students to avoid
becoming criminals.

Year by year the legislature goes calmly on _creating_ all sorts of new
crimes, while failing to amplify or give effect to the various statutes
governing existing offences which to a far greater degree are a menace
to the community. For example, it is not a crime in New York State to
procure money by false pretences provided the person defrauded parts
with his money for an illegal purpose.[2]

In the McCord[3] case, in which the Court of Appeals established this
extraordinary doctrine, the defendant had falsely pretended to the
complainant, a man named Miller, that he was a police officer and held
a warrant for his arrest. By these means he had induced Miller to give
him a gold watch and a diamond ring as the price of his liberty. The
conviction in this case was reversed on the ground that Miller parted
with his property for an unlawful purpose; but there was a very strong
dissenting opinion from Mr. Justice Peckham, now a member of the bench
of the Supreme Court of the United States.

In a second case, that of Livingston,[4] the complainant had been
defrauded out of five hundred dollars by means of the "green-goods"
game; but this conviction was reversed by the Appellate Division of the
Second Department on the authority of the McCord case. The opinion was
written by Mr. Justice Cullen, now Chief Judge of the New York Court of
Appeals, who says in conclusion:

"We very much regret being compelled to reverse this conviction. Even
if the prosecutor intended to deal in counterfeit money, it is no
reason why the appellant should go unwhipped of justice. _We venture
to suggest that it might be well for the legislature to alter the rule
laid down in McCord vs. People._"

Well might the judges regret being compelled to set a rogue at liberty
simply because he had been ingenious enough to invent a fraud which
involved the additional turpitude of seducing another into a criminal
conspiracy. Livingston was turned loose upon the community, in spite
of the fact that he had swindled a man out of five hundred dollars,
because he had incidentally led the latter to believe that in return
he was to receive counterfeit money or "green goods" which might be
put into circulation. Yet, because, some years before, the judges
of the Court of Appeals had, in the McCord matter, adopted the rule
followed in civil cases, to wit, that as the complaining witness was
himself in fault and did not come into court with clean hands he could
have no standing before them, the Appellate Division in the next case
felt obliged to follow them and to rule tantamount to saying that two
wrongs could make a right and two knaves one honest man. It may seem
a trifle unfair to put it in just this way, but when one realizes
the iniquity of such a rule as applied to criminal cases, it is hard
to speak softly. Thus the broad and general doctrine seemed to be
established that so long as a thief could induce his victim to believe
that it was to his advantage to enter into a dishonest transaction, he
might defraud him to any extent in his power. Immediately there sprang
into being hordes of swindlers, who, aided by adroit shyster lawyers,
invented all sorts of schemes which involved some sort of dishonesty
upon the part of the person to be defrauded. The "wire-tappers,"
of whom "Larry" Summerfield was the Napoleon, the "gold-brick" and
"green-goods" men, and the "sick engineers" flocked to New York, which,
under the unwitting protection of the Court of Appeals, became a
veritable Mecca for persons of their ilk.

The "wire-tapping" game consisted in inducing the victim to put up
money for the purpose of betting upon a "sure thing," knowledge of
which the thief pretended to have secured by "tapping" a Western
Union wire of advance news of the races. He usually had a "lay out"
which included telegraph instruments connected with a dry battery in
an adjoining closet, and would merrily steal the supposed news off
an imaginary wire and then send his dupe to play his money upon the
"winner" in a pretended pool-room which in reality was nothing but a
den of thieves, who instantly absconded with the money.

In this way one John Felix was defrauded out of fifty thousand dollars
on a single occasion.[5] Now the simplest legislation could instantly
remedy this evil and put all the "wire-tappers" and similar swindlers
out of business, yet a bill framed and introduced in accordance with
the suggestion of the highest court in the State was defeated. Instead
the legislature passes scores of entirely innocuous and respectable
acts like the following, which became a law in 1890:

  An Act for the Prevention of Blindness

  Section 1. Should ... _nurse having charge of an infant ... notice_
  that one or both eyes of such infant are inflamed or reddened at
  any time within two weeks after its birth it shall be the duty of
  such nurse ... to report the fact in writing within six hours to the
  health officer or some legally qualified practitioner of medicine ...

  Section 2. Any failure to comply with the provisions of this act
  shall be punished by a fine not to exceed one hundred dollars, _or
  imprisonment not to exceed six months_, _or both_.

The criminal law which had its origin when violence was rife is
admirably adapted to the prevention, prosecuting and punishment of
crude crimes, such as arson, rape, robbery, burglary, mayhem, assault,
homicide, and "common-law" larceny,--theft accompanied by a trespass.
In old times everything was against the man charged with crime--at
least that was the attitude of the court and jury. "Aha!" exclaims the
judge as the evidence goes in. "You thought you were stealing only
a horse! But you stole a _halter as well_!" And the spectators are
convulsed with merriment.

We take honest pride in the protection which our law affords to the
indicted prisoner. It is the natural expression of our disapproval
of a system which at the time of our severance from England ignored
the rights of the individual for those of the community. We touched
the lips of the defendant and gave him the right to speak in his own
behalf. We gave him an unlimited right of appeal on any imaginable
technicality.[6] But while we have been making it harder and harder to
convict our common criminals, we have to a very great extent failed
to recognize the fact that all sorts of new and ingenious crimes
have come into existence with which the law in its present state is
utterly unable to cope. The evolution of the modern corporation
has made possible larcenies to the punishment of which the law is
entirely inadequate. "Acts for the prevention of blindness" are perhaps
desirable, but how about a few statutes to prevent the officers of
insurance companies from arbitrarily diverting the funds of that vague
host commonly alluded to as "widows and orphans"? The careless nurse
is a criminal and may be confined in a penitentiary; while perhaps a
man who may be guilty of a great iniquity and known to be so drives
nonchalantly off in his coach and four.

What is crime? We may well ask the question, only eventually to be
confronted by that illuminating definition with which begins the Penal
Code--"A crime is an act or omission forbidden by law and punishable
upon conviction by ... penal discipline." Let us put on our glasses
and find out what these acts or omissions are. When we have done that
we may begin to look around for the criminals. But it will be of
comparatively little assistance in finding the _sinners_.

So-called criminologists delight in measuring the width of the skulls
between the eyes, the height of the foreheads, the length of the ears,
and the angle of the noses of persons convicted of certain kinds of
crimes, and prepare for the edification of the simple-minded public
tables demonstrating that the burglar has this kind of a head, the
pickpocket that sort of an ear, and the swindler such and such a
variety of visage. Exhaustive treatises upon crime and criminals lay
down general principles supposed to assist in determining the kind of
crime for which any particular unfortunate may have a predilection. One
variety of criminal looks this way and another looks that way. One has
blue eyes, the other brown eyes.[7] Some look up, others look down. My
friend, if you examine into the question, you will probably discover
that the clerk who sells you your glass of soda water at the corner
drug store will qualify for some one of these classes, so will your
host at dinner this evening, so, very likely, will the family doctor or
the pastor of your church.

The writer is informed that there has recently been produced an
elaborate work on political criminals in which an attempt is made to
set forth the telltale characteristics of such. It is explained that
the tendency to commit such crimes may be inherited. You are about as
likely to inherit an inclination to commit a political crime as you are
to derive from a maiden aunt a tendency to violate a speed ordinance or
make a "disbursing" noise.

Let some one codify all the sins and meannesses of mankind, let the
legislatures make them crimes and affix appropriate penalties, then
those of us who still remain outside the bars may with more propriety
indulge ourselves in reflections at the expense of those who are not.

FOOTNOTES:

[Footnote 1: New York Penal Code, Section 276.]

[Footnote 2: No longer the law of New York. After this book was
published the Court of Appeals reversed the conviction of Tracy for
his $50,000 fraud upon Felix by means of the "wire-tapping" game and
affirmed as law the doctrine of People _vs._ McCord. The author takes
satisfaction in recording that the Legislature thereupon awoke to its
duties and amended the penal code in such a fashion as to render such
offences criminal.]

[Footnote 3: 46 New York 470.]

[Footnote 4: 47 App. Div. 283.]

[Footnote 5: The operations of these swindlers recently became so
notorious that the District Attorney of New York County determined to
prosecute the perpetrators of the Felix swindle, in spite of the fact
that the offence appeared to come within the language of the Court of
Appeals in the McCord and Livingston cases. Accordingly Christopher
Tracy, alias Charles Tompkins, alias Topping, etc., etc., was indicted
(on the theory of "trick and device") for the "common-law" larceny of
Felix's fifty thousand dollars.

The trial came on before Judge Warren W. Foster in Part III of the
General Sessions on February 27, 1906. A special panel quickly supplied
a jury, which, after hearing the evidence, returned a verdict of guilty
in short order.

It now remains for the judges of the Court of Appeals to decide whether
they will extend the doctrine of the McCord and Livingston cases to a
fraud of this character, whether they will limit the doctrine strictly
to cases of precisely similar facts, or whether they will frankly
refuse to be bound by any such absurd and iniquitous theory and consign
the McCord case to the dust-heap of discarded and mistaken doctrines,
where it rightfully belongs. Their action will determine whether the
perpetrators of the most ingenious, elaborate and successful bunco game
in the history of New York County shall be punished for their offence
or instead be turned loose to prey at will upon the community at large.
(See "The Last of the Wire-Tappers" in the _American Magazine_ for
June, 1906; also incorporated in the author's "True Stories of Crime,"
pp. 103-121, published by Charles Scribner's Sons, 1908.)]

[Footnote 6: Cf. in general, references given _infra_, p. 339.]

[Footnote 7: The following appeared in the New York _Globe_ for April
25, 1905: "Criminal eyes--It is well known," says Dr. Beddoe, F.R.S.,
"that brown eyes and dark hair are particularly common among the
criminal classes. An American observer calls the brown the criminal
eye, etc., etc."]



CHAPTER II

WHO ARE THE REAL CRIMINALS?


Some reader of the preceding chapter may perhaps remark, "This is
all very well so far as it goes. It doubtless is entirely true from
a purely technical point of view. But that is only one side of the
matter. How about the _real_ criminals?" This is neither an unexpected
nor an uninvited criticism. Who _are_ the "_real_" criminals? Charles
Dudley Warner says: "Speaking technically, we put in that [the
criminal] class those whose sole occupation is crime, who live upon it
as a profession and who have no other permanent industry. They prey
upon society. They are by their acts at war upon it and are outlaws."
Now the class of professional criminals to which Mr. Warner refers as
contrasted with the great mass of criminal defendants as a whole is,
in point of fact, relatively so small, and so easily recognized and
handled, that it plays but an inconspicuous part in the administration
of criminal justice.

The criminals who conform accurately to childhood's tradition are
comparatively few in number. The masked highwayman, the safe-cracker
and even the armed house burglar have, with a few exceptions, long
since withdrawn from the actual pursuit of their romantic professions
and exist practically only in the eagerly devoured pages of Sherlock
Holmes and the "memoirs of great detectives." New and almost more
picturesque figures have taken their places,--the polite and elegant
swindler, the out-at-the-elbows but confidence-inspiring promoter
of assetless corporations, the dealer in worthless securities, and
the forger who drives in his own carriage to the bank he intends to
defraud. In some cases the individuals are the same, the safe-cracker
merely having doffed his mask in favor of the silk hat of Nassau
Street. Of yore he stole valuable securities which he was compelled to
dispose of at a tremendous discount; now he sells you worthless stocks
and bonds at a slight premium. Mr. J. Holt Schorling, writing in _The
Contemporary Review_ for June, 1902, points out that while all crimes
other than fraud decreased materially in England from 1885 to 1899, the
crime of fraud itself materially increased during the same period.[8]

The subject is a tempting one, but it is not essential to our thesis.
The devil is not dead; he has merely changed his clothes. Criminal
activity has not subsided; it has instead sought new ways to meet
modern conditions, and so favorable are these that while polite crime
may be said still to be in its infancy, it is nevertheless thriving
lustily.

While the degenerate criminal class is the subject of much elaborate
and minute analysis by our continental neighbors, its extent is
constantly exaggerated and its relation to the other criminal classes
not fully appreciated. To read some supposedly scientific works one
would imagine that every court of criminal justice was or should be
nothing but a sort of clinic. To these learned authors, civilization,
it is true, owes a debt for their demonstration that some crime is due
to insanity and should be prevented, and, where possible, cured in much
the same manner. But they have created an impression that practically
all crime is the result of abnormality.

Every great truth brings in its train a few falsehoods,--every great
reform a few abuses. The first penological movement was in the
direction of prison reform. While perhaps the psychological problem
was not entirely overlooked, it was completely subordinated to the
physical. It is a noble thing that the convict should have a warm cell
in winter and a cool one in summer, with electric light and running
water, wholesome and nutritious food, books, bathrooms, hospitals,
chapels, concerts, ball games and chaplains. "But it must be noted that
along with this movement has grown up a sickly sentimentality about
criminals which has gone altogether too far, and which, under the guise
of humanity and philanthropy, confounds all moral distinctions." To a
large number of well-meaning people every convict is a person to whom
the State has done an injury.

Then came the study of degeneracy, with the cranium of every criminal
as a subject of investigation. In 1881 or thereabouts Professor
Benedickt published his conclusion that "the brains of criminals
exhibit a deviation from the anthropological variety of their species,
at least among the cultured races." It was a commendable thing to point
out the relation of insanity to crime. It is an undeniable truth that
there are insane people who are predisposed to crime just as there are
those who are predisposed to dance.

The vicious criminal class contains many who are actually or
incipiently insane, and it numbers a great many more who are
physically and mentally normal, who yet by reason of their education
and environment are not much to be blamed for doing wrong. But it is
far from true that a majority of the "real" criminals are mentally
defective. Crime and insanity are no more closely related than sin
and insanity. Certain criminals are also perverts. But they would be
criminals even if they were not perverts. The fact that a man who
takes drugs is also a criminal does not prove that he is a criminal
because he takes drugs. We know many drug-takers who are otherwise
highly respectable. Go to the General Sessions and watch the various
defendants who are brought into court and you will discover little
more degeneracy or abnormality than you would find on the corner of
Twenty-third Street and Fifth Avenue among the same number of unaccused
citizens.

The point which the writer desires to make is that, leaving out the
accidental and experimental criminals, there is a much closer relation
between all law-breakers than the public and our legislators seem to
suppose. The man who adulterates his milk to make a little extra money
is in the same class with the financial swindler. One waters his milk,
the other his stock. The same underhanded desire to better one's self
at the expense of one's neighbor is the moving cause in each case. The
forger belongs to the class whose heads the criminologists delight to
measure, but they would not measure your milkman's. The man who steals
your purse is a felon and a subject of scientific investigation and
discussion; the man who forges a trade-mark commits only a misdemeanor
and excites no psychological interest. But they are criminals of
exactly the same type.

The "crime-is-a-disease" theory has been worked entirely too hard. It
is a penologic generality which does not need any truckling to popular
sentimentality to demonstrate its truth. But there are as many sorts of
this "disease" as there are kinds of crime, and some varieties would
be better described by other and less euphemistic names. Crime is no
more a disease than sin, and the sinners deserve a good share of the
sympathy that is at present wasted on the criminals. The poor fellow
who has merely done wrong gets but scant courtesy, but once jerk him
behind the bars and the women send him flowers. If crime is a disease,
sin is also a disease, and we have all got a case of it. It is strange
that there is not more "straight talk" on this subject. Every one of us
has criminal propensities,--that is to say, in every one of us lurks
the elemental and unlawful passions of sex and of acquirement. It is
but a play on words to say that the man who yields to his inclinations
to the extent of transgressing the criminal statutes is "diseased." Up
to a certain point it is his own business, beyond it becomes ours, and
he transgresses at his peril.

The ordinary criminal usually is such because he "wants the money";
he either does not like to work or wants more money than he can earn
honestly. He has no "irresistible impulse" to steal,--he steals because
he thinks he can "get away with it."

The so-called professional thief is usually one who has succeeded in so
doing or who, having been convicted of larceny, finds he cannot live
agreeably other than by thieving; but the man is no less a professional
thief who systematically puts money in his pocket by dishonest and
illegal methods in business. The fact that it is not, in the ordinary
sense, his "sole occupation" does not affect the question at all.
Indeed, it would be difficult for one whose business life was permeated
by graft to refute the general allegation that his "sole occupation"
was criminal. Granting this, your dishonest business man fulfils every
requirement of Mr. Warner's definition, for he "preys upon society and
is [secretly] at war upon it." He may not be an "outlaw," but he should
be one under any enlightened code of criminal laws.[9]

There is no practical distinction between a man who gets all of a
poor living dishonestly and one who gets part of an exceedingly good
living dishonestly. The thieving of the latter may be many times
more profitable than that of the former. So long as both keep at it
systematically there is little to choose between the thief who earns
his livelihood by picking pockets and the grocer or the financier who
swindles those who rely upon his representations. The man who steals
a trade-mark, counterfeits a label, or adulterates food or drugs, who
makes a fraudulent assignment of his property, who as a director of a
corporation declares an unearned dividend for the purpose of selling
the stock of himself and his associates at an inflated value, who
publishes false statements and reports, makes illegal loans, or who is
guilty of any of the thousand and one dishonest practices which are
being uncovered every day in the management of life insurance, banking,
trust, and railroad companies, is precisely as "real" a criminal as one
who lurks in an alley and steals from a passing wagon. _Each is guilty
of a deliberate violation of law implying conscious wrong_, and each
commits it for essentially the same reason.

Yet at the present time the law itself recognizes a fictitious
distinction between these crimes and those of a more elementary sort.
The adulteration of foods, the theft of trade-marks, stock-jobbing,
corporation frauds, and fraudulent assignments are as a rule only
misdemeanors. The trouble is that we have not yet adjusted ourselves to
the idea that the criminal who wears a clean collar is as dangerous as
one who does not. Of course, in point of fact he is a great deal worse,
for he has not the excuse of having a gnawing at his vitals.

If a rascally merchant makes a fraudulent conveyance of his property
and then "fails," although he may have secreted goods worth fifty
thousand dollars, the punishment of himself and his confederate is
limited to a year in the penitentiary and a thousand dollars fine,
while if a bank cashier should steal an equivalent amount and turn it
over to an accomplice for safe keeping he could receive ten years in
State's prison. Even in this last case the receiver's punishment could
not exceed _five_ years. Thus Robert A. Ammon, who was the sole person
to profit by the notorious "Franklyn Syndicate,"[10] when convicted
of receiving the proceeds of the fraud, could be sentenced to only
five years in Sing Sing, while his dupe, Miller, who sat at the desk
and received the money, although he acted throughout by the other's
advice and counsel, in fact did receive a sentence of ten years for
practically the same offence. However inequitable this may seem, what
inducements are offered in the field of fraudulent commercial activity
when a similar kind of theft is punishable by only a year in the
penitentiary?

One can hardly blame such picturesque swindlers as "Larry" Summerfield,
who saw gigantic financial and commercial frauds being perpetrated
on every side, while the thieves who had enriched themselves at the
expense of a gullible public went scot-free, for wanting to participate
in the feast. Almost every day sees some new corporation brought into
being, the only object of which is to enable its organizers to foist
its worthless stock among poorly paid clerks, stenographers, trained
nurses, elevator men and hard-working mechanics. The stock is disposed
of and the "corporation" (usually a copper or gold mining enterprise)
is never heard of again. Apparently if you do the thing correctly there
can be no "come back." Accordingly Summerfield and his gang of "sick
engineers" hawked through the town nearly eighty thousand dollars'
worth of the securities of the Horse Shoe Copper Mining Company, which
owned a hole in the ground in Arizona. It was all done under legal
advice and was undoubtedly believed to be within the letter of the
law. But there were a few unnecessary falsehoods, a few slips in the
schedule, a few complainants who would not be placated, and "Larry"
found himself in the toils. He was convicted of grand larceny in the
first degree, secured a certificate of reasonable doubt and gave bail
in a very large amount. Within a short time he was re-arrested for
working the same game upon an unsuspecting southerner. This time his
bail was increased to thirty thousand dollars. It was not long after
the investigations into the Ship-Building Trust scandal and New York
had been edified by seeing the inside workings of some very high
finance. After his temporary release Summerfield strolled over to
Pontin's restaurant for lunch, where he sat down at a table adjoining
one occupied by the assistant district attorney who had prosecuted and
convicted him.

"How are you, Mr. ----?" inquired "Larry" with his usual urbanity. "How
are things?"

"So so," replied the prosecutor, amused at the nonchalance of a man who
might reasonably expect to be in Sing Sing within three months. "How's
business?"

"Oh, pretty good," returned Larry. "You know there is a sucker born
every minute."

"I should think after your conviction you would have had sense enough
to keep out of swindling for a while," continued the assistant.

"Swindling!" exclaimed Summerfield. "Swindling nothin'! My lawyer says
I didn't commit any crime. Didn't the Supreme Court say there was a
reasonable doubt in my case? Well, I'm just giving myself the benefit
of it,--that's all. I'm entitled to it. How about those Ship-Building
fellers?"

The "Ship-Building fellers" have never been convicted of any
wrong-doing. Perhaps they committed no crime. Summerfield has three
years more to serve in Sing Sing.[11]

In this connection the reader will recall the attitude of the
inhabitants of Lilliput as chronicled by Gulliver.--"They look upon
fraud as a greater crime than theft, and therefore seldom fail to
punish it with death; for they allege that care and vigilance, with
a very common understanding, may preserve a man's goods from theft,
but honesty has no _defence_ against superior cunning; ... the honest
dealer is always undone, and the knave gets the advantage. I remember
when I was once interceding with the king for a criminal who had
wronged his master for a great sum of money, which he had received by
order, and ran away with; and happening to tell his Majesty by way of
extenuation that it was only a breach of trust, the Emperor thought it
monstrous in me to offer as a defence the greatest aggravation of the
crime; and truly I had little to say in return, further than the common
answer, that different nations had different customs; for, I confess, I
was heartily ashamed."

Any definition of the criminal class which limits it to those who "make
their living" by crime is inadequate and begs the question entirely.
There is no choice between the grafter and the "professional" thief,
the boodler and the bank robber. They are all "real" criminals. One is
as "diseased" and "degenerate" as the other. Every reversed conviction
of a "grafter" lowers a peg the popular respect for law. The clerk
in the corner grocery in Dakota feels the wireless influence of the
boodler in St. Louis, and the "successful" failure in New York sets
some fellow thinking in San Francisco.

The so-called degenerate and professional criminals constitute a very
small fraction of the law-breakers and it is not from either class
that we have most to fear. Our real danger lies in those classes of
the population who have no regard for law, if not an actual contempt
for it, and who may become criminals, or at least criminal, whenever
any satisfactory reason, coupled with adequate opportunity, presents
itself. From this class spring the experimental criminals of every
sort, who in time become "professionals," and from it the embezzler,
the stock jobber, the forger and business thief. From it as well are
largely recruited those who commit the crimes of violence which,
however undeservedly, give the United States such an unenviable place
upon the tables of the statisticians. From it spring the "fellow who
does not care" or who "will take a chance," the dynamiter, the man who
is willing to "turn a trick" at a price, and all those who need the
strong arm of the law to restrain them from yielding to their entirely
normal evil inclinations.

The man who deliberately violates the law by doing that which he knows
to be wrong is a real criminal, whether he be a house-breaker, an
adulterator of drugs, the receiver of a fraudulent assignment or a
trade-mark thief, an insurance "grafter," a bribe giver, or a butcher
who charges the cook's commission against next Sunday's delivery. The
writer fails to see the slightest valid distinction between them and
believes it should be made possible to punish them all with equal
severity. There is no reason why one should be a felon, another guilty
of only a misdemeanor, while still another is guilty of nothing at
all. The cause of crime is our general and widespread lack of respect
for law, and this in turn is largely due to the unpunished, and often
unpunishable, dishonesty which seems to permeate many phases of
commercial activity. Diogenes's job is still vacant.

FOOTNOTES:

[Footnote 8: Including under the general term "fraud," obtaining
money by false pretences, thefts by solicitors, bankers, agents,
directors, trustees, etc. ("generally recorded under the euphony
'misappropriation'"), falsifying accounts, etc., Mr. Schorling found
that taking the number of these two divisions of crime between
1885-1889 as 100% there had been the following relative decrease and
increase between them:

   _All Crimes Except Fraud_           _Frauds_

 1885-1889       100  %              |   1885-1889       100  %
 1890-1894        96.2%              |   1890-1894       110.1%
 1895-1899        90.4%              |   1895-1899       138.3%

A similar table constructed for the United States during the last
fifteen years would be instructive but perhaps unduly depressing.
Recent financial and other disclosures would probably send up the
mercury of the "fraud" thermometer until it burst.]

[Footnote 9: Cf. "Unpunished Commercial Crime" in "Moral Overstrain,"
by G.W. Alger. Houghton, Mifflin & Co., 1906.]

[Footnote 10: See "True Stories of Crime," referred to _supra_, p. 15.]

[Footnote 11: Since the publication of this book Summerfield has been
discharged from prison, having earned his parole by exemplary conduct.
He has gone West to lead a new and better life, and there is reason to
believe that he will succeed in doing so.]



CHAPTER III

THE ARREST


To most of us modest folk a police officer looks not an inch less than
eight feet in height,--and his blue coat and brass buttons typify the
majesty and inflexibility of the law. At his most trivial gesture the
coachmen rein in their curvetting steeds upon the crowded thoroughfare,
and at his lightest word the gaping pedestrian obediently "moves on."
When necessity compels we address him deprecatingly and, as it were,
with hat in hand, and if he deign to listen to us, and still more if
he condescend to reply, we thrill with pride. We experience a certain
surprise that he has seen fit to give heed to us at all and has not,
instead, ordered us roughly about our business with threatening mien
and uplifted club. That he has rendered us assistance fills us with
humble gratitude. One feels like Dr. Holmes,

 "How kind it was of him
 To mind a slender man like me!
 He of the mighty limb!"

It rarely occurs to us that these stomachic Titans are in fact our
servants and that they have no authority save that which they have
received from ourselves,--that, horrible thought! they wear our livery
as assuredly as does Jeames or Wilkins. Why do these big men patrol
the streets and order us about? Simply because in these busy days the
ordinary citizen has neither time nor inclination to attend to his own
criminal business, and because it is better upon the whole for the
State to attend to it for him.

Eight hundred years ago the punishment of crime was a matter of private
vengeance gradually evolving itself into the criminal procedure of
modern English law. The injured citizen took his appeal "to the county"
and fought it out with his wrong-doer either personally or by proxy.
The idea was, originally, that the man who had been injured ought to
have his revenge, and criminal justice in England even to-day savors
for this reason somewhat of private litigation. Of course, nowadays,
crime is punished on the theory that the public has been injured;
and that not only does the safety of the community require that a
repetition of the same crime by the same offender should be prevented,
but also that an example should be made of the evil-doer as a lesson to
others. Be this as it may, vengeance and not public spirit is still the
moving cause of ninety per cent of all prosecutions for crime.

Just as the right to apprehend a wrong-door was an inherent right at
the common law of every free-born English subject, it is our inherent
right to-day, modified or extended by the statute law of the several
States, and, save where a court of justice has issued its warrant and
commands its agents to apprehend the party named therein, one person
has substantially the same right as another to arrest a criminal, even
if that other be an officer of the law.

The policeman has no greater rights in the matter of preventing crime
or arresting evil-doers than the citizen. He is merely hired by the
citizen to do it for him. The only difference is that it is the _duty_
of the officer by virtue of his position to make arrests, just as it is
that of the fireman to extinguish fires. Yet it is undoubtedly the fact
that nine-tenths of us really believe that the policeman's blue coat,
helmet, and club invest him with some sacred and peculiar authority of
his own. If every citizen recognized the fallacy of this idea, and if
some elementary instruction in such matters were given in the public
schools, even at the sacrifice of clay modelling and decorative art,
it might add much to the spirit of independence and to the practical
efficiency of the coming generation. We are slaves to the magic of the
word "police." We imagine that without a representative of the law we
can do nothing.

Of course we know in general that we may defend the persons and protect
the property of ourselves and others by the exercise of reasonable
force. Beyond this rather vague principle we are not prepared to go.
Where the situation offers no particular inconvenience we are ready
to do our part, but if anything disagreeable is going on we prefer
to be excused. We are out of the habit of doing the simplest police
duty. Most of us would have enough public spirit to summon an officer
if a felony were being committed before our very eyes, provided we
could do so without making ourselves ridiculous, but few of us,
the writer fancies, would join the hue and cry after a pickpocket
unless ours happened to be the pocket he had picked. We leave that
to those whose natural bellicosity is greater and who do not object
to being undignified. It is nevertheless true, however unpleasant
the thought may be, that at any moment we may find ourselves in the
centre of a whirlpool of events where individual action on our part
will be necessary unless we are willing to allow some vicious and
cruel violation of the law to go unpunished. Such exigencies may run
all the way from the malicious beating of an overloaded horse to the
garrotting of a feeble old man. Our efficiency on such occasions might
be represented by a fraction, of which our physical capacity would be
the numerator and our disinclination the denominator, but obviously, to
make the formula complete, this would have to be multiplied by another
representing our knowledge of our rights.

Suppose for example that Mr. Ordinary Citizen on a nocturnal ramble
should, at about three o'clock in the morning, observe some ill-favored
person with a heavy bag in his hand, furtively making his exit from
the area door of a stylish mansion in the residential district. What
should he do? What would _you_ do? Without discussing this embarrassing
question, does the reader know what he would have a right to do? The
chances are largely in favor of his being obliged to answer this
question in the negative. Indeed, our indifference to the unexpected
is so great that we are generally mute and helpless in the face of any
unusual situation where anybody's rights are concerned. We hesitate to
act without the advice of counsel, and in the meantime the burglar has
made his escape!

In the State of New York and generally in this country, any person,
whether he be an officer of the law or not, may make an arrest,
without a warrant, for any crime, of any grade, actually committed in
his presence. It makes no difference whether the offence be that of
spitting in a street-car or murder in the first degree, the offender
may be haled before a magistrate by any one who has seen him commit it.

But the statutes governing the right of arrest, while extensive enough
to safeguard the public interest, are carefully limited to prevent
arbitrary interference with the liberty of innocent persons. The
law, therefore, makes it a positive condition that before any one,
whether he be citizen or officer, may arrest another for a felony
_not_ committed in his presence the felony must _in fact have been
committed_. Thus the right to apprehend a suspected wrong-doer is
invoked at the peril of him who seeks to exercise it. If no felony has
been committed the arrest is illegal.

In one respect only does the law recognize any difference between the
private citizen and the public officer paid to keep the peace,--if a
felony has in fact been committed, the officer may arrest any one who
he has _reasonable ground to believe_ is the guilty party, while a
citizen may arrest only the person who is actually guilty. Thus the
citizen must guarantee not only the commission of the crime but the
identity of the criminal, while the officer, so long as the law has
actually been violated, may take a chance as to the identity of the
perpetrator of the offence.

Now, the police invariably interpret the law to mean that they may
arrest anybody who they _have reasonable cause for believing has
committed a felony_,--but of course the statute gives them no such
power.[12] The _felony must have been committed_; the "reasonable
cause" refers only to the _identity_ of the criminal. This, however,
does not worry the average policeman at all.

He sees "Mr. O.C.'s" burglar coming out of the area with his bag,
promptly pounces upon him and hales him off to the precinct house in
spite of the burglar's protests and expletives. If the burglar prove
refractory he is clubbed into submission, or if he attempt to run he
may be shot in the leg. Now suppose that on reaching the police station
the burglar turns out not to be a burglar at all but the family doctor?
Or a late caller upon the cook? Or a gentleman who has mistaken some
one's else area for his own? Of course no felony has been committed.
The policeman had no right to make the arrest. Assuming that the house
_had_ been burglarized, the officer beyond a doubt had reasonable cause
for a hastily formed opinion that the man in the area was the guilty
party and had a right to make the arrest, but in law he makes this
assumption at his peril. If he is wrong the victim has a good cause
of action against the policeman for false arrest. But the execution
following his civil judgment against the latter will probably be
returned _nulla bona_ by the sheriff, and he will have to pay for his
own medical treatment and legal advice.

Now let us see in what position is O.C., who is not a peace officer,
when he discovers the suspicious figure in the area. He may lawfully
make an arrest, although he has not seen the crime committed, "when
the person arrested has committed a felony." In other words, if it
turns out that no crime has occurred, or that if one has in fact been
perpetrated he has got hold of the wrong man, he will have to patch up
the matter and very likely his own head as best he can.

We will assume O.C. to be a public-spirited citizen and that he
forthwith lays hands on his burglar and reduces him to subjection.
Having done so he rings the front door bell and rouses the owner of the
house, who in turn discovers that the mansion _has_ been burglarized.
They then investigate the prisoner and find that he is a commercial
traveller in an advanced state of intoxication who has rambled into
that particular area by accident. O.C. has been guilty of an illegal
arrest. Even should it prove that the intruder was in fact a burglar,
but not the _right_ burglar, the arrest would still have been without
authority.[13]

To carry the illustration a little further let us assume that in each
case a burglary has been committed and that the prisoner is the guilty
party. What can the officer do, and what can "O.C." do, if his quarry
attempt to escape?

Roughly speaking, a person lawfully engaged in arresting another for a
felony or in preventing the escape of such an one lawfully arrested,
may use all the force necessary for the purpose, even to taking the
life of the prisoner.[14]

It is by virtue of this salutary provision of law that the unscrupulous
policeman gets "square" with his enemies of the under world. When the
officer clubs the "drunk" on the corner, it is on the pretext that
the latter is "resisting" arrest. It is practically an impossibility
to prove that it was not justifiable unless there be eye-witnesses to
what has occurred, and an officer may safely be guilty of a good deal
of physical brutality so long as he brings his victim to the station
house under actual arrest for some alleged offence. It is only when
the victim of such an assault is not arrested that the officer finds
himself in an awkward situation. He must then explain why he clubbed
the citizen unless the latter had committed some offence and was trying
to resist arrest, and, if so, why he did not then conduct him to the
station house.

There is a story told of an old veteran upon the force who was heard to
remark to a companion as they left court together after the acquittal
of an ex-convict on the charge of assaulting the officer:

"Begorra, Tom, 'twon't be long before I'll be afther arrestin' the cuss
agin, and whin I do, _pray God that he resists arrest_!"

It is said that in some of the southwestern states the personal right
to make an arrest at times resulted, practically, in the privilege of
shooting cattle thieves upon sight. The foreman would send out Jack to
"look for" cattle thieves. Jack would lie all day in a gully and when
Sonora Slim hove in sight, perhaps on an entirely lawful errand, would
"let him have it." Then he would ride leisurely over, abstract Sonora's
"gun," discharge it a couple of times and throw it carelessly upon the
ground. Half an hour later he would appear at the ranch.

"Sorry, Bill," he would report, "but I caught Sonora Slim driving off
three of our two-year-olds. I headed him off and says,

"'Look here, Sonora, you've got some of our heifers there.'

"'Go to----!' says Sonora and pulls his gun.

"'That's all right,' says I. 'You're under arrest!'

"We swapped a few shots and I had to drop him to prevent his escape."

"All right, Jack," the foreman would reply, "we'll ride over and tell
the sheriff about it."

"See here, sheriff," he would announce on their arrival, "Jack here
arrested Sonora Slim stealin' our cattle, and the feller resisted
arrest and Jack had to shoot him. Jack's here if you want him."

"Yes, sheriff, here I am," Jack would say.

The sheriff would rub his forehead and reply:

"No, I don't want you. Sorry you had to kill him, but I'll have to have
some evidence that what you say ain't true."

It may be well to suggest that, while a thorough knowledge of our
rights is always desirable, it by no means follows that it is wise to
invoke them upon every occasion when we observe a technical violation
of the law. Regrettable as it may seem, no police force, however large,
could arrest all the violators of every law, and no system of courts
could dispose of the multitude of offenders. We do the best we can and
make an example of a few, hoping thus to persuade the others to be
good. If every citizen undertook to exercise his right of arresting
every individual whom he saw committing petty crime, the business of
the community would come to a standstill and the magistrates' courts
would be hopelessly congested with great hordes of prisoners, irate
witnesses, and gratuitous policemen. The prisons would overflow and the
magistrates would resign. Moreover, the enforcement of such a disused
and unexpected technical right would lead to immense disorder and
violence. The ignorant infractor of an obscure section of the Penal
Code would rise in his wrath and in resisting arrest become guilty
of assault in the second degree or of manslaughter. It is probably
very much better that trivial offences should go unpunished than that
public conveyances and thoroughfares should be made the scenes of
violent altercations and obstructive volunteer police work. Having
hired a certain class of persons to attend to this business for us, it
is better to leave it to them when possible. We need the best police
force that we can get, and this naturally depends upon the efficiency
of the higher police officials who hold their offices by appointment.
An active interest on the part of our citizens in the betterment of
municipal conditions through the purification of politics is probably
more to be desired than any general attempt to participate in the
ordinary duties of "the man on the beat."

FOOTNOTES:

[Footnote 12: An attempt has apparently been made by the legislature
of New York State to enlarge the powers of the police during the
night-time by giving them authority to arrest "on reasonable suspicion
of felony." The statute (Penal Code) reads as follows: "Section 179.
_May arrest at night, on reasonable suspicion of felony._

"He may also, at night, without a warrant, arrest any person whom he
has reasonable cause for believing to have committed a felony, and is
justified in making the arrest, _though it afterwards appear that a
felony had been committed_, but that the person arrested did not commit
it."

This statute clearly stultifies itself. The writer is not aware of any
judicial interpretation of its meaning up to the present time.]

[Footnote 13: In People v. Hochstim (36 Misc., 562, 571) it is said
that "in the matter of arresting without a warrant, whether for a
misdemeanor or for a felony, a private citizen and a peace officer
have the very same right and power under the law, namely: (1) Either
may without a warrant arrest a person who commits any crime, whether
misdemeanor or felony, in his view, and (2) either may without
a warrant arrest any person who has in fact committed a felony
although not in his view, but (3) neither may arrest any one without
a warrant in the case of a felony unless the alleged felony has in
fact been committed. If no felony has in fact been committed, then
the arrest without a warrant is in every case unlawful and may be
lawfully resisted. The law does not justify either an officer or a
private citizen in arresting for a felony without a warrant on mere
suspicion or information that a felony has been committed. If either
act without a warrant on groundless suspicion or information on the
question of whether a felony has in fact been committed, he acts at
his peril. Nothing but the absolute fact that the felony has actually
been committed will suffice to justify and protect the person making
such an arrest, whether an officer or a private citizen. But if a
felony has in fact been committed, the law does justify an officer,
but not a private citizen, in arresting a person therefor without a
warrant 'on reasonable cause for believing' (to quote the words of the
statute) that such person is the one who committed it. In a word, an
officer, the same as a private citizen, is not permitted to act on mere
grounds of belief on the question of whether a felony has in fact been
committed; nothing but the absolute fact that it has been committed
will suffice; but an officer is permitted to act on reasonable cause
for belief on the question of whether the person arrested is the person
who committed it. All of this is plain statute law (Code of Criminal
Procedure, secs. 177, 183)."]

[Footnote 14: A distinction exists in this respect between misdemeanors
and felonies. In the case of the former it is not lawful to kill a
prisoner even if his escape cannot otherwise be prevented, and although
there be a warrant for his apprehension. In the case of a felony the
offender's life may be taken provided there is _absolute necessity_ for
so doing to prevent his escape. Conraddy v. People, 5 Park 234.]



CHAPTER IV

THE POLICE COURT


The procedure by which a law-breaker is convicted for his offence
begins with his arrest and ends with the formal pronouncement of
sentence against him after he has been declared guilty. Prior to
his arrest he has been merely a criminal; after sentence (or, to
be strictly technical, after the verdict against him) he becomes a
convict; during the proceedings he is a "prisoner at the bar."

Whatever has been the manner of his arrest he is in most instances
taken at once before the nearest magistrate in order that the latter
may inquire into the charge against him and determine whether upon
the evidence there is reasonable cause to believe him guilty.[15] If
the arrest takes place after four o'clock in the afternoon, or no
magistrate happens to be holding court, the prisoner is locked up
until the following morning.[16] If he be charged with a felony he
must remain in confinement until the magistrate admits him to bail,
for no police official can fix or receive bail in such cases: if,
however, he has been arrested for the commission of a misdemeanor only,
the sergeant on duty at "the desk" must fix the bail and give him a
reasonable opportunity to procure it.

If arrested while a police court is in session he is entitled to
an immediate hearing, and to the services of counsel, for whom the
magistrate must send, free of charge, through an officer. After
the arrival of counsel or after waiting a reasonable time for his
appearance, the magistrate may then proceed to examine into the case,
and can only adjourn the hearing for forty-eight hours at a time for
"good cause," unless at the request of the defendant himself.

The subjects of the rights of apprehended persons is too extensive to
be adequately treated in a few pages. The power which the magistrate
may arbitrarily exercise of holding persons merely "suspected" of crime
for further examination is very great. Where a prisoner is brought in
under arrest as a fugitive from another State he is frequently "held"
(without any formal charge being made against him) for several days
at the mere telegraphic request of some police official in a distant
city. The writ of habeas corpus may secure his release, but persons
unjustly arrested on "suspicion" have little redress in ordinary cases,
whether they are discharged immediately or held for long periods.
While no technical authority exists for such detentions (the right of
arrest being strictly limited as set forth in the last chapter) they
are practically necessary to prevent the escape of dangerous criminals.
"Arrest on suspicion" is a euphemistic description of a technically
illegal proceeding, which is universally recognized as necessary for
the protection of society.[17]

The police court is the great clearing house of crime. Inasmuch as
all persons arrested, whether innocent or guilty, are brought there
together, they should naturally, so far as possible, be accorded the
benefit of the doubt as to their guilt in the treatment which they
receive. They are presumed to be innocent, and indeed many of them
are, until a jury has declared to the contrary. However, the attitude
generally taken towards a prisoner in a police court is that he is
guilty and that it is useless for him to deny it, and he feels the
discomfort and ignominy of his position far more at this state of the
proceedings than he does later, when he is accorded more individual
importance. As a rule he is brought into a crowded, stuffy court
where a vociferous pair of shyster lawyers are shouting at each
other's witnesses and the magistrate is with difficulty trying to
preserve order. A great throng of complainants, defendants, witnesses,
policemen, lawyers and idlers fill the room, and the prisoner instantly
becomes the centre of vision for all eyes as the officer leads him up
to the clerk's desk and makes his formal accusation. The altercation
in front of the magistrate is suspended long enough for the latter
to "commit" the defendant, who instantly finds himself locked in a
narrow cell where he must remain until some friend or relation has had
an opportunity to reach a lawyer, secure a bondsman, and compass his
release.

What he must naturally feel most is his own insignificance. He is
merely one of a huge multitude of miserable people who are all in
the same box. The hours until his lawyer arrives are very dark
indeed,--particularly as he probably has no idea of what is going
to happen to him in the meantime. If he be a poor man accused of
drunkenness or disorderly conduct he may be, and frequently is, sent to
the island before he has any adequate opportunity to notify his family,
who may suffer an agony of anxiety before they discover what has become
of him. The punishment of the minor offender for trifling breaches
of the peace is not only swift, but is characterized by a certainty
unknown to that which the law attaches to crimes of a higher order.

The police court has sometimes been termed "The Poor Man's Court
of Appeals." So far as this implies that five out of every seven
defendants arraigned there are summarily disposed of and accept the
decision or sentence of the presiding judge as final, and that the same
number of aggrieved persons who seek justice there do the same, it is a
correct description. No court has a more direct influence for good or
evil, or for the creation of a respect or a disregard for law. For an
overwhelming majority of our citizens, particularly those of foreign
birth or extraction, it is the only court of justice in existence.[18]

There may be higher courts or higher laws but they know them not.
To them the magistrate is an autocrat. They are avenged or punished
by virtue of his will alone, and as he is just or unjust, honest or
corrupt, so do they come to regard American institutions as a whole.
The officers of the precinct are his minions, only a little lower in
majesty, and even more terrible and implacable.

When it is considered that the magistrates in the first division of
the City of New York (namely, the Boroughs of Manhattan and the Bronx)
alone disposed of 138,047 cases in the year 1907, and that in 104,622
of these they exercised a summary jurisdiction over the liberty of the
prisoner, with power in many instances to inflict severe punishment,
it will be seen that the importance of these courts cannot be easily
overrated. Including the defendants arraigned in the "Children's
Court" and before certain judges of the Special Sessions sitting as
magistrates, there were 149,494 persons arrested during 1907 in New
York County alone.

The summary jurisdiction of the police judge embraces all offences
classed as "disorderly conduct," violations of so-called "corporation
ordinances" (such as peddling without a license, etc.), infractions
of the "Sabbath law," the disposition of persons alleged to be insane,
vagrancy, and the offence (not recognized by any statute) of being a
"suspicious person." Any person whom the magistrate finds guilty of
any of these charges (except the last) he may fine or imprison. It is
quite true that the defendant may, if convicted, take an appeal to the
Court of General Sessions or test the jurisdiction of the magistrate
by a writ of habeas corpus, but the grounds of appeal are few, and the
victim rarely is aware or advised of his rights in this respect. Even
were he fully informed, his purse would not usually permit of further
proceedings, unless taken for him from charity by some outside party
or organization. The fact that there were, out of this multitude of
cases, but one hundred and fifty-nine appeals taken (of which only
seventy-seven were successful) speaks for itself.

Besides those charged with the offences over which the magistrate has
final jurisdiction, before him come all persons arrested for crimes
which are triable in higher courts.[19] These persons he must "hold
for trial" (either for the court which tries misdemeanors or for the
grand jury) or discharge. Should he have reasonable ground to believe
that the accused has committed the crime alleged he is obliged by law
to "hold" him, but if the judge sees fit to discharge the prisoner,
the aggrieved person has no appeal and his only alternative is to
try to persuade the district attorney in spite of the decision of
the magistrate to take personal action either by laying the matter
before the grand jury, or in cases of misdemeanors by filing an
information in the Court of Special Sessions. He is usually unaware
of this possibility and at all events it is a difficult proceeding,
so that even in the case of crimes in which the magistrate has not a
final jurisdiction, his action, so far as setting free the prisoner is
concerned, is generally a conclusion of the matter. When a police judge
unwarrantably discharges a prisoner accused of a felony the complainant
rarely takes any further steps to get justice.

The enormous power wielded by what people are accustomed to call
"mere police judges" is obvious when we realize that one of them may
send a woman to a reformatory for _three years_, and boys to similar
institutions for the same period. Their jurisdiction is, however,
strictly confined to certain classes of offences; and if, for example,
the crime charged be "larceny" in any form they are compelled to hold
the defendant for the action of a higher court even if he admit his
guilt. Thus a vagrant who is caught begging can be sent away for six
months, but if the same man steal an old rug from a door-step or a
gunny-sack from a wagon he must willy nilly be sent to the Tombs to
await a trial in Special Sessions. Now, in any case where he is going
to plead guilty he would probably vastly prefer to have his case
disposed of by the magistrate and have done with it.

There would seem to be good reason for believing that coincident with
other reforms in the magistrates' courts their original jurisdiction
might well be extended to cases of petit larceny where the defendant
admits the commission of the offence. A deal of time, money, and
inconvenience to the prisoner might be saved. The present situation
results in a tendency on the part of the judge to construe as many
cases as he can of "petit larceny" into "disorderly conduct." Very
often a trivial theft is accompanied by acts which make it perfectly
proper for the magistrate to overlook the larceny for the disorder.
Certainly it is better for the offender, where possible, to be classed
as a "disorderly" rather than as a thief. In the latter case he may,
with the stigma thus fastened upon him, go forth to a life of crime; in
the first he would never be regarded as a criminal. This jurisdiction
to punish any act or omission tending to create a breach of the peace
offers a boundless opportunity for an arbitrary judge to arrogate
to himself powers which an ignorant or helpless offender can hardly
be expected successfully to defy. If illegally "committed" his only
redress is a writ of habeas corpus, which probably is a phrase entirely
unintelligible to him and which will cost more money to procure than he
has ever had at any one time in his existence.

The magistrates might also be given jurisdiction to impose punishment
in all cases of "simple assault," and in certain cases even of assaults
with weapons. There is no particular reason why, if the magistrate can
send an old woman away for begging, or for being drunk of a Saturday
night, he cannot be trusted to punish her properly for hitting her
husband over the head with a hot-water kettle. Moreover, the magistrate
before whom the damaged party hales the offender is able to see
with his own eyes the actual extent of the injuries which have been
inflicted, whereas, by the time the case is tried before the judge of
the Sessions, Dame Nature has usually restored the victim's battered
physiognomy to its pristine condition of refined elegance.

No one could fail to profit by a day spent upon the police-court bench
watching the judge exercise his many diverse yet not inconsistent
duties, which variously include those of magistrate, lawyer, clergyman,
almoner, arbitrator of domestic difficulties, and general adviser. He
will begin his day's work, which, before it be concluded, will have
required him to pass upon anywhere from fifty to eighty cases, by
disposing of a long line of drunks and disorderlies of both sexes.
Justice is plentifully tempered with mercy, however, and the unpleasant
business is soon over. Next comes the disposition of unfinished
business, which includes the continuance of trials not concluded on the
preceding court day. These, of course, embrace every possible offence
known to the law. The extraordinary number of petty burglaries is sure
to attract the attention of the spectator.[20] Boy after boy is brought
to the bar charged with breaking into a tobacco shop, or a small
grocery, or a room used for the storage of merchandise, push-carts or
fruit. At the very outside the value of the plunder cannot exceed a few
dollars.

One defendant, his head heavily bandaged, is half carried to the bar
by a husky officer and charged with attempting to burglarize the shed
adjoining Isadore Aselovitch's junk store. He is clearly much the
worse for a severe clubbing. "Izzy," the complainant, exhibiting an
iron bar several feet in length and weighing upwards of twenty pounds,
proudly claims to have effected the arrest of the defendant by merely
giving him "a little poke mit it." In response to the interrogatories
of the magistrate, Izzy explains that he and another kept their junk
in a certain rear room and from time to time noticed that various
odd pieces of iron seemed to be missing. They thereupon concealed
themselves behind a pile of old push-cart wheels and waited for the
thief. After several hours of inactivity they finally heard a rattling
among the iron and discovered the defendant apparently in the very act
of stealing a crowbar. Being upon his hands and knees he was unable to
offer any effectual resistance to their combined onslaught and barely
succeeded in escaping with his life. His cries had brought an officer
who had arrested him, upon Izzy's complaint, for attempted burglary.
The defendant in turn had charged the two with felonious assault,
alleging that he had a right to be in the store-room, inasmuch as
he was accustomed to leave junk there himself. He further tearfully
asserts that he is a rival of Izzy's in the push-cart business, which
accounts for the extreme animosity of the latter.

"It vas a lie, your honor, chuge," urges Izzy. "Dot man vas a purglar.
He ain't got no push-cart. Gif him ten years, chuge!"

The judge, who is wise in his generation, fines "the burglar" three
dollars for disorderly conduct, to the intense disgust of Izzy.

"Tree dollars!" he cries with fine scorn. "Tree dollars for a purglar!
_I_ vould be a purglar _myself_ for _tree dollars_!"

Very likely the next case will be that of a small merchant charged with
obstructing the sidewalk with his boxes. He is let off with a warning
or, if it be a second offence, with a small fine. Then a couple of boys
will be brought in charged with "shooting craps," and on their heels
a half-drunken driver who is accused by a little girl (having on an
S.P.C.A. badge) of driving an overloaded horse. The crap boys are let
go, but as the "cop" agrees with the little girl that the driver was
abusing his horse the latter is "held" for Special Sessions.

While these matters are being attended to a great uproar is heard and
a large crowd forces its way into the court-room. Above the clamor the
wails of a young Jewess make themselves distinctly audible. The judge
has just ordered the drunken driver locked up and is all ready to take
up the new case. The defendant, a slick, pale-faced young Hebrew,
loudly proclaims his innocence and demands an immediate hearing. No
time is lost, for the parents of the girl have procured a lawyer who at
once causes a charge of robbery to be entered. The girl, hysterically
weeping, tells her story. Up to a certain point it is lucid enough. She
had been walking along the street when a nice-looking young "feller"
had accosted her and inquired the way to the nearest pawnbroker's.
While they were conversing pleasantly upon this subject a second
young gentleman had joined them and asked the first to purchase a
pair of beautiful diamond earrings which he exhibited. This the other
regretfully had explained he could not do, since he had no money (being
even then on the way to the pawnbroker's). The diamonds had glistened
and sparkled in the sunlight. The girl had asked to look at them and
while she was doing so the owner had suggested that perhaps she might
like to purchase them herself, giving as part of the consideration her
own modest little baubles. This tempting offer she says she refused, on
the ground that she did not know the young gentleman. She then rapidly
states that the two set upon her, struck her, and that she "knew no
more," until on recovering her senses she found that her own earrings
had disappeared and that those of the stranger were in her ears.

"Hm!" says the magistrate; "and do you say that the defendant struck
you?"

"Shure, your honor," replies the young lady.

"And that you fainted?"

"Shure, your honor."

"Did you fall?" inquires the judge sharply.

"N--n--no," admits the complainant.

"Defendant discharged," announces the magistrate.

"Get out of here, all of you," orders the officer at the bridge. "Get
along, now!"

The explanation, as the reader already guesses, is simply that by a
time-honored trick the girl has been persuaded by an oily-tongued
trickster to exchange her own earrings for his worthless ones. This she
has done quite voluntarily. She has then hurried home only to find that
her newly acquired gems are paste. The family goes into a paroxysm of
anger and lamentation. The nearest lawyer is consulted, who, of course,
agrees to secure the return of the earrings. They pay him a five-dollar
fee, the defendant is sought for and arrested, and in her eagerness to
see him punished and to obtain her property the victim swears away her
own case. Probably had she told the truth the defendant could have been
"held" for grand larceny by false pretences.

These proceedings may no sooner be concluded than perchance a giant
negro is brought in charged with assault. A dozen officers bring him
manacled to the bar, while a crowd of reporters follow and gather on
each side, notebook in hand. It appears that the prisoner suddenly ran
out of a saloon, drew a revolver and began an indiscriminate shooting.
The "reserves" were called out and three policemen now lie dangerously
wounded in the hospital. He is held for examination, pending a possible
inquest by the coroner.

Meantime a lank youth from New Jersey listens vacantly while an officer
accuses him of abandoning a horse which has suddenly expired while
harnessed to the defendant's truck wagon. He pays a fine and vanishes.
Two young Irish-Americans, mutually damaged, are arraigned for
"disorderly conduct." They, too, are fined, being already substantially
punished--by each other. A man accused of "Sunday selling" follows a
woman who tells a pitiful tale of how her husband has abandoned her and
her five little ones. Later in the day the husband is found and ordered
to pay her ten dollars per week. Two retail milk dealers charged with
adulteration or "keeping a cow in an unhealthy place," a band of
pickpockets who have been caught "working" a horse-car, a woman accused
of "soliciting," and a bartender who has allowed a "slot machine" to be
left upon the premises, give place to a vociferous store-keeper who has
caused the arrest of a very stout man for the larceny of four pairs of
trousers. He explains loudly that the defendant (who weighs at least
325 pounds) came into the store, asked to see some "pants," and while
the clerk was not looking stuffed four pairs of these articles inside
his waistband and made his escape. The complainant not only identifies
the defendant with absolute certainty but goes so far as to state with
equal positiveness that the accused now has on the very trousers into
which he stuffed the stolen property. Four pairs identical in size and
material with those alleged to have been purloined are produced and
marked in evidence. The fat man indignantly denies having been in the
store at all. The reporters are interested.

"Gentlemen," says the judge, "I appoint you a committee to conduct the
defendant to my private room for the purpose of determining whether or
not you can stuff these articles of apparel inside his waistband."

The reporters, followed more slowly by the perspiring defendant,
make their way to a back room, from which they presently emerge to
announce through their spokesman that it would be impossible to thrust
any object, much less four pairs of trousers, inside the band of the
defendant's trousers.

In the interim the judge has been settling matrimonial difficulties,
giving all sorts of gratuitous legal advice, acting as arbitrator
over the question of the mutual use of the "landings" on the stairs
in tenement houses, issuing warrants, and endeavoring to find an
opportunity to continue the hearing in a complicated "false label"
case. In this last several rather well-known attorneys are retained,
who stand about disgustedly while the more immediate business of the
court is being attended to. In most cases, however, the lawyers are
hardly likely to add to the general reputation of the profession for
ability.

The inordinate number of cases which the magistrates have to dispose
of results oftentimes in an inconclusive method of hearing charges of
misdemeanors or of felonies, which, if the defendant be held at all,
must of necessity be tried in a higher court or, as the magistrates
say, "go downtown." If the defendant be a man of some influence, with
enough money to retain a boisterous and bully-ragging lawyer, the
line of least resistance may lead the judge almost unconsciously to
regard the case as having "nothing in it." If, on the other hand, the
complainant be a man of independence and insistence, with perhaps a bit
of a pull, it is much easier to "hold" a defendant than to assume the
responsibility of "turning him out." In point of fact some magistrates
are prone to shift the responsibility off their own shoulders and to
"hold" anyway. Thus there can be "no kick coming" so far as they are
concerned. There are also cases where, rather than take the time for a
careful examination of the case, the magistrate will "hold," when, if
he had really examined into it with the necessary care, he would find
that there was no _reasonable_ ground for his action. Now the grand
jury is apt to find an indictment almost as a matter of course, and the
defendant must then be placed on trial before a petit jury. In large
measure this is the reason why the calendars of the criminal courts
are crowded with cases which should never have gone beyond the police
court, and why prisoners charged with homicide often lie for months
in the Tombs before the petty business of the General Sessions can
be cleaned up sufficiently to allow time for their trial. In this way
much of the work which should be done by the police judge is cast upon
the already over-burdened petit jury. The evil, however, does not stop
there. When a petit jury finds that a majority of the cases brought
before it have little or no merit it frequently gets the idea that all
criminal business is of the same character and that it is empanelled
for the purpose of a general jail delivery. After a jury has "turned
out" twenty men in succession it can hardly be blamed for thinking
that the twenty-first, who may be a real sinner, ought likewise to be
sent home with the others to join his family. Respect for law cannot
be maintained unless each part of the machine of justice does its full
duty and assumes its own burdens and responsibilities.

It goes without saying that no official comes into closer contact with
the police than the magistrate. He gets to know them collectively
and individually as no other person can. In determining what should
be done in any given case he takes largely into consideration the
personal equation of the officer making the arrest. He is able to
detect exaggerated or manufactured evidence, which might easily pass as
truth and perhaps convince a jury in a higher court. Hence one of the
arguments for giving him a wider original jurisdiction. Petit juries
are ordinarily disinclined to convict and send a man to State's prison
in what seems to them trivial cases. If the magistrate had a wider
scope in the disposal of such cases one of the principal reasons for
our lack of respect for law (the sentimental and arbitrary action of
juries) would be largely done away with.

The magistrate, if he be the right kind of a man, can do more real
good, right more real wrongs, and exert a more wholesome and salutary
influence upon the working people of large cities than any benevolent
or charitable association. He can do much to break up the alliance of
the police with crime and to prevent arbitrary acts of violence and
lawlessness upon their part committed either to compel the payment of
blackmail or cover derelictions of duty.

The police judge also soon learns the character of the practitioners
who appear so constantly before him. Many a case which on its face
seems founded on justice may be shown by a little questioning on the
part of the magistrate to be nothing but an attempt to "hold up"
or injure the defendant. The quasi-criminal classes know well the
power of the criminal law and frequently invite it to secure private
vengeance. When two rogues fall out there is often a race to see who
can get to the police court first. In other cases the dense ignorance
of complainant or defendant renders justice almost impossible. The
shyster plays upon this to his profit. There is a story told of a
practitioner with a large Italian following who was accustomed to
display prominently upon a table in his office a small Testament and a
huge Webster's Dictionary. After his clients had stated their case he
would turn to them and ask:

"Do you wish the law from the big book or the little book?"

The clients would inquire the relative cost.

"The law from the little book is ten dollars--the law from the big book
is twenty-five dollars."

The clients would consult together and on the assumption that the
bigger the book the better the law, would almost invariably pay their
twenty-five dollars and procure the best advice which Noah Webster
could give.

The fact that most police magistrates are appointed for purely
political reasons is much to be deprecated. The days of bribery are
over, but occasionally the public has some excuse for believing that
the desire to do "a favor" for a political friend may have influenced
the action of one of them. This would have less color were they usually
appointed for some other and better reason than mere party fealty.
Ordinarily the appointment goes to some faithful worker, who has won
distinction in ward politics. Like enough he may make an excellent
judge. At any rate he has a direct personal knowledge of the people
with whom he is called to deal. He has equally first-hand information
of local conditions and the _personnel_ of the police attached to the
neighboring precincts. His judgment is apt to have a practical wisdom
that a mere student of law could never achieve. He knows a crooked
officer, a crooked lawyer, and a crooked complainant when he sees one.
Whatever the verbal testimony happens to be he may very well "know
different." He is, as the slang phrase accurately puts it, "wise to
his job." And when all is said and done the "influence" exerted upon
him will probably be only a request to "Do the best you can for So
and So,--he's a friend of mine," which will not affect his action in
the least. A college-bred lawyer with no actual knowledge of existing
conditions might have the wool pulled over his eyes at every turn, and,
while theoretically enforcing the law as it is printed on the statute
books, fail utterly to achieve the rough-and-ready justice which the
situation demands and which his less educated brethren can dispense by
virtue of instinct acquired from long experience. It must be admitted,
however, that the system of political appointments is just as bad, if
not worse, when applied to police magistracies as when exercised in
higher places. The appointees may or may not turn out successfully, and
in New York we have had some extraordinary surprises in both directions.

Did space permit a judicious selection of the historic rulings of
traditional magistrates would make entertaining reading. One of the
most famous was that of a certain learned member of this bench who
is said to have discharged a defendant accused of killing a robin in
Central Park in the following words:

"You are charged with breaking a park ordinance forbidding the public
to kill the robins. Of course you ought _not_ to kill the robins for
they are harmless birds, but I have looked this thing up a little, and
I find that from time immemorial it has been held that there can be
no right of property in wild beasts. Now, a robin is clearly _ferræ
naturæ_--of a wild nature--and so the city has no property in it.
The ordinance is therefore unconstitutional, and I am constrained to
discharge you. You may go."

Nowhere than on the magistrate's bench is better illustrated the
proverb that a little learning is a dangerous thing, but only a little
learning, even such as classifies an innocent park robin as a wild
beast, is preferable to an openly expressed intention of enforcing only
those laws which appeal to the judge's individual sense of propriety.
The writer recalls endeavoring some six years ago to induce a certain
magistrate to hold a defendant for the grand jury for a certain
statutory offence. The learned magistrate positively refused to do so
on the ground that there was "no _sense_ in the law."

"But it _is the law_!" returned the writer.

"Well, I don't care if it is," replied the judge tartly. "I didn't
make it. It's no law of mine, and I don't propose to follow it. Go and
get the grand jury to indict if you can, but I won't hold this man for
doing what I might want to do myself some day."[21]

Taken as a body our magistrates, with a few obvious exceptions, are
men of wide experience and practical common sense, who handle the
enormous stream of business which comes before them with efficiency
and dispatch. A forbidding exterior and, occasionally, a diction which
might startle a Friday evening prayer meeting may co-exist with a fair
mind, a kind heart, and an honest determination to see that justice
is done. While the rights of the defendant are fully protected it is
probable that actual justice is more nearly accomplished in these
than in higher courts, where "reasonable doubt," the presumption of
innocence, and kindred privileges, as interpreted by a sympathetic
jury, intervene between the rights of the community and those of the
prisoner at the bar.

FOOTNOTES:

[Footnote 15: Of course if he has been indicted by the grand jury in
the first instance, he is arrested on a "bench warrant" issued by a
judge of the General Sessions and placed in confinement without any
preliminary examination.]

[Footnote 16: This condition has been much improved in New York City
by the institution of the "Night" Court in which one magistrate is
always on duty. All minor offenders are at once arraigned before him,
no matter what the hour, and thus may be disposed of without undue
confinement.]

[Footnote 17: "Many persons are arrested under suspicious
circumstances, such as well-known criminals mysteriously loitering
about the streets at night, or frequenting crowded places, or persons
having property in their possession for which they can give no good
account, nor of themselves. Frequently such an arrest is the first
step in the detection of some crime in which (after investigation), if
the proper complainant is found, a formal complaint is taken, and the
prisoner is held for trial. In many instances such an arrest prevents
the commission of crime."

_Comparison with Previous Years._

 ----------------+----------------------------------------
                 |Number Arraigned and Discharged.
      Year.      |-----------+-----------+----------------
                 |    Males. |  Females. |  Total.
 ----------------+-----------+-----------+----------------
 189             |   2,335   |   120     |  2,455
 1897            |   1,756   |   129     |  1,885
 1898            |   1,628   |   154     |  1,782
 1899            |   2,033   |   301     |  2,334
 1900            |   2,023   |   293     |  2,316
 1901            |   2,066   |   197     |  2,263
 1902            |   2,337   |   200     |  2,537
 1903            |   2,634   |   115     |  2,749
 1904            |   3,734   |   224     |  3,958
 1905            |   3,551   |   231     |  3,782
 1906            |   5,483   |   180     |  5,663
 1907            |   2,656   |   118     |  2,774
 ----------------+-----------+-----------+----------------
]

[Footnote 18: The nativity of the persons held for trial in 1907 or
summarily tried and convicted in magistrates' courts was:

 United States       30,261
 Ireland              8,061
 Germany              4,219
 England              1,044
 Scotland               473
 France                 869
 Italy                8,243
 Russia               9,254
 Greece               3,039
 Other countries      5,790
                     ------
     Total           71,253
]

[Footnote 19: In 1905 the number of persons so held in New York County
by the magistrates of the first division, was 36,340.]

[Footnote 20: During 1907 there were arrested 1,669 persons on charges
of burglary, of whom 1,055 were held for trial.]

[Footnote 21: See latter half of Subdivision 5, Section 278 New York
Penal Code.]



CHAPTER V

THE TRIAL OF MISDEMEANORS


One of the most efficient, effective, and important criminal courts in
the civilized world is that established for the trial of misdemeanors
in New York County. Three judges, each having an equal voice, act as
arbiters of both law and fact. Originally this bench was filled by
three regular police magistrates sitting in rotation, and in many
cases the same judge before whom the prisoner had been arraigned in
the first instance assisted in determining the final question of his
guilt or innocence. But the old Court of Special Sessions acquired a
very unsavory reputation for many reasons, the chief among them being
its alleged susceptibility to political influence and the looseness
with which its funds were handled, and it was finally legislated out
of existence in 1895. Then a new court was created composed of three
justices who, while they had the powers of police magistrates, did
not sit in magistrates' courts, but devoted their entire time to the
trial of misdemeanors. In the last eight years this court disposed of
65,579 cases, in which 40,894 persons were convicted of crime, either
by trial or by plea of guilty. During the year 1907 alone 13,140 cases
were disposed of, in which there were 7,960 convictions. The judges
in this huge mill of justice rarely make mistakes, and few appeals
are ever taken from their decisions. They have become, by virtue of
long experience, experts in fact, and the training thus received has
qualified several of them for higher office.[22]

As the reader is already aware, a defendant charged in a magistrate's
court with the commission of a misdemeanor, say that of petit larceny,
is given an immediate hearing, and, if there be reasonable ground
to believe him guilty, is held for trial in the Special Sessions.
The information or affidavit, to which the complaining witness has
sworn and which contains a more or less succinct account of the facts
alleged against the prisoner, is thereupon forwarded to the clerk of
the court and in due course the defendant appears, if he be on bail,
or is brought from prison, if he be in confinement, to "plead." This
information, which is the basis of the proceedings against him and
which is practically the only record in the case, is commonly called
the "complaint" and corresponds with the indictment found by the grand
jury where the defendant is charged with the commission of a felony.

After the prisoner has entered his plea, if he be in prison, he is
given a trial almost immediately; if not, his case will probably come
up within a week or two. The offences over which these three judges
have jurisdiction are as many and as diversified as human ingenuity
and the demands of modern civilized life, qualified by ineffective
legislation, have combined to make them.

As might be expected, petty larcenies and assaults furnish together
more than thirty per cent of the cases tried. The following table will
show the more numerous and important offences for which defendants were
held in 1907 for the Special Sessions and their relative proportions:

 Petit larceny                                 2,890
 Assault, third degree                         2,097
 Maintaining a disorderly house                  674
 Carry concealed pistol                          988
 Cruelty to animals                              887
 Failure to provide for minor                    235
 Possessing obscene prints                       124
 Indecent exposure                                84
 Malicious mischief                              111
 Unlawful entry                                   93
 Adultery                                         11
 Adulterated milk                                252
 Impure food                                      80
 Possessing burglars' implements                  35
 Offence against trade-marks (364 P.C.)            6
 Violation Liquor Tax Law                      2,109
 Violation Motor Vehicle Law                   2,709
 Violation Sanitary Code                         321
 Violation Labor Law                             176
 Violation Medical Law                            48
 Violation Dental Law                             16
 Miscellaneous                                 1,122
                                              ------
       Total                                  15,068

A spectator may in the course of a morning hear thirty or forty cases
actually tried in which the charges cover almost every conceivable
kind of sin, wrong, or prohibition. One prisoner is being prosecuted
for assaulting a non-union workman, another for maintaining a public
nuisance, another for a violation of the Liquor Tax Law, another for
practising medicine without a license; a dozen cases will be rapidly
disposed of wherein the defendants are charged with shoplifting or
"illegal entry" (a charge frequently lodged against a suspected burglar
who has made an entry without a "break" and has been caught before he
has accomplished his purpose); others still will be tried for carrying
concealed weapons, publishing or possessing indecent literature,
violating trade-mark laws, breaking speed ordinances, or "malicious
mischief"; while, if the student of institutions be patient, he may
be rewarded by the exciting spectacle of one who is defending himself
against the charge of selling skimmed milk, holding a mock auction,
driving a spavined horse, writing a threatening letter, making a
fraudulent assignment, pawning borrowed property, using a false weight,
opening another's letter, keeping a cow in an unhealthy place, running
a cock-fight, misrepresenting the circulation of a newspaper, divulging
the contents of a telegram, impersonating a policeman, adulterating
food; or, provided he be exceptionally fortunate, may hear the trial of
a celebrated actress for her impersonation of "Sappho," or of a manager
for producing "Mrs. Warren's Profession."

He will see every conceivable type of man, woman, and child, either
as defendant or witness, and he may also study every variety of human
failing or weakness. No mock defence or prepared lie can deceive
these argus-eyed judges; short shrift is made of the guilty, while
the "reasonable doubt" is recognized the instant it puts in the most
furtive appearance. In fact defendants are often found guilty or
acquitted almost before they are aware they are on trial,--and this
with no detriment to them or to their cause.

The advocates of the abandonment of the jury system point to this
court as their strongest argument. No time is lost in the selection of
a jury,--a matter often of hours in the General Sessions in cases of
no greater importance. There is no opening address on the part of the
district attorney or counsel for the defendant,--the written statement
or information sworn to by the complainant being entirely sufficient
for the court. Cross-examination is cut down to its essentials and
tests of "credibility" are almost unnecessary. At the conclusion of the
case there are no harangues from either side, and the judges almost
immediately announce their decision and generally impose sentence on
the spot.

Of course in nine cases out of ten the evidence is conclusive and the
merest glance at the complainant and his or her witnesses is enough
to satisfy the onlooker that their claim is honest and the charge
substantial. In such cases the trials proceed with lightning-like
celerity. The owner of the stolen property is sworn while the defendant
and his lawyer are pushing their way through the crowd to the bar.

"Mr. Blickendecker, are you a grocer, fifty-five years of age, residing
at 1000-A-rear, First Avenue, and having a store at 666-1/2 Catharine
Street?" rapidly articulates the deputy assistant district attorney.

"Ya; I vas," answers Blickendecker heavily, trying helplessly to catch
up.

"Did you, about 4:49 P.M., onn Tueday, the 17th of April, observe the
defendant near your place of business?"

"Ya; I vas--I mean, ya, I did."

"What did you see him do?"

Blickendecker wipes his forehead and turns towards the court:

"Your honors, gentlemens, I see dot feller dere----"

"The defendant?" interrupts the presiding judge, patiently.

"Ya--the defender, I see dot defender mit a leetle vagon on two wheels,
py mein store mit anoder feller, unt dey catch up ein crate of eggs unt
put him in de vagon unt skip mit him, unt I hollers 'Tief!' unt runs,
unt de officer----"

"That's enough. Any cross-examination? No? Call the officer."

The officer is sworn.

"Are you a member of the Municipal Police force of the city and county
of New York, attached to the ---- Precinct, and were you so attached on
the 17th of April last, and did you see the defendant on that day near
the premises 666-1/2 Catharine Street?"

"Shure I seen him. Him and another feller. They were makin' off wid old
'Delicatessen's' eggs. I catched this young feller----"

"That's enough. Any cross-examination? No? Leave the stand."

"The People rest," announces the assistant.

"Take the stand," directs the lawyer, and his client shambles into the
chair.

"Did you steal Mr. Blickendecker's eggs?"

"No, your honor; Cully Fagan asked me to go round and help him deliver
some eggs. He said he'd gimme a drink. So I went along wid him. All of
a sudden out comes this old guy and yells 'thief.' I gets scared and
runs. I didn't mean no harm."

"That is our case," says the lawyer.

"No cross-examination," says the assistant.

The judges consult for a moment.

"We find the defendant guilty," announces the presiding judge, dipping
his pen into the ink.

"Now, young man, have you ever been convicted?"

"No, your honor."

"I advise you not to steal any more eggs. One month in the
penitentiary. Next case!"

Now here is a defendant given a perfectly fair, if not a very full,
trial in less than three minutes. Of course it is in such a case
practically a mere formality. Two witnesses who have had no previous
acquaintance with the prisoner, whose eyesight is perfect, and who
have no motive to swear falsely, identify him as caught _in flagrante
delicto_. The defendant has merely put in his defence "on the chance."
His sentence would be about the same in either case. The only
disadvantage of so active a court is the fact that the multitude of
the defendants render it almost impossible to make any very exhaustive
study of the majority of them before sentence. However, as the
sentences are all light, the defendant always gets the benefit of the
doubt, and the court resolves all doubts in his favor.

Sometimes in such a case a criminal conspiracy between the complainant
and the officer is disclosed to "do" a mischievous, but not criminal,
youth who has fallen into their disfavor. Then the witnesses are
subjected to such a fire of questions that they wilt and wither in
the blast, the defendant is acquitted and the prosecution's witnesses
sometimes held for the action of the grand jury on a charge of perjury.
Many a _cause célèbre_ has originated in the Special Sessions through
the perspicacity of some member of that bench during a petty trial,
and defendants there convicted often divulge in their confessions
evidence which for a time sets the newspaper world by the ears. This is
especially true of cases where some civil officer is accused of taking
a bribe to influence his action or to make an appointment. He may be
convicted, confess, and for a day or two the papers are full of the
unearthing of a far-reaching conspiracy to debauch the city government,
barter offices at wholesale, and deliver the city to a coterie of
criminals. The next step in the proceeding is the unfortunate discovery
that the defendant's confession, since it cannot be corroborated, is
entirely worthless. Yet, as he has apparently done all he could to
atone for his offence, he receives a mitigated sentence, while the
uproar occasioned by his sensational disclosures subsides as suddenly
as it began.

The bane of the Court of Special Sessions in New York County and very
likely the bane of all similar courts, are the so-called "Liquor Tax
cases." As one of the officers of this court recently said: "In this
class of cases the court knows that it is being 'flim-flammed,' and,
in addition, that it is helpless. We convict in about sixty per cent
of the cases, but the judges know perfectly well that a considerable
number of those convicted are men who, while not honest enough not to
violate the law, are too honest to pay corruption money."

The possibilities for blackmail and the arbitrary and unequal way in
which the law is enforced in different parts of the city (one section
being allowed to be "wide open" while an adjacent district is "dry")
render the judges loath to convict even in "straight" cases. When
Liquor Tax cases are transferred, by order of the judge presiding in
Part I, for trial in the General Sessions, the juries before which they
are prosecuted will not convict at all.[23]

In the same way the court looks with grave suspicion on most cases
where a defendant is arraigned charged with "assault" on an officer.
They expect to see arraigned at the bar (and are usually not
disappointed) a small man covered with bandages, while a burly officer
without a scratch upon his rosy countenance takes the stand and swears
that the defendant assaulted him. The policeman always has plenty of
corroboration--the defendant none at all. The chances are that the
relative sizes of the two men are such that if the officer coughed
the defendant would drop dead. The proper charge in such a case would
be, not attempted assault on an officer, but _attempted suicide_. The
truth of the matter probably is that the small man, having done or said
something to irritate the officer, has been pounded to a pulp and then
ignominiously haled away to the station house, while his terrified
companions, knowing full well that if they interfered theirs would be
a similar fate, have retired to their homes privately to execrate a
state of civilization where humble citizens can be subjected to such
persecution.

Practically the Special Sessions is the final court of disposition for
most misdemeanors. Except in automobile, theatrical, health, copyright,
and trade-mark cases and a few others, a majority of the defendants do
not have enough money even to hire a lawyer, to say nothing of taking
an appeal. They are disposed of then and there just as in certain cases
they are disposed of in the magistrates' courts. For them a sentence
once imposed is final.

Occasionally the Special Sessions is the scene of a great trial,
as celebrated as those fought out in the "Parts" upstairs or in
the criminal trial term of the Supreme Court across the hall. A
prominent druggist may have been accused of refilling bottles with
spurious or diluted contents. He is being prosecuted by the owners
of the trade-mark or label. They retain distinguished counsel to
prepare the case for the prosecution. The accused engages equally
able lawyers to defend him. The crime is highly technical and the
evidence almost entirely a matter of chemical analysis and expert
opinion. The battle goes on for weeks or even months. A jury would
have become hopelessly confused and the issue successfully obscured,
but the three judges are expert jurymen, and in due course, if he be
guilty, the defendant is inevitably convicted. Such a trial may cost
the parties tens of thousands of dollars for expert testimony alone,
while the sentence of the defendant will very likely be not more than
a two-hundred-and-fifty-dollar fine. Even so, the integrity of the
trade-mark has been sustained and the swindler stamped as a criminal.

Fifty per cent or more of the work of the Special Sessions is
practically amplified police-court business, but it is accomplished
with an exactitude and efficiency that makes much of that done in the
magistrates' courts appear crude indeed. The lesson of this particular
court is that police business can be done speedily, effectively, and
justly, provided the right men are selected to do it.

Fully seventy-five per cent of the criminals begin with petty
infractions of the law. A driver for an iceman may "swipe" his
comrade's horse blanket. If he be convicted and sent to the
penitentiary he may learn to commit crimes of which he had never
dreamed in his driver days, when his highest ambition was to get a
ticket to a "chowder" or to a "grand ball." His next appearance may
be in the General Sessions charged with burglary, and his last in the
Supreme Court under indictment for murder. If, on the other hand,
having been found guilty, he be merely reprimanded and paroled under a
suspended sentence, he will in all likelihood never appear in court as
a defendant again. Hence an opportunity, greater even than that of the
police justice, for the exercise of a wise and humane discretion.

The multitude of prisoners who are unable to employ counsel have
created a bevy of lawyers, abundantly able to look out for the
interests of petty offenders, who stand or sit near the bar and are
assigned by the court to the various defendants. A whispered fifteen
seconds' conversation with their unfortunate client and they are
enabled to take charge of the case. Long experience has made them
almost as expert in estimating human nature as the judges themselves,
and they are familiar with every trick of the trade which may raise
a "reasonable doubt." The leaders among them have skilful "runners"
who haunt the police courts and the corridors of the building,
heralding the virtues and successes of their masters, handing cards to
prospective clients, and currying business in every conceivable manner.
Observing a forlorn person, who timidly responds when his case is
called, the runner instantly offers him the services of the "biggest"
lawyer in the court for a five-, three-, or two-dollar retainer. If the
client escapes conviction he is supposed to pay twenty-five dollars
more and is dunned until he does. This may seem petty business and
small pickings, but when one considers that thirteen thousand odd cases
are disposed of each year, one sees that at even the modest fee of ten
dollars per case there is over a hundred thousand dollars a year in the
Special Sessions waiting for somebody.

The best of these lawyers earn as much as five thousand dollars
per year, including their outside and police-court business. The
runner usually gets nearly as much. Sometimes there will be a
one-hundred-dollar, a two-hundred-and-fifty-dollar, or even a
five-hundred-dollar fee. In reality there is more money to be made
in the police court than in the Special Sessions, for it is when the
offender has just been caught and is in his first spasm of terror that
he is most ready to "give up." Police-court fees are sometimes very
high.

The most notable figure of this bar was Tom Cherry, otherwise known as
"The Attorney-General of the Special Sessions." When sober he was a
most capable, rough-and-ready, catch-as-catch-can, police-court lawyer.
His fame extended to every magistrate's court, and his business was
so constant that he never sat down, but stood at the bar from the
opening of court to its adjournment, defending almost every prisoner
who had money to pay a fee, and being assigned to practically all those
who had not. His success was his undoing. Without any knowledge of
law, although he presumably had passed the Bar examinations (Heaven
knows how!), his judgment of character, his ready wit, and his quick
tongue made him no unworthy antagonist for a well-trained youngster.
But Cherry never took an unfair advantage, and his statement as to
his client's past, and sometimes as to his innocence, was received
without question by the court. It was a boon to a new assistant to gain
Cherry's confidence; and it was a reproach to many that they did not do
so.

Cherry finally succumbed to his closest friend and worst enemy--drink.
His periodic absences became more and more frequent, and finally the
word was sadly whispered through the building that Cherry had "passed."
His memory is still green and his smiling face will never be forgotten
by those who knew him. A rival attorney almost immediately succeeded to
his practice and his particular place beside the bar, but the Court of
Special Sessions is not the same.

The practices of the shysters are the curse of the lower courts, and
their enormities are such that a special cycle in Hades should be
reserved for their particular retribution. Preying upon ignorance and
vice, they become hardened to every appeal of human sympathy and often
deserve punishment a thousand times more heavy than the miserable
wretches whom they make a pretence of defending. They pervert justice
and prostitute a sacred calling, extorting from their clients the
uttermost farthing by fear and false pretence. To show that this charge
is not ill-founded, the reader may take as an example the practice of
the shyster in dealing with those unfortunate women who are the common
prey of the corrupt plain-clothes man and his conscienceless ally--the
police-court lawyer.

Let us suppose that a certain section of the town is, as the saying
goes, "wide open," and the police are regularly collecting protection
money according to the approved method of "the system." The houses
which pay up are left undisturbed--and all do pay up. So does the
little street walker who plies her trade in the open. Some citizen or
newspaper makes a complaint that the police are not doing their duty.
There is a bare chance that political capital will be made of it and
word is sent to the captain of the precinct to "get busy." He sends for
the plain-clothes man, and tells him "there are not arrests enough."
The officer answers that "everything is quiet." "Get busy," says the
captain. A scapegoat is necessary and so the officer goes out and,
leaving the bawdy-houses untroubled, tracks some miserable creature to
her lonely room and there arrests her under the pretence that she is
violating the "Tenement House Law." Now the worst that would happen
to such an unfortunate would be, having "waived examination" before
the magistrate, and pleaded guilty in Special Sessions, to be fined
twenty-five or fifty dollars. The girl usually does not know this. When
she is brought in under arrest the keeper "tips off" the runner for
some lawyer, who first frightens her into believing that a long term
of imprisonment confronts her, and then introduces his master. The
latter in turn offers to get her out on bail, meantime determining by
an expert cross-examination, at which he is a past master, exactly how
much money she has in the world. He then proceeds to acquire this by
every means at his command. An actual case will illustrate what follows.

A young girl who had fallen from virtue, but who had never been
arrested before, was brought into the Jefferson Market prison. She had
saved five hundred dollars with which she intended the following week
to return to her native town in New Hampshire and start life anew.
The keeper led her to believe that she would be imprisoned in the
penitentiary for nearly a year unless she could "beat the case." One
of these buzzards learned of her distress and offered to procure bail
for her for the sum of fifty dollars. A straw bondsman was produced,
and she paid him the money and was liberated. Meanwhile the lawyer had
learned of the existence of her five hundred dollars. By terrifying
her with all sorts of stories as to what would possibly happen to her,
he succeeded in inducing her to pay him three hundred as a retainer
to appear for her at the hearing in the magistrate's court. He had
guaranteed to get her off then and there, but when her case was called
he happened to be engaged in reading a newspaper and, looking up from
where he was sitting, merely remarked, "Waives examination, your
honor." The girl had only one hundred and fifty dollars left, and as
yet had had no defence, but the shyster now demanded and received one
hundred dollars more for representing her in the Special Sessions. She
now had but fifty dollars. Immediately after the hearing in the police
court the bondsman "surrendered" her and she was locked up in the Tombs
pending her trial, for she had not money enough to secure another bail
bond. Here she languished three or four days. When at last her case
appeared upon the calendar the shyster did not even take the trouble
to come to court himself, but telephoned to another buzzard that she
still had fifty dollars, telling him to "take her on." Abandoned by her
counsel, alone and in prison, she gave up the last cent she had, hoping
thus still to escape the dreadful fate predicted for her. When she was
called to the bar the second lawyer informed her she had no defence and
the best thing she could do was to plead guilty. This she did and was
fined twenty-five dollars, but, having now no money, was compelled to
serve out her time, a day for each dollar, in the City Prison, at the
end of which time she was cast penniless upon the streets.

Many an originally honest young fellow who, in a sincere attempt to
build up a small practice, has haunted the magistrate's court and
secured petty police business has been gradually drawn into the vortex
of crime until he is even more tainted than those whom he defends. The
Legal Aid Society, which, so far as the writer is aware, is the only
bona fide charitable organization existing in New York for the purpose
of assisting impoverished persons to secure legal counsel, does not
undertake any criminal business. No greater service could be rendered
to the community than by some society organized to protect helpless
defendants who have fallen victims to the vultures who prey upon the
prison pens. At the present time the official prosecutor himself is
the only person to whom one charged with a criminal offence can turn
with any hope of relief from his own lawyer, and if the number of cases
were known where the prosecutor has befriended the prosecuted the eyes
of jurors and of the public would be opened to the real spirit which
animates a fair-minded district attorney.

A favorite trick of shysters if they have an imprisoned client who
still refuses to "give up," is to plead "not guilty and not ready" and
thus have the case adjourned until they squeeze their victim dry. A
defendant who has any money is never permitted to go to trial or even
to plead guilty before his money is entirely exhausted.

This is not romance, it is practice. The men who do these things can
be seen any day in every police court in New York--heartless, cynical,
merciless. Lying and deceit are their stock in trade, corruption their
daily food. Within three months one of these gentry not only compelled
an eighteen-year-old girl to give him a fine Etruscan ring which she
had inherited, and which he pawned for five dollars, but stripped her
of a new silk petticoat which he carried away in a newspaper as a fee.
This woman served ten days because she could not pay her fine. Another
woman who had _stolen an umbrella_ gave a shyster her watch. He pawned
it and then abandoned her, when she came up for trial. Each of these
men has a special line of clients which he serves, either because he
is supposed to be particularly expert in such cases or because he is
regularly retained by the "trust" which they compose. Thus the East
Side pickpockets have one attorney, the "green-goods" men another, the
opium sellers a third, the abortionists a fourth, while every "short
changing," "thimble rigging," or "flim-flam" case sees the same lawyer
for the defence.

It is a fact of considerable significance that most retailers charged
with selling adulterated milk are defended by the same lawyers. The
large milk companies apparently invite the trade of the small dealer
by offering him cheap milk, and a guarantee that if he is caught
selling their product they will not only defend him but, if he be found
guilty, will pay his fine. Who does the adulterating? The company or
the retailer? It is almost impossible to say. Nevertheless, if lack of
evidence prevents proceedings against the companies themselves, the
next best thing is to punish the dealers who act as their agents, under
the guise of doing an independent business. If prison sentences were
invariably inflicted in such cases the dealers would soon find their
miserable business as unhealthy as do the consumers who buy from them.

Some very disreputable, but, nevertheless, highly amusing tricks
are invoked by wily practitioners in the Special Sessions to secure
the release of their clients. One of the most adroit is to secure
adjournments from day to day on various pretexts until the patience of
the complaining witness is nearly exhausted. When the case is at last
about to be called for trial the lawyer tells his runner to go into the
corridor outside the court-room and send in word that some one desires
to see the complainant. The complainant goes out to see what is wanted.
In the meantime the case is moved for trial, and when his name is
called he naturally fails to respond. The shyster, in a most aggrieved
tone, then informs the court that the defendant "is a hard-working
man who has already been dragged down to court four or five times,"
on each occasion being compelled to lose an entire day's pay; that he
is the only support of an invalid wife, an aged mother, six children,
and an imbecile brother; that the defence is and always has been ready
to proceed with the case; that simply in the interests of justice he
requests that the defendant be discharged on his own recognizance or
acquitted. In many cases this motion is granted and the complainant
hurries back into the court-room just in time to meet the defendant
making a triumphal exit.

The tears and laughter of the police courts are the tears and laughter
of the Sessions. The _Miserables_ of Hugo are the miserables of to-day.
Jean Valjean, Fantine, and Cosette haunt the corridors of our courts.
As well try to paint the sufferings and experiences of mankind in a
single picture as the ten thousand yearly tragedies of the Special
Sessions in a single chapter.

FOOTNOTES:

[Footnote 22: Misdemeanors Disposed of During the Year 1907.

 Convicted           1,853
 Acquitted           1,045
 Plead Guilty        6,107
 Discharged            502
 Demurrers allowed       1
 Forfeited             457
 Actions dismissed   3,175
                    ------
       Total        13,140
]

[Footnote 23: See note, infra, p. 210.]



CHAPTER VI

THE GRAND JURY


The constitutions and laws of most of the States of the Union provide
that no person shall be tried for a felony unless he shall first
have been indicted for his offence by a grand jury. The defendant
may have been caught in the very act, have freely acknowledged his
guilt to the officer who arrested him, have admitted it before the
magistrate, and have signed a full and complete confession of his
crime in every detail, yet he cannot be placed on trial or his plea
of guilty received until a body of twenty-three intelligent, but
exceedingly busy, gentlemen, sitting together in a secluded chamber,
have solemnly deliberated upon the case. If they agree with the
prisoner in his contention that he is guilty they thereupon file a
diffuse and perplexing document to that effect, which they have not
read, and probably would not understand if they had. The proceeding
has cost the county some additional expense and the defendant a day or
two longer in jail, and he has still to be tried before a petit jury,
where the evidence must be presented again at the greatest length,
and where the grand jury's action cannot be considered in any way as
affecting the issue. If, on the other hand, the prisoner contends that
he is innocent, and yet the magistrate who has heard the case thinks
otherwise, the same twenty-three gentlemen, hearing, as a general rule,
only the evidence in his _dis_favor, will almost inevitably return
a true bill against him, and he will be put to his trial. Of all the
features of modern criminal procedure, bar only the office of coroner,
the grand jury, or "The Grand Inquest," as it is called, is the most
archaic. While without any doubt in thinly populated districts it may
still be of value, in crowded cities like New York, where the volume of
criminal business is overwhelming, it has in large measure ceased to be
either effective or desirable so far as the ordinary run of criminal
cases is concerned.

Some States manage to dispense entirely with the services of the
grand jury. The prosecutor receives the complaint against the accused
directly from the committing magistrate, files an information and puts
the prisoner on trial. Truly this would seem both cheap and expeditious.

Among the dusty archives of the Court of General Sessions lie a pile of
parchment-bound volumes which contain the earliest minutes of criminal
proceedings in the county. The first page of the most ancient of these
presents an account of the empanelling of the first grand jury of which
any record now remains in New York. It reads as follows:

  PROVINCE OF NEW YORK. Att the General Quarter Sessions of our Lord
  the King held att the Citty Hall in the Citty of New-York for Our
  Sayd Lord the King, and the body of the sayd Citty and County of
  New-York, that is to say on Tuesday the 8th day of February, in the
  Six and thirtieth year of the Reigne of our Sovereigne Lord Charles
  the Second of England, Scottland, France and Ireland, King, Defender
  of the faith, & before Cornelis Steenyck, Esqr, Mayr of the sayd
  Citty, and James Graham, Recorder, Nicholas Bayard, John Inians, Wm
  Pinho ... Guyl. Ver Plank, Jno Robinson and William Cox, Esqrs,
  Aldermen and Justices of the Peace of the sayd Citty and County,
  Commisionated by Authority undr his Royal Highness James Duke of
  York and Albany Lord Proprietr of the Province aforesd.

         *       *       *       *       *

  The Grand Jury "which consisted of Nineteen [?],[24] was Called
  and Sworne According to An Oath Agreed On by the Court, and was as
  followeth, viz.:

  "You Shall diligently Enquire and true Presentmt make of all Such
  things and mattrs as shall be giuen you in Charge Or shall Come to
  your knowledge this Present Servise. The Kings, His Royal Highness
  Lord Proprietr and this City Councell Yor fallows and your owne
  you shall well and Truely keep Secreet. You shall present nothing for
  Malace or Euill will that you Bare to Any Person, Neither shall you
  Leaue anything unpresented for Loue, favour, affection Reward Or Any
  hopes thereof, but in all things that shall Concerne this Present
  Servise you Shall Present the truth the whole truth and nothing but
  the truth, According to yor best skill and knowledge--Soe help you
  God."

  Mr. Francis Rumbout was Apoynted foreman.

         *       *       *       *       *

  The Recorder ... read to them ther Charge whch was Deliuered in
  Writeing.

Then follows the quaint record of the first presentment or bill of
indictment:

 John Robinson,   }  For Our Lord the Kings sworne to
 Wm Cox,          }  declare to the grand jury wt they
 Richard Elliott, }  know about the Burgulary Henry
 Darby Bryan.     }  Thomassen is Charged with.

  The Bill Against him was Committed to the Grand Jury wth the
  Examncon of the witnesses, and the Court adjourned till four in
  the afternoone.

  In the Afternoone the Court being opened the Indictmt agst Henry
  Thomassen was returned by the Grand Jury Billa vera.

  Henry Thomassen being Called for the Sherriff returnes that he has
  Broak Prison and made his Escape, and Desires tyme till the next
  Sessions to Persue him.

  Ordered That the Sherriff doe make Persuits after the prisonr to
  haue him att the next session to abide his Tryall. The Grand Jury
  was dismissed from further Attendance till ye next sessions and ye
  court dissolved.

It is interesting to observe that on the 13th day of the November
following, in the first year of "the Reigne of our Sovereignee Lord
James the Second of England, Scotland, France, and Ireland," etc.,
the "sherriff" having apparently made good "persuits" of Thomassen
and effected his capture, the latter was brought to the bar and duly
charged:

  "For that he not haveing the feare of God before his eyes, but
  being Lead by the instigation of the divell ... by force and armes
  the Cellar belonging to and being parte of the dwelling house of
  William Cox of the Citty of New-Yorke merchant in the night Season,
  To Witt, between or about the houres of tenn or Eleven of the Clock
  ... feloniously and burgularly did breake and into the same did Enter
  with an intent to steale and spoile the goods and Chattles of the
  said William Cox contrary to the peace of our said sovereigne Lord
  the King his Crowne and dignity."

Having pleaded not guilty and put himself upon the county a jury was
empanelled who swore:

  "That the said Henry Thomassen is guilty of the feleony and
  burgularly aforesaid in the said inditement above specifyed in
  manner and forme as above against him is supposed, Therefore it
  is considered by the Court, that the aforesaid Henry Thomassen be
  branded on the forehead with the Letter B, and be whipped on the bare
  back eleven Stripes on the fourteenth day of November instant in the
  morning by Eleven of the Clock, before the City Hall and pay all
  costs and charges of prosecution."

The oath of the grand jurors, their general procedure, and the form of
indictment are practically the same up to the present day.

To appreciate fully just what part the grand jury plays in the
administration of criminal justice the reader should remember that
almost all defendants in criminal cases are brought immediately after
their arrest before a police magistrate and given, if they so desire,
an exhaustive hearing. If the magistrate thinks there is sufficient
cause to believe the prisoner has committed the crime charged against
him he is held (if the crime be a felony or a libel) for the action of
the grand jury, or if it be a misdemeanor, for whatever court tries
such offences,--in New York County the Court of Special Sessions. Of
course it is the privilege of the defendant to be admitted to bail,
save where the charge is one of murder, until the proceedings against
him result either in his final discharge or his indictment, and, as has
been said before, once he is _held_ for the grand jury he cannot, even
if he be a self-confessed criminal, be tried or punished until that
body has deliberated upon his case.

The following table shows the number of arrests for felony in New York
County each year since 1900, the number of persons so arrested who were
"held" by magistrates for the action of the grand jury, and the number
of indictments "found" by that body:

 ------+-------------+----------------+-------------+--------------
  Year |  Number of  |   Number of    |  Number of  | Population of
       | Arrests for | Persons "Held" | Indictments |   New York
       |   Felony    |  for Action of |    Found    |    County
       |             |   Grand Jury   |             |
 ------+-------------+----------------+-------------+--------------
 1900  |     8,588   |      4,473     |    3,674    |  2,050,600
 1901  |     8,435   |      4,395     |    4,210    |  2,095,116
 1902  |     9,465   |      5,020     |    3,890    |  2,139,632
 1903  |     9,939   |      4,372     |    3,898    |  2,186,017
 1904  |     9,238   |      3,452     |    3,950    |  2,235,060
 1905  |    11,688   |      4,751     |    4,199    |  2,468,046
 1906  |    11,553   |      4,169     |    4,116    |  2,553,100
 1907  |    13,913   |      5,879     |    5,295    |  2,687,800
 ------+-------------+----------------+-------------+--------------
 Total |   119,206   |     57,241     |   52,027    |   .......
 ------+-------------+----------------+-------------+--------------

It may be of some interest to note how this inquisitorial body is
brought into being. Every year a Board of Commissioners, consisting of
the Mayor, the Recorder, the Presiding Justice of the Supreme Court,
and others, meet and make up a list of a thousand names from which
the grand jurors for the year are to be drawn. These names are placed
in a wheel and each month fifty of them are drawn out at random by
the County Clerk in the presence of one of the judges of the General
Sessions. From these fifty names the grand jury of the succeeding month
are chosen by lot. Of course the selection of jurors must perforce be
made with ostensible impartiality, for a grand jury which was amenable
to political influence would render the administration of justice worse
than a farce. Such a condition has not been unknown.

Not so very long ago Recorder Goff observed that certain representative
gentlemen who had served on the grand jury for years were no longer
drawn. In view of the significance of the political situation at that
time the fact seemed peculiar and he determined to make a personal
investigation. Accordingly at the next monthly drawing the Recorder
inserted his own hand in the wheel and found that some of the slips
were heavier and of a different texture from the others, and could
easily be separated by the sense of touch. The inference was obvious.
Undoubtedly the opportunity thus to elect between the sheep and
the goats had been made good use of. No excuse for this astounding
situation was offered, and all the slips at once were destroyed by
order of the court. Later on it was explained that the manufacturer
"_had not been able to furnish all the slips of the same material_."

As but twenty-three grand jurymen are selected each month, only two
hundred and seventy-six out of the total number chosen ever actually
serve. The judge appoints a foreman, usually a man of some previous
experience, and the jury are sworn. The court then delivers a charge
and reads or calls to their attention certain sections from the Code
of Criminal Procedure. If there is any matter of public notoriety
which comes within their purvue, such as crimes against the elective
franchise, or insurance, banking, or other frauds, he is likely to
dwell upon the necessity of paying particular attention to this variety
of offence. The jury then retire to the rooms prepared for them and
begin their secret deliberations.

They are now prepared to hear the evidence against all persons charged
with felonies or libel, who have been held for their action by the
police magistrates. The original papers in all these cases have
already been copied under the direction of the district attorney and
the witnesses subpoenaed to attend and give their testimony. These
subpoenas are served by attachés of the prosecutor's office, commonly
known as "county detectives," or, more popularly, "sleuths." It should
be observed that the district attorney in fact decides what cases shall
be submitted, and prepares the daily calendar of the grand jury, which
as a rule does not know in advance what business it is to consider. In
addition to this, the district attorney draws, usually in advance, all
the indictments.

The indictment may be said to be the most important individual paper in
criminal procedure, for upon its sufficiency depends the question of
whether or not a defendant may be tried, or if tried and convicted,
sentenced to prison. The general form of these instruments has varied
little during many centuries. They are as archaic as the grand jury
itself. Originally the draughter of documents was paid by the word,
and the more prolix he could be the better it was for him. This fact
naturally influenced the form of all legal papers. His sins are still
directly visited upon us. Moreover, not the best forms, but the worst
are our inheritance, for usually only the sufficiency of the worst is
questioned and tested by appeal. If an indictment is not absolutely
defective, it is sustained by the higher courts, and having been passed
upon and not found wanting, immediately becomes a model for all future
draughtsmen. It may fairly be said that the more faulty an indictment
is (so long as it be not actually void) the better its chance of
immortality.

Probably the simplest indictment which the grand jury can find is one
for larceny. Let us suppose that a servant, Maria Holohan, has stolen
the teapot of her master, the Hon. Silas Appleboy. The grand jury
present an indictment against her in the following terms:

  Court of General Sessions of the Peace in and for the County of New
  York. The People of the State of New York against Maria Holohan.

  The People of the State of New York, by this indictment, accuse Maria
  Holohan of the crime of grand larceny in the second degree committed
  as follows: The said Maria Holohan, late of the Borough of Manhattan
  of the City of New York, in the County of New York, aforesaid, on
  the 1st day of April, in the year of our Lord, One thousand, nine
  hundred and seven, at the Borough and County aforesaid, one teapot
  of the value of $50, of the goods, chattels and personal property
  of one Silas Appleboy, then and there being found, then and there
  feloniously did steal, take and carry away, against the form of the
  statute in such case made and provided and against the peace of the
  People of the State of New York and their dignity.

 A. BIRD,
 District Attorney.

This is merely saying that "the grand jury charge Maria Holohan with
stealing the silver teapot of Silas Appleboy on April 1, 1907." It is
the shortest indictment possible. A complicated indictment may fill
hundreds of pages.

Many interesting old indictments are on file among the records of the
General Sessions; and if one can judge by the frequency with which the
names of divers ungodly and reckless Philadelphians are inscribed upon
their pages, "the general reputation" of the City of Brotherly Love for
"peace and quiet" must have considerably improved during the past two
hundred years.

As a usual thing we find among the papers filed with the indictment the
original "information" sworn to by the aggrieved party. Give heed to
the "unmerciful conduct" of Mr. William Miller:

 CITY OF NEW }
  YORK ss:   }

  Mathew O'Brien of the City of New York Mariner maketh Oath and Saith
  that on Sunday night the first Day of November instant he this
  Deponent being at the Tavern kept by Francis King on the Dock between
  the Hours of Ten and Eleven of the Clock and having a dispute with
  the Landlord relative to a French Crown dropped by this Deponent one
  William Miller who this Deponent heard and believes _is Marker to a
  Billiard Table in Philadelphia_ immediately challenged this Dept.
  to fight him and stopped this Deponent from going out either at the
  Door or window altho. he made frequent attempts for that purpose and
  thereupon knocked this Deponent down, and beat kicked and wounded
  him in a desperate and unmerciful manner. This Dept. Saith he
  also lost out of his pocket the whole of his Money then about him
  consisting of five Guineas in Gold two Crown pieces and a Note of
  hand for ten guineas. And further saith not.

 Mathew O'Brien.

 Sworn the 1 Day of
 Novr. 1704 before me
 Jno Broome, Just Peace.

The grand jury of to-day is the same old grand jury that indicted
William Miller; and the cases are piling up,--piling up, at the rate of
three, four, five, or even six hundred a month.

What would Mr. Francis Rumbout, who was "apoynted" foreman of that
earliest grand jury, have said if he had been obliged to pass upon six
hundred cases in a month? The time which could actually be given to the
consideration of any particular charge under such circumstances would
average about _six minutes_!

For example, Giuseppe Candido, having been summoned to appear suddenly,
finds himself standing in the centre of a large room around which are
arranged a semi-circle of inquisitors.

He states where he lives, what his business is, that he knows Michael
Angelo Spaghetti, and that the latter cut him in the shoulder in a
quarrel over a glass of beer. He is then excused. The grand jury take a
vote and Spaghetti is indicted for "wilfully and feloniously committing
an assault with intent to kill." Generally only one side of the case
is heard. There is very little attempt made to hold the witnesses down
to the strict rules of evidence. It is all _ex parte_. "_L'évidence
at jurie est que cunque chose que serve le partie a prover l'issue
pur luy_," as Henry Finch put it at the beginning of the seventeenth
century.

Once in a great while, if there is something a little peculiar in the
charge or in the manner in which the witnesses give their testimony,
the jurors may become suspicious and send out for other witnesses or
possibly for the defendant himself. Of course he cannot be compelled
to testify, but usually he is glad of a chance to explain away the
accusation if he can. Perchance the inquisitors refuse to indict. But
what a waste of time for twenty-three busy men! And as a rule what
trivial matters are brought to their attention!

Most of the cases dismissed are so inherently weak that the district
attorney would himself have discharged the defendants of his own
motion, but the action of the grand jury saves him the trouble and the
odium, if any, and diffuses it among an irresponsible body. The same
thing is true of indictments found against influential persons,--the
responsibility is with twenty-three, not merely one.

But if the grand jury is to exist at all, it must be constituted, and
required to act, in accordance with the law. The indictment is invalid
if there be on the grand jury one who has not the proper qualification
to sit, or if an unauthorized person be present, or if the evidence
is not legally sufficient. Even if the defendant be as guilty as the
Father of Sin, he may make a motion to dismiss the indictment on any
of these grounds, and, whether the point be well taken or no, the case
may in consequence be delayed for weeks. Where the defendant has the
means to employ astute and learned counsel, he may retard his trial for
weeks, or even months, by questioning the proceedings of the grand
jury which found the indictment against him.

For example, when Fire Commissioner John J. Scannel was indicted for
conspiracy to defraud the city of New York, his lawyers ferreted out
the fact that one of the grand jurors who had found the indictment
lived a large portion of the year in the town of New Rochelle. When
the defendant was called upon to plead to his indictment the lawyers
offered "_a plea in abatement_," although the law expressly provides
that no pleas save of "guilty" or "not guilty" or of "_autrefois
acquit_" may now be entered. They insisted, however, on their right
to such a plea and the matter was delayed for a long time. Their plea
having been refused they then moved to dismiss the indictment because
of the alleged irregularity in having this juror present who spent his
summers at the seashore. The determination of this motion took months.
How like the situation to that which existed in 1433, when a statute
was enacted in order to remedy, if possible, somewhat similar abuses.

  " ... When the Grand Jury appears and is ready to pass, a tenant or
  defendant or one of the petit jury pleads false pleas not tryable by
  the Grand Jury, and so delays proceedings until this be tried. When
  this is settled for the plaintiff, another pleads a like false plea
  since the last continuance; and so each of the defendants, tenants,
  or jurors, one after another, may plead and delay the Grand Jury; and
  although all be false and feigned, the Common Law has no penalty.
  This has caused great vexation and travail to the grand juries, and
  plaintiffs have been so impoverished that they could not pursue their
  cases, and jurors are more emboldened to swear falsely."[25]

A substantial proportion of the delays in criminal procedure are due
to the interminable motions based upon alleged irregularities in the
constitution and action of the grand jury, and the insufficiency of
indictments. Such delays would vanish with the abolition of that body.

But beyond its general power to investigate specific charges of
crime laid before it, the grand jury constitutes the only general
inquisitorial body that we have, and its value and services in this
respect must not be overlooked. It is highly important that the
power should reside in some responsible body to summon witnesses and
compel testimony anent suspected offences, conspiracies, and official
misconduct. This is precisely what the grand jury did as far back as
1300, when it acted as a "suspecting" jury. Only through some such
power can a rumor of crime, unsubstantial and intangible in itself, be
traced to its source and the knowledge of those who can testify as to
the perpetration of it secured at first hand.

Acting within its legal powers as an investigating body, the grand jury
has a vast power and can be immensely useful to the community, but
when it attempts to do more, its action has no more validity and is
entitled to no more respect than that of any other self-constituted
inquisitorial body of intelligent citizens.

A belief is quite prevalent, however, among grand jurymen that it is
their duty not only to ascertain what crimes have been committed and
to find indictments for them, but to act as the censors of the public
morals, as watchdogs of the public treasury, as the promoters of
legislation, and generally as the conservators of the public interests.
This impression is entirely erroneous, and yet it is surprising to
what an extent grand jurors imagine that because of their office
some particular sanctity attaches to their enunciation of opinions in
matters that do not concern them.

A grand juror walking in the morning from his house to the corner
to take a street-car, accidentally stumbles over a coal-hole cover;
he reports it to his associates; many of them know persons who have
stumbled over coal-hole covers; they talk the matter over and decide
that there should be no coal-holes, since with the abolition of the
coal-hole the coal-hole cover also would disappear. They call upon the
commissioner of public works to appear before them and testify; upon
the street-cleaning commissioner; upon the commissioner of buildings;
they learn how many coal-holes there are in the city; what their covers
are made of; how they are fastened or are not fastened in place; and
some day when the grand jury comes down into court, the foreman arises
and states that he has a presentment. The judge on the bench requests
him to hand it up; he delivers it to the clerk, who passes it to the
judge, who returns it to the clerk and directs him to read it. The
clerk stands; the grand jurors stand; the clerk reads:

"To the Honorable John Smith, Presiding Justice of the Court of General
Sessions: The Grand Jury of the County of New York respectfully
present: Our attention has been called to the large number of
unprotected and unguarded coal-holes existing in the County of New
York; we have called before us a large number of witnesses and given
much time to the taking of testimony relative thereto; we find that
in the past year ten thousand persons have lost their lives through
falling into improperly guarded coal-holes, and that the records of
the hospitals show lists of over one hundred thousand others who have
been severely injured by similar catastrophies; while it is beyond
the capacity of the mind of man to comprehend the infinite number
of those who have been wounded, bruised, lacerated and contused by
similar accidents, to an extent not sufficient to render hospital aid
necessary, etc." And such a presentment goes on with its statistics and
figures and ends with the recommendation that the legislature pass a
certain law, that the aldermen pass a certain ordinance, that certain
laws or certain ordinances be repealed, or that other legislative
interference be had, or legislative action should be taken, or that
some city official or city officials do this or do that, or that some
department make such and such an investigation and act thereon in
such and such a way, and concludes with the signature of the foreman
and secretary of the grand jury. The court then arises, bows to the
grand jurors, says: "Gentlemen, we have heard your presentment; I now
direct that it be placed on file in this court and that copies thereof
be forwarded forthwith by the clerks to the heads of the appropriate
departments." And the grand jurors retire, imagining that in some way
they have contributed directly to the public weal.

An examination of the long list of presentments on file in the office
of the clerk of the Court of General Sessions will show the diversified
interests to which the grand jury, acting as we have shown as a merely
self-constituted _censor morum_, has devoted its attention and in
which it has consumed many of its working hours in the past. So far
as we know, no action whatever has ever been taken upon any of these
presentments. That at times they may have done some good through
calling to the attention of the public press matters which otherwise
would not be under scrutiny, may be admitted; but the discussion of
them in the press has usually been as ephemeral as the existence of
the grand jury by which they were filed; and in general it may be said
that the only effect of a grand jury's meddling with these things is to
detract from the dignity of its office and the importance of the work
which it and it alone can lawfully do.

The lay reader will naturally be led to inquire why this archaic
institution which it costs so much time and money to perpetuate,
which causes so much unnecessary inconvenience to witnesses and
offers so many technical opportunities for delay, which frequently
is ineffective and officious, and for the most part concerns itself
with the most trivial matters only, should not be abolished, and why
prisoners charged with crime whose cases have been properly examined
by committing magistrates should not be immediately placed upon their
trial.

It is doubtful if any very convincing arguments in favor of retaining
the grand jury for the purpose of indicting ordinary offenders
can be advanced. That it should be continued for the purposes of
investigation, with power of indictment, to be summoned when the need
thereof arises, is indisputable. But the original necessity for the
grand jury has disappeared with the onward march of the centuries.[26]
In early days, when the influence of the crown threatened the liberties
of the English freeman, and when judges and magistrates owed their
positions to royal favor, it was often difficult if not impossible to
secure the punishment of a criminal if he happened to be a retainer
or under the protection of those in power. So, too, the defenceless
subject might be accused of crime by an influential person and haled to
the bar upon a baseless and malicious charge. Some barrier was needed
between the powerful and the weak, and some tribunal before which the
weak could accuse the powerful of their wrongs. This was supplied by
the grand jury, which, ever changing its members and deliberating in
secret, seemed well calculated to safeguard the people's liberties.
But at present we need no such protection against a government of
and by the people, and indeed such a body, deliberating secretly and
hearing the evidence against an accused person without giving him the
opportunity to be heard, seems strangely out of harmony with the spirit
of our institutions.

To-day, the grand jury, initiating a proceeding against a citizen
who may be ignorant that he is even under suspicion, may be led to
accuse him of some foul crime upon the mere _ex parte_ statement of
malicious witnesses, without giving him an opportunity to explain or
contradict the evidence. The mere charge of crime is often enough to
ruin a man forever. The argument that a suspected person may escape
before arrest unless the charge is considered secretly, has in these
days of telegraphs, railroads and extradition treaties little of the
force which it may have carried with it in cruder times. Moreover, the
possibility of indicting public officials or others upon insufficient
evidence for political purposes, or for "moral effect," would be done
away with, and only those against whom legal testimony made the charge
reasonably clear would be threatened with prosecution, and then only
when their defence had been heard by a magistrate and held insufficient.

Prosecutors now prefer to take as few cases before their grand
juries in the first instance as possible, and to send the man with a
grievance, who thinks he has some political pull and "wants to get the
fellow indicted anyway," into the magistrate's court to make good his
charge.

Almost twenty-five per cent of the States in the Union have modified
their procedure in this regard so as to conform to modern requirements.
The State constitutions of Indiana, Illinois, Iowa, Nebraska, Oregon
and Colorado give the legislatures the power to make laws dispensing
with grand juries in any case, and in California, Connecticut, Kansas,
Louisiana, Montana, South Dakota, Utah, Vermont, Wisconsin and Wyoming
constitutional provisions exist permitting all criminal proceedings
to be made by information, or dispensing with grand juries in certain
cases. This is also true of the Federal Government. Experience has
demonstrated that ample protection is afforded the accused where the
State is permitted to prosecute those held to bail by an examining
magistrate upon proof of probable cause. He is better protected than by
a grand jury which hears in secret only the evidence against him and
gives him no opportunity of explanation.

A system which would allow of the prosecution of all felonies by
information would do away with the great and practically useless labor
of our grand jurors in the ordinary run of cases, would save endless
time and money to all concerned, and might still retain the grand jury
for such purposes as necessity requires. Justice would be more speedy
and just as effective if the prosecution of all crimes were instituted
before an examining magistrate, and the grand jury would then, at the
summons of the court, meet to perform only those important and peculiar
functions of investigation that are consonant with its dignity and
necessary to the public weal.

FOOTNOTES:

[Footnote 24: Record illegible.]

[Footnote 25: The historical development of the grand jury is highly
interesting. Originally the assize at which the knights assembled
was not unlike a sort of county parliament and all manner of matters
were submitted to them. Gradually as the jury developed out of this
unorderly gathering together, the sheriffs got into the habit of
summoning only enough men to form the grand jury and as many petty
juries (when those came into existence) as might be needed.

In the beginning private vengeance was the moving cause of all criminal
procedure. The aggrieved party made a direct appeal to the county and
the issue was fought out, the complainant and defendant appearing in
person or by champions. This was exceedingly unsatisfactory for many
reasons, among others that not seldom a rich man would hire all the
champions within reaching distance and the poor man be left without
any, which suggests the somewhat similar practice of many wealthy
litigants at the present day. But this mode of individual redress
colored all English procedure and is the direct cause which makes
English criminal trials in so many ways resemble private litigation.
Private vengeance was at the bottom of it.

When the "county" or the public were the accusers, a mere accusation
was practically equivalent to a conviction subject to the chance of
the defendant's escaping by a favorable termination of "the ordeal of
water." But "the ordeal" in time died out, just as did wager of battle,
and something had to take its place. This was the jury.

From very early times we find "grand" or "accusing" juries presenting
charges for the trial jury to dispose of, although the accusing jury
frequently acted as trial jury as well. By 1212 it had become customary
to submit a charge found by a presenting jury to a larger combination
jury which included the original body which had presented the charge.
This enlarged jury, usually composed of a jury from another "hundred"
and "the four vills," delivered a unanimous verdict. By 1300 it had
begun to be the privilege of an accused to "challenge" those who had
presented the charge against him, but it was the approved practice to
try an accused by some at least of those who had presented him.

"The four knights were called, who came to the bar girt with swords
(above their garments) and were charged--to choose twelve knights girt
with swords for themselves and the others--and the justices ordered the
parties to go with the knights into a chamber to choose or to declare
their challenges of the others chosen by the four, for after the return
of the panel so made by the four knights the parties shall have no
challenge to panel or polls before the justices." (1406) Y.B. 7 H. IV,
20, 28.

The idea seemed to be that unless there were a few on the jury who had
already formed a provisional opinion as to his guilt the prosecution
would not have a fair chance. In Willoughby's case in 1340, Parning,
J. naively remarked, "In such case the inquest should be taken by the
indictors (the accusors) and others. Certainly if the indictors be
not there _it is not well for the King_." In 1351 by St. 25 Edw. III,
c. 3, it was enacted that "no indictor be put on an inquest upon the
deliverance of one indicted for trespass or felony, if he be challenged
for this cause by the party indicted." Persons "presented" or accused
could "put themselves" upon different counties, that is to say, could
submit their case to juries drawn from such counties, with certain
limitations, as they might elect. Thus we find a case where one having
been "presented" by an accusing jury "puts himself on the County of
Surrey and on all men in England who know him." At Easter came riding
twenty-four knights from Surrey at the king's summons who promptly
found him to be a robber, and, says the record, "Since he put himself
upon these, _let him be hanged_."

There is a criminal case in Y.B. 30 & 31 Edw. I, 528, which throws a
good light on the procedure of the time. W. was the stabler of J.'s
horse and had been kicked, while trying to mount, so that he died. The
horse thereupon became forfeit to the king as a _deodand_. The jury
accused J. of keeping the horse in spite of this and also charged him
with having buried W. without calling in the coroner. This he denied
and "put himself on the county." The judge, addressing the jury, which
was probably the same that had made the accusation, charged as follows:

  "If W. died from the kick of the horse, the horse would be _deodand_.
  If not it would be John's. If the king should lose through you what
  rightly belongs to him, you would be perjured. If you should take
  away from John what is his, you would commit a mortal sin. Therefore,
  by the oath you have made, disclose and tell us the truth, whether
  the said W. died of the horse's kick or not. If you find that he did,
  tell us in whose hands is the _deodand_ horse and what he is worth;
  and whether the said W. was buried without a view of the coroner."

All things considered--a pretty good charge.

Gradually, and in large measure because the "ordeal" had disappeared
and the grand jury as a distinct body had been fully established, no
method of ascertaining the truth of an accusation was left, and a mere
presentment in fact amounted to a conviction, so that the need of some
other jury to pass upon the issue was apparent. Out of this need the
modern petty jury developed.

In course of time the accusing jury became as it is now, a distinct
and separate body, deliberating secretly, its members being no longer
permitted to sit as trial jurors. They acted on common report, their
own personal information, and upon the application of injured parties,
and initiated most criminal proceedings. It was necessary for some
one to ferret out crime and hold the perpetrators for trial, and the
jury did practically the whole business. As the years went on the
jury became more and more a purely _ex parte_ accusing body with
practically no judicial supervision and receiving about what it saw
fit as evidence. From time to time the powers and the character of the
grand jury has been fiercely assailed. Two centuries ago it came near
receiving a knock-out blow, but it had become too firmly established.
In Shaftsbury's case, 8 How. St. Tr. 759 (1681), they were in fact
compelled to receive their evidence publicly in court, but their
vigorous protests and the failure of the attempt left the body all
the more securely entrenched in English procedure.--_Condensation
from Prof. J.B. Thayer's masterly chapter on "Trial by Jury and Its
Development" in his "Preliminary Treatise on the Law of Evidence."_]

[Footnote 26: Cf. "Reform in Criminal Procedure," H.W. Chapin, 7
Harvard Law Review 189.]



CHAPTER VII

THE LAW'S DELAYS


"IF THE COOK SHOULD STEAL THE TEAPOT"

"I would have her locked up and punished!" the reader undoubtedly
exclaims as he notes our title. It is hardly likely, however, that
he realizes the possible significance of such an undertaking. For
the edification, therefore, of those who have cooks and teapots, and
in order to be forewarned, if not fore-armed, let us suppose that
the worthy Mr. Appleboy has not only the domestic necessary for our
case, but also a family heirloom which is worth more than twenty-five
dollars, the requisite value to make its abstraction, with felonious
intent, grand larceny in the second degree.

Mr. Appleboy, after a moderately hard day's work, has been for an hour
at the club, and is now ascending his front steps. As he is about to
place the key in the door, he observes his cook, Maria, making her
exit from the area with some large object concealed beneath her shawl.
A flash from the dying sun, setting over the elevated railroad tracks
of Sixth Avenue, betrays a telltale protruding spout. Maria does not
perceive her master, but the latter, being of an inquiring disposition,
descends the steps and follows her down the street. She hurries along
upon her journey until, reaching Eighth Avenue, she turns the corner
and enters a pawnshop. Mr. Appleboy, puffing, follows hard, and opens
the door just as Maria is in the act of receiving from the pawnbroker
the sum of ten dollars. She has the money in one hand, the teapot in
the other; she is caught _in flagrante delicto_, or, in the modern
equivalent, "with the goods on."

Maria shrieks and calls upon the saints. Appleboy, purple from his
exertions, pounds the floor with his gold-headed cane and fiercely
inquires what she means by going off with his silver teapot. In reply
Maria falls on her knees, breaks into tears, and confesses her crime,
offering no excuse, and suggesting no palliating circumstance. She
implores his forgiveness, but Appleboy, righteously indignant, is
obdurate. She could have stolen anything but his grandmother's teapot,
and he would have overlooked it. The pawnbroker, who takes but a mild
interest in the proceedings, merely seizes the opportunity to remove
from the cook's unresisting fingers the roll of bills.

Appleboy resolves to do his duty. He will set an example of good
citizenship--he will have her arrested, locked up, and sent to prison.

"Summon a policeman!" he cries to the indifferent pawnbroker.

"Get one yourself!" replies the other.

Appleboy starts for the door, keeping one eye on the prostrate Maria.
Two blocks distant he sees a stalwart officer in the act of conversing
affably with a street cleaner. At this moment an urchin notices Maria
couchant upon the floor. An expansive grin takes possession of his
features, and, placing his fingers to his mouth, he emits a shrill
whistle. Instantly, like a flight of vultures, a small army of boys
descend upon Appleboy, who now decides that the only way to procure the
policeman is to shout for him. In his embarrassment he yells: "Stop
thief! Stop thief! Police!" but the officer pays no attention. He is
discussing Tommy Sullivan's chowder party of the night before.

"Say, mister, I'll get the copper for ye," shouts some little fellow,
and starts on a run up the avenue. A few follow him and quickly corral
the officer, who, protesting, dawdles slowly in the direction of Mr.
Appleboy, swinging his club, and apparently taking little interest
in their remarks. Meantime, the pawnbroker has shut and locked the
door. Maria, within, is still in a state of coma. The much-annoyed
old gentleman is fast being surrounded by a dense throng of loafers,
tradesmen, ladies of the neighborhood and pedestrians, while the street
is blocked with vagrant cabs and grocery carts. He wishes he were at
home in his comfortable library, but realizes that he is in for it now,
and must stick it out.

"Well, what do you want?" demands the officer, pushing his way through
the crowd until he confronts the innocent cause of the disturbance.
"What are yer makin' all this row about, and blockin' up the street
fer?"

"Maria, my cook, stole my silver teapot," answers Mr. Appleboy. "I
caught her trying to sell it in _there_. I ask that you place her under
arrest."

"What's yer name?" asks the policeman. "Who are yer anyway?" The
crowd cheers delightedly, for while the copper is not popular in the
neighborhood, an old swell like this is "nuts" for everybody.

"I am a citizen and a taxpayer," replies Mr. Appleboy stiffly, "and I
insist upon your doing your duty and arresting this woman."

"Aw, come on now and give us yer name," continues the officer. "You
can't expec' me t'arrest a person unless I know who I'm doin' it fer.
How do _I_ know yer ain't throwin' some game into me?"

At this moment one of the boys shies a banana peel at Mr. Appleboy's
tall hat. The latter, seeing his disadvantage, responds:

"My name is Silas Appleboy, and I am a taxpayer and a freeholder. I
demand that you arrest this woman." The policeman, somewhat impressed
by the other's vehemence and the statement that he is a freeholder (the
meaning of which the official naturally does not understand), inquires
a little more genially where the lady is.

"In that shop," replies her master. The crowd, with a whoop, rushes
at the door, but the pawnbroker is standing inside in an attitude of
defence. The policeman, closely followed by Appleboy, pushes his way
through the mob, and raps loudly.

"Stand back there, now," shouts the officer, waving his club. The small
boys shrink back, leaving Appleboy in the centre of the ring. The
pawnbroker opens the door. Maria is upon her knees, calling vaguely
upon Heaven to defend her. The silver teapot reposes upon the counter.
The officer grasps Maria roughly by the shoulder and yanks her to her
feet.

"Get up there and pull yerself together!" he exclaims. "What's yer
name?"

"Me name is Maria Holohan," she replies hysterically.

"Do yer know that man?" continues the officer, pointing at Appleboy.

"Shure, I know him," is the answer. "Haven't I worked for him for
fourteen years?"

"Did you steal his teapot?" asked the officer.

"Oh, Holy Mother! Holy Mother!" wails Maria. "I took a dhrop too much,
an' shure I didn't know what I was doin' at all, at all."

"Well, the first thing you'll do," remarks the officer, "'ll be to walk
to the house. Come on, now!" And forthwith he drags Maria to the door,
and, holding her firmly by the wrist, marches her upon the sidewalk.
Mr. Appleboy, the teapot clasped to his bosom, follows immediately
behind. Their appearance is greeted with vociferous approval by the
waiting crowd, who fall in and escort the group towards the police
station. But Maria's strength fails her, and, presently, with a groan
she collapses. Perhaps the drop too much has taken effect in her legs.
At all events, despite the efforts of the officer, she refuses to move,
and remains limp. The crowd has now become so dense as entirely to
obstruct all traffic in the street, long lines of electric cars leading
in each direction up the avenue, motor-men and conductors forming a
strong adjunct to those giving gratuitous advice. Two grocery wagons
get their wheels locked in the throng. Some one telephones to the
station house. At last the distant clanging of the patrol is heard.
The crowd scatters, the carts and cabs extricate themselves, and the
"hurry-up wagon" backs to the sidewalk with a flourish, two more
coppers swinging on behind. They bundle Maria unceremoniously inside,
escort her erstwhile employer with hardly more courtesy into the same
vehicle, and toss in the teapot: the gong rings: and Mr. Appleboy
starts upon his task of bringing an evil-doer to justice, and proving
himself worthy of the proud title of citizen.

The drive to the station seems hours long, and the fumes of whiskey
are very evident upon Maria. The officers are taciturn. The nose has
been knocked off the teapot. Mr. Appleboy, holding himself tense in his
seat, endeavors not to be jostled against the lady who has, previously,
cooked his meals. Now and again she addresses him in no complimentary
terms. She has by this time reached the belligerent stage, although she
has no thought of denying her guilt.

The wagon draws up with a jerk in front of the precinct station house.
Into a second crowd of gamins and loafers, Appleboy, still clutching
the noseless teapot, emerges. He is followed by two policemen, half
carrying, half supporting Maria. The doorman allows the party to enter,
while repelling the inquisitive throng who would like to accompany them.

Once inside, Maria and her master, little distinction being made
between them, are brought before the sergeant, who reclines behind a
desk upon an elevated platform. This official interrogates Mr. Appleboy
somewhat brusquely as to his name, address and the charge which he
makes against the defendant, laboriously copying the answers in the
"blotter." Maria, petrified with terror, absolutely refuses to answer
any questions, and mutters incoherently to herself. The sergeant,
satisfied of Mr. Appleboy's respectability by reason of his highly
polished hat and gold-headed cane, commits the prisoner to a cell to
await the hearing before the magistrate on the following morning. As
the charge is one of felony, and as none of her friends as yet know
of her detention or arrest, the question of her release upon bail
does not arise, and after the sergeant has directed Mr. Appleboy to
attend at the nearest police court the next morning at half-past eight
punctually, that gentleman escapes down the steps of the precinct
house, feeling that he has lived through untold ages of misery. The
crowd cheers him as he descends, and he hastens homeward, the joy of
release tempered only by the prospective agony of the morrow. The
noseless teapot remains in the custody of the sergeant at the station
house.

We can imagine Appleboy telling the story to his wife and children.
How heroically he figures in his own account of the proceedings! How
picturesquely penitent is Maria! How dramatic her capture in the very
act of disposing of the stolen property! How the policemen cower at the
majestic Appleboy's approach! By the time the old fellow has taken his
coffee and lighted his perfecto he is almost restored to his former
condition of pompous dignity. His intention to vindicate his position
as a freeholder and to see that the law shall take its course is
revived, and he dreams of Maria hurtling through the abyss with dozens
of silver teapots tied about her ample neck.


DELAY THE FIRST

The next morning Appleboy orders his carriage and drives in state to
the police court. His tall hat secures him easy access to a long room
with a low ceiling, in which the air is full of strange odors.

Across the end of the court, two-thirds of the way towards the front,
stretches an iron grating through which a gate admits police officers,
local politicians, lawyers and the witnesses in any examination
actually in progress. He enters the room exactly at eight-thirty.
Already it is crowded, and, having no business inside the gate, he
is forced to sit upon a bench in company with various friends of the
divers defendants who have been committed during the night.

It is early as yet, and a substantial breakfast has put Mr. Appleboy
in an optimistic frame of mind. Once the judge arrives how quickly
the case will be disposed of and our hero receive the thanks of the
magistrate for acting as he has done! But alas! Already a long file
of officers is forming at the left of the desk behind the grating.
Each officer has located at a safe distance one or more "drunks" or
"disorderlies" whom he has gathered in during the preceding evening,
and who have spent the night in the station house. The officers have
recently come off post and now are waiting sleepily for the arrival of
the magistrate to dispose of "The Watch."

By a quarter to nine the line has reached immense proportions. Twenty
officers stand in single file and the procession of prisoners reaches
to the doorway of the cells. In the meantime the jam in the room
itself has become greater, and the heat and odors more oppressive. Mr.
Appleboy wipes his brow with his silk handkerchief. He wishes he had
brought his wife's smelling salts.

Presently he discerns amid the crowd inside the railing the now
familiar features of Pat, the officer, who beckons him to come within.

Our friend rises to his feet to obey, but instantly another officer
bawls: "Sit down there, you!" and Appleboy collapses.

"Hi, there, Rounds, let that old guy in, will ye?" asks Pat
good-naturedly.

The roundsman condescendingly nods to the grizzled guardian of the
gate, who holds it open just wide enough to allow our hero to squeeze
through.

"Mornin'," remarks Pat, chewing vigorously.

"Good-morning, officer," replies Appleboy. "Where is the prisoner?"

"She came in the wagon half an hour ago," says Pat. "Step up while he
makes out the complaint. After that we'll arrange her."

So Pat and his complainant join the mob which is besieging the clerk's
desk, and finally secure enough of that functionary's scattered
attention to induce him to draw up a brief statement of the facts in
the case. Pat disappears into the cells to emerge in a few minutes,
escorting the bewildered Maria. She is then "arranged," which in
police parlance is to say she is arraigned. She has no counsel, and
evidently supposes her interrogator to be the judge, for she insists
on addressing him as "Yer onner." The clerk briefly warns her of her
rights and puts the few necessary questions, which Maria answers in a
quavering voice. It is obvious that she expects to be at once deported
to Sing Sing or the "Island."

"Name?"

"Maria Holohan, yer onner."

"Address?"

"Two East Seventy-first Strate, yer onner, wid this man here."
(Indicating Appleboy.)

"Occupation?"

"Shure, 'tis his cook, Oi am." ("Housework" puts down the clerk.)

"How long have you lived at this last address?"

"Fourteen year, yer onner, come St. Michael's Day."

"What have you to say, if anything, relative to the charge against you?"

(Maria mutters incoherently) "Shure Oi took the taypot, all right, all
right."

"Guilty?" asks the clerk.

"Guilty," whispers Maria.

"That's all," says the other. "Stand back there and give some one else
a chance."

Pat, holding the papers in his hands, escorts Maria to the end of the
line, and Appleboy returns to his seat. In his deposition he has stated
that his occupation is that of "Bank President" and he has instantly
observed a change of attitude in those about him. "Rounds" even expels
two unsavory characters for the purpose of making room for him in the
front row.

In a moment more the judge enters hurriedly, takes his seat at the
desk, and begins rapidly to dispose of the file of prisoners before
him. One after another the officers press forward, make a brief
statement of the circumstances of the arrest, and the prisoner is
led away with a fine, a lecture, or a sentence of a few days in the
workhouse. There is no opportunity for other cases until all the
"disorderlies" and street-walkers have been dealt with. Half-past nine
comes, quarter of ten and ten o'clock, the hour at which Mr. Appleboy
usually makes a leisurely descent to his office, but still there is no
respite. The monotonous business continues. But Mr. Appleboy's time is
valuable, and he begins to fume and fidget. He thinks of the dollars he
is losing by performing his duty as a citizen.

Pat has gradually neared the desk. At length there is but one more case
to be heard, and the "Rounds" summons our hero once more inside. Maria
is thrust in front of the platform and stands with her hands on the
rail. It has seemed an easy thing to Mr. Appleboy for a complainant
to tell his story, and he has smiled scornfully to himself at the
wandering and unconvincing statements he has heard during the morning,
but as he is pushed upon the platform under the sharp eye of the
magistrate, his courage begins to ooze out of him. He wishes again for
the hundredth time he had let Maria go off with the old teapot. The
very thought of tea sickens him.

"Next," calls the "Rounds," as a dowdy young woman is led away, weeping
hysterically.

Pat hands up the papers.

"Maria Holohan," mutters the judge, running his eye over the
"information." "Stole a teapot,--um--um--Is this the defendant?"

"He indentifies her," answers Pat.

The judge turns to Appleboy.

"Are you the complainant?" he asks briskly.

"Y-e-e-s," answers our hero, "I am. This is my cook."

"That will do," says the magistrate. "Answer only the questions that
are put to you. Do you swear that the statements contained in this
complaint are the truth, the whole truth, and nothing but the truth, so
help you, God?"

"I do," replies Appleboy with vigor.

Luckily for Appleboy, no lawyer appears for the delinquent Maria.
Unfamiliar with all the vagaries and devices of the criminal law, this
lady, realizing that she has been caught red-handed, foolishly supposes
that there is nothing for her to do but to cry for forgiveness and beg
for mercy.

"Do you desire counsel?" asks the judge.

Maria stares vaguely.

"Have ye got a lawyer?" interprets the nearest copper.

"Don't want no lawyer!" snaps Maria.

"I see you plead guilty," says the judge.

"Shure," she answers.

"Well," says the magistrate, "as she pleads guilty, I will not detain
you further. Your cook, eh? Well, well, it's too bad! Why will they do
such things? I am glad you did not lose the teapot. That is all."

Maria is led away, while Mr. Appleboy descends from the platform, to be
followed by some other righteously indignant complainant.

The whole transaction has occupied less than a minute and a half.
In order to accomplish it, Mr. Appleboy has remained in court from
half-past eight in the morning until a quarter to twelve.

"Thank goodness," he says to himself, "it is all over now. The rest
will be plain sailing." Ah, how little do the Appleboys know of
the administration of criminal justice! Pat accompanies him to his
carriage, expressing regret that the matter could not have been
disposed of more speedily. Appleboy is not ungenerous. He always tips
the colored porter in the sleeping-car most liberally, but although
it is obvious, possibly, that Pat would like a drink and some cigars,
Appleboy, believing that by accommodating him he would be committing a
felony or, at least, a misdemeanor, coldly bids him good-afternoon, and
Patrick, crestfallen, returns to the precinct house.

Meanwhile the magistrate fixes bail for Maria at five hundred dollars,
and the teapot is tagged and returned to the custody of the sergeant at
the station. Tired out, but feeling that "a duty well performed is a
rainbow to the heart," Mr. Appleboy seeks the bosom of his family.


DELAY THE SECOND

Cookless, the Appleboys struggle through the following week. It is
in the height of the season and cooks are scarce; they are also
ill-tempered; and in five days Mrs. Appleboy has tried and dismissed
three. The family, dinnerless, nightly seek a neighboring restaurant,
and endeavor to console themselves with the theatre. But after the
fourth night this bores them. They begin to long for Maria's omelets
and Irish stew. After fourteen years one gets used to a particular kind
of pudding.

"I almost wish," said Appleboy to his wife when they are alone, "that I
had not done anything about Maria, but just let her come back and cook
for us. I don't think she would have tried to steal the teapot a second
time."

"But how do you know, Silas?" replies his wife. "Think of the orgies
that may have been going on in the kitchen in the last fourteen years!"

"True, true," answers Appleboy, and again renews his determination to
see the thing through to the bitter end. Then Mr. Appleboy receives at
his office a green slip calling for his attendance on the morrow before
the grand jury of the County of New York, promptly at ten o'clock. He
has never been to the Criminal Courts building in his life. He only
supposes vaguely that it is situated somewhere near the "wholesale
district" and not far from the Italian quarter. He associates it with
trips to Chinatown, the East Side and the Bowery.

After being thoroughly shaken up by a long journey over the
cobblestones in his carriage, Mr. Appleboy finds himself on Franklin
Street, between the Tombs, on the one hand, and the Criminal Courts
building upon the other. Over his head runs "The Bridge of Sighs." A
congregation of loafers, lawyers, runners, policemen and reporters
linger upon the sidewalk. Unfamiliar with the means of entrance and
exit, Appleboy turns the corner and climbs two long flights of stone
steps upon the outside of the building instead of utilizing the side
entrance upon the ground floor and taking the elevator. He enters an
enormous hall around which, on all four sides, corridors reach to the
top of the building. A motley collection of people are hurrying hither
and thither. After some difficulty, Appleboy discovers a lift packed
with odoriferous Italians, men with bandaged eyes and faces, small,
half-clad children, and divers persons smoking enormous, evil-smelling
cigars, whom he later discovers to be members of the legal profession.
The car stops at the third floor.

"District attorney and grand jury," calls the elevator man. "Grand jury
to the right."

Appleboy gets off with the rest of the mob, and wanders down a narrow
corridor past rows of offices, until he comes to a policeman standing
by the door of a small room crowded with people. There is hardly space
to breathe, much less to sit down. From time to time a bell jingles
in the distance, a door into another room opens, somebody comes out,
and an officer calls out a name. Its owner hastily responds, is shot
through the door into the other room, and the door closes again.
This process goes on interminably. In a corner, clerks separated by
a railing are busily engaged in making out subpoenas and filling in
certificates of attendance. Police officers are everywhere. Appleboy
takes his stand by the door. It is half-past ten o'clock. He has no
means of knowing when he will be summoned before the august body who
are deliberating in the next room. He has a craving to smoke, although
he makes it a rule never to do so before six o'clock in the afternoon.
He has left his newspaper at home, and has yielded up his subpoena
to the officer at the door. There is nothing to occupy his attention
except the sour visages of those about him. They belong to a class of
people who instinctively fill him with disgust, being representatives
of what Appleboy and his wife are accustomed to term the "masses."

Person after person is summoned into the other room, but no one seems
to want the banker. Pat is there, to be sure, but he is at his usual
pastime, enjoying the delights of mastication. He no longer has any
"use" for Appleboy. At about a quarter-past eleven, the officer beside
the outer door calls the name of Silas Appleboy. Our hero, believing
that at last his turn has arrived, starts from his seat, only to be
directed to "Come here!" by the officer. He discovers that he has been
summoned to confer with a representative of the district attorney, who
invites him into a neighboring office.

"Mr. Appleboy," says this young gentleman when the two are comfortably
seated, "I see by the papers in the case that a Maria Holohan stole a
teapot from you. Under what circumstances was the theft committed?"

Mr. Appleboy, who supposes that the merits of his case have been long
since known personally to the district attorney, commences at the
beginning and rehearses all his woes and difficulties. The assistant
listens courteously, and then, without comment, bows Appleboy out, who
returns once more to the ante-chamber of the grand jury. His seat has,
meanwhile, been usurped by a corpulent lady in deep mourning, and its
former occupant is forced to stand in the corridor for an hour longer.
During this period he perchance has the annoyance of hearing Pat remark
to a fellow officer in no uncertain tones that "the old guy is no
good--a 'dead one'--I didn't even get a smoke off him."

The ante-chamber gradually has been thinning out. Finally Appleboy
gets a seat. The bell keeps on ringing until only he and a man with
a broken nose are left. At last a policeman hurries out of the open
door, the bell rings again, and the clerk at the desk shouts "Appleboy!
Appleboy!" Appleboy arises.

"Right in through that door," directs the clerk, and Mr. Appleboy,
shrinking, enters timidly the chamber of horrors and finds himself
in the centre of a semi-circle of gentlemen of varying ages and
appearance. To Appleboy a thousand eyes seem peering at him from every
side. The silence is appalling. He stands, silk hat in hand, feeling
like a very small boy who has been called before the head master to
be punished for some offence. A man in the middle of the semi-circle
and directly in front of him, is scratching busily with his pen. The
grand jurors whisper among themselves. Presently the foreman looks up,
observes Appleboy standing, and remarks: "Sit down, sir." Mr. Appleboy
sinks into a chair beside the stenographer. The foreman glances at
the indictment already prepared, and then says sharply: "Stand up,
sir,--and be sworn!"

A Bible is forced into his unenthusiastic hand.

"You do solemnly swear the evidence you shall give to the Grand Inquest
upon the complaint against Maria Holohan shall be the truth, the whole
truth, and nothing but the truth: So help you, God!"

Mr. Appleboy replies faintly: "I do," and makes an ineffectual attempt
to kiss the Bible.

"Sit down!" directs his interlocutor. "Ahem! You had a teapot worth
over fifty dollars, and your cook stole it? Did you see her?"

"Yes," answers Appleboy, and in a few words describes the occurrence.
The foreman sweeps the grand jury with his eye.

"Any questions?" he asks. There is no response from the others.

"That is all, sir," says the foreman. "I see that the woman pleaded
guilty in the police court. Good-morning."

Appleboy takes his hat and retires. Two hours' wait for an examination
occupying thirty seconds! He has heard of the "law's delays," now he
knows what they are. The bell rings again as he is making his way out
into the corridor, and the man with the broken nose stumbles in through
the door by which our friend has made his exit.


DELAY THE THIRD

Mr. Appleboy now believes that his troubles are over, for he has
consulted his family lawyer in order to make sure that everything is
all right, and has learned that since Maria has pleaded guilty in the
police court, she will, after her indictment, undoubtedly do likewise
in the General Sessions.

Two days later Appleboy receives a subpoena to attend in "Part I of
the Court of General Sessions of the Peace" as complainant in the case
of "The People of the State of New York against Maria Holohan." Down
he goes and sits for a full hour in an ice-cold court-room which is
thronged with policemen, irate complainants, and sympathizing friends
of the defendants, until, among the line of bedraggled prisoners, who
are brought in batches of from four to six from the Tombs through a
little door in the back of the room, he recognizes the erstwhile queen
of his kitchen--Maria, the unapproachable. She looks much the worse for
wear. The feathers of her hat hang disconsolate. In addition she is
minus her collar and goes clumping around the room after the policeman
as if she had never broiled a lobster or tossed a flapjack. As she
turns the corner by the jury box she spies her lawyer, and immediately
brightens. They hold an animated conversation in whispers as he takes
his place beside her at the bar.

"Maria Holohan," says the clerk severely, "you have been indicted by
the grand jury for grand larceny in the first degree. Do you plead
guilty or not guilty?"

Appleboy starts from his seat almost ready to call out in explanation:
"She pleads guilty, your honor," but before he has an opportunity to do
so, or to suffer any of the uncomfortable consequences of such an act,
the weazened-faced little attorney representing Maria responds sharply:
"Not guilty."

Appleboy is stunned. Why, the woman has already confessed her guilt,
after having been caught in the act! What absurdity! What nonsense!
But the plea is taken; the lawyer asks that a date be set for trial
not nearer than a week on the ground that he may conclude upon
investigation to advise his client to change her plea, and because
he has a witness living outside the State; and the court grants this
application.

Not guilty! As Maria tramps out in company with other defendants,
Appleboy makes up his mind that he will see what all this means, and
steps forward through the gate to speak in person to the representative
of the district attorney. A hand is laid upon his shoulder, and he is
hauled back unceremoniously.

"Here! Where are you going?"

"I want to speak to the district attorney," he replies meekly.

"Sit down," replies the officer. "He can't speak to you now. Look him
up in his office after court adjourns."

Mr. Appleboy, chastened by experience, makes no protest and retires
from the room. He has lost too much money already by absence from his
office to make it worth his while to wait until the adjournment of
the court, so he goes down town to attend to his business, and at the
first opportunity calls up his attorney to inquire what it all means.
The lawyer responds briefly that the mere fact that the defendant has
pleaded guilty in the police court does not preclude her from changing
her mind and denying her guilt later when called upon to plead to an
indictment. He regrets the inconvenience to which his client has been
put, and suggests by implication that it would have been well if Mr.
Appleboy had consulted him before taking any action in the matter.
Appleboy has already come to this conclusion himself.


DELAY THE FOURTH

A week later Appleboy receives another subpoena which commands him
under penalty to call at the district attorney's office at half after
ten o'clock and "Ask to see" Mr. John Smith, whom he finds, after
some difficulty, in a little office in the same building and corridor
through which he passed when he appeared before the grand jury.

"Is this Mr. Smith?" he inquires.

"Yes," answers the young man. "What do you want?"

"I have a subpoena," replies the other, "to see you this morning."

"Oh, yes, I remember," remarks the assistant. "You're in the Holohan
case, aren't you? Woman stole your teapot, didn't she?"

"Yes," mutters Mr. Appleboy, "she did, some time ago. What can I do for
you?"

"Well, I want you to tell me about the case," mildly explains the
assistant. "Who's Maria Holohan, anyway?"

So Appleboy begins at the beginning and tells the whole story through,
while, from time to time, the assistant laughs softly to himself. When
the history is concluded, the young man leans back in his chair, blows
a ring of smoke towards the ceiling and exclaims: "That's always the
way! Some miserable little shyster gets hold of 'em in the Tombs and
swears that he can get 'em off, no matter how plain the facts are, or
even if they have pleaded guilty in the police court. Well, I'll make a
note of the case, and when it comes up for trial you'll get a subpoena.
Sorry to have had to bother you. Good-morning!"


DELAY THE FIFTH

Appleboy departs. Three days later he gets another subpoena to appear
before the Court of General Sessions. When the case is called, however,
Maria's lawyer gets up and moves for an inspection of the grand jury
minutes upon the ground that there was not sufficient evidence before
that body to warrant the finding of an indictment. The judge denies
this motion peremptorily, since there has already been a hearing in the
police court. Upon this the attorney states that he is actually engaged
in a trial of another action elsewhere. The case therefore "goes over,"
of necessity. Nearly three weeks have now elapsed since the theft.
Presently Appleboy gets another subpoena. He trots down to court half
an hour before the opening. The case is marked "Ready." He is told
to remain in court, but some other case is already on trial, having
lasted over from the day before, and at noon it is still in full swing.
The court adjourns for an hour, from one to two. Appleboy returns
obediently at that time, but the case which was on trial in the morning
continues throughout the entire afternoon. He departs at four o'clock,
furious.

Next morning he is dragged down again. This time, however, the case
against Holohan is adjourned without date, owing to the fact that
Maria's counsel has applied to the court for a commission to take
testimony in Boston. They intimate that they may interpose the defence
of insanity, or at least dipsomania, and evince an unaccountable
eagerness to examine Maria's great aunt, who is acting as general
housework girl for a minister's family in Roxbury, Mass. The district
attorney strenuously opposes this motion. The judge, however, "takes
the papers," as he is obliged to assume that the request is made in
good faith.


DELAY THE SIXTH

Appleboy hears nothing of the case for another week. At the end of that
time he gets a subpoena of a different color, and again journeys down
to court. But this time he first seeks out Smith in his office and asks
if there is any likelihood of the case being tried that day. Mr. Smith,
whose room is thronged with witnesses, tells Mr. Appleboy that he is no
longer assigned to that part of the General Sessions on whose calendar
the case appears, and that another assistant, Mr. Jones, will have to
try the case. He therefore conducts Mr. Appleboy to an adjoining office
and presents him to Jones.

The latter receives Appleboy courteously and assures him that he will
try the Holohan case the very first of all. They talk the matter
over and unite in their objurgations against defendants' lawyers in
general. Jones, however, is confident that this time they will succeed
in disposing of the matter. They adjourn together to the court-room.
But on the call of the calendar Maria's lawyer claims that one of his
most material witnesses is absent, and that without him his client's
interests would be jeopardized. The judge, who by this time has
correctly gauged the situation, nevertheless directs him to go on with
the case. The lawyer then states that he has had a bad night and feels
very unwell. The judge continues unsympathetic. The assistant is openly
skeptical. The attorney thereupon is suddenly taken with great pain and
retires for air to the corridor outside the court-room. Nothing can be
done. Perhaps the lawyer really has a pain.

The assistant shrugs his shoulders and announces that he will move the
case of Michael Angelo Spaghetti, indicted for assault; the defendant
is ordered to the bar, and the court directs the clerk to announce that
"no other case will be tried" that day.

Appleboy drags himself with the rest of the throng through the door
into the corridor. This is the third time he has practically given up
an entire morning to appearing as complainant in a case which seems
fated never to be tried. He goes downstairs swearing vengeance against
Maria and her lawyer. This performance is repeated possibly some
four or five times more with variations. But he never gets nearer
than having the case marked "ready," and something always intervenes,
Maria's lawyer exhibiting an almost supernatural cleverness in the
invention of excuses.

On all these occasions, while awaiting the call of the calendar,
Appleboy is likely to sit in close proximity to the defendant, who
has been released on bail pending her trial, and who casts withering
glances in his direction. Her brother Terence also seizes the
opportunity presented by the various adjournments to tell Appleboy what
he thinks of him and what he intends to do to him after the case has
been disposed of.

The district attorney has done everything in his power to force
the defence to trial, but his every attempt has been unavailing.
Nevertheless, Appleboy blames him personally for every idiosyncrasy of
the law and for every delay procured by the defence.


DELAY THE SEVENTH

It was now the end of June. Mr. Appleboy has planned to take his family
abroad, but, although the annual adjournment of court for vacation is
at hand, through the dilatory tactics of Maria's pettifogging counsel,
the case is still untried.

Appleboy had been in attendance at court eleven separate times, but the
only satisfaction which he receives is the assurance that he will be
paid fifty cents for each one of his subpoenas. He is by this time so
disgusted with the whole business and has taken such a fierce dislike
to all judges, district attorneys, policemen and lawyers, that he
would long ago have thrown up the case had it not been for the fact
that he has a vague idea that in so doing he might be compounding a
felony. His desire to set an example as a model citizen has long since
evaporated. Countless members of the Holohan family beset him at home
and at the office, beseeching him for clemency.

It is possible that without consulting the district attorney, and under
the assumption that he must remain at hand as a witness, he gives up
Europe and takes a house on the mosquito coast instead. His wife is
very unpleasant about it. She hints that Appleboy need not have been
so vindictive in the first place. After he has cancelled his passage,
and the whole family are safely ensconced for the summer, Appleboy
discovers that cases in which the defendants have been released upon
bail are not tried during July, August, and September. Appleboy's
feeling can be easily imagined. It is needless to say that he does not
impart the information to his lady.

The summer proves generally unsatisfactory. The visits of Maria's
family and their efforts to persuade him not to prosecute are
redoubled. Most of them are domestics on their evenings "out,"
plentiful of tears and reproaches. It is impossible to escape them. He
also receives numerous letters from the lady's attorney suggesting that
he call at the latter's office. These he has systematically ignored.


DELAY THE EIGHTH

October comes. The family return. Once more the familiar subpoena
is served upon our hero at his office. At the sight of it he scowls
fiercely as he watches the white smoke sailing up the air shaft into
the azure of the sky. It is a beautiful autumn day. He recalls the
police court, and the grand jury, the Criminal Courts building, the
General Sessions, and Maria and Terence, and his miserable summer!
Vestryman Appleboy mutters something very much resembling profanity.
He thinks: "If I had not tried to punish that cook for stealing the
teapot, why!--I might be spending to-day in Rome or Paris!" The next
morning, however, finds him once more on his dreary way to court.

He consults Jones again upstairs, who promises by all that is holy that
nothing shall prevent a trial. The case is marked "Ready," without
opposition, and the assistant district attorney moves the indictment.

"Maria Holohan to the bar!" calls the clerk, as a jury is rapidly
empanelled.

Appleboy is exultant. He is to reap the reward of virtue and fidelity
to principle. At last the criminal is to be made to pay the penalty. He
looks eagerly for Maria.

"Holohan! Maria Holohan!" reiterates the clerk.

But Maria comes not.

"Call her in the corridor," directs the judge to the officer at the
door.

There is a sudden silence in the court-room. No response is heard
outside.

The assistant district attorney says something to the judge, who nods
to the clerk.

"Maria Holohan, come forth and answer pursuant to the terms of your
recognizance or your recognizance will be forfeited," shouts that
official.

There is no reply.

"Terence Holohan, bring forth Maria Holohan, for whom you are bound
pursuant to the terms of your recognizance, or your recognizance will
be forfeited," solemnly intones the clerk.

Terence arises and comes slowly forward from where he has been sitting.

"Are you the bondsman in this case?" asks the clerk.

"Oi am!" replies Terence.

"Where is the defendant?"

Terence looked sheepish.

"Where is the defendant?" repeats the clerk sharply.

"In Ireland! Bad cess to her!" answers Terence. "And divil a bit can Oi
bring her forth," he murmurs, "whin she's in the ould country!"

"Forfeit the bail!" orders the judge.

Appleboy grasps the arm of the assistant.

"What's the trouble?" he asks anxiously.

"She's skipped!" answers the other with a grim laugh. "That's all."

"H--l!--I mean, thank God!" exclaims Vestryman Appleboy.

This, gentle reader, is what _might_ happen to you if your cook should
steal the teapot.



CHAPTER VIII

RED TAPE


Mr. Appleboy makes his way from the court-room to the corridor of the
Criminal Courts building a sadder, wiser and more chastened member of
society. He now has personal knowledge of the way in which our criminal
laws are enforced and some idea of the administration of criminal
justice in general in New York City. He has been dragged down to the
Criminal Courts building, to the district attorney's office, the grand
jury room, and the General Sessions not less than a dozen times, and he
now takes a solemn vow that never, if he can possibly avoid it, will he
be prevailed upon to go there again.

Our defeated hero on reaching home finds Mrs. Appleboy waiting luncheon
for him.

"Well, Silas," she inquires, "has that woman been convicted at last?"

Her husband laughs somewhat shamefacedly.

"No; I'm afraid she has gotten the best of us," he replies, unfolding
his napkin and beaming pleasantly upon his better half. "The fact is
that she has skipped her bail--gone back to Ireland."

"What!" returns Mrs. Appleboy. "Do you mean to say that that woman has
been allowed to get away after you have been doing nothing, apparently,
for the last six months but spend your time in those miserable
court-rooms down there? It's outrageous."

"Oh, you can't help that," he replies, "so long as prisoners are
admitted to bail--they have the sacred privilege, guaranteed under our
Constitution, of running away."

"Rubbish!" exclaims the lady.

"And do you know," continues Appleboy, "it really is a tremendous
relief to feel that I shall not have to take the witness stand and be
cross-examined as to my past career by some miserable little shyster
lawyer from the Tombs."

"Why, Silas," interrupts his wife sharply, "what have you been doing
that you are ashamed to tell of?"

"Oh, I didn't mean that," he adds hastily, "but they ask such
embarrassing questions; I might have to tell how much property I own,
and then the tax collector would get after us."

"Speaking of property," continues Mrs. Appleboy, "where's the teapot?"

Appleboy gazes at her blankly. In the excitement attendant upon Maria's
non-appearance in the court-room, the family heirloom had completely
escaped his mind.

"I forgot all about it," confesses Appleboy.

"Silas!" cries his wife. "I should think that after all your
experiences you would have had sense enough not to leave the Criminal
Courts building without bringing that teapot with you. How do you know
Maria hasn't taken it with her to Ireland?"

"Oh, I'm sure she hasn't," answers her husband; "it's down at the
police station; they tagged it, you know, and left it in the custody of
the sergeant."

"Well, hurry through your dinner," commands his wife, "and go right
down and get it. I am surprised at you."

Appleboy skips his usual demi-tasse and fragrant perfecto, the result
of which omission is to leave him but half satisfied and with a feeling
of incipient indigestion, and betakes himself as fast as possible
to the police station, where he has last seen the teapot. Now the
police station, as is a way with police stations, is located without
any reference whatever to the conveniences of transportation, hence
Vestryman Appleboy is obliged to walk some ten or twelve blocks towards
the river after a heavy meal, and reaches his destination very much out
of breath and in a distinctly ill humor. To his surprise the doorkeeper
at once recalls him.

"How are you, Mr. Appleboy? Come right in," says that functionary in
greeting.

"How do you do?" responds Appleboy. "I have come to get my teapot."

"Ask the sergeant about it," directs the doorman.

So Appleboy makes his way to the desk, where he is again recognized,
this time by the sergeant on duty.

"Well, Mr. Appleboy," remarks the sergeant, "what became of that cook
of yours? She was a bad one! I hope they convicted her."

"They did not," replies Mr. Appleboy; "they didn't even get a chance at
her. She got away."

"Jumped?" inquires the sergeant with a grin.

"That's what she did," acknowledges Appleboy, "after she had kept me
chasing up and down for nearly six months."

"Oh, she was a sly one," answers the sergeant sympathetically. "A
little vacation up the river would have done her good."

"I suppose there's no objection to my having the teapot back, is there?"

"Sure not," answers the sergeant. "It's yours, ain't it? Of course you
can have it back."

"Do you mind letting me have it then?" asks Appleboy.

"Oh, we haven't got your teapot!" exclaims the sergeant. "That was
handed over to the property clerk at Police Headquarters. I suppose
when the case was set for trial the pot was sent down to the district
attorney's office; he's probably got it locked up in his safe,--I mean
whatever assistant was going to try the case."

"Well, well," says Mr. Appleboy; "of course, I assumed it was right
here, where I saw it last. What would you advise me to do?"

"Better go right down and see the assistant district attorney," says
the sergeant. "Skipped her bail, did she? Well, that's a pretty good
one, too!"

Although it is now three o'clock, Mr. Appleboy goes to the nearest
elevated station and takes the train down town. This occupies about
half an hour. He gets off at the corner of Franklin Street and walks
to the Criminal Courts building. He is now thoroughly familiar with
this lugubrious locality and finds the elevator without difficulty,
ascending amid the usual odoriferous company to the floor upon which
Mr. Smith, the assistant district attorney, has his office. Mr. Smith's
door, however, is locked, and inquiry from a deaf attendant in a
neighboring corridor elicits the fact that the assistant is engaged
in trying a murder case in Part IV of the General Sessions. Appleboy
now bethinks him of Jones and forthwith descends to the next tier of
offices, but there finds to his chagrin that the latter also is trying
a case.

Determined not to be thwarted by any such trifling matter, our hero
takes the elevator to the second floor of the building, upon which the
court-rooms are located. He first applies at Part I. The superannuated
attendant at the door eyes him sharply, asks him for a subpoena,
and upon his failure to produce it denies him admittance. Appleboy,
naturally indignant, inquires the reason. The watchdog at the door
brusquely replies that persons having no business in the court-room are
not permitted to enter.

"But I want to speak to Mr. Jones."

"Well, he can't see you now, anyhow," replies the doorkeeper. "It won't
do you a particle of good to go in; he's right in the middle of summing
up the case to the jury."

This seems a sufficient excuse, even to our much-annoyed old gentleman,
and he thereupon makes his way to the court-room in which he has been
informed that Smith is disporting himself. Here he makes a second
attempt to secure admission. On this occasion there is not even the
question of a subpoena. No one can be admitted, because the judge is
"charging the jury." The answer is definite and final.

The doorkeeper, however, is a good-natured, genial, warm-hearted
Irishman, and notes with some sympathy the disappointment and chagrin
of the weary little old man. Appleboy observes the benignity of the
other's expression and tenders a cigar,--not what is commonly known
about the building as a "cigar" (six for a quarter) or even a "good
cigar" (a ten-center), but a bang-up, A-1, twenty-five-cent Havana,
with a gorgeous coat of many colors. Being very tired he lights another
for himself. The two converse amicably.

It now develops that the doorkeeper not only remembers Appleboy,
but the case and the teapot, and finally, having become conversant
with the entire situation, he pronounces judgment, namely, that Mr.
Appleboy will find the teapot at the property clerk's office at Police
Headquarters; that while it is possible that it might remain in the
custody of one of the assistants, or in charge of the property clerk,
attached to the district attorney's office, it is very unlikely that
such is the case, since the defendant was never placed on trial. He
therefore advises Appleboy to return with all haste to 300 Mulberry
Street and secure the return of his property from the person there
having it in charge. Appleboy is very much pleased; he begins to
regard himself as quite a "mixer," while for a brief moment visions of
running for mayor or perhaps for alderman hover in his mind; and after
presenting the doorkeeper with a couple more Havanas he makes his way
out of the building upon the Center Street side.

Appleboy supposes, as is not unnatural, that Police Headquarters must
be somewhere in the immediate neighborhood of the Criminal Courts
building. A laborer, in response to his question, waves his hand in a
northerly direction, and Appleboy sets out, traversing what seems to
him to be an interminable distance. Every one whom he addresses states
that Headquarters is just a block or two farther on. Soon he finds
himself on Mulberry Street; swarms of little children congregate upon
the sidewalk and pass comments upon his appearance; Italian ladies
in faded négligée look down upon him from upper windows; bunches of
macaroni in a half-solidified condition stream from frame-works erected
in the areas, and Appleboy shudders as he thinks of the germs wafted
down the side streets and from the open windows of the tenements which
must, as he believes, collect and form a thick crust upon the surface
of this unattractive variety of nutriment. From time to time he crosses
the street for the purpose of avoiding a fight between small boys or a
group of children dancing around an organ; occasionally he is obliged
to walk in the middle of the street itself. After twenty minutes he
comes in sight of an inhospitable-looking structure, which, he is
informed by the peanut seller upon the corner, is that for which he
seeks.

"Polica Headquarta!" chatters the Italian and grins; he knows well
enough what it is, and "many there be that go in thereat."

Appleboy crosses the street and ascends the steps, meeting as he does
so a squad of policemen who bang open the door and come marching down
in pairs. He shrinks to one side, and then timidly makes his entry. An
officer in the hall inquires his business.

"I desire to see the property clerk," says Mr. Appleboy, "and to secure
the return of a teapot which was stolen from me."

"The property clerk's office closes at four o'clock," says the officer;
"you'll have to come to-morrow morning, at nine."

Appleboy is disgusted; he has spent what is practically an entire
afternoon in the pursuit of his teapot and has accomplished nothing.

"It's outrageous," he cries; "the idea of a public office closing at
four o'clock in the afternoon! What do these fellows do, I would like
to know, to earn their salary? Nine to four,--pooh! Why, it isn't half
a day's work."

The officer has turned on his heel and walks slowly away, leaving Mr.
Appleboy fuming by the door. The corridor is musty and dark, its stone
flagging worn by the tread of millions of heavily booted feet. Poor old
Mr. Appleboy is very tired; the dingy windows, the gloomy corridor, the
unsympathetic policeman, the noise and smells of the Italian quarter,
the weary trip to the district attorney's office and to the station
house have brought him almost to the verge of tears. He is ashamed to
go home and tell his wife that he has accomplished nothing,--he has not
even _seen_ the teapot. Feeling very small indeed Appleboy pushes open
the door and passes out upon Mulberry Street. No one notices him; in
this official world a bank president is but a unit among the countless
multitudes of the public. He stumbles into a subway train, seeks
sanctuary in his club and takes a Turkish bath.

Let us pass over the painful scene upon the return of Appleboy
teapotless. His lady is hardly to be blamed for showing irritation over
her husband's failure to recover that interesting relic and valuable
domestic adjunct. She knows she could have done much better herself.
At any rate she would not now calmly return home from the court with
the humiliating admission that the prisoner had escaped and that the
teapot had disappeared. Things are very unpleasant that evening, and
no suggestion on the part of Appleboy that they go to the theatre or
the opera will bring a smile over the features of his irate spouse.

The next morning Mr. Appleboy is up betimes. He does not wait for his
wife to come down to breakfast, but pours himself a cup of coffee and
snatches a roll at the sideboard. A quarter to nine finds him at Police
Headquarters. In the clear morning sunshine the building does not look
so repellent, and he trots up the steps, pushes open the door, and,
avoiding his adversary of the afternoon before, saunters nonchalantly
down the corridor until he sees a small door at the top of a couple of
steps bearing the legend, "Property Clerk's Office."

The property clerk, whoever he is, is already there. Appleboy finds
himself in a small room divided by a wire grating; this has a small
opening through which he is obliged to converse with the official in
charge.

"I have come to get a teapot which was stolen from me," explains
Appleboy.

"What is the state of the case?" inquires the property clerk.

"The thief has forfeited his, I mean her, bail," replies our hero.

"What was her name?"

"Maria Holohan."

"When did she steal the teapot?"

"Last June."

"Where did you last see the teapot?" asks the clerk.

"At the station house, with a tag on it," Appleboy replies.

"Well, what makes you think we have it?" asks the clerk.

"Why, the policeman down at the court-room told me that you kept all
the property which was retained as evidence," answers Appleboy.

The clerk rapidly turns over the leaves in a large book. Evidently he
finds what he is looking for and, nodding, answers: "Well, here's the
record of the case. One silver teapot, value fifty. Officer making
arrest, Patrick McGinnis. Prisoner's name, Maria Holohan. Claimant's
name, Silas Appleboy. That's you, is it? Stolen property, teapot. Held
for evidence, yes. There you are, and you say now she skipped her bail?"

"Certainly," answers Appleboy.

"And you want the teapot?"

"Of course I do," answers Appleboy.

"Well, first you have to get an order from the court to that effect,"
says the clerk.

Appleboy almost loses his temper. Has he got to make another trip down
to that miserable Criminal Courts building?

"Look here," he exclaims rather angrily, "what is the sense of all this
red tape? The case is over, I own the teapot,--why don't you give it to
me and be done with it?"

The clerk smiles,--a trifle condescendingly, thinks Appleboy.

"My dear sir," he says, "are you aware that I have no means of knowing
that you are the Silas Appleboy who owns this teapot, except your own
say so?"

"Isn't that enough?" shouts Appleboy.

"It ought to be," responds the clerk, "but sometimes it isn't. I don't
even know that the woman has skipped her bail."

Appleboy begins to see the force of the clerk's argument.

"I never imagined that a gentleman would be tossed about from pillar
to post, as I have been since I lost that teapot. What is it you say I
must do; get an order from the mayor?"

"No, no,--the judge," answers the clerk.

"How shall I get it?" inquires Appleboy rather huffily.

"Oh, ask the assistant district attorney; he will probably get it for
you."

"Thank you," says Appleboy stiffly, and marches out. This time he takes
the subway to Canal Street, reaching the Criminal Courts building a few
moments after nine. Much to his surprise Mr. Smith is already down at
his office hard at work.

"Ah, Mr. Appleboy, good-morning to you," he exclaims.

"How are you, Mr. Smith?" responds Appleboy. "I have come after that
confounded teapot."

"Oh, the one your cook stole. I remember it well. Where is it?"

"At Police Headquarters," responds Appleboy, "and they want me to get
an order from some judge or something before they will give it up to
me."

"That's easily managed," responds the assistant, "but you have to get a
waiver from this office of any claim that we may have upon the teapot
as evidence. There is a regular printed blank. I think, inasmuch as
Jones was actually going to try the case when Maria skipped her bail,
that he had better fill it out. After you get it, come back here and
I'll make the application for you."

Appleboy begins to feel better. Here is some one that knows his
business. He lights a cigar and descends to the next floor, where he
finds his old friend Jones. Jones is quite ready to give the desired
waiver, and selects one from a pigeon-hole in his desk. He fills it out
to read as follows:

 New York, October 7, 1907.
 District Attorney's Office,
 County of New York.

 The People of the State of   }
   New York on the complaint  }
   of                         }
                              } For Grand Larceny
       Silas Appleboy         } in the Second Degree
       against                }
       Maria Holohan.         }

  This office has no further use for the property taken from the
  defendant in this case, and now in the possession of the property
  clerk of the police department. No objection is therefore made by me
  to its delivery to any person who proves to your satisfaction his
  right to the possession of the same,--one silver teapot.

 A. BIRD,
 District Attorney.
 Per William Jones, D.A.D.A.

  To the Property Clerk of the Police Department, Borough of Manhattan,
  City of New York.

"Now we'll go down and see if the judge will give us an order," says
Jones.

"Why, is there any doubt about it?" inquires Appleboy, fearful that
perhaps after all he is going to lose his teapot.

"It all depends on circumstances," answers Jones. "Some of the judges
are perfectly willing to give orders while others are not. You see, the
trouble in your case is that the woman has never been tried, so that
the question of whether or not she stole your teapot has really not
been decided at all."

"The wicked flee--!" murmurs Appleboy in his most approved Friday
evening manner.

They take the elevator down to the second floor, and make their way to
that part of the Sessions upon whose calendar Maria's case appeared at
the time she forfeited her bail. A trial is going on, and a pompous
little lawyer is cross-examining a stout lady who weeps and laughs
hysterically by turns. As the lawyer pauses for breath Mr. Jones arises
and addresses the court.

"May it please your Honor, in the case of the People against Maria
Holohan, charged with grand larceny, the bail in which was forfeited
before your Honor about a week ago, I desire to apply for an order
directing the property clerk at Police Headquarters to turn over the
property, namely a silver teapot, to the complainant, who is here in
court."

"But the case has never been tried, you say, Mr. Jones," objects his
Honor.

"That is all very true," returns the assistant, "but the woman has run
away, her bail has been forfeited, and judgment entered and satisfied."

"Supposing, however, she were captured and brought back and tried, how
do I know but that the jury might acquit her? And they might acquit her
on the specific ground that the teapot belonged to her, and not to the
defendant. I should then be in a position of having directed its return
to a person to whom it did not belong."

"Of course what your Honor says is entirely correct," answers Jones,
"but it is unlikely that we shall ever hear of the case again."

"I don't know about that," answers the judge. "Your office might become
suddenly extremely energetic and try to extradite her."

"Well, it seems rather hard on Mr. Appleboy," responds Jones.

"Of course it's hard; he has my entire sympathy," replies the judge;
"but I cannot take the responsibility of deciding who owns property in
a case which has not been tried. I am not here for that purpose. Let
him take the proper legal steps to secure the return of his property in
the civil courts."

Appleboy, who has understood very little of this colloquy, but who
supposes that, for some entirely insufficient reason apparently, the
judge is trying to block his efforts to secure the return of his
property, suddenly jumps to his feet and shouts:--

"Look here, your Honor, I would like to have a word about this, if I
may! That teapot of mine was stolen last June; I caught my cook in the
very act of selling it to a pawnbroker; I had her arrested on the spot;
she admitted her crime, and acknowledged her guilt in the police court.
My teapot is tagged and locked up in a room at Police Headquarters,
and they won't give it to me unless your Honor will grant an order
directing them to do so. Kindly tell me what I am to do."

The crowd in the court-room titters and the court attendant raps
loudly with a paper-weight on the oaken railing for silence. The judge
regards Mr. Appleboy good-naturedly.

"I am very sorry you have had so much trouble. My position in the
matter simply is that I cannot personally take the responsibility of
deciding to whom this property belongs, particularly when no jury has
ever passed upon the guilt or innocence of the defendant. I shall be
very glad, however, to approve any certificate which the district
attorney may choose to give you stating that he has no further need or
use for the property."

Appleboy brightens.

"Your Honor," says he, "Mr. Jones has already given me such a
certificate, and I shall be much obliged to you if you will approve it."

Jones hands it to the judge, who writes the word "Approved" upon it,
then returns it to the assistant.

"You will observe," says his Honor, "that all I do in the matter is
to approve the statement of the district attorney that he makes no
objection to the delivery of the property to any person who proves to
the satisfaction of the property clerk his right to the possession
of the same. My approval really does not amount to anything at all.
I cannot grant you a court order. I am aware that several of my
associates might do so under exactly similar circumstances, but I
personally do not care to assume any such responsibility. Proceed with
the case on trial."

Out in the corridor Appleboy inquires anxiously of Jones how on earth
he is going to prove to the satisfaction of the property clerk his
right to the possession of the teapot.

"Oh, you won't have any difficulty at all," says Jones; "this
certificate from us, with the judge's 'O.K.' on it, is equivalent to a
court order, even if it is not one technically."

"I don't know," answers Appleboy doubtfully; "this paper seems to leave
it up to me to persuade the intelligence of the property clerk."

"You won't have any trouble," laughs the assistant. "Good-by."

Mr. Appleboy leaves the building once more, and again takes the subway
to Police Headquarters.

"Back again?" inquires the property clerk pleasantly.

"I have a certificate from the district attorney, approved by the judge
giving you permission to return the teapot to me," says Appleboy,
shoving the paper through the wicket.

The clerk takes it.

"This isn't a court order," says he. "Still, if the woman has skipped
her bail and the judgment has been satisfied, I guess we can take
a chance and let you have your teapot, provided of course you are
properly identified. You see, so far as we know, you may have picked
this certificate up on the street. The thing for you to do is to get
hold of the officer who made the arrest, and who knows all about the
case, and have him identify you."

"How shall I do that?" asks Appleboy, very much irritated. "I don't
know where he is; I can't go chasing all over the City of New York
after police officers; I'm sick of this whole business; you know
perfectly well I am Silas Appleboy, else I shouldn't have this paper,
and I shouldn't be around here trying to get that teapot."

"Don't be too sure about that," replies the property clerk. "We have
had three women here at the same time claiming the same pair of diamond
earrings, and each woman looked absolutely respectable. One of them
came in a carriage with a footman. We found out afterwards that the
earrings didn't belong to any one of them, but to an entirely different
person."

Appleboy loses all patience. Just as he is about to place his hands
upon the teapot, _presto_, it vanishes. Two Italians and a Chinaman,
escorted by an officer, now elbow past Appleboy, who disconsolately
gives them place. He is "up against it" again; there is no help for
it; rules are rules and the law is the law. How now to find Patrick,
the officer! He begins to wish he had been nicer to Patrick;--if he
had been a little more liberal in the way of cigars at the time the
teapot was stolen, things might have been very much easier for him
now. He utters an imprecation under his breath against all policemen
and police red tape. Grinding his teeth, he goes to the nearest
telephone booth and asks to be connected with the precinct to which
Patrick is attached. The operator refers him to 3100 Spring, namely,
Headquarters,--but there he is informed that private citizens may
not be connected with police stations. He hangs up the receiver with
something almost like an oath, Poor Vestryman Appleboy! Let us not be
too hard upon him.

It is now half-past eleven o'clock. He takes the car uptown and returns
to the station house, but the sergeant informs him that Patrick is down
in the Criminal Courts building as a witness in a burglary case. This
is the last straw. Frenzied, he rushes from the station house, takes
another car and sits tensely until once more he is at the Criminal
Courts building. Fortunately he has had the forethought to inquire of
the sergeant to which of the four parts of the General Sessions Patrick
has been subpoenaed, and he now finds that it is the same court-room at
the door of which presides his friend of the day before. The doorkeeper
greets him genially, and in response to Appleboy's inquiries replies,
shure, that he knows Pat McGinnis;--that Pat has been there all the
morning, but has just shtepped out over to Tom Foley's saloon. Although
Appleboy has not been inside the portals of such a place since he was
nineteen years old, he frantically inquires its direction, and, fearful
lest he lose the object of his search, dashes across the street to the
corner bar-room.

The little old gentleman with the shining silk hat sticks his head
timidly through the door and observes Patrick at the end of the bar
crooking his elbow in the customary manner. He draws an inspiration
from the sight; with a bland smile he steps up to the bar himself,
slaps the officer familiarly on the back and, pulling off his gloves,
remarks, "Well, Pat, old boy, how do you feel? Have another on me!"

Patrick gazes at him open-mouthed. Can this be the stiff, little old
bank president he knew six months ago? But there can be no question
as to Appleboy's intention when he hears the latter order "two rye
high-balls _and another-for-yourself_" of the astonished barkeeper.
Appleboy toasts Patrick, Patrick toasts Appleboy. Patrick produces
cigars; Appleboy replaces them with others, larger and thicker than any
seen at Foley's.

"By the way," says Appleboy, "step up to Police Headquarters with me,
will you, Pat? Now that I happen to be down this way, I might as well
take that teapot home with me, don't you know."

"Shure," says Pat; "court's adjourned by this time, and I can get back
by two o'clock all right."

The best of friends, they go up in the subway together to Police
Headquarters. With a bold front and fearless eye Appleboy enters
the office of the property clerk, produces his certificate from the
district attorney, and demands his teapot.

"This officer will identify me," says he.

"Shure I indentify him," announces Pat.

The clerk takes the certificate, opens the record book and, with a
rubber stamp, enters up on the back of the original report the words:

  "_Identified by officer_

  _as owner of the property_."

"Write your name there," says he to Patrick, and McGinnis laboriously
scrawls his name between the lines.

The clerk now disappears into an adjoining room, presently returning
with an object about the size of a football, wrapped in coarse paper,
tied with a multitude of strings and bearing a tag.

"Here you are, sir," says he, opening the door in the wire grating and
passing the football to Appleboy, whose heart beats wildly.

The clerk then stamps the words "_Delivered on identification of
officer_" upon his record book, closes the same with a slam and turns
aside to other more important business. How simple it all is when you
once know how to do it!

"Easy, ain't it?" remarks Pat.

"Easy as rolling off a log," answers Appleboy with a grim smile.



CHAPTER IX

THE TRIAL OF FELONIES


It is a fact, which may at first appear paradoxical, that the jury in
the ordinary run of criminal cases passes upon the guilt or innocence
of very few professional criminals. A moment's consideration will
reveal the reason. The professional criminal usually has a "record"
and he knows full well that in view of his past history, if there be
any sort of a case against him, his own defence, however eloquent or
ingenious, will go for nothing. An affirmative answer to the simple
question, "Have you ever been convicted?" is, in three cases out
of five, equivalent to a plea of guilty. Now it is an understood
thing that any prisoner, who is willing to admit his guilt and save
the county the expense and trouble of a trial, shall receive some
consideration in return therefor when it comes time to impose his
sentence, and usually he expects to receive in addition a guarantee
of good faith from the assistant district attorney in the shape of
the latter's acceptance of his plea to a lower degree of the same
crime. The real "gun" is apt to have his life pretty well mapped out.
He anticipates serving about so much time "in stir" and figures on
beating about every other case before it reaches an actual trial. If
worst comes to worst, and he finds he must face a jury of his peers, he
dickers for the lowest plea he can get. Whole court terms often go by
without a single professional crook being actually tried. If one of
them is "caught with the goods" he generally throws up his hands and
stolidly takes his medicine.

The ordinary citizen quite naturally gains his impressions of the
administration of criminal justice by reading accounts of sensational
trials. He imagines that the daily life of the prosecutor consists in
demanding the conviction of hardened felons with sordid, crime-tracked
features, varied by occasional spectacular "star cases" where counsel
for the defendant and the prosecutor vie with one another in stupendous
outbursts of oratory in which the bird of liberty screams unrestrained
and Justice frantically waves her scales. He supposes, if he gives
the matter any consideration at all, that defendants languish away
their lives in the Tombs waiting for trials which never come, and
that influential criminals walk the streets while the indictments
against them lie accumulating an overcoat of dust in some forgotten
pigeon-hole. He frankly assumes that the jury system is pretty nearly
a failure, and knows of his own knowledge, or thinks he does, that any
one with enough money can either avoid being tried for crime at all or,
if by any mischance he be convicted, can easily escape punishment or at
least delay it indefinitely by technicalities of procedure and appeals.
In his customary dialect he "has no use" for the criminal or the
criminal courts, and his only dread is that he may some time be drawn
as a juror and be compelled to serve in a region of the city where he
will be unable to find a satisfactory place to get his lunch and in the
society of those whose companionship he fancies he is not likely to
enjoy.

Let us assume that Mr. Ordinary Citizen has been so unfortunate as to
receive one of those pink slips which call upon him to "all business
or other matters lay aside" and to attend at Part I of the General
Sessions of the Peace at ten o'clock on the first Monday of the month.
He finds himself in a large and well-lighted court-room, at one end
of which, on a dais, sits a judge more or less surrounded by various
persons who continually approach and engage him in conversation. At
a desk in front, a clerk and his assistant are busy with piles of
documents, which "O.C." learns later to be indictments, and with big
ledgers which are in fact the "Minutes of the Sessions." The room is
crowded, all the benches being filled with a varied, but, on the whole,
a respectable-appearing assortment of humanity. In front of the judge
and clerk, wandering around inside an enclosure, at one side of which
stands the temporarily empty jury-box, are several young men who are
earnestly engaged in talking to the lawyers, complainants and policemen
who throng at the bar.

Suddenly the clerk raises his voice and shouts, "Harken to the call
of the calendar!" An officer pounds on a railing with a paper-weight,
another bellows, "Find seats there! An' quit talkin'!" and the judge,
gazing at a long sheet of foolscap in his hand, remarks inquiringly:

"People against Murphy?"

The young assistant district attorney at once answers:

"People are ready."

"If your Honor please," nervously exclaims a stout man pushing his way
to the front, "this case has never been on the calendar before. I was
only retained last night and I did not receive any notice that it was
to be tried until this morning. I ask that it go over until next week."

"What do you say, Mr. District Attorney?" asks the judge.

"Oh, it's a very simple case," answers the assistant. "There's no
reason why it should not be tried to-day."

"Well, I'll give you until to-morrow," says the judge. "You must be
ready _then_."

"People against Smith?" he continues.

Both sides happen to be ready in this case.

"People against McCord?"

"Defendant's going to plead," says the assistant.

"People against Vermicelli?"

"We expect to make a recommendation in that case, your Honor,"
announces the assistant,--and so it goes until fifteen or twenty cases
have been marked "Ready" or "Passed for the day" or adjourned to let
the defendant get his witnesses or, in point of fact, for the lawyer to
extract his fee.

The clerk then calls the roll of the jury, and after the rush which
ensues to present excuses to the effect that the talesman's health or
business is in a precarious condition, the court settles gradually down
to its routine work.

A jury is empanelled and a lank, seedy-looking youth takes his seat at
the bar between a spruce, bald-headed little man and a court officer.
He is charged with having "policy-slips in his possession."

So far "O.C.," our juror, has been impressed with the business-like and
cheerful manner in which the proceedings have been conducted. Most of
the lawyers, instead of clamoring for a trial for their languishing
clients, have exerted all their efforts to secure delays. Then he
learns to his surprise that the average length of time which elapses
between a defendant's arrest for felony and his trial, unless the
prisoner be out on bail, is _less than one week_.[27]

"Jury satisfactory to both sides?" inquires the clerk.

"Entirely so," reply the little bald-headed man and the prosecutor
together.

Suddenly the lank youth leans over and whispers to the lawyer, who
after a moment's conversation beckons to the prosecutor. There is a
brief consultation and the assistant tosses the indictment to the clerk
with the announcement:

"He pleads guilty."

The defendant gets up and shuffles to the bar, where his pedigree is
taken and a day set for his sentence, which, in the event of his never
having been convicted before, will probably be a fine of twenty-five
dollars or a month in the penitentiary.

"Call the next case," says the judge.

"People against Thompson," shouts the clerk. "Bring up Thompson."

The door in the back of the room opens and "Thompson" is "brought
up." He is a good-looking young negro, defended by a member of his
own race. The jury say they have no prejudice against negroes and are
sworn without leaving the box. The charge is one of assault in the
first degree--that is to say, with intent to kill. The complainant is
a flashily dressed young mulatto woman, who asserts that the defendant
"done crack her head wif an ice-pitcher," and produces the fragments
of pitcher, done up in a newspaper. She admits that at the time of the
unfortunate occurrence she was living with the defendant as his wife.
There are no other witnesses for the People, and the defendant is
sworn without more ado. He explains that the complainant accused him
of being too attentive to a "yaller gal" on the next street and when
he attempted to go out of the house she attacked him with a pen-knife.
In confirmation of this he exhibits a small cicatrix on his wrist.
After hearing the evidence the assistant announces to the judge that
the case ought in his opinion to have been disposed of in the police
court and that the interests of justice will be subserved if his Honor
will discharge the defendant on his own recognizance. This the judge
does with an admonitory lecture, and the defendant and the complainant
go away together. "O.C.," the juror, begins to conclude that the
assistant is a pretty fair sort of a chap.

Trial follows trial with great rapidity. Gradually the crowd in
the court-room thins out. By one o'clock only a dozen or fifteen
witnesses and spectators remain, and by half-past three the benches
are practically empty. "O.C." has heard a dozen different complaining
witnesses tell the story of how as many defendants have wronged them.
The Bowery merchant whose packing-cases have been broken into has
followed as complainant the man who has been robbed in a saloon;
the "clothes-line fight" has given place to the story of the actual
abduction of a young girl by a "cadet"; the landlady who has received
a bad cheque from a lodger can hardly wait to recount the history of
her misfortunes, for the man who has lost a horse and wagon through a
drunken driver, whom he charges with grand larceny.

Generally the "People's case" consists of the complainant's version
of what has occurred, somewhat corroborated by another witness or
two, and the officer who made the arrest. Then the lawyer for the
defendant takes his client by the shoulder and with a gruff "Go 'round
there, young man," or, if he be playing for sympathy, a gentle "Please
take the stand, William," starts him upon that most dangerous of all
adventures, a journey to the witness-chair in his own behalf. In two
cases out of three the defendant's own testimony, if he is guilty, is
what convicts him. Both sides "sum" up in short, disconnected speeches,
and the judge delivers a brief charge. The jury file out and another is
immediately sworn. As the next trial begins very likely the door from
the "pen" will open and the proceedings be interrupted long enough to
allow another prisoner to tramp around the court-room, take his stand
at the bar, and plead guilty.

"John Keenan, alias Foxy Keenan, alias Gum-Shoe Jack, do you now desire
to withdraw the plea of 'Not guilty' heretofore entered by you, and to
now plead guilty to grand larceny in the second degree?"

The defendant acknowledges with no very amiable expression that this
is his inclination, and his pedigree, which is taken by the clerk
forthwith, discloses that he has served five times in State's prison
and twice in the penitentiary. "O.C." looks at his fellow jurors and
whistles under his breath. That was the real thing and no mistake. Very
likely the jury upon which he is now serving will convict, it having
thus been brought to their attention by a concrete illustration that
all the defendants are not innocent persons unjustly accused of crime.
"Remanded," says the clerk, and Gum-Shoe Jack tramps back to the little
door and the interrupted trial goes on. The stream of complainants,
witnesses and defendants is as varied as that in Balzac's "Comédie
Humaine." "O.C." begins to take a keen interest and now and then to
put a question himself. He has taken the opportunity to make the
acquaintance of the assistant district attorney at the noon hour and
now feels that he is really a part of the machinery of justice.[28]

Ordinarily in a full court day there will occur from two to four
complete trials, while an equal number of pleas may be taken. Sometimes
a hundred and fifty cases will be got rid of by trial or plea in a
single term in one part of the General Sessions alone. On the other
hand, if the calendar is made up of "old-bail cases," indictments
for receiving stolen goods, misappropriation, and Italian or Chinese
homicides, the office accounts itself lucky in getting rid of half a
dozen cases in the month. Occasionally, when a brisk, business-like
judge is sitting, a "homicide calendar" will be disposed of at the rate
of one a day, but this is rare and can occur only when most of the
cases are for manslaughter or criminal negligence.

When trials are rapid their speed always redounds to the benefit, not
of the People, but of the defendant.

Such a performance in a court of justice as the following, recounted by
Lord Brampton, could not take place to-day. It is worth reproduction as
marking the progress of criminal procedure:

  The first thing that struck me in the after-dinner trials was the
  extreme rapidity with which the proceedings were conducted. As judges
  and counsel were exhilarated, the business was proportionately
  accelerated. But of all the men I had the pleasure of meeting on
  these occasions, the one who gave me the best idea of rapidity in an
  after-dinner case was Muirhouse.

  Let me illustrate it by a trial which I heard: Jones was the name
  of the prisoner. His offence was that of picking pockets, entailing
  of course a punishment corresponding in severity with the barbarity
  of the times. It was not a plea of "Guilty," when perhaps a little
  more inquiry might have been necessary; it was a case in which the
  prisoner solemnly declared he was "Not guilty," and therefore had a
  right to be tried.

  The accused having "held up his hand," and the jury having solemnly
  sworn "to hearken to the evidence," etc., the witness for the
  prosecution climbs into the box, which was like a pulpit, and before
  he has time to look around and see where the voice comes from, he is
  examined by the prosecuting counsel.

  "I think you were walking up Ludgate Hill on Thursday 25th about
  half-past two in the afternoon and suddenly felt a tug at your pocket
  and missed your handkerchief, which the constable now produces. Is
  that it?"

  "Yes, sir."

  "I suppose you have nothing to ask him?" says the judge. "Next
  witness."

  Constable stands up.

  "Were you following the prosecutor on the occasion when he was robbed
  on Ludgate Hill, and did you see the prisoner put his hand into the
  prosecutor's pocket and take the handkerchief out of it?"

  "Yes, sir."

  Judge to the prisoner: "Nothing to say, I suppose?"

  Then to the jury: "Gentlemen, I suppose you have no doubt? I have
  none."

  Jury: "Guilty, my lord," as though to oblige his lordship.

  Judge to prisoner: "Jones, we have met before--we shall not meet
  again for some time--seven years' transportation. Next case."

  Time: two minutes and fifty-three seconds.

But to return to our juror. What strikes "O.C.," who has now become
entirely disabused of his previous ideas of what criminal trials are
like, is the fairness with which those trials are conducted in the
General Sessions and the fact that the interests of the accused are
safeguarded in every possible way. Plenty of time is taken to try out
even a pickpocket case or a street-corner brawl. The judge always
covers the law fully and accentuates the necessity of giving every
reasonable doubt to the defendant. In his heart "O.C." begins to have
a slight feeling that the devil is getting a little more than his due.
He has acquitted so many of the persons who have been tried that
when he now sees a head he is not at all unwilling to hit it. He is
fast reaching that state of mind which the prosecutor has anticipated
when he has told his chief that in a few days he will have the jury
"knocked into shape," in other words, he no longer believes every
hard-luck story that he hears, he knows that certain criminal attorneys
are capable of almost any kind of misrepresentation, he realizes that
practically every defendant has already had a pretty exhaustive trial
in the police court before indictment, he is quite as anxious to see
the guilty convicted as he is to see the innocent acquitted, and he
has been properly disgusted with the attitude and actions of certain
of his colleagues in the jury-room whom he regards quite properly as
anarchists or idiots. The district attorney at the end of a week has
found out who some of these are. They have been "excused" for the
remainder of the term, and he can rely pretty safely on the others
rendering a fair verdict in any important case which he now desires to
move before them.

What naturally interests "O.C." and his fellow jurors most of all
is the defendant's own story of how he came to be involved in the
transaction out of which the charge against him arises. For the first
few days he very probably gives such explanations rather more credit
than they deserve, for he is sympathetically inclined to believe that
the prisoner is more likely to be the victim of circumstances than
guilty of an act of moral turpitude. The eager attitude of some of
the complainants likewise gives him an excuse for believing them to
be actuated by more than a mere desire to see justice done and to
have the truth prevail. He is inclined to look for hidden motives
for every prosecution. This gradually wears off and his attention
becomes centred on the defendant himself. Will he put in a defence?
Will he testify in his own behalf? What will he say? Little by little
"O.C." gets to inventing defences to fit the facts established against
the prisoner by the people's case. Meantime he is learning a little
law. That "the people must prove the defendant's guilt beyond every
reasonable doubt," and "that no unfavorable inference must be drawn as
against the defendant from his failure to testify in his own behalf."
"O.C." has some difficulty with the "reasonable doubt." Perhaps he
says to himself, "I am a reasonable man,--hence any doubt I have must
be reasonable." However, the judge's reiteration that not every doubt
is a reasonable one and that the words do not mean "a mere guess or
conjecture that the defendant may, after all, be innocent, but a
substantial doubt arising out of the evidence in the case, for which a
reason can be given," and of such a character as would influence him in
the important affairs of his daily life, eventually clears his mind on
this somewhat abstruse psychological problem, and he translates "beyond
any reasonable doubt" into the more lucid and comprehensive "moral
certainty" of ordinary existence.[29] But that he shall not permit
himself to be prejudiced against a defendant by the latter's refusal
to testify is a much more difficult matter. He knows it to be the law,
and he tries hard to obey it, but in a majority of cases he cannot
escape the sub-conscious deduction that if the defendant were innocent
he would not hesitate to offer an explanation. As time goes on and he
gains in experience it becomes even harder to follow the instructions
of the judge in this respect. He discovers that the district attorney
cannot prove the prison record or bad character of the defendant
unless the latter subjects himself to cross-examination by taking
the witness-stand, and hence is likely to suspect that any defendant
who does not testify is an ex-convict. Three jurors out of five will
convict any man who is unwilling to offer an explanation of the charge
against him. How they reconcile this with their oath it would be
hard to understand, if they were accustomed to obey it literally in
other respects. The writer has heard more than one talesman say, in
discussing a verdict, "Of course we couldn't take it against him, but
we _knew_ he was guilty because he was afraid to testify."

As the reader is doubtless aware, under the common law no defendant
in either a civil suit or criminal prosecution could testify in his
own behalf. He was regarded as a party in interest whose bias must
necessarily render his evidence of questionable, if of any, value.
This doctrine, along with many others, our fathers adopted on their
severance from England, and it continued to be the law in New York for
a long time,--in civil cases until 1849, and in criminal until 1869.
Then, ostensibly for the sake of the defendant and for the protection
of the innocent, the rule was abolished. That the change from the
common law was not generally approved either by the bench or bar of
New York is clear from the opinion of the Court of Appeals in one of
the earliest cases which arose under the new practice.[30] The court
expressed the opinion that the change would redound to the benefit
of the glib, quick-witted and hardened criminal who could invent a
plausible defence, and result in the confusion of the innocent man
unjustly accused of crime who might from stupidity or timidity involve
himself in apparent contradiction; to say nothing of the fact that
if the defendant did not take the stand the jury, however much they
were instructed to the contrary, would inevitably draw an unfavorable
conclusion from his failure to deny his guilt.

Now to any fair-minded American it must seem almost rudimentary justice
that the accused should have a chance to tell his own story. That in
itself is a sufficient reason for the rule. Just why, theoretically, if
a defendant does not see fit to give an explanation and subject himself
to cross-examination, the jury should _not_ be permitted to draw an
unfavorable inference is not so clear.

Experience has demonstrated that an innocent man need have no fear
about taking the stand. Jurors sympathize with a defendant who is
subjected to a withering fire of questions, and do not expect him to
be able to give a lucid account of himself since the day of his birth,
or to explain without the minutest contradiction every detail in the
evidence against him. But they do want him to deny his guilt and to
have an opportunity to "size him up." On the other hand, the slightest
word of explanation may suffice to change the whole complexion of a
case.[31] In the old days the guiltiest of criminals could, almost
with impunity, shield himself behind his lawyer's eloquent assertion
that his client had a "perfect defence," but that the law "had sealed
his lips." To-day in the vast majority of cases the prisoner who does
not take the stand is doomed. Out of three hundred defendants tried
by the writer's associate, Mr. C.C. Nott, twenty-three failed to take
the stand in cases submitted to the jury. Of these twenty-one were
convicted, one was acquitted, and as to one the jury disagreed. Had
these men been prevented by law from testifying in their own behalf,
the ratio would have been very different.

Thus a rule originally intended to benefit the innocent defendant by
_permitting_ him to offer his explanation of the charge against him has
practically resulted in _compelling_ all defendants, guilty or innocent
alike, to testify. It goes without saying that this has resulted in
a considerable benefit to the community. Its only disadvantage, and
this is probably more theoretical than practical, is that ex-convicts
on trial can no longer successfully conceal their pasts. If they do
not testify they will probably pay the usual penalty, and if they do
testify they are more than likely to be convicted "on their records."
Clever criminals often seek to avoid this dilemma by declining the
services of counsel and conducting their own cases, thus rendering it
impossible for themselves to take the stand, for in such an event there
would be no lawyer to examine them. This ruse is well calculated to
deceive the ordinary juryman.

The jury are also far less inclined to draw an unfavorable inference
from a defendant's failure to testify if, on the conclusion of the
evidence of the prosecution, he merely "rests on the people's case" and
puts in no defence at all, than if he puts in only a partial defence.
They readily appreciate that his counsel may honestly believe that as
matter of law no case has been made out against him, and they bend
their energies to the determination of the simple and unobstructed
issue of whether the uncontradicted evidence of the prosecution has
of itself established the guilt of the prisoner beyond a reasonable
doubt. If he puts in a defence and calls witnesses to contradict those
of the people, the jury are apt to concentrate their attention upon the
question of the relative truthfulness of the witnesses on either side.
Juries, quite naturally, are quick to infer guilt from any attempt at
deception on the part of the defence, and habitually visit the sins
of his witness upon the prisoner. Every criminal lawyer has had the
unpleasant experience of seeing his client convicted merely because
the jury have caught one of the witnesses for the defence lying on an
immaterial point. Whether the jury hear one or both sides of a case,
they inevitably labor under the disadvantage of never being able to
pierce the screen which the law has hung between them and the truth
in every case. Many a jury is struggling manfully with the question
of the defendant's guilt or innocence, while the latter sits in the
pen chewing the cud of narcotic contentment and wondering whether the
yarn he "framed" for them will be believed. He has figured out what he
is likely to get, knowing that even if he were found guilty the judge
would probably not "give" him "more than Elmira," and has resolved to
"take a chance." As the Elmira sentence is indeterminate, the defendant
has nothing to gain by pleading. Once there, he will be released in
fourteen months if his conduct appears to warrant it. The only real
"chance" that he takes, is, that the judge may send him to State's
prison, but he usually has made a study of the judge's character and
past performances. Similarly he may have offered to plead to a lower
degree of the same offence and his offer may have been refused, yet the
matter is confidential and the case has to be tried by the district
attorney as though he had no knowledge of the defendant's guilt. So
the jury retire and frequently end their deliberations by acquitting
the defendant, who leaves the court-room triumphantly to the great
chagrin of the prosecutor. The jury, on the other hand, are filled with
complacent satisfaction at having restored to liberty a man unjustly
accused of crime. But these trifling considerations are as nothing when
compared with the limitations which the laws of evidence and procedure
place upon the presentation of what is ofttimes a perfectly plain
case.[32]

The prosecutor who has thoroughly investigated a case has a knowledge
of its real merits which can never be brought to the minds of the jury.
There is much evidence, not technically admissible, which properly
should be considered by him in determining his official action, and
there is usually an equal amount of evidence, the competency of which
will depend on the course of the trial. He occupies a delicate and
frequently a very difficult position, since he must prosecute the
case without reference to facts which might conclusively prove the
defendant guilty, could they be introduced in evidence. The real
character of the accused can almost never be demonstrated, for unless
he takes the stand in his own behalf his "record" is inadmissible,
and even when he does take the stand, he can deny with impunity any
allegation as to his past offences and conduct, since the law does not
permit the prosecutor to disprove such denials unless they relate to
actual convictions for crime. Similarly the excellent character of the
complainant and his witnesses may not be shown, unless the defendant
himself directly attacks it, so that it is probable that throughout
the case the injured party and the wrong-doer appear to the jury to
be of equal credibility. The district attorney is a "quasi-judicial"
officer, who must be at one and the same time the friend and right
arm of the court and the advocate of the public right. His official
position gives him an influence with the jury which honor forbids him
to abuse, and demands an impartial consideration of the evidence and a
dignified method of conducting the case, irrespective of the tactics
of the defence. He represents not only the public, but the defendant,
who is one of the public. He should be glad to welcome at any stage of
the proceedings credible evidence tending to establish the innocence
of the accused, and if it convinces him that the defendant is not
guilty, he should, even in the midst of a trial, arise and move that
the jury be discharged and the prisoner set free. But this is by no
means inconsistent with a vigorous insistence upon the people's rights,
nor does it require that the prosecutor should refrain from using
the advocate's customary weapons of attack and defence. While he is
cross-examining the witnesses for the defence and arguing to the jury,
he is for the time being the lawyer for the people, and the appellate
courts have said that it would be manifestly unfair not to extend to
him in summing up the case an equal latitude of expression and scope of
argument with counsel for the defendant.

It is the consciousness that he is indeed sore let and hindered in
really laying the truth before the jury that makes the accusation of
"unfairness" so bitter to a prosecutor, and it is the cause of whatever
"overzealousness" it is often popular to ascribe to the district
attorney's office. One would think, to read the communications in
the evening papers during a recent trial, that the community had no
privileges at all. A prosecutor frequently reaches that conclusion
from experience. The writer is not aware that the constitutional
guarantees which protect the liberty of the individual were intended to
deprive the public of an advocate. In the nature of things, if justice
is to be done, the People should be entitled to the same rights as
the individual. If we are to have respect for law, the law must be
deserving of respect, and law which makes rather for the acquittal than
for the conviction of the guilty is not of that sort.

But with a trained panel of jurors, at the end of the second week
of the term, the chaff having been separated from the wheat, the
prosecution may reasonably expect to see the mill of justice grinding
smoothly and reasonably fine, the jury at home in the court-room,
familiar with their duties, and appreciative of the fact that all the
assistant is trying to accomplish is the disposal of as many cases as
possible consistent with fair trials and just verdicts. By the middle
of the term he must be a very indifferent sort of fellow if he has
not made friends of the jury; and assuming that he has done his work
disinterestedly and in a business-like fashion, he will find that he
has now the good-will and respect of the entire panel,--a regard which
may well stand him in good stead later on in his career. This is the
prosecutor's reward,--to try cases before a body of men who know that
he is anxious to do the right thing, ready to welcome any evidence that
really tends to establish the innocence of the accused, but insistent
that no guilty man shall go free unless his act is first stamped as
wrong by a conscientious verdict on the part of the jury.

Yet, as the writer has already stated, when the jury disband at the
conclusion of the term with the thanks of the court, they have seen
few professional criminals, save for a fleeting glance as one or
two are led to the bar to admit their guilt. One exception readily
suggests itself,--namely, the prosperous swindler who, by means of
the "wire-tapping," "sick engineer" or other similar device, has
parted some gullible person from his savings. Yet these gentry always
save plenty of money with which to engage able counsel and are only
forced to trial after they have exhausted every means of delay known
to the law. They never plead guilty, but fight until the last gun is
fired, believing that as they have escaped punishment in the past, so
they will in the future. Their records rarely make it possible for
them to take the stand in their own behalf, and if the case goes to
the jury at all they are immediately convicted. Almost every panel
has the opportunity to hear at least one "sucker" tell his story and
to render a speedy verdict in his favor. It needs little explanation
from a prosecutor to convince the twelve hard-working tradesmen
before him that the defendants in this class of cases are the "real"
criminals,--systematic enemies of society.

The great bulk of cases, that is to say, nearly seventy-five per
cent, are disposed of by plea, by direction of the court, or
"recommendation," that is to say, on the written application of the
district attorney that the defendant's bail be discharged. Hundreds of
cases are thus "turned out" every year, and for the most part represent
those instances where the magistrate and grand jury have not had either
the time or the inclination to assume the responsibility of discharging
the defendants, preferring to put the question "up" to the district
attorney or a petit jury. These recommendations are made on numberless
grounds, the principal being (1) that it is clearly apparent that a
reasonable doubt exists on the evidence; in other words, that as a
matter of law the case should not be submitted to a jury; (2) that the
People's witnesses have disappeared or left the jurisdiction; (3) that
the case has once been tried with the jury standing almost unanimously
for acquittal; (4) that owing to the peculiar circumstances in the case
it is quite unreasonable to suppose that any jury would convict,--such
as where an entirely respectable young woman being out of work has, in
a fit of despair, attempted her own life.[33] Two or three cases are
disposed of in this manner in each part of the Sessions almost every
calendar day in the year.

The defendants who plead guilty are professional criminals,
ex-convicts, and prisoners whose guilt is so overwhelmingly clear that
they have no hope of getting even a disagreement.

Thus most of the cases tried are neither "dead open and shut," as the
saying is, nor exceptionally weak. They usually present some question
of doubt,--usually only a conjectural one, however, or at least admit
of a more or less logical argument for an acquittal on the part of the
defence.

In trivial cases the jury are inclined to take the law into their
own hands. Boys charged with attempting to pick pockets or burglarize
small stores, with assaulting police officers, carrying concealed
weapons such as knives and brass knuckles, having policy-slips in their
possession, rioting, malicious mischief, etc., are usually acquitted.
This is because the jury think that they have been already punished
enough for the character of offence which they have committed,--not
because they believe them innocent. Cases where the charge is a serious
one and which are tried before trained panels on a substantial amount
of evidence usually result in conviction. In so-called "important"
or "star" cases, defendants are rarely acquitted. If the reader will
recall the sensational first trials of the last ten years he will find
that there is hardly a single acquittal among them.[34] It is the petty
law-breaker who profits by the lawlessness of the modern jury.

The fact that the prosecutor appears every day before the general panel
of jurors in the Part to which he is assigned throughout the term and
soon gains among them the reputation of being fair, and that he on
his side knows their peculiarities and idiosyncrasies is what makes
the jury system in criminal cases work more accurately and accomplish
better results than in civil trials, where the jury usually has never
seen either counsel before and probably distrusts both of them. A
prosecutor who knows his petit jury, its faults, virtues and foibles,
can move an important case before it, even though it be composed of
retail cigar and newspaper dealers and small tailors from the East
Side, more safely and with a better expectation of a just verdict than
before a "special" panel of bankers and architects with whom he is
unfamiliar. The ordinary panel at its daily task during the last two
weeks of every term illustrates the jury system at its best. Cases
moved at the beginning of the term usually result in acquittals.
Occasionally a jury will open a term with a rather unexpected
conviction, but it takes three or four days before they realize that a
reasonable doubt is not meant to include "a mere guess or conjecture
that the defendant may, after all, be innocent." Wily criminal
practitioners seek if possible to have their cases put on the calendars
at the opening of a term, and to secure adjournments at the end of the
term in order that they may go over to the beginning of the next.

Court officers often win fame in accordance with their ability as "plea
getters." They are anxious that the particular Part to which they are
assigned shall make as good a showing as possible in the number of
cases disposed of. Accordingly each morning some of them visit the pens
on the floor below the court-room and negotiate with the prisoners for
pleas. The writer suspects that the assistant in charge of the Part is
usually depicted as a fierce and relentless prosecutor and the jury as
a hardened, heartless crew who would convict their own mothers on the
slightest pretext. The joys of Elmira as contrasted with other places
of confinement are alluringly described and a somewhat paradoxical
readiness to accept any sort of plea, in view of his bull-dog
character, is attributed to the assistant.

The writer has known of the entire population of a prison pen pleading
guilty one after another under the persuasion of an eloquent bluecoat
assisted by an opportune conviction. Of course the prisoners expect to
be treated with a considerable degree of leniency, and if one of their
comrades goes up to plead and returns with the story that the judge is
"easy" and the assistant "all right," and a sentence to Elmira, the
others are apt very quickly to follow suit. If, however, the first
of the batch called for trial does not come back at all (having been
acquitted), the remainder will not "plead" under any circumstances.
The same thing is true if the first prisoner who pleads gets a severe
sentence. Prosecutors anxious to dispose of business hope for light
sentences at the beginning of the term.

Most of the homicide cases are tried in the Criminal Term of the
Supreme Court, and a great many pleas to "manslaughter" are accepted
by the judge where the technical charge is murder in the first degree.
The grand jury indict for murder in almost every homicide case on the
theory that some evidence may possibly be given at the trial which will
warrant such a verdict. A very large proportion of these defendants
plead guilty to manslaughter, and are encouraged in all legitimate
ways to do so. About two years ago, in the Supreme Court, the first
defendant called to the bar concluded that discretion was the better
part of valor and pleaded guilty. The judge, who had never sat in
Criminal Term before, promptly gave him eighteen years,--only two less
than the maximum, although the shooting had occurred during a quarrel
over a game of "craps." Not a single other prisoner offered a plea to
any degree of crime during the remainder of the term.

A great deal of interest is felt everywhere in the practical results
of the jury system, and particularly in the proportion of convictions
to acquittals. Figures purporting to show such ratios should be
scrutinized with great care, as they usually include among "verdicts
of conviction" pleas of guilty voluntarily offered by the defendant,
and similarly include among "acquittals" all cases where defendants
are discharged without trial on the motion of the prosecutor. The only
figures which have any particular bearing on the question of how far
the jury system is efficacious are those drawn from the results of
actual trials in which verdicts have been rendered.

The following table shows the comparative number of convictions, pleas,
acquittals, etc., in New York County during the last eight years:

 -----+--------+------+-----------+------------+----------+----------+
 Year |Convic  |Pleas |Acquittals |Discharged  |   Bail   |Indictment|
      | -tions |      |by Jury and|  on Own    |Discharged|Dismissed |
      |        |      | Direction |Recognizance|          |          |
 -----+--------+------+-----------+------------+----------+----------+
 1900 |    424 | 1,672|     733   |     366    |    185   |    76    |
 1901 |    551 | 1,838|     688   |     434    |    192   |   165    |
 1902 |    419 | 2,009|     698   |     351    |    457   |   257    |
 1903 |    485 | 1,918|     615   |     321    |    299   |    92    |
 1904 |    495 | 1,971|     700   |     363    |    272   |    50    |
 1905 |    489 | 2,001|     602   |     352    |    207   |    57    |
 1906 |    464 | 2,079|     560   |     428    |    344   |    99    |
 1907 |    582 | 2,266|     656   |     493    |    202   |   100    |
 -----+--------+------+-----------+------------+----------+----------+
 Total|   3,909|15,754|   5,252   |   3,108    |  2,158   |   896    |
 -----+--------+------+-----------+------------+----------+----------+

 -------+------+----------+----------+----------+----------+--------+------
 Forfeit|Decl- |Sentenced |Superseded|Dismissed |Discharged|Disch-  |Total
  -ures | ared |on another|Indictment|    by    | on Writ  | arged  |
        |Insane|Indictment|          |Grand Jury|          | (Comp.)|
 -------+------+----------+----------+----------+----------+--------+------
      74|   13 |    60    |    19    |  1,093   |     4    |   141  | 4,860
     113|    8 |    77    |    36    |  1,045   |     4    |   116  | 5,267
      97|    5 |    67    |    62    |    863   |     2    |    73  | 5,360
      62|   12 |    65    |    40    |    807   |     7    |    86  | 4,809
      63|    8 |    63    |    37    |    898   |    20    |    99  | 5,039
      51|    8 |    82    |    38    |  1,035   |     5    |    93  | 5,020
      47|   11 |   137    |    45    |    980   |     2    |    69  | 5,265
      45|   12 |   179    |    38    |  1,529   |     4    |   131  | 6,237
 -------+------+----------+----------+----------+----------+--------+------
     552|   77 |   730    |   315    |  8,250   |    48    |   808  |41,857
 -------+------+----------+----------+----------+----------+--------+------

During 1907 in New York County out of 4,573 indictments .62 per cent.
(including pleas of guilty) resulted in convictions. The following
table shows a gradually increasing percentage of such convictions for
the past eight years:

 -----+-----------------------+-------------------+-------
 Year | Number of Indictments | Total Convictions | Ratio
      |      Disposed of      |                   |
 -----+-----------------------+-------------------+-------
 1900 |         3,620         |       2,096       | .5790
 1901 |         4,096         |       2,389       | .5839
 1902 |         4,410         |       2,428       | .5506
 1903 |         3,909         |       2,403       | .6144
 1904 |         4,022         |       2,466       | .6131
 1905 |         3,887         |       2,490       | .6405
 1906 |         4,214         |       2,543       | .6035
 1907 |         4,573         |       2,848       | .6228
 -----+-----------------------+-------------------+-------


During this eight-year period 32,731 indictments were finally
disposed of either by trial, plea, direction of the court or on the
recommendation of the district attorney. These dispositions bear the
following ratios to each other:

 ----+-----------+--------+----------+----------+----------+------------
 Year|Convictions|Pleas of|Acquittals|Acquittals|Discharges|   Minor
     |    by     | Guilty |by Verdict| Directed |          |Dispositions
     |  Verdict  |        |          |          |          |
 ----+-----------+--------+----------+----------+----------+------------
 1900|   .1171   | .4619  |  .1013   |  .1012   |  .1707   |   .0478
 1901|   .1345   | .4487  |  .0840   |  .0840   |  .1831   |   .0657
 1902|   .0950   | .4556  |  .0792   |  .0791   |  .2324   |   .0587
 1903|   .1239   | .4905  |  .0786   |  .0785   |  .1770   |   .0515
 1904|   .1231   | .4901  |  .0887   |  .0853   |  .1685   |   .0443
 1905|   .1258   | .5148  |  .0769   |  .0779   |  .1585   |   .0461
 1906|   .1101   | .4934  |  .0584   |  .0745   |  .2067   |   .0569
 1907|   .1273   | .4955  |  .0577   |  .0857   |  .1739   |   .0599
 ----+-----------+--------+----------+----------+----------+------------

What the reader is naturally most curious to discover is in what
proportion of cases (where they had any say in the matter at all)
the jury let the defendant go. Roughly speaking, the proportion of
convictions to acquittals _by actual verdict_ is considerably more than
two to one,--the ratio for 1907 being as 69 is to 31:

 ----+-----------+----------+-----------+----------
 Year|  Number   |  Number  |Convictions|Acquittals
     |Convictions|Acquittals| Per Cent  | Per Cent
     |by Verdict |by Verdict|           |
 ----+-----------+----------+-----------+----------
 1900|    424    |   367    |    54     |    46
 1901|    551    |   344    |    62     |    38
 1902|    419    |   349    |    55     |    45
 1903|    485    |   307    |    61     |    39
 1904|    495    |   357    |    58     |    42
 1905|    489    |   299    |    62     |    38
 1906|    464    |   246    |    65     |    35
 1907|    582    |   264    |    69     |    31
 ----+-----------+----------+-----------+----------

The writer desires very particularly not to be understood as suggesting
that because the district attorney in all these cases thought the
defendant guilty or even _knew_ him to be guilty, the action of the
jury was necessarily improper. So far as his opinion may be worth
anything he believes thoroughly in the jury system in criminal cases,
with some trifling modifications. In a vast proportion of the cases
in which acquittals resulted there was undoubtedly room for an honest
difference of opinion as between reasonable men,--men in the long run
better qualified to judge of the defendant's guilt _on the evidence_
than the prosecutor himself, who is always at the disadvantage of
knowing the "inside" or "unprovable" elements of the People's case, a
fact which is apt to lead him to believe that the record establishes
his own contention more than it appears to do so to the jury. The
propriety of any jury's action must be determined only upon the basis
of the evidence presented to them, and upon which they are permitted
to act. The writer is inclined to believe that nearer eighty than
seventy per cent of the defendants tried should be convicted. In the
heat of conflict he might even claim ninety per cent and maintain that
if a majority of eleven on each jury could render a verdict, nine out
of every ten defendants, after a hearing in the magistrate's court,
an examination by the grand jury, and a careful investigation by the
prosecutor's office, should be convicted. The writer submits that the
increasing percentage of convictions shown on the opposite page is
evidence of the effectiveness of the jury in criminal cases in New York
County.

FOOTNOTES:

[Footnote 27: This is a vast improvement over the conditions which
existed in this regard six or seven years ago, when defendants in
prison could count themselves fortunate if tried within three weeks,
or, if on bail, within a year. It was by no means unusual to have
cases appear upon the calendars from three to five years old, the
backs of the indictments being covered with the names of assistants
long since departed from official life. The writer once tried a case
that had appeared on the calendar TWENTY-EIGHT times, and cases which
had appeared there from ten to twenty times were the rule, not the
exception. In the days when the present district attorney was a deputy,
indictments were so carelessly found and treated that in order to
clear the calendars bushel baskets of them would be brought into court
and dismissed "on the recommendation" of the district attorney. A
house-cleaning process of this sort would ordinarily occur just before
it became necessary to make an official report on the number of cases
"disposed of." To-day there are very few indictments not tried within
the year, and almost any defendant who wants one can get a speedy
trial, such delays as arise being generally caused by the defendant
himself. Of course during the summer months when but two courts are
open, and the judges sit from only ten-thirty to one o'clock, action
is somewhat less speedy, and as homicide cases usually require more
time for trial than others, and are tried _seriatim_ in order of age,
the defendants may have to wait a little longer than in cases of less
gravity. Even in such cases defendants generally have to be "forced to
trial" against their will.]

[Footnote 28: The writer's colleague, Mr. Charles Cooper Nott, Jr., has
recorded, as follows, the actual proceedings of an ordinary court day:

"Maria Dzialozindky takes the stand and swears that after a brief
acquaintance she married (as she supposed) the defendant before a rabbi
of his choosing; a man in charge of an officer is identified by her
as the rabbi; he is brought over from the penitentiary on Blackwell's
Island where he is serving a sentence for larceny, being a thief and
not a rabbi; Maria then goes on to relate how the defendant then
procured from her one hundred and forty-nine dollars, and disappeared,
leaving her alone in the Suffolk Street tenement which was to have been
their connubial bower of bliss; it further appears that the defendant
had a wife living at the time that he went through the ceremony of a
mock marriage with Maria. Defendant takes the stand, modestly admits
that he is possessed of such unusual attractions that Maria persecuted
him into this marriage; that she forced the one hundred and forty-nine
dollars upon him, and that he unfortunately slumbered in a saloon and
it was stolen from his person. The jury fail to give credence to his
tale, and promptly convict him. The next defendant is smooth and well
dressed, a hanger-on in the region known as the Tenderloin. Testimony
is given that he and another did take and carry away and sell certain
typewriting machines from an office in Thirty-fourth Street. Defendant
with an engaging smile tells how his companion had just been discharged
from the office in question, and had enlisted his (defendant's) aid
to remove the machines, which he informed defendant were his own, and
how shocked he was later to learn that this wicked companion had no
right or title to them. His smile is so engaging, and his looks so
respectable, that the jury acquit him, and are somewhat chagrined when
the judge, in discharging him, states that in the court's opinion he
is a smooth and plausible thief and guilty beyond a doubt--which is
the fact, as previous to the trial he had offered to plead guilty to a
lower degree of the crime charged. Next comes a stalwart Irishman who
describes with much feeling how the defendant (unfortunately a much
smaller man), without any provocation whatever, viciously assaulted him
in the hallway of the West Side tenement-house where they both lived,
and cut him in various vital parts with a pocket knife. Defendant
(bandaged to no less a degree than complainant) describes how he had
"an argument" (a term embracing any affray ending in anything short of
murder in the first degree) with complainant and his brother over a
game of cards, whereupon they followed him to the hallway, threw him
down and kicked him, and then struck at them with a large key. His
talk sounding reasonable and being corroborated by several neighbors,
defendant is acquitted. Lastly, an unsuspecting passenger and an
alert trolley-car conductor tell how defendant, a shifty-looking
young gentleman, while sitting next to the unsuspecting passenger,
kept with one hand a newspaper shoved under the latter's chin, while
with the other he abstracted a fine diamond scarf pin adorning his
cravat. When their tale is completed, the defendant and his counsel
put their respective heads together, and counsel then announces that
his client, the sole support of a widowed mother, did, in a moment
of temptation induced by filial anxiety, endeavor to acquire this
pin, and he therefore desires to throw himself upon the mercy of the
court and plead guilty, which he does. It appears, however (of course
to counsel's astonishment), that his portrait has for several years
ornamented the Rogues' Gallery, and that his record as a son is not
all that it might be, whereupon he is sentenced upon the spot, and
court adjourns. This is the summary of the actual record of a court day
presenting no unusual features"--_"In the District Attorney's Office,"
Atlantic Monthly for April, 1905._]

[Footnote 29: Cf. "Reform in Criminal Procedure," by Everet P. Wheeler,
4 Columbia Law Rev. 356.]

[Footnote 30: Ruloff vs. The People, 45 N.Y. 221.]

[Footnote 31: Mr. Nott cites the following case:

"The complainant, A, a well-dressed bartender, testified that he had
known the defendant, B, for some time; that on the night in question B
came to A's rooms, and shortly after B's departure, A found that his
watch was missing; the watch had been in the pocket of A's vest, which
A had left hanging on a chair, and A had stepped out of the room for
ten minutes, leaving B alone there. B afterwards admitted to A that he
had "hocked" the watch. Of course this testimony, if believed, made a
case against B, and it is difficult now to realize how any one could
ever have believed that the chance of explaining or contradicting it
could be more dangerous to B than the certainty of having A's testimony
go to the jury uncontradicted. B took the stand and testified that he
was getting a good salary as manager of an "intelligence office"; had
never been even arrested before; that A had obtained a loan of fifteen
dollars from him and had left the watch with him on the understanding
that B was to pawn it for fifteen dollars and give A the ticket; B did
pawn it in his own name and was shortly thereafter arrested. This case
is a fair illustration of a puzzling class. On the one hand, no motive
or reason was shown why A should cause the arrest of his friend on a
false charge (unless that of getting the watch back from the pawnbroker
without payment of the fifteen dollars, on the ground that it had been
stolen, is an adequate one). Upon the other hand, B's character and
position in life seemed to make it unlikely that he would commit such a
theft, and his act in pawning the watch under his true name gave color
to his story. The jury acquitted, and who can say that there was not at
least a reasonable doubt?"]

[Footnote 32: Mr. Nott gives the following illustration from an actual
trial:

"Take, for example, a certain case tried in the Criminal Branch of
the Supreme Court in the January term of 1902. The jury saw the
defendant, a stalwart, open-faced laboring man of nearly sixty years,
on trial for murder in the first degree; they heard a bartender and
a smooth-shaven, bullet-headed witness describe how the defendant in
the saloon became involved in a dispute with the deceased, caused by
the defendant's bad taste in reminding him that he had done time for
killing his own father; and they heard him of the bullet-head admit
on cross-examination that a scar adorning his neck had been inflicted
by the deceased some two years before; they heard the two witnesses
describe how the deceased left, breathing threatenings and slaughter,
and how a few minutes later the defendant, in the room back of the
saloon, was approaching the rear door, cutting a plug of tobacco with
his knife, which he had providentially drawn for that purpose, when the
deceased leaped upon him from the door and tried to stab him, whereupon
a fight ensued, in which the defendant was cut, and after which the
deceased left, followed a few minutes later by the defendant and the
bullet-headed, who saw naught further of him. To mar the symmetry of
this tale of self-defence (proved by the prosecution's own case), but
two jarring facts appeared--first, the saloon proper (not the rear
room) was found soaked in blood, and, second, the deceased was found
shortly after the defendant's departure at three A.M. lying on the
sidewalk in plain sight of the rear door, with his throat cut from ear
to ear. No evidence was put in for the defence, the defendant modestly
refrained from taking the stand, and of course an acquittal was
inevitable.

"From behind the scenes, however, the facts assumed a different aspect.
The frank-faced defendant was one 'Red,' who had served time for
robbery and other offences; the bullet-head surmounted shoulders upon
which rested a heavy load of crime and violence, their owner having
served the State several times and been implicated in numerous crimes,
including murder; the bartender would have considered it quite as safe,
and far more comfortable, to put a bullet through his head than to
testify against this choice pair; while it was true that the deceased
had killed his own father, the act was performed while parent and son
were in a drunken fight, by striking the old man on the head with a
water pitcher, and had occasioned great mortification to the son when
he became sober; and it was true that defendant and the bullet-headed
were both bitter enemies of the deceased. On this statement of facts,
there is little doubt that the deceased was murdered in the saloon
where the blood was found, and his body thrown out on to the sidewalk,
and the story arranged, the defendant shouldering the quarrel because
he had received a cut in the course of the fight. As the defendant did
not take the stand, his record and character could not be shown; as
the State was compelled to call the bartender and the other witness
(they being the sole witnesses to the occurrence), it could not impeach
their veracity nor attack their character. To the prosecuting officer,
therefore, was presented the choice of recommending the 'turning out'
of a desperate criminal without a trial, or of putting in what facts
the law permitted to be shown, and leaving the jury to acquit, while
marvelling that such a weak case should be presented to them."]

[Footnote 33: The number of these cases is one of the saddest
commentaries upon the conditions of life in a great city. Upon this
charge during the year 1905, 268 males and 114 females, a total of 382,
were arrested. Thirteen males and no females were held for trial and
the others were discharged.

_Comparison with Previous Years_

 ------+--------------------------+-------------------------
       |     Number Arraigned     |  Number Held for Trial
 Year  +--------+---------+-------+-------+---------+-------
       |  Males | Females | Total | Males | Females | Total
 ------+--------+---------+-------+-------+---------+-------
 1896  |   147  |    72   |  219  |   30  |    6    |   36
 1897  |   228  |   130   |  358  |   42  |   12    |   54
 1898  |   202  |   159   |  361  |   26  |   15    |   41
 1899  |   257  |   140   |  397  |   40  |   13    |   53
 1900  |   251  |   173   |  424  |   40  |   12    |   52
 1901  |   244  |   143   |  387  |   24  |    3    |   27
 1902  |   244  |   158   |  402  |   23  |    6    |   29
 1903  |   374  |   156   |  530  |   15  |    4    |   19
 1904  |   234  |   123   |  357  |   15  |    -    |   15
 1905  |   268  |   114   |  382  |   13  |    -    |   13
 1906  |   269  |   136   |  405  |   20  |    2    |   22
 1907  |   258  |   135   |  393  |   13  |    1    |   14
 ---------------------------------------------------------
]

[Footnote 34: Peo. _vs._ Molineux, Peo. _vs._ Bissert, Peo. _vs._
Glennon, Peo. _vs._ Mills, Peo. _vs._ Patrick, Peo. _vs._ Ammon,
Peo. _vs._ "Al" Adams, Peo. _vs._ Hummel, Peo. _vs._ Wickes, Peo.
_vs._ Wooten, Peo. _vs._ Rothschild, Peo. _vs._ Kanter, Peo. _vs._
Summerfield, Peo. _vs._ Sam Parks, Peo. _vs._ Weinseimer, Peo. _vs._
Burnham, Peo. _vs._ Gillette, Peo. _vs._ H. Huffman Browne.]



CHAPTER X

THE JUDGE


The two principal functions of the judge of a criminal court are,
first, to preside at the trial, declaring the law and seeing to it
that the rules of procedure and of evidence are properly observed
and, second, to impose sentence in case of a conviction. In the
first case he is a judge of the law; in the last he becomes a judge
of the facts. It would be impossible to say which of these duties
is the more important, but the latter is certainly vastly the more
difficult. An unjust sentence is as bad, if not worse, than an unfair
trial, for the defendant does not have a chance of escape and, since
punishment is a matter of discretion upon the part of the judge, it
cannot be considered or reversed on appeal. It must be of precious
little satisfaction to a convicted prisoner to know that he has had a
perfectly impartial trial, if at the same time he receives a sentence
four times longer than he deserves, and equally little consolation to
a prosecutor when, after a fair contest, he has convicted a political
rascal of influence if the judge "suspend sentence" and the defendant
is permitted to walk the streets in spite of his offences.

The amount of learning requisite to preside with efficiency at an
ordinary criminal trial is comparatively small, and provided the judge
be honest, impartial, possessed of common-sense and what is known
as "backbone," neither prosecutor nor defendant's counsel need, as
a rule, complain, but the trouble, time, courage and discrimination
necessary adequately to determine what punishment should be meted
out to a particular offender for a given offence cannot well be
overestimated. It is not a difficult matter to preside with dignity
at a trial, preserve order, exclude hearsay testimony, apply the
other simple rules of evidence that are ordinarily involved in a
case of assault, larceny, burglary or homicide, and instruct a jury
as to "reasonable doubt," "good reputation" and the "presumption of
innocence" in words of one syllable. We may fairly assume that it is no
harder for the ordinary judge to try a man for picking a pocket than it
is to dress himself in the morning. It must in time become automatic if
not almost sub-conscious. He could probably do it in his sleep. Most
petty criminal cases "try themselves." The trouble begins when the same
judge is compelled to decide whether the convict shall be sent to the
Elmira Reformatory (where he may reasonably expect to be discharged in
fourteen months) or to State's prison for twenty years.

Let us consider first the conduct of the judge during the trial itself.
Theoretically it is his duty, at least in most States of the Union,
simply to declare the law governing the case and to rule impartially
upon the questions of evidence presented. He is supposed to give no
hint of his own opinion as to whether or not the defendant should be
convicted and to refrain from any marshalling of the facts claimed
to have been proven by either side in such a way as to influence the
verdict of the jury. In England he may and generally does "sum up"
the case; in America such a course would usually be a ground for
reversal, his function being limited to an abstract discussion of the
law involved, with little reference to the facts save in so far as it
may be necessary for purposes of illustrating the way in which the
jury shall apply it. He is supposed to sit upon his dais serenely,
indifferent as to whether a murderer be convicted or acquitted, whether
an inexperienced assistant district attorney be "trounced" by an astute
criminal lawyer with a couple of generations of trial experience,
or, on the other hand, a bulldozing prosecutor bedevil a miserable
prisoner, defended by an ignorant and untutored counsel, into State's
prison,--provided either be done within the strict rules of evidence
and proper court behavior.

This may be all very well in theory,--but it is very far from what is
either followed in practice or, to speak frankly, desirable. What the
people want in our criminal courts is, of course, a "fair trial," but
they want a "fair trial" that results in the acquittal of the innocent
and the conviction of the guilty,--so long as he is convicted by what
they deem fair means. The people do not expect a judge to be more than
human. Did he appear as indifferent to results as theory might seem
to require the jury would quickly infer that the case was of slight
importance and their action a matter of utter indifference to the
court. Juries need to be kept in order and made to behave themselves,
and, if judges did not from time to time exert a disciplinary
influence, would easily run wild and become hopelessly demoralized. It
is almost impossible to overestimate the awe with which the ordinary
juryman regards the judge presiding at a criminal trial. He may have
a supreme contempt for his personality or private conduct, but once
let the judicial ermine enshroud the individual and he sees only the
judge,--the personification of the law, the autocrat of the court-room,
the "boss" of the particular "job" upon which he is temporarily
employed. He knows nothing of the abstract theory of the situation.
He wants to do well as a juryman and believes, quite naturally, that
an improper verdict will be visited by the judicial wrath and a just
one be acknowledged by a look of benignant commendation. If he thought
the judge did not care he would take little interest in the business
himself, and the apprehension of the court's approval or disapproval is
an ever-present factor in keeping him doing conscientious work,--quite
as important in its results as his own lightly murmured oath as a juror.

The judge, in addition to his theoretic duties, is in effect the
individual who must keep the gang at work and see that every one
of them earns his two dollars a day. If he appeared to them to be
star-gazing or studying Epictetus they would soon rest on their
shovels. Many juries take their cue from the court, laughing when he
laughs, and frowning when he frowns, and instinctively, however much he
may admonish them to the contrary, trying to determine from his manner
and charge what his own impression of the case may be.

Now, a judge who has sat for ten or fifteen years on the criminal bench
is usually keener to detect a liar or see through a "faked" defence
than any twelve men drawn indiscriminately from different walks of
business activity. A timely question from him may demolish a perjured
explanation which, but for his interference, would have acquitted a
guilty criminal. Theoretically it is none of his business. Practically
it is. An inexperienced prosecutor may be so inadequate to the task of
coping with some old war-horse of a lawyer that save for the assistance
of the court a rascal would be turned loose upon the community; or,
turn about, a stupid lawyer may convict his own client if not prevented
by a considerate presiding justice. Theoretically the judge must let
the parties fight it out by themselves. In point of fact it is his
business to even things up. The old country judge was not so far wrong
when on being assigned to the criminal term of the Supreme Court in New
York City he said to the prosecutor:

"Mr. District Attorney, I reckon that, between us, we shall let no
innocent man be convicted,--and no guilty man escape."

Practically this expresses in a nutshell the popular idea of what a
criminal judge is for, and it is certainly the idea which pervades the
minds of the jury. Nothing can eradicate it. It is a fact,--an existing
condition, which the court must inevitably take into consideration
in determining his course of conduct upon the bench. By this it is
not meant that a judge should be either counsel for the defendant or
district attorney, nor that he should force his ideas upon the jury,
but simply that to be effective he must be more than a nonentity, a
mere law book, or an ornament, must guide the course of the trial,
and, in default of its being done by the counsel on either side, test
by his questions the truth or falsity of the testimony. More than
this, he should in his charge indicate the tests which the jury should
apply to the various phases of the evidence and, while not influencing
them upon the questions of fact which they are to determine, should
nevertheless so elucidate their task that they may be guided in their
deliberations and not go astray among the tangled underbrush of an
adroit counsellor's "requests to charge."

The writer has endeavored in the preceding paragraphs to set forth
briefly the theoretical function of the judge as opposed to his
proper practical function if he is to be of any value in the actual
administration of criminal justice. One more step is necessary, namely,
to comment on the actual conduct of some judges who from natural
disposition or a conscientious purpose to "do justice" are inclined
to usurp the function of the jury and practically to direct either an
acquittal or a conviction.

Under our prevailing doctrines the court has no right to influence
the jury on the facts in the slightest degree, and indeed most judges
expressly direct the jury to disregard absolutely any idea they may
have obtained of what the court's opinion may be. This, in the face of
the balance of the charge, must often seem paradoxical to the talesman,
for few judges entirely succeed in concealing their own views of the
case, however hard they may honestly try to do so.

It is quite as foreign to the spirit of our institutions for a judge to
interfere with the jury on questions of fact as for a jury to arrogate
to itself the decision of points of law. The system is designed to do
"justice" by means of its several parts working harmoniously together,
but neither part "working justice" by itself. If the judge arrogate
the jury's function, the jury becomes superfluous. This is not the
intent of the Constitution. There is no real trial by jury when the
judge decides the whole matter, and it would be far more dangerous
for a single man to act as arbiter of the defendant's fate than for
twelve. Yet more or less consciously there is often a tendency upon
the part of the criminal bench to lend itself to the success of one
party or the other, however positively it may declare and direct to the
contrary. The actual amount of suggestion needed to give the jury an
effective hint is infinitesimal. The almost imperceptible accentuation
of a word, the slightest lifting of an eyebrow, and a verdict has been
determined--by the judge.

Now a printed record on appeal fails utterly to disclose the tone of
the voice or the stage effects of a judge's charge. A distinguished
member of the bench, now long since deceased, was accustomed to deliver
charges so drastic that a defendant charged with a serious offence
rarely, if ever, escaped. Upon appeal absolutely no exception could be
taken to his remarks, yet nothing more unfair could be conceived of.
The record would show that the judge had charged:

"If you believe the defendant's testimony you will of course acquit
him. He is presumed to be innocent until the contrary is proved. If you
have any reasonable doubt as to his guilt you must give him the benefit
of it. On the other hand, if you accept the testimony offered by the
People you may and will convict him."

Now, nothing on its face would seem to be fairer. What the jury
actually heard was:

"If [scornfully] you _believe_ the defendant's testimony you will of
course acquit him. He is _presumed_ [with a shrug of the shoulders] to
be innocent until the contrary is proved. If you _have_ [another shrug]
any _reasonable_ doubt as to his guilt you must give him the benefit of
it. _On the other hand_, if you accept the testimony offered in behalf
_of the People_ you may _and will convict him_!" [The last few words in
tones of thunder.]

Sometimes a judge becomes known as a "convicting" judge, although,
perhaps, at the same time as a learned one. This usually occurs where a
man of pronounced opinions with the advocate's temperament is elevated
to the bench. Very likely by inclination he is a "prosecutor," with
strong prejudices against law-breakers and bitterly intolerant of
technicalities. The powers that prey may cower inert in their dens
of darkness knowing full well that if one of them be haled before
this Jeffries he will pay the uttermost penalty. Yet the spectacle of
such a judge does not increase the public respect for law, and juries
sometimes revolt and acquit out of sheer resentment at such dictation.
But happily these men are of the past, and the more enlightened
sentiment of to-day would frown as much upon a "hanging" judge as upon
a jelly-backed wearer of the gown who was afraid of the displeasure
of some politician if a "heeler" were convicted and who ruled
systematically against the people because they had no appeal and could
take no exceptions to his conduct.

Nothing strikes so sharply at our conception of liberty as the failure
of criminal justice, and the conviction of a defendant not legally
proven guilty or the acquittal of an influential criminal has a more
disastrous effect upon the body politic than ten thousand bales of
anarchistic propaganda. The partisan judge, who makes up his mind to
convict or acquit if he can, may be right nine times out of ten, but
the other time he commits an outrage. The judicial temperament is a
jewel above all price. The writer recalls a certain case of a variety
subject at the time to great public condemnation, where the judge
before the indictment was moved for trial, inquired casually of the
clerk what the defendant was charged with. When he learned the nature
of the accusation he exclaimed audibly:

"Ha! He's one of those ----s, is he? Well, I'll try _this_ case."
And he did. Unfortunately judges often "try" cases, either for the
defendant or against him.

Nothing is more unfortunate for the judicial equilibrium than the
fact that the prosecution has no right of appeal in the event of a
verdict of acquittal. The judge may persistently prevent the district
attorney from putting questions which are both competent and proper and
rule flatly against him on the most obvious points of law without any
redress on the part of the people. A weak judge will take no chances on
being reversed and will pursue this course, while at the same time he
is allowing every latitude to defendant's counsel and is ruling in his
favor in defiance of the established doctrines of law.

A criminal lawyer of great adroitness, learning and probity, after
he had concluded an argument of the most utter absurdity to which
the presiding judge had listened with much attention and apparent
consideration, frankly stated to the writer:

"You think my argument was nonsense? Well, you are quite right, it
was. But no proposition of law is too far-fetched or ridiculous to be
advanced in behalf of a defendant without some prospect of success in
our criminal courts." The lawyer in question will undoubtedly recognize
his dictum in these pages.

The attitude and disposition of the various judges becomes speedily
known among the members of what is popularly known as the "criminal
bar," and heroic efforts (often successful) are made to bring certain
cases before the "right" judge.

"Do you think I'd try the Smith case before ----?" one will say. "Not
on your life!"

In similar fashion lawyers retained by complainants will seek to have
their cases put on the calendar of such and such a judge.

"Put it before ----," they will say. "He's _hell_ on larceny!"

Some judges are supposed to be more lenient in the matter of
sentences than their brothers of the bench, but the writer, after six
years of observation, believes this to be a fiction. They are all
lenient,--entirely too much so.

Much of the impression among criminal lawyers that they will fare worse
at the hands of one member of the judiciary than another is due to the
obvious fact that some judges are by reason of their training better
suited to sit in certain classes of cases than others. One may have
had an exhaustive experience in commercial matters and thus be better
qualified to pass upon the questions of law involved therein. Another
may have heard many complicated cases involving expert testimony,
etc., etc. Of course as a rule the less well equipped a judge is
to hear a certain kind of case the more apt he will be to listen to
ill-founded argument on the law or the facts. No insurance swindler
would want to be tried before an expert on insurance law. He would very
naturally prefer a judge whose experiences had converged upon assault
and battery. It must be admitted that occasionally a judge is to be
found who seems to feel that every complainant who has lost money in a
commercial transaction has no standing in the criminal courts but must
be relegated to civil tribunals. This is but another way of saying that
such a judge does not believe that the criminal law is meant to cover
cases where there has been fraud in commercial transactions. This is
hardly to be wondered at considering the present ineffectiveness of our
statutes governing such classes of crime.

The writer recalls prosecuting such a case before a certain judge who,
after hearing some rather complicated evidence in regard to certain
written instruments, called abruptly for the defendant. The latter took
the stand, and the judge inquired with a smile:

"You didn't intend to cheat this man, did you?"

"Certainly not!" cried the defendant.

"Gentlemen of the jury!" said the judge. "This is not the kind of case
that should be brought before a jury at all. This court is not the
place to collect civil debts. I instruct you to acquit."

Learning wisdom by experience, the writer moved the case of the
co-defendant for trial before another judge and convicted him, although
he was, if anything, less guilty than the first. He was sentenced to a
substantial term in State's prison.

As a rule, however, little fault can be found with the conduct of
our judges at criminal jury trials. In some instances it may seem
to one side or the other that a judge shows bias, but these cases
are comparatively few and seldom result in any actual miscarriage
of justice. If some judges are inclined to rule against the People
upon doubtful questions of law, this in the long run has at least the
beneficial effect of reducing the number of cases reversed upon appeal.
The judges are almost invariably courteous, long-suffering, and given
to allowing the greatest latitude to each side in getting its evidence
before the jury. In addition they are practical men of common-sense,
most of them of long and profitable experience, and experts in the
rapid disposition of business.

Let us now turn to the other and no less important function of the
judge,--the imposition of sentence. It is a platitude that the chief
failing of modern criminal justice is the inequality of punishment. It
may well be and often is the case that in one branch of the General
Sessions a prisoner is being released upon "parole" under a "suspended"
sentence at the precise moment that some other and no more guilty
defendant in another branch of the same court is being sentenced to
prison for three, five or even ten years at hard labor.

That most able and practical of English criminal judges, Sir Henry
Hawkins, has this to say in his reminiscences in the matter of
sentences of convicted persons:

"The want of even an approach to uniformity in criminal sentences
is no doubt a very serious matter, and is due, not to any defect
in the criminal law (much as I think that might be improved in
many respects), but is owing to the great diversity of opinion, and
therefore of action, which not unnaturally exists among criminal
judges....

"The result of this state of things is extremely unsatisfactory, and
the most glaring irregularities, diversity and variety of sentences
are daily brought to our notice, the same offence committed under
similar circumstances being visited by one judge with a long term of
penal servitude, by another with simple imprisonment, with nothing
appreciable to account for the difference.

"In one or the other of these sentences discretion must have been
erroneously exercised.... Experience, however, has told us that the
profoundest lawyers are not always the best administrators of the
criminal law...."

Sir Henry likewise speaks of the great intellectual difficulty of a
conscientious English judge in trying to determine for himself the
amount of punishment he should inflict in any given case. The English
bench occupies an altitude practically unknown in this country. Access
to it is far less easy than with us, and the personal, familiar, and
off-hand method of communication between the judge and the bar, not
to mention interested outside parties, witnesses, and relatives of
the defendant, in vogue in our trial courts would hardly be viewed
there with favor. It is the wholesale attempted interference with the
action of the judges in our criminal courts that imparts a flavor of
indecision and arbitrariness to so many scenes upon a sentence day.
It is not unheard of to see a prisoner actually at the bar awaiting
sentence while the judge upon the bench holds a sort of open levee,
free to all comers, in which the prisoner's lawyer, his wife, the
officer who made the arrest, the complainant, and the district attorney
(and sometimes others who have far less claim to be heard) endeavor to
bring the judge to their own particular way of thinking, and harangue
him and each other in tones by no means always either deferential or
amicable. Meanwhile the judge who will permit any such performance
sits with an expression of exasperated indecision, and usually finally
ends the matter by "remanding" the prisoner for further investigation.
Such scenes are calculated to bring the administration of justice into
contempt. Snap-shot judgments formed in the midst of an altercation may
be unfair to the defendant and frequently are so to the People. A judge
who tries to please everybody ends by pleasing nobody and makes a farce
of justice. The administration of the criminal law is not a pleasing
matter nor is it conducted for the purpose of pleasing the various
parties. The judge is there to attend to his own business and make his
own decisions. The writer once heard a judge inflict sentence in the
following manner:

"Your counsel says sentence ought to be suspended upon you. The
district attorney says you ought to get five years in State's prison.
Well, I'll split the difference and send you to the Elmira Reformatory."

The sentence may have been the result of a conscientious and careful
attempt upon the part of the judge to decide the question, but the
phraseology in which it was couched will hardly commend itself as a
standard.

A thousand indefinite factors enter into the determination of the
exact amount of punishment to be meted out to an offender, and
relatively trivial circumstances may eventually decide whether the
stroke of the judge's pen in his sentence book shall swerve from a
"three" into a "five." Assuming that the judge have the rectitude of
a granite monolith and be impervious to influence of every sort, he
is nevertheless compelled when inflicting sentence to depend in large
measure upon "hearsay" testimony and evidence that could not possibly
be admitted upon actual trial. He seeks to find out if he can what
the past record and reputation of the defendant have been, and in so
doing often is forced to rely almost entirely upon the word of the
officer who originally made the arrest. If the latter be vindictive
he can easily convey the impression that the defendant is a man of
the worst possible character who has hitherto had the luck to escape
being caught. In most cases the prisoner has little opportunity to
traverse these vague and generally unheard allegations. Again it often
happens that he has been previously arrested. This fact is of course
excluded upon the trial for his present crime upon the common-sense
doctrine that the fact of his former arrest of itself proves nothing
whatever as to his guilt or innocence of the charge upon which he was
thus arrested. When, however, he comes up for sentence it is frequently
considered by the court, no matter what the subsequent disposition of
the case against him may have been, on the general assumption that
"where there is so much smoke there is generally a little fire." If he
has actually been convicted before, the fact weighs heavily against
him.

Almost anything may be presented for the consideration of the judge,
however remote its connection with the crime of which the defendant has
been convicted, and either as militating for or against the prisoner.
Affidavits, letters, newspaper clippings and memoranda are submitted
tending to show that he is of either good or bad character, has had a
reputable or a disreputable past, has or has not committed or attempted
to commit other crimes, or is or is not likely to "reform." Often these
may have a good deal of weight, but the persons who present them are
almost never sworn or placed upon the witness-stand or the defendant or
prosecutor given a chance to cross-examine them as to their accuracy.

The mere attitude of complainants, obviously an entirely immaterial
matter, is also often a considerable factor in determining how the
prisoner shall be disposed of. If they are vindictive and anxious
to "make an example" of the offender it may happen that they will
persuade the judge honestly to believe that a heavy sentence should be
inflicted, whereas if they are sorry for the prisoner and his family
and are willing to "give him another chance," and intercede strongly
for him, the judge may "suspend sentence" upon the same man. Now the
attitude of the parties wronged is largely determined by the character
and disposition of the parties themselves, and of course in many cases
has no relation whatever to the real rights of the case. For example, a
half-drunken laborer lacking the money to buy liquor may wander into an
area and cut away a strip of copper water-spout belonging to some old
lady. He sells it for a few cents and then is arrested and is convicted
of petty larceny. No one has any particular interest in the case and
the old lady comes into court and begs for the defendant's "parole."
He has hitherto led a decent life and the judge lets him go. Now, if
the same man, instead of stealing a piece of pipe out of an area, finds
himself in the vicinity of a freight yard and cabbages a piece of
iron belonging to a railroad company, he is no sooner convicted than
the attorneys for the company swarm about the judge demanding that
"this wholesale pillage of corporation property" be put an end to,
that an example be made of such thieves, and insisting that it is an
important case where a severe sentence should be inflicted. The judge
cannot be blamed if his mind is, to a certain extent, affected by the
representations of these gentlemen and he may easily give the defendant
six months or a year in the penitentiary. The moral guilt of the
prisoner is precisely the same and so will be the significance of his
punishment so far as its serving as a deterrent to himself or to others
is concerned.

Another instance is where a young clerk in a banking, express, or
insurance office is caught pilfering. He has, to be sure, violated the
trust reposed in him, but if the officers of the company are disposed
to intercede in his behalf and express the belief that he "has learned
his lesson" it is probable that they can persuade the judge to give
the boy another chance, whereas if their attitude were otherwise he
would, and perhaps very properly, be sent to Elmira or to State's
prison. It thus, in many cases, lies within the power of the lawyer for
a defendant, if he be assiduous, persuasive, or have influence which
can be exerted upon the complainant in the case, to lessen materially
the sentence of his client, who without his services would perhaps
receive the maximum of punishment. The poor or friendless prisoner,
who cannot pay for able or indefatigable counsel, inevitably suffers
in consequence, for his _defence to punishment_ after trial cannot be
adequately presented. His guilt is the same.

Another matter, frequently entirely fortuitous, which yet may affect
the question of punishment, is the fact of restitution. Where a
prisoner has been guilty of embezzlement or theft and afterwards
returns the money it is almost inevitably taken into consideration
when sentence is imposed. Naturally it is apt to affect the attitude
of the complainant in the highest degree. Now, if the offender be
merely foolish, he very probably has spent the money he has stolen in
gambling or feasting, while if he be shrewd and cunning he has laid it
by until he can accumulate enough to go to South America. In the latter
case he can be made to disgorge; in the former he cannot, and is often
far worse off when he comes to be sentenced than if he had been more
criminally minded.

From what has been said the reader should not infer that the majority
of sentences are excessive. In point of fact the leniency of most of
our judges is surprising, and when they err it is invariably upon
the side of mercy.[35] The sentences actually inflicted are often so
short that they must seem to the average layman almost trivial, and
the number of cases in which sentence is "suspended" and the offender
paroled in the custody of the Prison Association is almost seventy-five
per cent of the total number of first convictions.

The reasons for this leniency are varied. Primarily it is because the
judge realizes that it is not so much the length of imprisonment as
the fact that the defendant is imprisoned at all that, in the majority
of cases, acts as a deterrent upon that particular offender and upon
those to whom his conviction is calculated to serve as an example;
secondarily, it is due to the sentimental attitude of society towards
criminals of all varieties; and, lastly, to an appreciation of the
unfortunate inequality of punishment, and the difficulty in adequately
and justly determining what weight should be given to hearsay evidence
as to the convict's past history. In some instances leniency may arise
from other and less creditable sources, such as sheer cowardice in
defying influence, political or otherwise, the desire to curry popular
favor in the hope of subsequent preferment in office, or possibly
from the hope that if a light sentence is inflicted the case will
not be appealed and the conviction reversed. This dread of reversal
in the case of some judges amounts almost to hysteria, and there are
well-known instances in which judges in the criminal courts have stood
heroically by the district attorney and the People with the result
that some scoundrel of great political influence has been convicted,
and have then completely nullified the effect of their good conduct by
weakly suspending sentence or by inflicting one so slight as to arouse
the amusement and contempt of even the defendant himself.

The ultimate object of the proper administration of criminal justice is
to sustain and increase the general respect for law. If it result in a
lessened regard for law by engendering a belief that its officers are
weak, cowardly, venal, or ineffective, it is a failure. The adjuration
therefore to avoid even the appearance of evil applies strongly to
all members of the bench. Nothing conduces more to lawlessness than a
popular impression that criminal judges are incapable, "easy," or are
subject to influence. A judge who, it is supposed, can be "reached,"
is an incentive to crime. Now it is highly improbable that any judge
is ever "reached." Our judges are honorable men. But once let an
impression to the contrary get abroad among criminals and the same
result follows as if the judge were actually "crooked." If a judge is
supposed to be amenable to influence, the criminal will assume that his
own particular pull will be effective.

As an illustration, let us suppose that one of a band or "gang" of
young toughs has been apprehended in making a vicious assault which
might well have resulted in murder. Perhaps he has been paid fifty or
a hundred dollars to "knock out" (kill) his victim. He receives a fair
trial and is convicted. He deserves all he can get--ten years. Instead
he is sent to the Elmira Reformatory. The rest of the gang, with their
hangers-on, amounting in number very likely to forty or fifty youths
and men, are immediately convinced either that they have been able to
influence the judge through their political friends or that he and his
associates are "easy." "Going to Elmira" is nothing in their eyes; and
the conviction of their comrade results in no deterrent effect upon
them whatever. He becomes a clever hero. Any one of them is ready to
undertake the same job at the same price. If his conviction be reversed
and he be set at liberty they conclude that in addition the authorities
are incapable and that they can "beat the case" any time they happen
to be caught. The effect of an important conviction reversed in its
effect upon lawless sentiment cannot be overestimated.

A sense of judicial propriety is one of the most to be desired
qualities in a judge. The slightest suspicion that he is giving ear to
voices from behind the dais nullifies his effectiveness and destroys
popular respect for the law which he may perhaps in fact enforce with
ability and justice. The sight of a politician emerging from a judge's
chambers may baselessly destroy the latter's influence for good.
Actual infractions of judicial propriety should be visited with the
utmost severity. Prescott speaks of the jealousy of the Aztecs of the
integrity of their bench:

"To receive presents or a bribe, to be guilty of collusion in any
way with a suitor, was punished in a judge with death. Who or what
tribunal decided as to his guilt does not appear. In Tezcuco this was
done by the rest of the court. But the king presided over that body.
The Tezcucan prince, Nezahua Epilli, who rarely tempered justice with
mercy, put one judge to death for taking a bribe, and another for
determining suits in his own house,--a capital offence, also, by law."
Perhaps this was going too far.

"The judges of the higher tribunals," he continues, "were maintained
from the produce of a part of the crown lands, reserved for the
purpose. They, as well as the supreme judge, held their offices for
life. The proceedings in the courts were conducted with decency and
order. The judges wore an appropriate dress, and attended to business
both parts of the day, dining always, for the sake of despatch, in
an apartment of the same building where they held their session; a
method of proceeding much commended by the Spanish chroniclers, to whom
despatch was not very familiar in their own tribunals."

We can appreciate to a considerable extent the emotions of the Spanish
chroniclers. Judges often dine together, but not always for the sake
of despatch. The writer has no hesitation in affirming that disregard
of the comfort and time of jurors and witnesses is the most obvious
fault of certain of them. Some judges occasionally adjourn court from
one until two and make their own appearance any time before three. It
is small consolation to a juror nervously distracted by waiting to find
that the judge expects conscientiously to make up the time thus lost by
keeping the jury at work until five. In most instances, however, the
judges are more punctual and business-like than the jurors and counsel
who appear before them.

Some judges occasionally seem to feel that the benefit of the
"reasonable doubt" to which a prisoner is entitled before the jury
remains with and should be given to him even after conviction. This
sometimes manifests itself in the extraordinary phenomenon of a
defendant who has stood trial and perjured himself in his own behalf
receiving a less severe sentence than his co-defendant who has pleaded
guilty and saved the county the expense and labor of a trial. There was
once a case where this occurred in which two of the perpetrators of a
brutal robbery pleaded guilty and received seven years apiece, while
their "side-partner," after being convicted before a jury, was given
five years by another judge. It was not in this case, but an earlier
one, in which a judge, obviously on the theory of reasonable doubt,
addressed the prisoner substantially as follows:

"Young man, you have been convicted by a jury of your peers after a
fair trial. Your offence is a heinous one. You took the stand and
perjured yourself, asserting your innocence. I might inflict a severe
punishment. Still, under all the circumstances, _and in view of your
claim that you are not guilty_, I will suspend sentence."

The reader should not and will not assume that these instances of
unequal punishment and erratic clemency are set forth for the purpose
of illustrating the usual course of justice. They are the exception,
not the rule. That they sometimes occur cannot be denied. They should
never occur. They are probably due frequently to utter weariness on the
part of the judge, coupled with the realization that it is sometimes
practically a human impossibility to get at the true inwardness of
a case or know _what_ to do. Seemingly arbitrary sentences on close
observation are sometimes found to be erratic only in the language
in which they are phrased,--not in the amount of the punishment. The
table on the opposite page shows, the writer believes, that the average
sentences imposed in the various classes of crime bear a remarkably
sound relation to one another.

Could, however, the separate sentences be examined, an astonishing
and lamentable inequality would be discovered,--an inequality which
is an actual injustice, but an injustice which cannot be prevented
under our present system. Unless all offences should be tried before a
single judge of unvarying disposition and physical condition absolute
equality could not be secured. Where they are tried before four or five
different judges there will be four or five different and constantly
varying factors which must be multiplied into the constants shown by
the record. Some judges regard certain crimes as more detestable than
others do, and some judges see greater possibilities of reformation in
any given criminal than others. Some are more affected by the immorality,
as distinguished from the illegality, of a given crime than others, and
certain judges will take into consideration features of the case that
would be entirely disregarded by their associates.

========================================================================
_Classified list of the number of persons convicted, and the average
term imposed for each particular crime during the year 1907 in New York
County._

MALES

 -----------------------------+-----+----------------+----------------
                              |     |   Aggregate    |  Average Term
                              |     |    Term of     |  Each Person
     Offence                  | No. |   Sentences    |
                              |     +-------+--------+-------+--------
                              |     | Years | Months | Years | Months
 -----------------------------+-----+-------+--------+-------+--------
 Abduction                    |   4 |    32 |   ..   |    8  |   ..
 Abandonment                  |   2 |     4 |   ..   |    2  |   ..
 Assault, 1st degree          |   4 |    27 |    1   |    6  |    9
    "     2d degree           |  48 |   161 |    7   |    3  |    4
 Bigamy                       |   6 |    20 |   10   |    3  |    6
 Bribery                      |   1 |     3 |    6   |    3  |    6
 Burglary, 1st degree         |   5 |    94 |    7   |   18  |   11
    "      2d degree          |  30 |   187 |    5   |    6  |    3
    "      3d degree          | 120 |   385 |    2   |    3  |    2
 Blackmail                    |   4 |    17 |    6   |    4  |    4
 Carrying burglar's tools     |   6 |    23 |    4   |    3  |   11
 Carrying concealed weapons   |   9 |    34 |   ..   |    3  |    9
 Election law                 |   8 |    26 |    1   |    3  |    3
 Extortion                    |   6 |    14 |    6   |    2  |    5
 Felony (N.C.)                |   2 |    12 |   ..   |    6  |   ..
 Forgery, 1st degree          |   2 |    10 |    6   |    5  |    3
    "     2d degree           |  13 |    63 |    2   |    4  |   10
    "     3d degree           |   3 |    10 |    3   |    3  |    5
 Grand larceny, 1st degree    |  38 |   209 |    8   |    5  |    6
   "      "     2d degree     | 146 |   478 |   ..   |    3  |    3
 Kidnapping                   |   3 |    44 |    1   |   14  |    8
 Maiming                      |   1 |     2 |   ..   |    2  |   ..
 Manslaughter, 1st degree     |  11 |   165 |    1   |   15  |   ..
      "        2d degree      |   3 |    30 |    9   |   10  |    3
 Murder, 1st degree           |   3 |Sentenced to be executed
   "     2d degree            |  13 |   260 |See note|   20  |   ..
 Attempted murder, 1st degree |   1 |    24 |    6   |   24  |    6
 Perjury                      |   2 |    19 |    5   |    9  |    8
 Rape, 1st degree             |   1 |    18 |   ..   |   18  |   ..
  "    2d degree              |  10 |    80 |    6   |    8  |   ..
 Receiving stolen goods       |  11 |    42 |   ..   |    3  |   10
 Robbery, 1st degree          |  23 |   245 |    7   |   10  |    8
    "     2d degree           |   6 |    59 |    2   |    9  |   10
    "     3d degree           |   1 |     5 |    6   |    5  |    6
 Seduction                    |   1 |     4 |    9   |    4  |    9
 Sodomy                       |   3 |    29 |    1   |    9  |    8
 -----------------------------+-----+-------+--------+-------+--------
     Total                    | 550 | 2,845 |    7   |    5  |    2
 -----------------------------+-----+-------+--------+-------+--------

Note.--In preparing the above table, the maximum terms of all
indeterminate sentences are computed, except in convictions of murder
in the second degree, in which the minimum terms of twenty years are
used. (Section 187. Penal Code.)

STATE PRISON--FEMALES

 --------------------------+-----+----------------+---------------
          Offence          | No. |    Term of     | Average Term
                           |     |    Sentence    | of Sentence
                           |     +-------+--------+-------+-------
                           |     | Years | Months | Years | Months
 --------------------------+-----+-------+--------+-------+-------
 Assault, 2d degree        |   5 |   13  |   10   |   2   |   9
 Grand larceny, 1st degree |   7 |   40  |    3   |   5   |   9
   "      "     2d degree  |   7 |   23  |    8   |   3   |   4
 Manslaughter, 1st degree  |   1 |    7  |    5   |   7   |   5
      "        2d degree   |   1 |   13  |    6   |  13   |   6
 Receiving stolen goods    |   1 |    5  |   ..   |   5   |  ..
 Robbery, 1st degree       |   1 |    3  |    6   |   3   |   6
 --------------------------+-----+-------+--------+-------+-------
       Total               |  23 |  107  |    2   |   4   |   8
 --------------------------+-----+-------+--------+-------+-------

This divergency of mental attitude accounts in part for the great curse
of the inequality of sentences. Two cases suggest themselves vividly as
examples.

A conductor on a surface car took the place of the motorman and
carelessly ran into a wagon, throwing out the driver, who died in
consequence. He was convicted of manslaughter in the _second_ degree
and sentenced to ten years in State's prison.

Another defendant who had killed a woman by cutting her throat and
hacking her up with a razor was convicted of the _first_ degree of the
same crime and sentenced to _the Elmira Reformatory_. Both defendants
were of approximately the same age. In each case the particular
sentence seemed just and fair to the judge who presided at the trial.
It was conscientiously imposed. Yet the thing speaks for itself.

It has sometimes been suggested that all sentences should be imposed
by all the judges sitting _en banc_. While this would entail great
labor and expense it would undoubtedly, if it were practicable, do
much to obviate the present unfortunate condition. Assuming that four
judges composed this sentencing board, the vote of the justice who had
presided at the trial might, by virtue of his greater familiarity with
the facts, be given a weight equal to that of the other three combined.
Had the two sentences just named been imposed by such a board it is far
from probable that they would have been inflicted in the same terms.

An effort has been made in the preceding pages to set forth some of
the failings of criminal justice on the part of the court which seem
open to honest criticism. The members of the bench themselves would
be the last to minimize the injustice of the inequality of sentences
which under our present system seems inevitable, and are continually
endeavoring to remedy it so far as possible. They also recognize
the fact that it is often difficult, if not out of the question, to
preserve in the face of overwhelming evidence an imperturbable serenity
of demeanor when the fact of the defendant's guilt is clear and the
details of his crime are revolting to every moral sense, and they are
equally ready to acknowledge that on occasion they may inadvertently
disclose their impression that while they may "let a case go to the
jury," the defendant should be acquitted. Judges are, after all,
but men, and to err is human. But there is hardly a judge upon the
bench who does not conscientiously strive to perform his duties in
such a way that justice may be secured in the manner provided by the
Constitution,--by leaving the jury untrammelled in their function of
determining upon the sworn evidence in the case the guilt or innocence
of the defendant. Finally it should be said that it is not the weak
but the strong judge that is most apt to transgress in this direction,
and that it is the strong judge who is most likely to serve the best
interests of the community. For the weak judge there is no place in the
administration of criminal justice. His presence upon the bench is an
incentive to crime and a reproach to his fellows.

FOOTNOTES:

[Footnote 35: Cf. "Light Sentences and Pardons," by Frederick Bausman,
39 American Law Rev. 727.]



CHAPTER XI

THE JURY


Is trial by jury successful in criminal cases? Certainly it is
popularly so regarded. Even lawyers and prosecutors will usually
agree that it "works substantial justice," but this does not answer
the question. In about three cases out of five "Judge Lynch" himself
works "substantial justice." The function of the jury is not to "work
justice" at all, but to decide a limited question of fact. They are
there for the purpose of determining the issue without prejudice on
the one hand or sympathy upon the other, and having no regard for the
consequences of their verdict; they must accept unquestioningly the law
from the judge upon every point and base their conclusions solely upon
the sworn evidence in the case. This they swear that they will do. Yet
they do not. Why? Is it want of intelligence, lack of regard for law,
or vital misconception of their function?

Certainly it is not from want of intelligence. There can be no question
as to the capability of the ordinary juryman to perform his duties.
The independent American is singularly adapted to just this form of
investigation. If the English be "a nation of shopkeepers," we are a
nation of natural cross-examiners. You will find fully as good verbal
fencing in a New England corner grocery store about mail time as you
will in most courts of justice. But the very innate capacity of the
native American to perceive the truth and get to the bottom of things,
leads him to believe that he knows equally well, if not better than
the judge, what ought to be done about it and what punishment, if any,
should be inflicted upon the defendant under the circumstances. It is
not that our jurors are incapable or uninterested, but, paradoxical as
it may seem, that they are too capable and too interested. They want to
be not only jurors, but district attorney, counsel for the defendant,
expert witness, and judge into the bargain.

Your shopkeeper in England makes a less intelligent, but a far more
satisfactory juror. There they will empanel a jury in a few moments in
a capital case, and so deeply implanted in the bosom of each juryman
is a respect for the law as such and an inherited reverence for the
judiciary, which its uniformly high character has done so much to
foster, that, provided the facts are sufficiently established, the sex
of the defendant, the condition of his or her family, the character of
the motive for the act, will not be the subject of discussion or even
of consideration in determining the verdict. It is enough that they are
sworn to decide the facts and the facts alone. They are told by the
judge what evidence they may consider, and what facts they _may not_
consider, and did they not obey his instructions they would receive the
severe censure of the public and the press.

There is an historical reason for this. In 1666, when a jury found a
verdict of manslaughter after having been instructed that the evidence
showed that it was murder, Kelyng, C.J., promptly fined them five
pounds apiece. On petition, he reduced it to forty shillings, "which
they all paid." In 1667 he fined eleven of the grand jury twenty pounds
apiece for refusing to indict for murder. The judges of the King's
Bench said he was quite right, adding, "and where a petty juror,
contrary to directions of the court, will find a murder manslaughter,
... yet the court will fine them" (King _vs._ Windham, 2 Keble,
180). For centuries it was the common practice to punish severely by
imprisonment, fine, and attainder juries who refused to convict on what
appeared to the court to be sufficient evidence. Perhaps Throckmorton's
case in 1554, when the jury acquitted the defendant of treason, is
the most famous illustration of this. The court committed the jury
to prison, eight being confined from April 17 to December 12, and on
their discharge fined them, some sixty and some two hundred and twenty
pounds apiece. The reasoning under the circumstances was obvious.
If a jury found a man guilty improperly, he could be pardoned, but
"if, having pregnant evidence, nevertheless, the twelve do acquit the
malefactor, which they will do sometime ... the prisoner escapeth...."
It is refreshing to observe that even English juries "will do [this]
sometime." All this naturally created, as it was designed to create, a
tremendous regard for the judge and his instructions.

There is at the present time little of this wholesome regard for law
in America. The jury realize that the judge's elevation to the bench
is often a matter of politics alone, and sometimes have comparatively
little respect for his character, learning, or ability. They frequently
feel by no means confident that the punishment will fit the crime, and
are anxious, so far as they can, to dispose of the case for themselves.
For example, in one case where three defendants were found guilty of
stealing in company a single article of value, the jury rendered a
verdict of grand larceny in the first degree against one, grand larceny
in the second degree against another, and petty larceny against the
third. They did this because of the varying ages of the defendants, but
in so doing obviously violated their oaths and usurped the functions of
the judge. Very likely "substantial justice" was accomplished.

There are hundreds of jurors who, having in all honesty taken the oath
to "a true verdict find," will, once in the jury-room, frankly turn to
their fellows and exclaim: "Oh, let him go! He's only a kid. Give him
another chance!" "Substantial justice," again at the expense of our
regard for law.

As an example of what may occur, the case of Rosa di Pietro, tried
for murder before the Recorder, in December, 1904, is illuminating.
The defendant was a young Italian woman of good repute charged with
shooting and killing her brother-in-law, who, the evidence clearly
showed, had endeavored to persuade her to yield to his desires. She
claimed to have shot him in self-defence. Her story was so obviously
a fabrication that no jury could have believed her, and must have
found (if they had considered the matter at all) that she pursued her
would-be seducer down the stairs and shot him in a dark hallway, as he
was leaving the building. A "special" jury of perfectly intelligent men
promptly acquitted her. The writer presumes that after this all the
Italian residents will get their wives to do their killing for them.

In a well-known case the jury found the defendant guilty of
manslaughter, instead of murder, because one of their number had read
that the prisoner had been a "Rough Rider" in the Cuban campaign.
After they had returned their verdict they learned that he had been
nothing of the kind.

The action of the New York County jury in a criminal case is right as
to the defendant's guilt or innocence about four times out of five,
but less frequently as to the appropriate _degree_ of crime.[36]
The percentage of proper verdicts differs, of course, in different
varieties of crime. In cases of common felony, such as larceny,
burglary, rape, robbery, arson, forgery, etc., it is usually high;
in homicides and gambling much lower; and in commercial frauds and
liquor-tax cases smaller still, the number of convictions being
inconsiderable. Making due allowance for the unconscious prejudices,
sympathies, and idiosyncrasies of mankind, we have still, as citizens,
a right to demand a far higher degree of accuracy in the verdicts of
our juries--to expect the murderer to be found guilty of murder and the
thief to be stigmatized as a thief. What is the explanation for this?

The fundamental reason for the arbitrary character of the verdicts of
our juries lies not in our lack of intelligence as a nation, but in our
small regard for human life, our low standard of commercial honesty,
our hypocrisy in legislation, our consequent lack of respect for law,
and the general misapprehension that the function of the jury is to
render "substantial justice"--a misapprehension fostered by public
sentiment, the press, and even in some cases by the bench itself, to
the complete abandonment of the literal interpretation of the juror's
oath of office.

The writer has heard judges from the bench congratulate juries upon
having rendered a "merciful verdict"! They are popularly expected "to
temper justice with mercy," "exercise a wise discretion," and "to
be moved to magnanimity." But the jurors who satisfy their emotions
at the expense of their honesty, and the judge who countenances the
performance, are worse law-breakers than the defendant himself.

We carry upon our statute books laws which we have no intention
of enforcing, and which, in our present state of development, are
actually unenforceable. Even law-abiding, law-loving, and (ordinarily)
conscientious jurors will become lawless when compelled to sit in a
case of this character. Thus while the three judges of Special Sessions
find guilty some sixty per cent of those brought before them for
violations of various phases of the liquor-tax law, a conviction by a
jury in the General Sessions is practically unheard of. The grand jury
have now reached the point where they practically refuse to indict
at all in liquor-tax cases.[37] Just as long as we have hypocrisy
in religion, in business, and in legislation, so long shall we have
hypocrisy in our courts of justice.

Of course, as we live in an age when violence is found inconvenient
and annoying, your jury naturally condemns by its verdict crimes of
a violent character, and will make but short work of highwayman and
thug. Burglars are unpopular both with the public and with the juror;
and it needs no burst of rhetoric to induce a jury to find a verdict
against a "firebug" or a "cadet." But once step into that class of
cases, the subject of which is commercial fraud, and the jury look
upon the prosecution with averted eye. Just so long as dishonesty of
one kind or another is openly countenanced in business, just so long
it will be practically impossible, except under unusual conditions, to
convict the fraudulent bankrupt or the retailer who has secured goods
and credit upon false representations. Mayhap there is upon the jury
some tradesman who has "padded" his own credit statement; some one who
has placed a fictitious valuation on his stock, or has told alluring
but unsubstantial stories as to his "orders on hand," "cash in bank,"
and "bills receivable." What chance under those circumstances of a
conviction?

 "The jury, passing on the prisoner's life,
 May have in the sworn twelve a thief or two
 Guiltier than him they try."

"Why," says a juror, "here they are trying to convict this fellow
Einstein of what everybody does every day in the year. Rubbish! Am _I_
a thief! _I_ don't have any _criminal intent_. He was just tryin' to
boost his assets a little. He's no criminal." And out he goes to the
jury-room and persuades the other eleven that the defendant is no worse
than everybody. Of course, everybody isn't a thief. The syllogism is
irrefutable.

"I suppose you didn't believe that Mr. Einstein made those false
statements?" says the writer, approaching him as he steps into the
corridor. The juror pauses in lighting his cigar.

"_Sure_, he made 'em!" he remarks. "Of _course_ he _made_ 'em! But,
_H--l, he's no criminal_!" This is an actual experience.

Our distaste for physical violence has had a rather paradoxical result
so far as the jury is concerned, for it appears to be coupled with
a small (and what seems to be a decreasing) regard for human life.
Verdicts of murder in the first degree are exceedingly rare, and it
requires a crime of a peculiarly atrocious character to induce the jury
to send the defendant to the electric chair. This is due in part to
cowardice and in part to the misconception of their function already
dwelt upon, since in almost all murder cases the jury regard themselves
as fixing the penalty. Inasmuch as most persons who meet death from
violence are themselves of violent character, the jury frequently
seems to believe that the defendant is entitled to a certain amount of
consideration for ridding the community of his victim, and this often
finds joyful expression in a verdict of manslaughter.

Totally distinct, however, from this trifling with justice, whether
it be wilful or voluntary, is the unconscious bias of each member of
the human family due to race, religion, education, and character.
Hence jurors are examined with an elaborate care and minuteness of
investigation which in practice is often shown to be ridiculous. In
fact certain maxims having almost the force of legal doctrines have
grown up about the selection of a jury. A defendant's counsel will
invariably challenge an Irishman if his client be a negro, and vice
versa. This is likewise apt to be the case if the client be an Italian.
Talesmen with wives and children are generally supposed to be more
susceptible to arguments directed to their sympathies. Hebrews are
presumed to make particularly undesirable jurors for the defence where
the crime charged is one of violence or arson, and are likewise usually
challenged when the defence is self-defence. Old men are popularly
supposed to make indulgent jurors, although the writer's own experience
is to the contrary, and he has noticed that persons with long, drooping
mustaches are invariably excused. Neither side as a rule cares for
missionaries or persons engaged in philanthropic enterprises, since the
prosecutor feels instinctively that their eleemosynary tendencies will
extend to the prisoner, while the defence has a presentiment that they
will lead him to favor the damaged complainant. Writers, editors, and
publishers are generally excused by the defence as _too intelligent_,
_i.e._, too prone to theoretic arguments as distinguished from a "broad
view," which from the prisoner's standpoint means one including every
sympathetic reason that can be suggested. Artists are distrusted by
prosecutors as romantic and imaginative. Butchers, coffin-makers,
sextons, grave-diggers, undertakers, and dealers in electrical supplies
are invariably excused for obvious reasons by the defendant in homicide
cases. Liquor dealers are believed to be prone to take a lenient view
of the shortcomings of humanity in general, while persons of brisk,
incisive manners naturally suggest heartlessness to the cowering
defendant. The writer knows an assistant who will not try a case if
there is a man with a pompadour on the jury, and neither prosecution
nor defence cares for long-haired jurors of the "yarb doctor" variety,
while the dapper little man with the "dickey" and red necktie is
invariably excused by the defence unless the defendant be a woman.

The frivolous character of these rules needs no comment. Almost every
lawyer and every prosecutor believes himself to be a past master in the
study of character from external evidence, and upon the most trivial
and unnatural of pretexts will challenge a talesman so unfortunate as
not to suit his fancy. Yet when all is done and when, after the most
exhaustive examination and cross-examination of several hundred special
talesmen, wrenched from their places of business or the bosoms of
their families, twelve men have been finally selected and sworn, it is
probable that they are in no respect superior to the first twelve who
might have been chosen.

In murder cases each side may challenge peremptorily thirty talesmen,
and numerous are the legal "jumps" over which they must successfully
ride before they can qualify for service. Thus it is unusual in
a homicide case to select a jury in less than two days, and in
some instances it has taken two weeks. On the other hand, equally
satisfactory juries have occasionally been selected in such cases in
less than an hour.

The general futility of trying to secure a jury of particular capacity
or intelligence, or one which will contain no juror of pronounced
idiosyncrasies, is rather well illustrated by the following incident:
The defendant's counsel, a man of considerable repute at the criminal
bar, had spent over two days in the elaborate selection of a jury. It
had taken him two hours to get a foreman to his fancy, but at last he
had accepted a solid-looking old German grocer. After a trial lasting
several days the jury convicted the defendant in short order, greatly
to the disgust of the eminent lawyer, who vented his indignation rather
loudly in the presence of the foreman as he was leaving the box. The
old German leaned over good-naturedly and remarked, pointing to the
door in the back of the court-room leading to the prison pen: "Vell,
Mr. ----, if you vant to know vat I tinks, I tells you. Ven I see him
come in through dot leetle door back dere, den I _knows_ he's guilty!"

This lawyer now selects a jury in thirty minutes.

Of course, some examination into the general qualifications of jurors
and their possible bias in the case is imperative, and frequently
the interposition of a peremptory challenge is not only justifiable,
but absolutely necessary. A talesman will sometimes betray by an
inflection of his voice a sentiment or prejudice which his _words_
deny, or suggest to the vigilant counsel for the defendant the juror's
susceptibility to the insidious flattery of the prosecutor in making
him a part of the "organization of the court."

During the selection of a jury to try Moran, the dynamiter, in March,
1906, before Judge Foster, in the General Sessions, a little old man
took the stand who qualified satisfactorily as a juror so far as
the prosecution was concerned. Daniel F. Cohalan, attorney for the
defendant, then took him in hand somewhat as follows:

"Have you any prejudice against a man accused of crime?"

"I have not," replied the little old man.

"Or against this defendant?"

"I have not."

"Do you think you would make an absolutely fair and impartial juror?"

"I do."

"Do you know of any reason to the contrary?"

"I do not."

Cohalan turned to another line of examination.

"Do you read the papers?"

"Yes. Yes."

"What paper do you read?"

"What paper?"

"Yes. What paper do you read in the morning?"

The little old man settled himself in his chair and, eyeing Cohalan
suspiciously, replied:

"I read the _Herald_, _Times_, _World_, _Journal_, _Sun_, _Tribune_,
_Press_, _Staats Zeitung_, _Telegraph_----"

"Stop!" cried Cohalan feebly; "that's quite enough. Don't you do
anything but read the papers?"

The little old man regarded the lawyer scornfully.

"I spend six hours a day keeping myself informed of what is going on. I
flatter myself that there is nothing in the whole world with which I am
not fully acquainted. Knowledge is power!"

Cohalan collapsed into his seat.

"That is all. You are excused. You know too much for us!"

As the little old man shuffled off he whispered to the prosecutor:

"I'd have given the ---- twenty years!"

On the other hand, the hyper-sensitiveness of counsel renders it easy
for talesmen to escape who do not wish to serve. The writer knows an
estimable man who is regularly drawn about four times a year upon the
special jury. He has never served. His method is as follows: Having
taken his seat upon the witness-stand he wrinkles his forehead and
looks fiercely at the defendant. When asked if he has any objection
to capital punishment he thrusts out his under jaw and exclaims: "I
should _say not_! I think hangin's too good for 'em!" In reality he is
the mildest, the most sympathetic and the "easiest" of human beings.
Another observant talesman who appears periodically has learned, the
writer believes, his trick from the first. His stock reply to the same
question relative to capital punishment is, "I have _not_. I believe
in the Biblical injunction of 'an eye for an eye,' and 'a tooth for
a tooth,' and, 'Whoso sheddeth man's blood by man shall his blood be
shed.'" Needless to say, he leaves the stand with the same alacrity
as the other. Jurors readily enter into friendly relations with the
prosecutor and defendant's counsel, but rarely with any effect upon
their verdicts. In the first trial of Mock Duck, a Chinaman indicted
for murder, where the defence interposed was an alibi, to wit, that
the prisoner had been buying a terrapin in Fulton Market at the time
of the commission of the crime (whence the prosecutor claimed that it
was the case of a Mock Duck with a _mock turtle_ defence), a juryman
met the defendant's counsel during recess and told him that there was
no further need for him to call any more witnesses for the defendant,
as the jury "understood the situation perfectly." The lawyer took
the hint, and upon the reopening of court closed his case, feeling
sure of an acquittal or at least of a disagreement. When the jury had
retired the talesman in question made a long speech in favor of murder
in the first degree, and refused to vote for any other crime. Such
performances are rare. Of course, it not infrequently occurs that a
juror by his manner of asking questions shows plainly his state of
mind. The feelings of a prosecutor can be easily imagined when a juror
turns in disgust from one of the People's witnesses, or those of a
defendant's counsel when another, looking towards the prisoner, grinds
his teeth as the evidence goes in and ejaculates, "Brute!"

The jury offers a fertile field for the study of human nature, and
lawyers and prosecutors learn to look regularly for certain characters.
Of these may be mentioned the too officious juror who asks hundreds of
incompetent and irrelevant questions to which the lawyers are naturally
afraid to object, and whose inquisitiveness has to be curbed by the
court itself. Such a juror usually shows much conviction one way or
the other in the early stages of the case, and before he has heard
the evidence. Unfortunately his executive abilities usually fill the
balance of the jury with such disgust that to have a juror of this sort
on one's side is more of a misfortune than a boon.

Jurors of this variety frequently at inopportune moments interrupt
counsel during their addresses. In one case an aggressive talesman
broke in upon a burst of carefully prepared eloquence with the brutal
interrogation: "How about the _knife_?" The counsel stopped, bowed
to the juror, smiled, and said calmly: "Thank you, Mr. Smith, I'm
_glad_ you spoke of that. I am coming to it in a moment." The juror,
satisfied, leaned back contentedly, but the lawyer has not "come" to
the knife yet.

Practically the thing most desired by prosecutors and lawyers who are
both convinced of the justice of their cause is homogeneity of some
sort in the jury-box. Naturally antagonistic elements are undesirable,
and a wise selector of juries will try to get men of approximately
the same age, class in society, nationality, religion, and general
character. Of course, this is a difficult matter, but without a
friendly and helpful spirit among the jurors cases will result
frequently in disagreements. This is naturally less objectionable to
the defendant than to the People, for ordinarily it may be said that
"two disagreements are equivalent to an acquittal."

The common idea that juries are prone to leave their decisions to
chance, as by flipping a coin, or to act upon impulse, whim, caprice,
or from a desire to get away, is grossly exaggerated.

It was Pope who sang in the "Rape of the Lock":

 "The hungry judges soon the sentence sign,
 And wretches hang, that jurymen may dine."

Unfortunately, if the jury is hungry or exhausted and anxious to
dispose of the case, the defendant invariably gets the benefit of it.
The "wretches" don't "hang," but instead are turned out with a rush.
Instances of verdicts being determined by such considerations are in
fact rare.

Much of the seeming misguidedness of juries in criminal cases is due,
just as it is due in civil cases, to the idiosyncrasy, or the avowed
purpose to be "agin' the government," of a single talesman. In an ideal
community, no matter how many persons constituted the jury, provided
the evidence was clear one way or the other, the jury would always
agree, since they would all be honest and reasonable men. But just as a
certain portion of our population is mentally unbalanced, anarchistic,
and criminal, so will be a certain portion of our jurors. In addition
to these elements there will almost invariably be found some men upon
every panel who are so obstinate, conceited, and overbearing as to be
totally unfit to serve, either from the point of view of the people or
the defence. It is enough for one of these recalcitrant gentlemen that
eleven other human beings desire something else. That settles it. They
shall go his way or not at all.

The writer believes, therefore, that some allowance should be made for
the single lunatic or anarchist that gets himself drawn on about every
fifth jury, for if he once be empanelled a disagreement will inevitably
follow. This could be accomplished by reducing the number necessary for
a verdict to eleven.[38] Hundreds of juries have been "hung" by just
one man.[39] The trouble, as Professor Thayer points out, began a long,
long time ago in a case reported in the Book of Assizes in 1367.

"In another assize before the same justices at Northampton, the assize
was sworn. They were all agreed except one, who would not agree with
the eleven. They were remanded and stayed there all that day and the
next, without drink or food. Then the judges asked him if he would
agree with his associates, and he said never,--he would die in prison
first. Whereupon they took the verdict of the eleven and ordered him to
prison, and thereupon a day was given upon this verdict in the Common
Bench.

... And afterwards by assent of all the justices it was declared that
this was no verdict. It was therefore awarded that this panel be
quashed and annulled, and that he who was in prison be enlarged, and
that the plaintiff sue a new venire facias.... _Note, that the justices
said they ought to have taken the assize with them in a wagon until
they were agreed._"

How much happier would not only the eleven, but the twelfth juror, who
swore he would "die first," have been if, unanimity not being required,
they could comfortably have agreed to disagree and yet returned to
court and rendered a verdict.

A jury naturally tends to lean towards the defence--to let the accused
go if they can conscientiously do so; to find somewhere a reasonable
doubt as to the prisoner's guilt--and it is only because the cases
are so well sifted before they come to trial at all, and the wheat
separated from the chaff (the defendants in very weak cases being
frequently discharged on the recommendation of the district attorney
himself), that the percentage of acquittals is not vastly greater.

This natural feeling of sympathy for the accused makes it all the
easier for juries to be affected consciously or unconsciously by
considerations they have sworn to disregard. Then if the defendant be a
woman, or a poor man with a large family, or his crime has injured no
one's purse, or restitution has been made, or if the offence charged
is merely that of swindling by means of false representations as to
credit, or the defendant is very young or very old, or wears a clean
collar, or has an attractive personality, or, better, a beautiful
wife, he is turned out with a cheer.

 "For twelve honest men have decided the cause,
 Who are judges alike of the facts and the laws."

Yes, the jury system in criminal cases is a "practical success"--and
it "works substantial justice." It works the exact justice that we
want--the exact justice that we deserve. As we grow to have a greater
respect for human life and a higher regard for law and honesty, the
verdicts of our juries will continue to keep pace with our condition.
Then we shall want something better, and we shall have it. The day will
come when dishonesty in business will lead to the ball and chain as
assuredly as arson and rape. But the time is not yet.

Then juries will decide the issues submitted to them upon the evidence
alone, without prejudice or sympathy, in accordance with the laws
which they are sworn to uphold, without truckling to popular sentiment
or fear of newspaper disapproval; then they will allow the judge to
perform the functions vested in him by law without usurpation by their
verdicts; and will "true deliverance make" between the People on the
one hand and the defendant on the other. Then there will probably be no
need for juries--for there will be no criminals.[40]

FOOTNOTES:

[Footnote 36: This estimate does not apply to the actions of juries
outside of New York County. In other cities and in other states,
particularly in rural districts, the percentage of convictions is often
shockingly small.]

[Footnote 37: The following figures may be of interest to those readers
who are interested in the question of amending the laws governing the
sale of liquor:

In the year 1907, out of a total of 1,237 cases which came before the
Court of Special Sessions, there were 334 convictions, 7 pleas of
guilty, 223 acquittals, 18 discharges and 116 transfers to the General
Sessions. During the last eight years, out of a total of 7,416 cases,
there were 3,129 convictions, 244 pleas of guilty, 2,143 acquittals,
395 discharges, 361 demurrers allowed and 1,144 cases transferred,
on the defendants' motion, to General Sessions, to be tried under
indictment. During this period, very nearly half the cases have
resulted in convictions.

These cases were tried, as the reader is aware, by a bench of three
judges, who decide both law and fact. Compare this record with the
result of 91 transfers, taken as illustrative, from the Special to
the General Sessions in 1905. Of course, each case had to be taken
first before the grand jury. Eighty-four of these cases were summarily
dismissed by that body. In the remaining seven instances, indictments
were secured. Four of these seven defendants pleaded guilty, two were
acquitted by the jury, one was discharged on his own recognizance
and none were convicted. In other words, out of the whole bunch of
transfers, less than four per cent of the defendants were convicted, as
against nearly fifty per cent of convictions in the Special Sessions,
in all liquor-tax cases in the last eight years. In the same period,
out of a total of 1,241 cases presented to the grand jury, 987 were
dismissed by that body. Of the balance, viz., 254 in which indictments
were secured, 25 pleaded guilty, 36 were discharged on their own
recognizances, in 12 cases the bail was forfeited, and of the 181 cases
which actually were tried before juries, 165 defendants were acquitted
and 16 were convicted.

In 1906, out of 85 cases transferred, 79 were dismissed, and of the
remaining six, 5 defendants were acquitted and 1 was discharged. In
1907 there were 98 transferred and _all were dismissed_ by the grand
jury.

The significance of these figures becomes evident when it is realized
that the defendants whose cases are thus transferred are those who are
the actual holders of licenses. They can afford to pay for the services
of counsel, and their conviction is of vastly more importance to the
community than that of their hirelings who actually sell the liquor
over the bar. The barkeeper who violates the law and is caught, comes
to trial in the Special Sessions, either pleads guilty or is convicted,
and receives a fine which his employer promptly pays. The owner of the
saloon thereupon discharges the defendant from his service and secures
another barkeeper. This process can be continued indefinitely. But
when the owner himself is caught and convicted, he is either driven
out of business or has got to operate under another name. These are
the men who apply for and are apparently able to secure transfers of
their cases to the General Sessions, although any judge granting such
motions is, or, at least, should be, aware of what the practical result
of his action will be. The transfer of a liquor-tax case upon the order
of the judge sitting in Part I of the General Sessions is practically
tantamount to a dismissal of it.]

[Footnote 38: Whatever the actual origin of the number twelve for this
purpose there certainly lingered in olden times a feeling that it had a
sacred or foreordained character, and in Duncomb's Trials _per pais_,
the following illuminating explanation is to be found:

"And first as to their number twelve: and this number is no less
esteemed by our law than by Holy Writ. If the twelve apostles on their
twelve thrones must try us in our eternal state, good reason has the
law to appoint the number of twelve to try our temporal. The tribes
of Israel were twelve, the patriarchs were twelve, and Solomon's
officers were twelve. Therefore not only matters of fact were tried
by twelve, but of ancient times twelve judges were to try matters in
law, in the Exchequer Chamber, and there are twelve counsellors of
state for matters of state; and he that wageth his law must have eleven
others with him who believe he says true. And the law is so precise in
this number of twelve, that if the trial be by more or less, it is a
mistrial." (Cf. Thayer's Preliminary Treatise, as cited, p. 90.)]

[Footnote 39: Cf. "Criminal Law and Its Administration," by Robert
Earl, 2 Columbia Law Rev. 144.]

[Footnote 40: Many cases result in mis-trials owing to the sickness or
death of a single juror. In persecutions which it can be foreseen will
be long the swearing of an _extra juror_ would obviate this difficulty.
Cf. "Newspapers and the Jury," Clarence B. Smith, 17 Greenbag 223.]



CHAPTER XII

THE WITNESS


The probative value of all honestly given testimony depends, naturally,
first upon the witness's original capacity to observe; second, upon
the extent to which his memory may have played him false; and third,
upon how far he really means exactly what he says. This is just as
true of testimony in cases of so-called circumstantial evidence as in
cases where the evidence is direct, for the circumstances themselves
must be testified to by witnesses who have observed them, and the
authoritativeness of everything these witnesses have to say must lie in
their ability to see, remember, and describe accurately what they have
seen.

The subject of perjury is so distinct and far-reaching that it deserves
separate consideration. The crime is easy to commit and difficult to
establish by competent proof, for it is a highly technical offence
and one which juries seem to find it easy to condone. The brother or
friend of the accused has but to take the stand and swear to an alibi
and lo! he is free. The chance of detection is small in comparison with
the immediate benefit secured, while the temptation to swear falsely
must, at least in the case of the immediate family of the prisoner,
often be overwhelming. Where convictions for perjury are secured heavy
sentences are invariably imposed and a wholesome apprehension instilled
into the hearts of prospective witnesses, yet the amount of deliberate
false swearing in our criminal courts would be inadequately described
as shocking. To estimate its quantity would be difficult if not
impossible, for it varies with the character of the case and the nature
of the defence. When the latter is an alibi the entire testimony for
the prisoner is frequently manufactured out of whole cloth, and it is
probably not very wide of the mark to say that anywhere from a quarter
to seventy-five per cent of the testimony offered by the defendant's
witnesses _upon the direct point in issue_ in the ordinary run of
criminal trials is perjured.

Yet a careful scrutiny of even the honestly given testimony in such
cases gives rise to the belief that the amount of strictly accurate
evidence adduced is relatively small, so small as probably to stagger
the credulity of the layman and to give the lawyer ground for
reflection. It must be borne in mind, however, that this refers to
criminal trials only and to testimony of a character closely relevant
to the issue.

The first consideration is how far the witness was originally capable
of receiving correct impressions through his senses. Naturally this
depends almost entirely upon his physical equipment and the keenness
and accuracy of his general observation, both of which are usually
evidenced to a considerable degree by his appearance and conduct upon
the stand.

Children are proverbially observant, and make remarkable witnesses,
habitually noticing details which inevitably escape the attention of
their elders; while various classes of persons by reason of their
professional requirements are, of course, better qualified than others
to observe certain facts or conditions, as a gem merchant the shape and
cutting of a diamond, or a doctor the physical condition of a patient.

Witnesses are often honestly mistaken, however, as to their own ability
to observe facts, and will unhesitatingly testify that they could
hear sounds and discern objects at extraordinary distances. Lawyers
frequently attempt to induce aged or infirm witnesses to testify that
they could hear plainly what was said by the defendant, in an ordinary
tone, at a distance, say, of forty feet. The lawyer speaks in loud and
distinct tones during the preliminary examination, and then gradually
drops his voice to that usually employed in speaking, in the hope that
the witness will ask him to repeat the question. This ruse usually
fails by reason of the fact that the lawyer, in his anxiety to show
that the witness could not possibly hear the distance claimed, lowers
his voice to such an extent that the test is obviously unfair.

For similar reasons counsel often call upon such witnesses to state
the time by the clock which usually hangs upon the rear wall of the
court-room. A distinguished but conceited advocate, not long ago, after
securing an unqualified statement from an octogenarian, who was bravely
enduring cross-examination, that he "saw the whole thing as if it had
occurred ten feet away," suddenly challenged him to tell the time by
the clock referred to. The lawyer did not look around himself, as he
had done so about half an hour before, when he had noticed that it was
half after eleven. The old man looked at the clock and replied, after
a pause, "Half-past eleven," upon which the lawyer, knowing that it
must be nearly twelve, turned to the jury and burst into a derisive
laugh, exclaiming sarcastically, "That is _all_," and threw himself
back in his seat with an air of having finally annihilated the entire
value of the witness's testimony. The distinguished practitioner,
however, found himself laughing alone. Presently one of the jury
chuckled, and in a trice the whole court-room was in a roar at the
lawyer's expense. The clock had stopped--at half-past eleven.

The professional actor upon the stage presents the _illusion_ of nature
by exaggerating those details of action which ordinarily would escape
the attention of the observer.

In daily life we are quite as likely as not to be deceived by what we
have seen, and this fact is so familiar to jurors that they are apt
to distrust witnesses who profess to have seen much of complicated
or rapidly conducted transactions. They want the main facts stated
convincingly. The rest can take care of themselves. The extraordinary
extent to which the complex development of modern life has dwarfed
our powers of observation is noticeable nowhere more markedly than
in the court-room. Things run so smoothly, transportation facilities
are so perfect, specialization is carried to so high a degree, and
our whole existence goes on so much indoors, that it ceases to be a
matter of note or even of interest that the breakfast is properly
cooked and served, that we are whisked downtown (a little matter say
of five miles) in ten or twelve minutes, that we are shot up to our
offices through twenty floors in an electric elevator, that there is a
blizzard or a deluge, or that part of Broadway has been blown up or
a fifteen-story building fallen down. We pass days without paying the
remotest attention to the weather, and forget that we have relations.
Instead of walking home to supper, pausing to talk to our friends by
the way, we drop into the subway, bury ourselves in newspapers, and are
vomited forth almost without our knowing it at our front doorsteps. The
multiplicity of detail deprives us of either the desire or the capacity
to observe, and we cultivate a habit of not observing lest our eyes
and brains be overwhelmed with fatigue. Observation has ceased to be
necessary and has taken its place among the lost arts.

Compare the old days when a Greek could go to hear the "OEdipus,"
and on returning home could recount practically the whole of it from
beginning to end for the benefit of the wife, who was not allowed to
go herself, or even the comparatively recent period when the funeral
oration over Alexander Hamilton could be reported in the "Evening Post"
_from memory_.

Much the more difficult problem, however, is to determine how far the
witness is the victim of his memory and is unconsciously confusing fact
with imagination, or knowledge with belief. It is a matter of common
experience that almost all cases are stronger in court than they give
the impression of being when the witnesses are first examined in the
private office. Time and again, cases which in the beginning have
seemed hopeless to prosecute have resulted in verdicts of conviction,
and defences originally so fragile as to appear but gossamer have
returned many a defendant to his despairing family.

The reason is not far to seek. Witnesses to the events leading up to a
crime are acquainted with a thousand details which are as vivid, and
probably more vivid, to them than the occurrence in regard to which
their testimony is actually desired. It may well be that the immaterial
facts are the only ones which have interested them at all, while their
knowledge of the criminal act is relatively slight. For example, they
_know_, of course, that they were in the saloon; are _positive_ that
the complainant and defendant were playing cards, even remembering
some of the hands dealt; are _sure_ that the complainant arose and
walked away; _have a very vivid recollection_ that in a few moments
the defendant got up and followed him across the room; are _pretty
clear_, although their attention was still upon the game, that the two
men had an argument; and _have a strong impression_ that the defendant
hit the complainant. In point of fact, their evidence is really of far
_less_ value, if of any at all, in regard to the _actual striking_
than in regard to the events leading up to it, for at the time of the
blow their attention was being given less to the participants in the
quarrel than to something else. Their ideas are in truth very hazy as
to the latter part of the transaction. However, they become witnesses,
pronouncing themselves ready to swear that they saw the blow struck,
which is perhaps the fact. Their evidence is practically of no value
on the question of justification or self-defence. But finding, on
being examined, that their testimony is wanted principally on that
aspect of the case, they naturally tell their entire story as if they
were as clear in their own minds upon one part of it as another. Being
able to give details as to the earlier aspect of the quarrel, they
feel obliged to be equally definite as to all of it. If they have an
idea that the striking was without excuse, they gradually imagine
details to fit their point of view. This is done quite unconsciously.
Before long they are as glib with their description of the assault
as they are about the game of cards. They get hazy on what occurred
before, and overwhelmingly positive as to what occurred towards and
at the last, and on the witness-stand swear convincingly that they
_saw_ the defendant strike the complainant, exactly how he did it,
the words he said, and that the complainant made no offer of any sort
to strike the defendant. From allowing their minds to dwell on their
own conception of what _must_ have occurred, they are soon convinced
that it _did_ occur in that way, and their account flows forth with a
circumstantiality that carries with it an irresistible impression of
veracity.

The witness remembers in a large proportion of cases what he _wants_ to
remember, or believes occurred. The liar with his prepared lie is far
less dangerous than the honest, but mistaken witness, or the witness
who draws inadvertently upon his imagination. Most juries instinctively
know a liar when they see and hear one, but few of them can determine
in the case of an honestly intentioned witness how much of his evidence
should be discarded as unreliable, and how much accepted as true.

The greatest difficulty in the trial of jury cases so far as the
evidence is concerned lies in the fallibility of the human mind, and
not in the inventive genius of the devil. An old man who combines a
venerable appearance with a failing memory is the witness most to be
feared by either side.

In a recent case a patriarch of some eighty-five years positively,
convincingly, and ultra-dramatically identified the defendant as a man
who had knocked him down and robbed him of a ring. The identification
was so perfect that on the evidence of this aged witness alone the jury
convicted the defendant after but a few moments' deliberation. He was
sentenced to ten years in State's prison, although he denied vehemently
that he had ever _seen_ the complainant. As he was being led from
the bar, the real criminal arose among the audience and gave himself
up, stating that he could not sit by and see an innocent man receive
_so great_ a punishment. The inference was, that had the sentence
been lighter his conscience would not have pricked him sufficiently
to sanction his act of self-sacrifice. In cross-examination lies the
only corrective of this sort of specious testimony, but it would be
manifestly inadequate to prevent injustice in such an instance as
that just described. Juries must and do take the evidence of most
well-intentioned witnesses with a grain of salt.

Both men and women habitually testify to facts as actually occurring on
a specific occasion because they occurred on most occasions:

_Q._ "_Did_ your husband _lock_ the door?"

_A._ "Of course he did."

_Q._ "How do you know?"

_A._ "He _always_ locks the door."

Witness after witness will take the stand and testify positively that
certain events took place, or certain acts were done, when in point of
fact all they can really swear to is that they usually took place or
usually were done:

_Q._ "Did he put on his hat?"

_A._ "Certainly he did."

_Q._ "Did you _see_ him?"

_A._ "No, but he _must_ have put on his hat _if he went_ out."

And the probability is that the whole question to be determined was
whether or not "_he_" _did go out_ or stay in.

The layman chancing to listen to a criminal trial finds himself gasping
with astonishment at the deluge of minute facts which pour from the
witnesses' mouths in regard to the happenings of some particular day
a year or so before. He knows that it is humanly impossible actually
to _remember_ any such facts, even had they occurred the day before
yesterday. He may ask himself what he did that very morning and be
unable to give any satisfactory reply. And yet the jury believe this
testimony, and because the witness swears to it it goes upon the record
as evidence of actual knowledge. In ninety-nine cases out of a hundred
counsel's only recourse is to argue to the jury that such a memory is
impossible. But in the same proportion of cases the jury will take
the oath of the witness against the lawyer's reasoning and their own
common-sense. This is because of the fictitious value given to the
witness's oath by talesmen who attach little significance to their own.
"He _swears_ to it," says the juryman, rubbing his forehead. "Well,
he _must_ remember it or he wouldn't swear to it!" And the witness
probably thinks he _does_ remember it.

Yet who of us could state with certainty the guests at a particular
dinner six months ago? Or the transactions of a morning only a week
ago, with any accuracy as to time? What the witness frequently does
is to discuss the matter with his friends who were present on the
occasion in question, and, as it were, form a sort of "pool" of their
common recollections, impressions, and beliefs. One suggestion corrects
or modifies another until a comparatively lucid and logical story is
evoked. When this has been accomplished the witness mentally exclaims:
"Of course! That was just the way it was! Now I remember it all!" The
time is so distant that whatever the final crystallization of the
matter may be, it is far from likely that it will thereafter be shown
to be inaccurate by any piece of evidence which will present itself
to the witness and his friends. The account thus developed by mutual
questions and "refreshing" of each other's recollection becomes, so
far as the parties to it are concerned, _the fact_. The witness is
now positive that he did and said exactly so and so, and nothing will
swerve him from it, for inherently there is nothing in the story or
its make-up that affords any reason for questioning its accuracy. This
story repeated from time to time becomes one of the most vivid things
in the witness's mental experience. He repeats it over and over, is
cross-examined by his own attorney upon it, incorporates it in an
affidavit to which he swears, and when he takes the stand recounts
these ancient happenings with an aggressiveness and enthusiasm that
bring dismay to the other side.

But what a farce to call this recollection! What is this circumstantial
romance when it comes to be analyzed? Jones, a friend of Smith the
prospective witness, is anxious to establish an alibi, and asks Smith
if he doesn't remember meeting him in the club on February 12, two
years before. Smith has no recollection of it at all, but Jones says:
"Oh, yes, you were going to the theatre with Robinson." Of course,
if Jones is so sure, Smith naturally begins to think it is probably
the fact, and he does remember vaguely that he and Robinson spent an
evening together. So he consults his diary and finds it recorded there
that he did attend the theatre on the day in question with Robinson.
He does not remember the play, but Robinson recalls that it was "The
Chinese Honeymoon," and believes that they dined together first at
the club. Smith now thinks he remembers this himself. Then Robinson
suggests that they probably went to the theatre in a cab. They look
in a file of old papers and find that it was raining. That settles
it--of _course_, they went in a cab. The next question is the hour.
They have no recollection of being late, so they must have arrived on
time. Well, the paper says the play commenced at eight, and it takes
a cab about twenty minutes to get from the club to Daly's Theatre, so
it is reasonably clear that they must have started a little before
eight. Smith unconsciously is persuaded to believe that if Jones was
right about their going to the theatre, he _must_ also have been in
the club at the time he says he was there. Both he and Robinson recall
that Jones was always hanging round the club two years ago, and as
neither can remember an evening when he wasn't there, they decide he
must have been there _that_ night. Robinson has a dim recollection that
they had a drink together. That is a pretty safe guess and has all
the air of verisimilitude. In an hour or two Smith is ready to swear
positively from _recollection_ that he dined with Robinson at the club
on February 12 two years ago, met Jones, had a drink with him, that
this occurred at seven fifty-five, that it was raining, that they took
a cab, etc., etc. In its elements this testimony is entirely hearsay
upon the only vital point, _i.e._, Jones's presence in the club at
that time, and the immaterial remainder is made up of equal parts of
diary, newspaper, play-bill, weather report, usual custom, reliance
on Robinson's alleged recollection, and belief in Jones's innocence.
He has practically no actual memory of the facts at all, and the only
thing he really does remember is that a long time ago he did attend
some theatre with Robinson.

The common doctrine of what is known as "refreshing the memory"
in actual practice is notoriously absurd. Witnesses who have made
memoranda as to certain facts, or even, in certain cases, of
conversations, and who have no independent recollection thereof, are
permitted to read them for the purpose of "refreshing" their memories.
Having done so, they are then asked if they _now_ have, _independently
of the paper_, any recollection of them. In ninety-nine cases out of a
hundred it would be absolutely impossible for them really to _remember_
anything of the sort. They read the entry, know it is probably
accurate, and are morally convinced that the fact is as thereon stated.
They answer _yes_, that their recollection _has_ been refreshed and
that they now do remember, and are allowed to testify to the fact as of
their own knowledge. In most instances they do not clearly understand
the distinction they are called upon to draw between actual independent
recollection and a strong belief on their own part that the fact must
be as recorded. It is the exceptional witness indeed who makes any
such distinction.

There are also many cases where a defendant has been put in jeopardy
because some one, remembering that he _intended_ to do an act, becomes
convinced that he _has_ done so, to the extent of being willing to
swear thereto. No better illustration of this kind of error could be
given than the disappearance of the famous necklace of a prominent
resident of Newport during the summer of 1904. There lives hardly a
family which has not frequently had such an experience. Some night the
husband can't find his pearl shirt-studs. He knows he had them on the
evening before. The hue and cry is raised. Maledictions are called down
upon Anna or Delia or Nora. But the studs are not in the shirt. Their
owner swears he left them there. Then Delia tremblingly suggests that
"master dined in his ordinary clothes last evening," and he realizes
that it was so late when he got home that at the last minute he decided
not to change. Amid great excitement the studs are located in the
bureau drawer where they belonged.

The final question to be determined by the juror in regard to the
testimony of any witness is how far the latter has succeeded in
conveying his actual recollections through the medium of speech and
gesture. This necessarily depends upon a variety of considerations.
Among these are his familiarity with the English language; inadvertent
accentuation of wrong words or of the less important features of his
testimony; his physical condition, which in nine cases out of ten is
one of extreme nervousness and timidity, if not of actual fear; and a
hundred other trifling, but, in the aggregate, material matters.

The most effective testimony is that which is given with what the
jury regard as the evidences of candor. It is a familiar fact that
the surer a person is of anything, particularly among the laboring
classes, the more loudly will he assert its truth. This is so well
known to the jury as ordinarily constituted that unless testimony is
given with positiveness it might as well not be given at all. Much
as it is to be deprecated, an assertive lie is of much more weight
with a jury than an anemic statement of the truth. The juror imagines
himself telling the story, and feels that if he were doing so and his
testimony were true, he would be so convincing that the jury could
have no doubt about it at all. Ofttimes a witness leads the jury to
suspect that he is a liar simply because he has too strong a sense of
the proprieties of his position vehemently to resent a suggestion of
untruthfulness. The gentleman who mildly replies "That is not so" to a
challenge of his veracity, makes far less impression on the jury than
the coal-heaver who leans forward and shakes his fist in the shyster's
face, exclaiming: "If ye said that outside, ye little spalpeen, I'd
knock yer head off." "Ah," say the jury, "there's a _man_ for you."
Just as your puritan is at a disadvantage in an alehouse, and your
dandy in a mob, so are the hyper-conscientious and the oversensitive
and refined before a jury. The most effective witness is he whom the
general run of jurors can understand, who speaks their own language,
feels about the same emotions, and is not so morbidly conscientious
about details that in qualifying testimony he finds himself entangled
and rendered helpless in his own refinements. A distinguished lawyer
testifying in a recent case was so careful to qualify every statement
and refine every bit of his evidence that the jury took the word of a
perjured loafer and a street-walker in preference. This kind of thing
happens again and again, and the wily witness who thinks himself clever
in appearing overdisinterested is "hoist by his own petard." The jury
at once distrust him. They feel either that he is making it all up, or
is in fact not sure of his evidence, else, they argue, he would be more
positive in giving it.

Most witnesses in the general run of criminal cases have no
comprehension of the meaning of words of more than three syllables. It
is hopeless to make use of even such modest members of our national
vocabulary as "preceding," "subsequent," "various," etc. A negro when
asked if certain shots were _simultaneous_ replied:

"Yas, boss. Dat's it! 'Zactly simultaneous! One _right_ after de odder."

The ordinary witness usually says "minutes" when he means "seconds." He
will testify without hesitation that the defendant drew his revolver
and immediately shot the complainant, illustrating on the stand the
rapidity of the movement. When asked how long it took, he will answer:
"Oh, about two or three minutes."

A proper medium in which to converse between the lawyer and witness
is sometimes difficult to find, and invariably much tact is required
in handling witnesses of limited education. The writer remembers
one witness who was completely disconcerted by the use of the word
"cravat," and at the precise moment the attorney was so confused as
not to be able to remember any synonym. The Tenderloin and the Bowery
have a vocabulary of their own differing somewhat from that of beggars
and professional criminals. The language of the ordinary policeman is
a polyglot of all three. Popular writers on the "powers that prey,"
and dabblers in criminology in general, are apt to become the victims
of self-alleged "ex-convicts" and "criminals" who are anxious to sell
unreliable information for honest liquor. A large part of the lingo
in realistic treatises on prison life and "life among the burglars,"
originates in the doped imagination of whatever fanciful "reformed"
thief happens to be the personal gold mine of that particular author.
Thieves, like any distinct class, make use of slang, some of which is
peculiar to them alone. But for the most part the "tough" elements in
the community make themselves easily understood either in the office or
on the witness-stand.

Where the witness speaks a foreign language the task of discovering
exactly what he knows, or even what he actually says, is herculean.
In the first place interpreters, as a rule, give the substance--as
they understand it--of the witness's testimony rather than his exact
words. It is also practically impossible to cross-examine through an
interpreter, for the whole psychological significance of the answer is
destroyed, ample opportunity being given for the witness to collect
his wits and carefully to frame his reply. One could cross-examine a
deaf-mute by means of the finger alphabet about as effectively as an
Italian through a court interpreter, who probably speaks (defectively)
seventeen languages.

The reader might perhaps conclude from what has been said that the
action of the ordinary jury in most cases must be founded simply upon
shrewd guesswork. To a certain degree this cannot be denied, and it
is equally true that all the delicate processes of the human mind,
and the shadowy presences there of intent, motive, and recollection,
can never be demonstrated save by inference. Our machinery is crude
indeed. Ofttimes it is like trying to dissect a butterfly with a pair
of pincers, and the wonder is that the jury are able to get at the
truth as frequently as they do. Hence the necessity for the advocate
to assist the jury and remedy their ignorance of the psychology of
testimony by his own observation, knowledge, and experience. With the
jury keenly alive to all the possibilities of error in the testimony
of even the most honest of witnesses, it is for the advocate, the
psychologist of the law, to test by his cross-examination and
demonstrate in his summing up the precise probative value of the
evidence, frequently revealing, below an apparently limpid stream of
truth, a turbid bed of conjecture, assumption, belief, hearsay, and
inaccuracy of expression, with the rank weeds of perjury growing just
beneath the surface.



CHAPTER XIII

THE VERDICT


The judge having delivered his charge, and the jury having gathered
up their collection of miscellaneous garments and retired to the
jury-room, a court officer claps the prisoner upon the shoulder and
leads him away to the prison pen. Once the door of the court-room has
closed behind him, he is conducted along a narrow corridor to the
head of a flight of iron steps at the foot of which stands a keeper.
As he descends the stairs the attendant notifies the keeper that the
defendant is on his way down: and once the latter is safely below the
keeper shouts "All right!" to the officer above, who returns once more
to his duties in the court-room. Since there is little danger of an
escape the officers sometimes become a trifle lax in the handling of
prisoners awaiting the verdict.

An incident recently occurred which shows how much care is necessary in
guarding a defendant who confidently expects a verdict of conviction.
At the conclusion of a trial for grand larceny the jury went out and
the prisoner was conducted to the head of the stairs leading down
to the pen. The court officer notified the keeper when the prisoner
was about half-way down, and distinctly heard the latter reply "All
right!" He thereupon departed. The keeper, however, had not uttered a
syllable and was entirely unaware of the return of the defendant, who,
being something of a ventriloquist, had answered for him, and had then
calmly reascended the stairs, passed through the corridor to another
court-room where he had mingled with the crowd, and later had had no
difficulty in making his escape first into the main corridor and thence
into the street. When the jury presently returned and the prisoner was
sent for, his flight was discovered. The court waited patiently while
the pens, corridors and finally the entire building were searched, but
without disclosing a trace of the prisoner. Meanwhile the jury, who
had found the defendant guilty, wondered why their verdict was not
received. According to law, however, all the proceedings incident to
a trial for felony up to and including the rendition of the verdict
must take place in the presence of the prisoner, and in this case his
voluntary absence compelled the court to declare a "mistrial." When it
became evident that the defendant was unlikely to return, terrible was
the humiliation of the court officers, who, for a few days, lived in
terror of losing their official heads, if not of being imprisoned and
fined for contempt.

The prisoner's wife, however, had been present throughout the trial in
the court-room, although, as his escape was entirely extemporaneous,
she was as much surprised as anybody else at his departure. After the
discharge of the jury several detectives followed her to her home
in Hoboken. Late in the evening she left the house in response to a
message and met her husband in a deserted part of the city, where he
was recaptured. He was immediately brought back to New York and his
case placed once more on trial; but this time he pleaded guilty. From
a dramatic point of view it is to be regretted that the jury at the
first trial had not found a verdict of "not guilty."

As the first talesman who happens to be selected for the jury in
any given case becomes _ipso facto_ its foreman, amusing incidents
sometimes occur owing to his inexperience. Where an indictment contains
but a single count, as, for example, "receiving stolen goods," the
foreman's answer to the clerk's interrogation of, "Do you find the
prisoner guilty or not guilty," is, of course, simple enough; he
answers "guilty" or "not guilty," or "not guilty, with a recommendation
to the mercy of the court"; but where the indictment contains either
a number of counts set forth separately, or the crime charged is of
such a character that the jury may find in a lesser degree, some
confusion is apt to result. If, for example, a defendant is being tried
for murder in the first degree the court is obliged to submit, under
the law, not only murder in its first degree, but the lesser crimes
of murder in the second degree, manslaughter in the first degree,
manslaughter in the second degree and occasionally assault in one or
more degrees. Sometimes the foreman forgets entirely what he was going
to say and stands staring, open-mouthed, until the clerk comes to his
assistance.

In a case where the court charged the jury that they could find the
defendant guilty of murder, manslaughter, or assault, or else acquit
him on the ground that he was justified in taking the life of the
deceased, the jury retired and deliberated for many hours. As the time
dragged on the defendant became convinced that he was to be convicted.
Late at night the jury informed the court that they had agreed upon
a verdict. They filed back and took their places in the box. The
defendant was arraigned, pale with apprehension. The clerk arose.

"Gentlemen of the jury," said he, "have you agreed upon a verdict?"

"We have," replied the foreman.

"The jury will rise," continued the clerk. "The defendant will rise."
The jury and prisoner arose.

"Jurymen, look upon the prisoner. Prisoner, look upon the jury,"
continued the clerk, and turning to the foreman, "How say you? Do you
find the defendant guilty or not guilty?"

"Guilty," stammered the foreman.

The defendant uttered a loud groan and collapsed into the arms of the
court attendant beside him.

"_Of justifiable homicide_," hastily added the inexperienced foreman.
In spite of the laughter of the rest of the jurymen and the smiles of
the court it took some moments to convince the unnerved prisoner that
he was not to be electrocuted.

In a recent case the jury returned a verdict of "_Pretty nearly
guilty_!"

A very considerable proportion of jury trials in criminal cases
result in disagreements. The question of reasonable doubt is always
a troublesome one, and even where all the jury believe the defendant
guilty, as likely as not half of them will not think that they are
convinced beyond what they regard as a reasonable doubt. On this
account many jurors are of the opinion that what is known as a Scotch
verdict, or a verdict of "Not proven," should be allowed. The writer
has been informed on good authority that in one of the recent trials
of Nan Patterson eleven of the twelve jurymen believed her guilty, but
that only six of them were of the opinion that they were so convinced
beyond a reasonable doubt. Had the Scotch verdict been permissible
it would probably have been rendered in this case. Inasmuch as the
ordinary American petit jury are apt to go outside the evidence and to
decide the issue, in some degree at least, on evidence which properly
they should not consider at all, no further loopholes of escape from
rendering a verdict one way or the other should be afforded them.
Had we the Scotch verdict, instead of disagreeing and giving the
prosecution the opportunity to try the defendant over again, juries
would probably make use of it in all cases where they disliked to
render a verdict in accordance with the evidence.

Juries frequently incorporate with the verdict of guilty the words
"with a recommendation to mercy." Of course this is no part of the
verdict and has no legal effect whatever. It is merely a formal
expression of opinion that in the eyes of the jury it would be well
for the court to treat the defendant with leniency. The judge usually
comments upon this recommendation and intimates that he will give
it consideration in imposing sentence. It is not likely, however,
that in any case which has appealed to the sympathies of the jury
the court will not be equally moved. In point of fact, did juries
fix the sentence in cases where they found the defendant guilty it
is exceedingly probable that they would be much more severe than
the bench. Most jurors, however, are under the impression that "a
recommendation to mercy" is an integral part of their verdict and
it frequently does yeoman's service by inducing a juror or two who
have a lingering feeling that perhaps the crime has not been as fully
proven as it might have been, or that maybe the defendant is not
guilty after all or should be given another chance, to agree with the
majority of their fellows. The writer had one panel of jurors in the
General Sessions which, having returned a verdict of guilty "with a
recommendation to mercy" in the first case tried during the month,
affixed the same recommendation to each verdict which they rendered
thereafter. It is his impression that they convicted every prisoner who
came before them, so that the recommendation must in many cases have
seemed to the hapless defendant but a hollow mockery. There is even a
traditional case where a jury in a murder trial found the defendant
guilty of murder in the first degree, "with a strong recommendation to
the mercy of the court."

Verdicts of murder in the first degree are comparatively rare and are,
practically, only to be expected when the circumstances surrounding
the crime are peculiarly atrocious. It is also a well-known fact that
juries rarely find a verdict in a degree of crime higher than the
one for which the majority vote upon the first ballot. For example,
if on the first ballot the jury stands five for murder in the first
degree, six for murder in the second degree and one for manslaughter
only a miracle could account for a final verdict of murder in the
first degree. In other words, a jury will almost never work _up_ their
verdict, argument invariably tending to work them _down_ to a lesser
degree. Most cases of what is technically murder in the first degree
result in verdicts of murder in the second degree, and most cases of
murder in the second degree result in verdicts of manslaughter.

The jury having rendered a verdict of conviction, say of murder in the
first degree, there remains to counsel but one last act which he can
perform in his client's behalf, namely, to demand that the jury be
polled. This must be done upon the requirement of either the defendant
or the People, in which case, "they must be severally asked whether it
is their verdict; and if any one answer in the negative, the jury must
be sent out for further deliberation." The writer has never heard of a
jury which, on being polled, showed a disagreement. It is not unusual,
however, as the roll is called to see various members of the jury look
apprehensively towards one of their number who has evidently put up
in the jury-room a hard fight for a lesser degree and may be "of the
same opinion still." A prosecutor always breathes more freely when
the ordeal is over, and probably experiences during the process very
much the same kind of emotion as that felt by the bride-groom at the
altar as he listens apprehensively at the conclusion of the clergyman's
announcement that "if any one has any just cause, etc., let him now
speak or forever hold his peace."

Defendants who are convicted rarely show any emotion when receiving
the verdict. This is of course to be expected, as the defendant, if
guilty, has probably been anticipating that he will be so found by the
jury, and has steeled himself for the occasion, while an innocent man
is practically never convicted. Hundreds of defendants, however, who
confidently expect to be convicted, are acquitted through the leniency
of the jury. Their exclamations of gratification and joy upon such
occasions are frequently most amusing. Such a defendant not seldom
thanks the court and the jury for their kindness, and in some cases
his thanks are certainly due to those who have violated the letter and
spirit of their oaths in acquitting him. The writer recalls one old
colored mammy who, on being acquitted of stealing some wash which had
been confided to her care, curtsied in all directions and remarked, "Ah
t'anks your honor, an' Ah t'anks your Honors, gen'lemen ob de jury, one
an' all." An Irishman, who had been but a few weeks in this country,
and who had been acquitted on the charge of stealing a truck and horse
which had been left in his charge, on learning of his acquittal invited
the jury collectively in a loud voice to come across the street and
have a drink.

Before the jury is discharged, however, and the prisoner remanded to
the Tombs for sentence, he is required to answer certain questions
relative to his age, parentage, education, previous convictions, etc.
If the spectator is fortunate enough to be able to forget the solemnity
of what has taken place, he may well be entertained, not only at the
answers given by the defendant, but at the method of conducting the
examination by the court officer. The clerk takes the indictment
and, with a large rubber die, stamps upon it the statement that the
defendant, on being arraigned, made answer to the questions put to him,
as follows:

 Counsel Assigned ............................................
 Sex .........................................................
 Age .........................................................
 Nativity ....................................................
 Residence ...................................................
 Occupation ...................................................
 Married or Single ............................................
 Education ....................................................
 Religious Instruction ........................................
 Parents Living ...............................................
 Temperate or Intemperate .....................................
 Before Convicted .............................................

Of course, the court officer who repeats the prisoner's answers to the
clerk is usually so familiar with the order of the questions as to
render any vocal action upon the part of the clerk unnecessary. The
officer stands by the prisoner and, leaning over, asks in a low tone
how old he is, if his parents are living, if he is addicted to the use
of liquor, if he has had any religious instruction, or if he has been
previously convicted of crime. It is really the officer to whom the
defendant makes his replies, the former repeating them in a loud voice
to the clerk. In some courts the clerk does not put the questions at
all, but the officer merely gives in their order the answers of the
defendant. For example, in Part II, upon the rendition of a verdict one
will see Mr. Samuel Wolff, the clerk, stamp the indictment, dip his pen
in the ink, turn to the officer of the court and say, "All ready?"

The officer answers, "Yes."

A subdued conversation then takes place between the prisoner and the
officer, who raises his voice and answers:

"Twenty-nine;--U.S.--No;--None;--Single--Yes;--No.--" All of which
answers are properly recorded opposite the appropriate questions upon
the indictment.

All this is a little startling to the juror who has rendered his
first verdict. He has no idea at all of what is going on. The officer
returns, if possible, a categorical reply to each question, but
frequently prisoners make statements which are of course irrelevant in
character and are not incorporated in the answer. At times it requires
quite a little cross-examining on the part of the officer to determine
whether or not the defendant _is_ temperate or intemperate, or whether
he _has_ really ever been convicted of crime theretofore. Any one who
could overhear these colloquies would be well repaid for his trouble.
The writer knows of one officer of a somewhat waggish disposition who,
when he approaches the interrogation directed towards the prisoner's
usual habits, first puts the question in its proper form:

"Are you temperate or intemperate?"

The prisoner, who perhaps does not understand these terms, or, at any
rate, is a little doubtful himself as to his usual condition, stammers
and hesitates. The officer, dropping his voice, remarks, confidentially:

"Say, do you ever take a drink?"

"Sure," says the defendant, without hesitation.

"_Moderate_," shouts the officer to the clerk.

A certain element of humor enters into the situation when a defendant
convicted of bigamy is asked if he is married. The answer "Yes" is
generally accompanied by an irrepressible grin.

There used to be an old court officer in one of the parts of the
General Sessions a few years ago who was a loyal son of Old Erin and a
devout member of the Roman Church.

On one occasion, a defendant having been found guilty he was arraigned
at the bar for the purpose of having his pedigree taken, old Flaherty
officiating. The conversation which ensued may be worth preservation.

Flaherty to Defendant: "Say, me friend, where was ye born?"

Defendant to Flaherty: "_Lowell, Mass._"

Flaherty to Clerk: "Lowell, Mass."

Flaherty to Defendant: "Where do yez hang out?"

Defendant: "Nowhere."

Flaherty to Clerk: "_Ain't got none._"

Flaherty to Defendant: "Phat do yez do fer a livin'?"

Defendant: "Nothin'."

Flaherty to Clerk: "_Ain't got none._"

Flaherty to Defendant: "Are ye married?"

Defendant: "No,--thank God."

Flaherty to Clerk: "_He says 'No, thank God!'_"

Flaherty to Defendant: "Ever receive any previous religious
instruction?"

Defendant: "How's that?"

Flaherty to Defendant: "Phat's yer religion?"

Defendant: "Don't believe in nothin'."

Flaherty to Clerk (loudly): "PROTESTANT!"

       *       *       *       *       *

For a convict to give under oath false answers to the questions thus
put to him is, of course, perjury. It is frequently of no small
importance for a prisoner to conceal his identity, or at least his
record. But if a Bible is thrust into his right hand he is loath to put
himself within the statute governing false swearing, for the chances
are all in favor of his being found out, in which case his punishment
will be severe. The writer recalls a dramatic incident of a man who
endeavored to prevent his past offences coming to the knowledge of
the judge. He bore, however, all the ear-marks of an ex-convict, and
the court became suspicious that all was not right. He had just been
convicted of stealing a purse. The jury had remained out until eleven
o'clock at night and the court-room was practically deserted. The
prisoner was placed before the bar. We will call him James Graham. The
clerk put the usual questions and then inquired:

"Have you ever been convicted before?"

"No," answered the prisoner in a low voice.

There was a long pause, and then the judge, looking down intently from
the bench, said:

"Graham, is that the truth?"

"Yes, sir," replied the prisoner.

"Are you quite sure?" insisted the court.

"Yes, sir."

"Swear him!" ordered the judge.

The officer started to place the Bible in Graham's hand, but he refused
to take it.

"No, no, I can't!" he whispered. "I can't--I--I--it's no use!" he added.

"When were you convicted?"

"I served six months for petty larceny about five years ago."

"Is that all?"

"Yes, sir."

"Are you sure?"

"Yes, sir."

"Quite sure? Think again."

"Yes, sir."

"Swear him!"

Again the book was placed in his hand and again it was declined.

"I served three years in Charlestown for larceny, and was discharged
two months ago."

"Is that all?"

"O God! Isn't that enough?" suddenly groaned the prisoner, breaking
down completely. "No, sir, it isn't all! It's always been the
same old story! Concord, Joliet, Elmira, Springfield, Sing Sing,
Charlestown--Yes, six times. Twelve years!--_I'm a jail bird!_"

Before rendering a verdict the members of almost every jury take the
opportunity in the jury-room to stretch their legs and satisfy their
craving to smoke. Juries rarely return in less time than it takes to
burn a cigar. While this may torture the prisoner it would seem a
fairly earned perquisite on the part of his judges. Some jurors are
instinctively, and a few are actually lawyers. These rarely add much to
the general usefulness of the panel. Jurymen not infrequently seize the
opportunity to display their oratorical ability, since their audience
cannot get away and must perforce hear them out. The writer recalls
one instance where in a well-known extortion case an enthusiastic
talesman made a digest of the speeches of counsel for the defence and
for the prosecution and then prepared a long harangue of his own which
he committed to memory. When the jury were safely locked into their
council chamber this self-sacrificing gentleman arose and began, "In
this case the defence claims, thus and so." After he had repeated
practically in toto the argument of the defence he got his second wind
and continued, "On the other hand, the People assert, thus and so." At
the end of about an hour he had reached his own humble views of the
case, which he expanded at great length, ending with a peroration in
which the great American eagle could be heard screaming all the way
into the court-room. The jury, probably out of sheer fatigue, took but
a single vote and found the defendant guilty. The orator to this day
claims that he "did it."

While the deliberations of the jury are theoretically secret, the rooms
in which they are confined are often so located with reference to
corridors, retiring rooms, etc., that officers on duty, turnkeys, and
other persons are occasionally made involuntary eavesdroppers. It is
said that in other and more barbarous times interested parties would
lurk near by in order to get an idea of how the wind was blowing. There
is a story for which the writer assumes no responsibility that ten or
fifteen years ago a noted prosecutor was accustomed to follow the jury
out, climb upon a ladder, and listen at the transom to their arguments
and comments; and there is also a report, which perhaps is but a fable,
that there was a knot-hole in the jury-room of the old "Brownstone"
building from which the plug was regularly removed to allow of similar
surreptitious observations. The rumors which come from the direction of
the jury-room are quite as apt to be incorrect as accurate, and neither
prosecutor nor prisoner really knows what is the result of the jury's
deliberations until the foreman's word ends the suspense.

Many strange and amusing stories are told of how certain historic
verdicts in criminal cases were reached. Perhaps the most famous is
that of the trial of the first indictment which followed the robbery
of the Manhattan Bank. The case was tried before Judge Cowing in the
General Sessions, and after a speedy, but conclusive, trial the jury
retired. A vote, which was immediately taken, showed that they stood
eleven to one for conviction. The twelfth juror was obstinate and
no progress whatever was made by the others. The situation remained
unchanged during the night and up to twelve o'clock of the next day,
which happened to be a Saturday. At that hour Judge Cowing sent word
that he was going downtown and would not return until two o'clock. In
some way the jury got the idea that the judge intended to lock them up
until Monday if they did not agree. They accordingly asked for five
minutes more before the judge left the building. This was granted and
at the end of that time they announced that they had agreed. Into court
they filed.

"Have you agreed upon a verdict?" asked the clerk.

"We have," replied the foreman.

"How say you? Do you find the defendant guilty or not guilty?"

"_Not guilty_," answered the foreman defiantly. The defendant, who
was as guilty a man as ever was brought to the bar of justice, almost
collapsed from astonishment, and the judge gave the jury a frank piece
of his mind in no uncertain language. Rather than suffer any further
inconvenience this high-minded jury had simply faced about and voted to
acquit.

There are some cases, however, where one strong-minded and able juryman
has swung the whole body to his way of thinking after a vote of eleven
against him, and this is as true of verdicts of conviction as of
acquittal. Few jurors, however, can, as a rule, stand out against
the assertions and incriminations of their fellows. Most of them are
easy-going and like to be led by a strong hand. A positive stand taken
by a fellow talesman will often bring them to his views when they are
really inclined to be in doubt. If the flag is raised they will quickly
rally to it, but they will never reach the point where they would be
willing to elevate it of their own accord. An experienced and highly
intelligent juryman once told the writer that the first thing he always
did when the jury had retired, whether he was the foreman or not, was
to stand up at the end of the table and say:

"Gentlemen, this man is _guilty_ [or innocent, as the case might be]!
The sooner we say so the better, _but my mind is made up_."

In this way he invariably secured at the outset the support and
co-operation of a majority of the jury.

In capital cases where the prisoner's life hangs in the balance there
will always be found in the first vote a few blank ballots. These are
cast, as the expression is, "to provoke discussion." Shrewd old jurors,
realizing that no man can convince another half so well as that other
can convince himself, will often vote for "not guilty" in order to get
their fellows worked up to a white heat of intellectual frenzy in the
effort to bring them over. There is many a wily Odysseus among the
variegated personalities of a jury.

"My first jury trial," said one of the judges of the General Sessions
recently, "occurred when I was a very young man and had just been
admitted to the bar. It was my initial appearance in a court of
justice. However, I threw out my chest and tried to make the jury
think I was an old hand at the business, by objecting to almost every
question and taking exceptions by the score. My client was an old
woman who had been illegally ejected, or who claimed to have been
illegally ejected, by the agent of a tenement house which belonged to
Mr. W.D. Sloane. Of course, I don't suppose Mr. Sloane ever heard of
the incident, but I was suing him for damages and put in my case with a
great deal of vigor. The lawyer for the defence was a big, good-natured
man who did not seem to care very much which way the jury decided the
case. The judge charged and the jury retired. They were gone a very
long time. At last an officer appeared with a slip of paper. The judge
beckoned the lawyer for the other side and myself to the bench and
showed us the jury's message.

"'We want a bottle of whiskey and a box of cigars,' it read, and was
signed, 'William Smith, Foreman.'

"'Let 'em have them!' remarked the good-natured lawyer. 'I don't blame
'em for being thirsty.'

"'I don't know,' I replied. 'It does not seem to me that whiskey would
help them to decide the facts any more clearly!'

"'Of course, if Mr. ---- does not agree to it!' exclaimed the lawyer,
'I have nothing to say!' Then he turned away and the judge whispered in
my ear:

"'Young man, I should advise you to let these refreshments go into the
jury-room. You have not had a great deal of experience and probably do
not appreciate the effect which a denial of their request may have
upon the jurors. Take a quiet tip from me and let the whiskey go in.'

"'All right, your Honor,' said I. 'I bow to your Honor's long
acquaintance with men and your experience at the bar--of justice.'

"Well, the whiskey and cigars went in, and I could see as the officer
brought them through the court-room that the whiskey was the very best
King William and the cigars were Havana perfectos. I wondered with some
misgivings who was paying for them.

"In about an hour the jury filed in flushed and happy and rendered a
verdict in favor of Mr. Sloane. Some time afterwards I happened to
be in the court-room and learned from the officer that the jury had
stood eleven to one in my favor for over three hours. The foreman, the
only one against me, had finally remarked that he was thirsty and had
offered to treat the rest of the jury. In less than an hour after the
refreshments had arrived the other eleven came over and decided that
Mr. Sloane was in the right."

Another judge tells of an experience of his when serving upon a jury
in Ireland. The case over they retired to the jury-room and found that
they stood eleven to one for acquittal, but that one happened to be a
very complacent old gentleman in a billy-cock hat who, with his chin
resting upon the head of a thick bamboo cane, announced defiantly
that he was ready to stay there as long as anybody. The hours dragged
slowly by, evening drew on, and still the old gentleman obstinately
held out. The jurors disposed their weary bodies as best they could
along the floor and the hard benches, and prepared to make a night of
it. From time to time the old gentleman would contemplatively suck the
head of his bamboo cane. Finally he fell fast asleep and the cane fell
heavily to the floor. Then one of the jurors picked it up and found
to his surprise _that it was hollow and filled with good old Irish
whiskey_. They passed the cane around, relieved it of its contents, and
then awoke the owner. Slowly he lifted the cane to his mouth, sucked
ineffectually for a moment, looked at his watch and then arose with the
announcement:

"B'ys! I'm afther changin' me moind!"

A recent trial, Donohue _vs._ The New York, New Haven and Hartford
Railroad, illustrates the vagaries of individuals which may seriously
interfere with the course of justice. The judge had been particularly
careful to elucidate the point of law which the jury were to apply to
the facts as they found them. The jury unanimously agreed that the
facts were thus and so, but one of their number refused to follow the
law as laid down by the court. At first he insisted that the judge had
charged differently, but it soon became obvious that this was not the
true cause of his indecision.

"Well," exclaimed the foreman at last, on the verge of distraction,
"should we go back into court and the judge should instruct you that
what we say _is_ the law, would you find a verdict _then_?"

The juryman hesitated and then announced with deliberation:

"No; _not until I had consulted my attorney_."

A frankly unscrupulous member of the criminal bar tells the following
story at his own expense. His client was indicted for murder and on the
evidence apparently guilty. The lawyer's only chance, as he thought,
lay in trying to "work it down" to manslaughter, which would get his
client off with twenty years' imprisonment. Accordingly he told his
clerk to become friendly with the jurymen, treat them to drinks, and
see what he could do. The clerk reported that he had become very thick
with the twelfth juror, an old Irishman, who had promised to "hold out
for manslaughter." The lawyer told his client, and both ceased to worry
about the result, as death no longer stared the prisoner in the face.
The jury retired and remained out twenty-three hours. At the end of
that time, tired, dishevelled, exasperated, they filed into court and
returned a verdict of manslaughter. The lawyer warmly congratulated his
client. As the jury were separating the old Irishman leaned over to the
lawyer and exultantly whispered:

"Bedad, I had th' divil av a time av it! Elivin o' thim were for
_lettin' him go entirely_!"



CHAPTER XIV

THE SENTENCE


"What have you to say why judgment of the court should not be
pronounced against you according to law?"

With these words begins the final chapter of the convict's history.
He has been arraigned for the last time at the bar of justice, after
a jury of his peers has declared him "guilty," and now awaits his
sentence.

The judge who presides at the trial of a criminal case does but begin
his labors when he receives the jury's verdict. If he be a man of
sensibilities the strain of a trial is as nothing compared with the
responsibility of determining whether the defendant shall be let
go free under a "suspended" sentence or ordered to prison. No one
appreciates the horror of prison life or its effect upon the individual
better than the judge himself, and he may pass many a sleepless night
before sentencing a man whose circumstances and whose years suggest the
possibility of reformation.

Where the defendant has been found guilty of murder in any of its
degrees the judge is, of course, relieved of the responsibility of
determining the sentence, which is fixed by law, and the interrogation
of the clerk must seem but a mockery to the prisoner, who knows that,
whatever he may say in his own behalf, the judgment of the court will
be the same. For this reason counsel rarely address the court upon
the sentence in such a case, but sometimes the prisoner himself seeks
a last public opportunity to assert his innocence or proclaim his
repentance.

On Saturday morning, March 21, 1829, Richard Johnson, convicted of the
murder of Ursula Newman, was brought to the bar of the New York Court
of Oyer and Terminer, and was asked what he had to say why judgment
of death should not be pronounced against him according to law. In
the faded ink of the records of the General Sessions is inscribed the
following:

  The prisoner replies:

  If your Honor please. I am asked what I have to say why judgment of
  death should not be pronounced against me? To this I reply--To the
  judgment of the law, nothing. A jury of my country has pronounced
  me guilty; and there remains no discretion with the court but to
  pronounce upon me the sentence of the law. But to the judgment of
  the world I have much to say. I have been convicted of a crime the
  bare recital of which causes humanity to shudder. And it is a duty
  which I owe to myself while living, and to my memory when dead that
  the circumstances of my offence should be fully explained. Before
  entering into the detail, I must take this public opportunity in the
  name of that omniscient and all-merciful Being who will hereafter
  pronounce his judgment, alike upon my judges & myself, of disclaiming
  any knowledge of the transactions of that fatal 20th of November.
  I do not mean to impugn the decision of the jury; the movements of
  the mind were beyond their power to penetrate; and hard as is my
  fate I humbly bow to their verdict. I cannot here enter fully into
  the details of my intimacy with the unfortunate cause of my present
  awful situation. Duped and betrayed as I have been into sorrow and
  bitter despair, and lastly involuntary crime I am unwilling while
  living to indulge in unavailing reproaches. In life the deceased
  was the object of my tenderest affection. An affection that her own
  unkind conduct seemed to inflame, and that, baffled in its honorable
  purpose--expelled reason from her throne, and, in its absence, led
  to the commission of the offence, for which I am now to satisfy the
  offended community by my own life. Was I conscious of any moral
  guilt, at this result I should not repine. Accustomed throughout my
  life to respect the law, I have not now to learn that the blood of
  the murderer is alike a propitiating sacrifice to the laws of God
  and man. Convicted of the legal crime I know my fate. For the moral
  offence I have to answer to my conscience and my God; and that innate
  monitor tells me, that I stand before this court and this community a
  legal but not a moral murderer. To my counsel who have so ably though
  vainly made my defence, I tender my warmest thanks. Of the court I
  have but one request to make, that the period allowed me to prepare
  for my impending fate may be as long as the law will permit.

  The sentence of the court was then pronounced.

Compare this solemn and thrilling declaration with what occurred
upon the sentence of Dr. Carlyle W. Harris, convicted of the murder
of his girl-wife by the administration of morphine capsules which he
compounded and furnished to her. He had married her secretly under an
assumed name and in all probability had never intended to recognize
her as his wife. Events finally rendered it impossible for him to
conceal the marriage longer, and, realizing this, he procured for
her the medicine which caused her death. Harris was a gentleman,--or
rather he was a very debonair, nonchalant, and brazen imitation of one.
Throughout his trial he had preserved an absolutely unruffled exterior,
chatting affably with counsel and court attendants, and receiving the
verdict with undiminished equanimity. On the day set for his sentence
he came into court with the easy and gracious manner of a young man
paying an afternoon call. He was arraigned at the bar and the Recorder
[Smyth] proceeded to rehearse the history of his terrible crime
and stigmatize the loathsome character of his act. Harris listened
politely, and apparently endeavored to show a considerable interest in
his remarks. Then the Recorder made some slight error in giving a date.

"Pardon me, your Honor," interrupted the blithe defendant, "it was the
eighteenth and not the nineteenth----" and corrected him.

The Recorder frowned and replied with dignity.

"That is a matter of slight importance!"

"I beg your Honor's pardon," returned Harris flippantly; "you see, I
have never been sentenced to death before, and am not as familiar with
the procedure as might be."

Unpleasant as is the duty of the prosecutor who is obliged to move
that the sentence of death be pronounced, it is less terrible than
listening to the few simple but hopeless words that doom a convict to
life imprisonment. The murderer must die; but it will soon be over. The
ghost of his victim will in a few weeks cease to haunt his dreams. But
the "lifer"! Who can picture the horror of a life-time of repentance
or of mocking remorselessness? "Civilly dead," he is doomed to drag
out his weary years in an earthly tomb, a silent, forgotten creature,
numbered like a human specimen, enduring all the tortures of purgatory
until the end seems a far distant haven of oblivion. The court-room
echoes, like the empty future of the white-faced prisoner, to the
dull fall of the words upon his barren soul--"_for the rest of your
natural life_." The listener shudders. "God grant that it be short!" he
murmurs, then looks away.

Of course, in the seventeenth century and early in the eighteenth all
felonies were punishable, not only in England but in America, by death.
When the severity of punishment began to be abated and imprisonment
substituted for the extreme penalty, all sentences were for a fixed and
definite term, and the only way that the convict could obtain release
or secure the modification of his sentence was by pardon from the
supreme executive authority of the country.

Sometimes a ray of sunshine illumines the dreary pages of these
parchment-bound volumes, the stiff phraseology of the crabbed
entries failing to obscure it. For example, on Monday morning, March
29, 1784, "The Court met pursuant to adjournment" and was "opened
by proclamation." The grand jury came into court and presented an
indictment against one Sylvia, a negro slave, "for stealing monies from
Alexr Johnson."

"The prisoner being set to the bar and arraigned, did plead guilty,
and for trial put herself upon God and the country." Her case was
immediately moved. One witness, the Alexander Johnson mentioned,
testified.

"The jury without going from the Bar say, that they find the prisoner
at the bar Guilty of the Felony whereof she stands indicted...."

Just one week later, Sylvia, now a convict, "was called to the Bar, for
judgment, and it being demanded of her in the usual manner what she
could say for herself why judgment of Death should not now pass against
her, according to law, she did produce and plead a pardon of the People
of the State of New York, under the Great Seal, bearing test the 31st
March, 1784, which was read and allowed, and the Prisoner discharged."

Sylvia was undoubtedly a valuable piece of personal property--valuable
enough evidently to make it worth her master's while to urge his claims
upon the Governor for clemency.

White offenders did not always fare as well. But for them in the
colonial times still occasionally remained that quaint old plea of
"benefit of clergy." This lingered on as late as 1784, when the record
shows that one John Cullen, having been convicted of forgery,

  "ON MOTION of Mr. Attorney-General ... was sent to the Bar for
  judgment, and it being demanded of him in the usual form what he
  could say for himself why judgment of death should not pass against
  him according to Law, he prayed the Benefit of Clergy, which was
  granted by the Court.

  THEREUPON IT WAS ORDERED that the said John Cullen be branded in the
  brawn of the left Thumb with the letter T in the presence of the
  court, and that the sheriff execute the order immediately, which was
  done accordingly."

Benefit of clergy was the historic privilege accorded in England to
all priests of being tried only in the ecclesiastical courts for
their crimes. Coke says that "it took its root from a constitution of
the Pope that no man should accuse the priests of Holy Church before
a secular judge." As all common-law felonies (except petty larceny
and mayhem) were _punishable by death_ even as late as 1826, and as
these felonies included homicide, rape, burglary, arson, robbery and
larceny, and _all were clergyable_, it must have been a prerogative of
considerable value to any member of the cloth of lively disposition.

Originally the privilege could be claimed _before trial_, and ousted
the lay courts of any jurisdiction whatever, the right being strictly
limited, however, to those who exhibited all the physical attributes
and garb of priesthood, having "_habitum et tonsuram clericalem_,"
but long before (1350) it was provided that "_all manner of clerks_,
as well secular as religious, shall from henceforth freely have and
enjoy the privileges of Holy Church." As a priest's trial in the
ecclesiastical courts was hardly more than a matter of form, with
rarely any result save that of acquittal, he who could plead his
"benefit" was practically immune so far as punishment for his crimes
was concerned. In course of time the right was accorded only _after_
conviction in the secular courts.

In 1487 it was provided that every person convicted of a clergyable
felony should be branded in the brawn of his thumb, so that mere
inspection would reveal second offenders. The letter M stood for
murderer and T for thief or forger, as we have seen in Cullen's case.
The statute also provided that no person could plead his clergy a
second time unless he were actually in orders. Thus as late as 1487
practically any one who could read or write might commit as many
crimes, including murder, as he chose, with no fear of punishment
save of having to make his purgation, and after that date could, so
to speak, have one murder, arson or larceny and escape with branding,
while the priest in orders continued free to violate the law to his
heart's content. Perhaps this wholesale extension of the privilege
was made in the interest of education and as an incentive to literary
accomplishment. It certainly put a premium on learning which a mere
"degree" could not offer.

From the beginning of the eighteenth century on (the privilege having
been extended by statute to all the inhabitants of England, male or
female), _any one_, irrespective of his learning, could plead his
clergy once to any crime that remained clergyable, if he could find
one, and priests in orders could do so indefinitely. But the crimes
which were clergyable were correspondingly reduced in number. In 1779
branding was practically done away with in England. (19 Geo. 3, c. 74
s. 3.)

It is interesting to find the custom still in vogue in America as late
as 1784, as shown by the case of Cullen.[41]

In one or two of the Southern States the plea lingered on for nearly
another half century.

When the defendant could not avail himself of clergy and no pardon
was at hand to save him, the law in the early days took its full and
awful course. Thus we read in the first almost illegible volume of the
records, the phraseology of the sentence, save for its terms, being
practically the same to this day:

  Att a Court holden for the tryal of negro and Indian slaves at the
  Citty Hall of the Citty of New-York, on Tuesday the 15th day of
  April, Anno Dom. 1712.

 Present:

 Caleb Heathsope, }   Esquires,
 William Smith,   }      Justices
 Edward Blagge    }

 Court opened--
                            { The defendt Tom being brought to the Barr
 Dom Regina                 { & having nothing to say for himself why
 vs.                        { judgment of death should not pass agt him
 Tom the Negro man, slave   { according to the verdict &c. It is considered
 of Nicholas Rossvelt       { by the Court that he be carryed from hence to
 J.D.                       { the place from whence he came and from thence
                            {  to the place of execution and thence to be
 burned with a slow fire that he may continue in torment for eight or ten
 hours and continue burning in said fire untill he be dead and consumed to
 ashes.

At present, when "benefit of clergy" is but a legal tradition, and
pardons are obtained with difficulty, but one legal barrier can be
raised to the interposition of sentence upon a convict--proof of his
insanity. If, in the opinion of the court, there is reasonable ground
for believing him to be mentally unbalanced, the question must be
determined as provided in the Code. If he is found to be sane, judgment
must then be pronounced, but if found insane he must be committed to
the State Lunatic Asylum until he recovers his sanity, and when notice
is given of that fact he must be brought before the court for judgment.
Of course, he may also allege legal ground why the judgment should be
arrested or why a new trial should be granted, but at this time a
technical discussion of these motions would be unnecessary.

Defendants are far less likely to feign insanity at the time of their
sentence than they are upon the actual trial; for if a man is clever
enough to act the part of a lunatic he is shrewd enough to realize that
the best time to do so is before he has been convicted of the crime
charged against him.

There is a reputed case, the memory of which still lingers around the
criminal courts, where it is said that a defendant who was charged
with murder in its first degree feigned insanity just before his case
was moved for trial. This was many years ago, at a time when such a
fact did not, of itself, necessarily excite the same suspicion that
it does to-day. The issue of the defendant's sanity was tried before
a lay jury, who promptly found that he was incapable of understanding
the proceedings against him or of making proper preparation for
his defence. He was thereupon committed to the State Asylum for
the Insane, where he remained incarcerated for many years. It so
happened that there was but a single eye-witness to the shooting,
and the circumstances surrounding the affair were such that without
the testimony of this witness it would be a practical impossibility
to determine whether the deceased had been murdered or had committed
suicide. After twenty years, in the course of which the defendant's
lawyer had died and the entire family of the prisoner had either died
or disappeared, another lawyer, who had found among some old papers a
memorandum of the case, went to Matteawan, located the defendant, and
discovered, as he had anticipated, that he was entirely sane. A writ
of habeas corpus was thereupon procured and the defendant brought back
to New York.

In that time the entire aspect of the city had changed. Buildings
twenty-five stories in height had replaced those of six; the city had
reached far up and entirely covered the island; electric surface cars
had taken the place of ramshackle, bobtail horse cars. The defendant,
prematurely aged and with clothes long out of date, impressed those
in the court-room as a sort of Rip Van Winkle, awakened after a long
sleep. There was absolutely no question as to the man's sanity, and
he was discharged upon the writ of habeas corpus and remanded to the
Tombs to await his trial. The following morning he was brought into
court, and the district attorney moved that the indictment against
him be dismissed on the ground that there was no longer any evidence
upon which the people could proceed to prosecution. Then for the first
time _the defendant discovered that the only witness against him had
died ten days after he had been committed to the asylum_. Although the
writer does not vouch for the authenticity of this story, the incident
may well have happened.

In addition to the legal ground of insanity why judgment should not be
imposed, a convict or his counsel may properly, on his arraignment,
state to the court any general reasons for a mitigation of sentence or
for its absolute suspension when such is within the discretion of the
court, and few sentences are imposed without a more or less lengthy
appeal for clemency from the defendant's lawyer, who usually does not
confine himself merely to the contrition of the defendant, his past
respectability and his pledges to lead a new and better life, but
is prone to discourse volubly upon the reputable connections of the
defendant, the hardship which a sentence will impose upon his family,
and the fact that the complainant or those who have been interested in
the prosecution now have a profound sympathy for the prisoner. The gist
of many of these appeals is to the effect that because the defendant,
by reason of his education and opportunities, ought to have known
better than to commit crime, he should now, since he has discovered
his mistake, be excused from paying the penalty. The judge invariably
listens with courtesy to these orations, which are not often made
with any idea of actually influencing the court's decision. They are
grateful to the defendant and his family, and impress the latter with
the fact that the lawyer is doing everything in his power to get his
client off.

It is now the judge's soul is tried. How far may he temper justice
with mercy? How far are the interests of the public and the prisoner
irreconcilable? Many youthful offenders, who have not hitherto
been convicted, escape with a suspended sentence or a commitment
to a reformatory--even when found guilty of crimes as serious as
manslaughter or robbery. Little mercy is shown to old offenders. In
fact, the law now provides that they may be tried under an indictment
charging them with having committed a "second offence," under which, if
found guilty, they must be sentenced to the maximum penalty set for a
first offence of the same crime.

It should be noticed that originally only one sentence, and that a
definite one, could be passed by the judge upon a prisoner for any
given offence. At first there were no provisions of law granting to
convicts as a matter of right any reduction or commutation of sentence
because of good behavior. Then laws were passed which provided for
the definite commutation of the sentences of all convicts confined
in State's prison. The question as to whether or not the convict had
earned his commutation by good behavior was left to a board composed of
the State superintendent of prisons and others. A carefully prepared
scale or table showed exactly how much commutation it was possible for
any prisoner to earn.[42]

In 1889 there was introduced into New York State for the first time
what is commonly known as the "indeterminate sentence," that is to say,
a sentence consisting of a minimum and a maximum term of imprisonment
during which the prisoner may be discharged at the option of a board
consisting of various persons, but distinct from that which passes upon
the question of whether or not he has earned his "commutation." The
introduction of this form of sentence is in conformity with the most
recent and most enlightened view of the proper attitude of the State
towards its criminals.

Whenever the indeterminate sentence has been introduced into any State
it has been invariably attacked as being unconstitutional, but the
courts have uniformly upheld it. The principal difference to be noted
between "commutation" and "indeterminateness" of sentence is that the
latter is vastly broader in effect, since only the prisoner's good
behavior while actually undergoing his sentence in State's prison may
be considered by the board which passes upon his commutation, while, in
the case of the indeterminate sentence, the parole board may consider
all the facts surrounding the commission of the crime, the convict's
past life, and whatever other facts they see fit, as well as his good
behavior during his period of confinement.[43]

After conviction the natural optimism of the human race reasserts
itself and the defendant begins to believe that the worst is, after
all, over, and to rely upon the assurances of his counsel or his
political friends that the judge is going to be easy on him and give
him a light sentence. Terrible is the disappointment of such a one
who finds that he is going to be sentenced to State's prison when he
expected the penitentiary or to the penitentiary when he expected to be
set free entirely under a suspended sentence.

The judge usually prefaces the sentence with a few remarks of an
admonitory character, commenting upon the severity of the crime which
the defendant has committed, and upon the fact that it is within
his power to sentence the latter to a long term of imprisonment. He
generally adds that, under all the circumstances and considering the
fact that the defendant has never been convicted before and has
hitherto led a reputable life, he will be merciful and give him only so
and so many years in State's prison.

Of course, this occurs only in such cases as deserve leniency. But
where the defendant is a hardened criminal, or an ex-convict, or when
his crime is one of atrocity, he is apt to learn, in no unmeasured
terms, what the judge and the community think of him. The writer has
heard a prisoner censured in such language that he blushed for the
human race of which the convict could be the offspring. Most defendants
receive their sentence with imperturbability, for they are able with
approximate accuracy to figure out what punishment they will probably
receive. The experiences of their acquaintances in the Tombs are of
great assistance in this matter, yet more than one convict falls
senseless on the floor when sentence is pronounced upon him, and
hundreds lose their nerve and stagger away bewilderedly at the thought
of the interminable years before them.

Yet a layman happening to be present on a Friday in the Court of
General Sessions would be surprised at the apparent lightness of most
of the sentences. The judges of our criminal courts are merciful
men and rightly believe that a year or two in State's prison has a
better effect upon the defendant than a longer term. A short-term man
emerges, at least it is so to be hoped, with some aspirations for
the future and with health as yet not undermined. To most judges the
infliction of sentence upon a fellow human being ever remains a bitter
experience. In the old days, however, there were some judges who, not
unlike Jeffries, took a certain grim satisfaction in the performance
of this duty. There was, many years ago, one of them who seemed to
take a particular delight in so far as possible prolonging the agony
of the defendant's uncertainty. When a prisoner had been arraigned for
sentence the judge would wait for absolute silence, and would then with
the greatest deliberation address a long harangue to the unfortunate
man, characterize his crime in the severest manner, excoriate him for
having committed it, name the maximum penalty which the law allowed,
intimate that he was going to impose it, and then, after a long
hiatus, slowly take down his sentence book, ink his pen with annoying
deliberation, cough two or three times, look around the court-room
and begin carefully inscribing each word upon the record before him,
"I--shall--therefore--sentence--you--to--[cough, another glance around
the room]--five years in State's prison."

Many pathetic and also amusing incidents occur upon these occasions.
There is a true story of an incident which, however, did not occur in
the General Sessions of New York County, where a prisoner who had been
convicted was arraigned before the judge for sentence. This judge was
an aged man with a great reputation for his bitter wit and sarcasm.
The convict, who had been convicted of being a common gambler and who
was described by the court officers as a "fly guy," appeared in a
loudly checked yellow and black suit with a red necktie and a large
paste diamond horseshoe pin. The judge from under his beetling eyebrows
looked fiercely down upon him from the bench and remarked with intense
scorn:

"I sentence you to pay a fine of fifty dollars----'

"That's all right, judge," interrupted the "fly guy" nonchalantly,
thrusting his hand into his trousers. "Got it in my pants pocket."

"----And to three years and six months in State's prison," continued
his Honor, with a slight twinkle in his eye. "_Have you got_ THAT _in
your pants pocket_?"

Recorder Smyth is said to have had a habit of entering the sentences
which he proposed to inflict in a book which he kept for that purpose.
He also generally made use of a regular set form of expression when
imposing them. A miserable little defendant who was gifted with a
greater fund of originality than of common-sense, had conceived the
extraordinary idea of stealing a ship's anchor belonging to a company
which owned a dock in the North River. For this purpose he procured a
dray, drawn by six or eight horses, and a derrick, by means of which he
hoisted the anchor in question upon the dray in the dead of night and,
as might have been expected, succeeded in getting only about half way
down the dock with it before he was apprehended by a watchman.

Naturally he had no adequate explanation to offer and promptly pleaded
guilty. He was arraigned at the bar in company with several other
defendants. Recorder Smyth, his mind still dwelling upon the words
with which he had sentenced the latter, thus addressed the trembling
miscreant:

"You have pleaded guilty to the crime of stealing a ship's
anchor!"--then raising his voice he continued, with perfect solemnity:
"The crime of stealing a ship's anchor is _becoming entirely too
prevalent_! I sentence you to three years and a half in State's
prison."

In contrast with those cheerful days on Manhattan, not much over a
century and a half ago, when negroes were burnt to death in chains, and
thieves branded in open court and then, tied bareback to the tail of a
cart, whipped at every street corner from the City Hall to the Battery
and return, the following incident may serve as a pleasant reminder of
our progress in civilization:

A young Irishman of excellent address, and employed in a responsible
position in an express company, appropriated, at the instigation of
evil companions, some of the funds intrusted to his keeping. The
larceny was detected, he was arrested and admitted his guilt. Meantime,
some one had written to his parents in Ireland who lived in a remote
parish in the humblest circumstances. The two old people sold their
little cottage, as well as their pig and cow, and took steerage passage
from Queenstown to New York. They arrived upon the day set for their
son's sentence, entering the court-room as he was arraigned at the bar.
A tearful recognition followed, and the prisoner, overwhelmed at this
touching proof of his parents' love, begged the judge to listen to
their supplication for mercy. Their simple story deeply affected the
court, who discharged the defendant in their keeping, under his solemn
promise to return with them to Ireland, there to honor and labor for
them so long as they should live.

FOOTNOTES:

[Footnote 41: The whipping post and the pillory were in active use
until comparatively recent times. Under Dutch rule the former occupied
a conspicuous place in front of the Stadt Huys on the strand. As a
matter of great leniency the floggings were sometimes conducted in a
room to which the public was not admitted. But the disgrace of the
performance was regarded as an integral part of the punishment. The
offenders were at the same time branded and frequently banished. A
New York paper, dated 1712, says that one woman at the whipping post
"created much amusement by her resistance." The New York _Gazette_ for
May 14, 1750, states:

"Tuesday last one David Smith was convicted in the Mayor's Court
of Taking or Stealing Goods off a Shop Window in this City, and
was sentence to be whipped at the Cart's Tail round this Town and
afterwards whipped at the Pillory which sentence was accordingly
executed on him." The same paper for October 2, 1752, describes the
pillorying of a boy for picking pockets and the whipping of an Irishman
for stealing deerskins. In the olden days many a common scold was
ducked into quiescence in the North River.]

[Footnote 42: The periods of commutation are shown by the following
table:

 ---------+----------------+
 Sentence |  Commutation   |
 ---------+-------+--------+
  Years   | Years | Months |
 ---------+-------+--------+
    1     |  ..   |   2    |
    2     |  ..   |   4    |
    3     |  ..   |   8    |
    4     |   1   |  ..    |
    5     |   1   |   5    |
    6     |   1   |  10    |
    7     |   2   |   3    |
    8     |   2   |   8    |
    9     |   3   |   1    |
   10     |   3   |   6    |
   11     |   3   |  11    |
   12     |   4   |   4    |
   13     |   4   |   9    |
   14     |   5   |   2    |
   15     |   5   |   7    |
   20     |   7   |   8    |
   25     |   9   |   9    |
   30     |  11   |  10    |
   35     |  13   |  11    |
 ---------+-------+--------+
]

[Footnote 43: Cf. "Some Aspects of the Indeterminate Sentence," by C.D.
Warner, 8 Yale Law Journal 219. See also 9 Yale Law Journal 17, as well
as "Das Moderne Amerikanische Besserungssystem," Dr. Paul Herr (Berlin,
1907).]



CHAPTER XV

WOMEN IN THE COURTS


AS WITNESSES

Women appear in the criminal courts constantly as witnesses, although
less frequently as complainants and defendants. As complainants are
always witnesses, and as defendants may, and in point of fact generally
do become so, whatever generalizations are possible regarding women in
courts of law can most easily be drawn from their characteristics as
givers of testimony. Roughly speaking, women exhibit about the same
idiosyncrasies and limitations in the witness-chair as the opposite
sex, and at first thought one would be apt to say that it would be
fruitless and absurd to attempt to predicate any general principles in
regard to their testimony, but a careful study of female witnesses as a
whole will result in the inevitable conclusion that their evidence has
virtues and limitations peculiar to itself.

The ancient theory that woman was man's inferior showed itself in the
tendency to reject, or at least to regard with suspicion, her evidence
in legal matters.

"The following law," says W.M. Best, "is attributed to Moses by
Josephus: 'Let the testimony of women not be received on account
of the _levity_ and _audacity_ of their sex'; a law which looks
apocryphal, but which, even if genuine, could not have been of
universal application.... The law of ancient Rome, though admitting
their testimony in general, refused it in certain cases. The civil and
canon laws of mediæval Europe seem to have carried the exclusion much
further. Mascardus says: '_Feminis plerumque omnino non creditur, et id
dumtaxat, quod sunt feminæ, quæ ut plurimum solent esse fraudulentæ,
fallaces, et dolosæ_' [Generally speaking, no credence at all is given
to women, and for this reason, because they _are_ women, who are
usually deceitful, untruthful, and treacherous in the very highest
degree]. And Lancelottus, in his 'Institutiones Juris Canonici,' lays
it down in the most distinct terms, that women cannot in general be
witnesses, citing the language of Virgil: '_Varium et mutabile semper
femina._' ...

"Bruneau, although a contemporary of Madame de Sévigné, did not scruple
to write, in 1686, that the deposition of three women was only equal to
that of two men. At Berne, so late as 1821, in the Canton of Vaud, so
late as 1824, the testimony of two women was required to counterbalance
that of one man.... A virgin was entitled to greater credit than a
widow.... In the 'Canonical Institutions of Devotus,' published at
Paris in 1852, it is distinctly stated that, except in a few peculiar
instances, women are not competent witnesses in criminal cases. In
Scotland also, until the beginning of the eighteenth century, sex was
a cause of exclusion from the witness-box in the great majority of
instances."

Cockburn in his Memoirs tells of an incident during the trial of
Glengarry, in Scotland, for murder in a duel, which is, perhaps,
explicable by this extraordinary attitude:--A lady of great beauty
was called as a witness and came into court heavily veiled. Before
administering the oath, Lord Eskgrove, the judge (to whom this function
belongs in Scotland), gave her this exposition of her duty:

"Young woman, you will now consider yourself as in the presence of
Almighty God and of this High Court. _Lift up your veil, throw off all
your modesty, and look me in the face._"

Whatever difference does exist in character between the testimony of
men and women has its root in the generally recognized diversity in the
mental processes of the two sexes. Men, it is commonly declared, rely
upon their powers of reason; women upon their intuition. Not that the
former is frequently any more accurate than the latter. But our courts
of law (at least those in English-speaking countries) are devised and
organized, perhaps unfortunately, on the principle that testimony not
apparently deduced by the syllogistic method from the observation of
relevant fact is valueless, and hence woman at the very outset is
placed at a disadvantage and her usefulness as a probative force sadly
crippled.

The good old lady who takes the witness-chair and swears that she
_knows_ the prisoner took her purse has perhaps quite as good a
basis for her opinion and her testimony (even though she cannot
give a single reason for her belief and becomes hopelessly confused
on cross-examination) as the man who reaches the same conclusion
ostensibly by virtue of having seen the defendant near by, observed
his hand reaching for the purse, and then perceived him take to his
heels. She has never been taught to reason and has really never found
it necessary, having wandered through life by inference or, more
frankly, by guesswork, until she is no longer able to point out the
simplest stages of her most ordinary mental processes.

As the reader is already aware, the value of all honestly given
testimony depends first upon the witness's original capacity to observe
the facts; second upon his ability to remember what he has seen and
not to confuse knowledge with _imagination_, _belief_ or _custom_,
and lastly, upon his power to express what he has, in fact, seen and
remembers.

Women do not differ from men in their original capacity to observe,
which is a quality developed by the training and environment of the
individual. It is in the second class of the witness's limitations
that women as a whole are more likely to trip than men, for they are
prone to swear to circumstances as facts, of _their own knowledge_,
simply because they confuse what they have really observed with what
they believe did occur or should have occurred, or with what they are
convinced did happen simply because it was accustomed to happen in the
past.

Perhaps the best illustration of the female habit of swearing that
facts occurred because they _usually_ occurred, was exhibited in the
Twitchell murder trial in Philadelphia, cited in Wellman's "Art of
Cross-Examination." The defendant had killed his wife with a blackjack,
and having dragged her body into the back yard, carefully unbolted
the gate leading to the adjacent alley and, retiring to the house,
went to bed. His purpose was to create the impression that she had
been murdered by some one from outside the premises. To carry out the
suggestion, he bent a poker and left it lying near the body smeared
with blood. In the morning the servant girl found her mistress and ran
shrieking into the street.

At the trial she swore positively that she was first obliged to _unbolt
the door_ in order to get out. Nothing could shake her testimony, and
she thus unconsciously negatived the entire value of the defendant's
adroit precautions. He was justly convicted, although upon absolutely
erroneous testimony.

The old English lawyers occasionally rejected the evidence of women
on the ground that they are "frail." But the exclusion of women as
witnesses in the old days was not for psychological reasons, nor did
it originate from a critical study of the probative value of their
testimony.

Though the conclusions to which women frequently jump may usually be
shown by careful interrogation to be founded upon observation of actual
fact, their habit of stating inferences often leads them to claim
knowledge of the impossible--"wiser in [their] own conceit than seven
men that can render a reason."

In a very recent case where a clever thief had been convicted of
looting various apartments in New York City of over eighty thousand
dollars' worth of jewelry, the female owners were summoned to identify
their property. The writer believes that in every instance these ladies
were absolutely ingenuous and intended to tell the absolute truth.
Each and every one positively identified various of the loose stones
found in the possession of the prisoner as her own. This was the case
even when the diamonds, emeralds and pearls had no distinguishing
marks at all. It was a human impossibility actually to identify any
such objects, and yet these eminently respectable and intelligent
gentlewomen swore positively that they could recognize their jewels.
They drew the inference merely that as the prisoner had stolen similar
jewels from them these must be the actual ones which they had lost, an
inference very likely correct, but valueless in a tribunal of justice.

Where their inferences are questioned, women, as a rule, are much
more ready to "swear their testimony through" than men. They are so
accustomed to act upon inference that, finding themselves unable to
substantiate their assertion by any sufficient reason, they become
irritated, "show fight," and seek refuge in prevarication. Had they
not, during their entire lives, been accustomed to mental short-cuts,
they would be spared the humiliation of seeing their evidence "stricken
from the record."

One of the ladies referred to testified as follows:

"Can you identify that diamond?"

"_I am quite sure that it is mine._"

"How do you know?"

"_It looks exactly like it._"

"But may it not be a similar one and not your own?"

"_No; it is mine._"

"But how? It has no marks."

"_I don't care. I know it is mine. I SWEAR IT IS!_"

The good lady supposed that, unless she swore to the fact, she might
lose her jewel, which was, of course, not the case at all, as the
sworn testimony founded upon nothing but inference left her in no
better position than she was in before.

The writer regrets to say that observation would lead him to believe
that women as a rule have somewhat less regard for the spirit of their
oaths than men, and that they are more ready, if it be necessary,
to commit perjury. This may arise from the fact that women are
fully aware that their sex protects them from the same severity of
cross-examination to which men would be subjected under similar
circumstances. It is to-day fatal to a lawyer's case if he be not
invariably gentle and courteous with a female witness, and this is true
even if she be a veritable Sapphira.

In spite of these limitations, which, of course, affect the testimony
of almost every person, irrespective of sex, women, with the possible
exception of children, make the most remarkable witnesses to be found
in the courts. They are almost invariably quick and positive in their
answers, keenly alive to the dramatic possibilities of the situation,
and with an unerring instinct for a trap or compromising admission.

A woman will inevitably couple with a categorical answer to a question,
if in truth she can be induced to give one at all, a statement of
damaging character to her opponent. For example:

"Do you know the defendant?"

"Yes,--to my cost!"

Or:

"How old are you?"

"Twenty-three,--old enough to have known better than to trust him."

Forced to make an admission which would seem to hurt her position, the
explanation, instead of being left for the re-direct examination of her
own counsel, is instantly added to her answer then and there.

"Do you admit that you were on Forty-second Street at midnight?"

"Yes. _But it was in response to a message sent by the defendant
through his cousin._"

What is commonly known as "silent cross-examination" is generally the
most effective. The jury realize the difficulties of the situation
for the lawyer, and are not unlikely to sympathize with him, unless
he makes bold to attack the witness, when they quickly change their
attitude.

One question, and that as to the witness's means of livelihood, is
often sufficient.

"How do you support yourself?"

"I am a lady of leisure!" replies the witness (arrayed in flamboyant
colors) snappishly.

"That will do, thank you," remarks the lawyer with a smile. "You may
step down."

The writer remembers being nicely hoisted by his own petard on a
similar occasion:

"What do you do for a living?" he asked.

The witness, a rather deceptively arrayed woman, turned upon him with a
glance of contempt:

"I am a respectable married woman, with seven children," she retorted.
"_I do nothing for a living except_ cook, wash, scrub, make beds, clean
windows, mend my children's clothes, mind the baby, teach the four
oldest their lessons, take care of my husband, and try to get enough
sleep to be up by five in the morning. I guess if some lawyers worked
as hard as I do they would have sense enough not to ask impertinent
questions."

An amusing incident is recorded of how a feminine witness turned
the laugh upon Mr. Francis L. Wellman, the noted cross-examiner. In
his book he takes the opportunity to advise his lawyer readers to
"avoid the mistake, so common among the inexperienced, of making much
of trifling discrepancies. It has been aptly said," he continues,
"that 'juries have no respect for small triumphs over a witness's
self-possession or memory!' Allow the loquacious witness to talk on; he
will be sure to involve himself in difficulties from which he can never
extricate himself. _Some witnesses prove altogether too much; encourage
them and lead them by degrees into exaggerations_ that will conflict
with the common-sense of the jury."

Mr. Wellman is famous for following this precept himself and, with one
eye significantly cast upon the jury, is likely to lead his witness
a merry dance until the latter is finally "bogged" in a quagmire of
absurdities. Not long ago, shortly after the publication of his book,
the lawyer had occasion to cross-examine a modest-looking young woman
as to the speed of an electric car. The witness seemed conscious that
she was about to undergo a severe ordeal, and Mr. Wellman, feeling
himself complete master of the situation, began in his most winsome and
deprecating manner:

"And how fast, Miss ----, would you say the car was going?"

"I really could not tell exactly, Mr. Wellman."

"Would you say that it was going at ten miles an hour?"

"Oh, fully that!"

"Twenty miles an hour?"

"Yes, I should say it was going twenty miles an hour."

"Will you say it was going thirty miles an hour?" inquired Wellman with
a glance at the jury.

"Why, yes, I will say that it was."

"Will you say it was going forty?"

"Yes."

"Fifty?"

"Yes, I will say so."

"Seventy?"

"Yes."

"Eighty?"

"Yes," responded the young lady with a countenance absolutely devoid of
expression.

"A hundred?" inquired the lawyer with a thrill of eager triumph in his
voice.

There was a significant hush in the court-room. Then the witness, with
a patient smile and a slight lifting of her pretty eyebrows, remarked
quietly:

"Mr. Wellman, _don't you think we have carried our little joke far
enough_?"

There is no witness in the world more difficult to cope with than
a shrewd old woman who apes stupidity, only to reiterate the gist
of her testimony in such incisive fashion as to leave it indelibly
imprinted on the minds of the jury. The lawyer is bound by every law
of decency, policy and manners to treat the aged dame with the utmost
consideration. He must allow her to ramble on discursively in defiance
of every rule of law and evidence in answer to the simplest question;
must receive imperturbably the opinions and speculations upon every
subject of both herself and (through her) of her neighbors; only to
find when he thinks she must be exhausted by her own volubility,
that she is ready, at the slightest opportunity, to break away again
into a tangle of guesswork and hearsay, interwoven with conclusions
and ejaculation. Woe be unto him if he has not sense enough to waive
her off the stand! He might as well try to harness a Valkyrie as to
restrain a pugnacious old Irishwoman who is intent on getting the whole
business before the jury in her own way.

In the recent case of Gustav Dinser, convicted of murder, a vigorous
old lady took the stand and testified forcibly against the accused.
She was as "smart as paint," as the saying goes, and resolutely
refused to answer any questions put to her by counsel for the defence.
Instead, she would raise her voice and make a savage onslaught upon the
prisoner, rehearsing his brutal treatment of the deceased on previous
occasions, and getting in the most damaging testimony.

"Do you say, Mrs. ----," the lawyer would inquire deferentially, "that
you heard the sound of _three_ blows?"

"Oh, thim blows!" the old lady would cry--"thim turrible blows! I could
hear the villain as he laid thim on! I could hear the poor, pitiful
groans av her, and she so sufferin'! 'Twas awful! Howly Saints, 'twould
make yer blood run cowld!"

"Stop! stop!" exclaimed the lawyer.

"Ah, stop is it? Ye can't stop me till Oi've had me say to tell the
whole truth. I says to me daughter Ellen, says I: 'Th' horrid baste
is afther murtherin' the poor thing,' says I; 'run out an' git an
officer!'"

"I object to all this!" shouts the lawyer.

"Ah, ye objec', do ye?" retorts the old lady. "Shure an' ye'd have been
after objectin' if ye'd heard thim turrible blows that kilt her--the
poor, sufferin', swate crayter! I hope he gits all that's comin' to
him--bad cess to him for a blood-thirsty divil!"

The lawyer ignominiously abandoned the attack.

The writer recalls a somewhat similar instance, but one even better
exhibiting the cleverness of an old woman, which occurred in the year
1901. A man named Orlando J. Hackett, of prepossessing appearance
and manners, was on trial, charged with converting to his own use
money which had been intrusted to him for investment in realty. The
complainant was a shrewd old lady, who, together with her daughter,
had had a long series of transactions with Hackett which would have
entirely confused the issue could the defence have brought them before
the jury. The whole contention of the prosecution was that Hackett had
received the money for one purpose and used it for another. During
preparation for the trial the writer had had both ladies in his office
and remembers making the remark:

"Now, Mrs. ----, don't forget that the charge here is that you gave
Mr. Hackett the money to put into real estate. Nothing else is
comparatively of much importance."

"Be sure and remember that, mother," the daughter had admonished her.

In the course of a month the case came on for trial before Recorder
Goff, in Part II of the General Sessions. Mrs. ---- gave her
testimony with great positiveness. Mr. Lewis Stuyvesant Chanler, now
Lieutenant-Governor of the State, arose to cross-examine her.

"Madam," he began courteously, "you say you gave the defendant money?"

"I told him to put it into real estate, _and he said he would_!"
replied Mrs. ---- firmly.

"I did not ask you that, Mrs. ----," politely interjected Mr. Chanler.
"How _much_ did you give him?"

"_I told him to put it into real estate_, and he said he would!"
repeated the old lady wearily.

"But, madam, you do not answer my question!" exclaimed Chanler. "How
_much_ did you give him?"

"I told him to put it into real----" began the old lady again.

"Yes, yes!" cried the lawyer; "we know that! Answer the question."

"----estate, _and he said he would_!" finished the old woman innocently.

"If your Honor please, I will excuse the witness. And I move that her
answers be stricken out!" cried Chanler savagely.

The old lady was assisted from the stand, but as she made her way
with difficulty towards the door of the court-room she could be heard
repeating stubbornly:

"I told him to put it _into real estate,--and he said he would_!"

Almost needless to say, Hackett was convicted and sentenced to seven
years in State's prison.

To recapitulate, the quickness and positiveness of women make them
ordinarily better witnesses than men; they are vastly more difficult to
cross-examine; their sex protects them from many of the most effective
weapons of the lawyer, with the result that they are the more ready to
yield to prevarication; and, even where the possibility of complete
and unrestricted cross-examination is afforded, their tendency to
inaccurately inferential reasoning, and their elusiveness in dodging
from one conclusion to another, render the opportunity of little value.

In general, however, women's testimony differs little in quality from
that of men, all testimony being subject to the same three great
limitations irrespective of the sex of the witness, and the conclusions
set forth above are merely the result of an effort on the part of the
writer to comment somewhat upon those small differences which, under
close scrutiny, may fairly be said to exist. These differences are
quite as noticeable at the breakfast-table as in the court-room; and
are no more patent to the advocate than to the ordinary male animal
whose forehead habitually reddens when he hears the unanswerable reason
which, in default of all others, explains and glorifies the mental
action of his wife, sister or mother: "Just because!"


AS COMPLAINANTS AND DEFENDANTS

The ratio of women to men indicted and tried for crime is, roughly,
about one to ten. Could adequate statistics be procured, the proportion
of female to male complainants in criminal cases would very likely
prove to be about the same. In a very substantial proportion,
therefore, of all prosecutions for crime a woman is one of the chief
actors. The law of the land compels the female prisoner to submit
the question of her guilt or innocence to twelve individuals of the
opposite sex; and permits the female complainant to rehearse the story
of her wrongs before the same collection of colossal intellects and
adamantine hearts.

The first thing the ordinary woman hastens to do if she be summoned to
appear in a court of justice is not, as might be expected, to think
over her testimony or try to recall facts obliterated or confused by
time, but to buy a new hat; and precisely the same thing is true of
the female defendant called to the bar of justice, whether it be for
stealing a pair of gloves or poisoning her lover.

Yet how far does the element of sex defeat the ends of justice? To
answer this question it is necessary to determine how far juries are
liable to favor the testimony of a woman plaintiff merely because she
is a woman, and how far sympathy for a woman arraigned as a prisoner is
likely to warp their judgment.

As to the first, it is fairly safe to say that a woman is much more
likely to win a verdict in a civil court or to persuade the jury that
the prisoner is guilty in a criminal case than a man would be in
precisely similar circumstances. In most criminal prosecutions for
the ordinary run of felonies little injustice is likely to result
from this. There is one exception, however, where juries should reach
conclusions with extreme caution, namely, where certain charges are
brought by women against members of the opposite sex. Here the jury is
apt to leap to a conclusion, rendered easy by the attractiveness of the
witness and the feeling that the defendant is a "cur anyway," and ought
to be "sent up."

The difficulty of determining, even in one's office, the true character
of a plausible woman is enhanced tenfold in the court-room, where the
lawyer is generally compelled to proceed upon the assumption that the
witness is a person of irreproachable life and antecedents. Almost any
young woman may create a favorable impression, provided her taste in
dress be not too crude, and, even when it is so, the jury are not apt
to distinguish carefully between that which cries to Heaven and that
which is merely "elegant."

When the complaining witness is a woman who has merely lost money
through the acts of the defendant, the jury are not so readily moved to
accept her story _in toto_ as when the crime charged is of a different
character. They realize that the complainant, feeling that she has been
injured, may be inclined to color her testimony, perhaps unconsciously,
until the wrong becomes a crime.

An ordinary example of this variety of prosecution is where the witness
is a young woman from the East Side, usually a Polish or Russian
Jewess, who charges the defendant, a youth of about her own age, with
stealing her money by means of false pretences. They have been engaged
to be married, and she has turned over her small savings to him to
purchase the diamond ring and perhaps set him up in a modest business
of his own. He has then fallen in love with some other girl, has broken
the engagement, and the ring now adorns the fourth finger of her rival.
Her money is gone. She is without a _dot_. She hurries with her parents
and loudly vociferating friends to the Essex Market Police Court, and
secures a warrant for the defendant on the theory that he defrauded
her by "trick and device" or "false representations." Usually the only
"representation" has been a _promise_ to marry her. Her real motive
is revenge upon her faithless _fiancé_. In nine cases out of ten the
fellow is a cad, who has deliberately deserted her after getting her
money, but it is doubtful whether any real crime is involved.

If the judge lets the case go to the jury it is a pure gamble as to
what the result will be, and it may largely turn on the girl's physical
attractiveness. If she be pretty and demure a mixture of emotions
is aroused in the jury. "He probably did love her," say the twelve,
"because any one would be likely to do so. If he did love her, of
course he didn't falsely pretend to do so; but if he deserted a woman
like that he ought to be in jail anyway." Thus the argument that ought
to _acquit_ in fact may _convict_ the defendant. If the rival also
is pretty, hopeless confusion results; while if the complainant be
a homely girl the jury feels that he must have intended to swindle
her anyway, as he could never have honestly intended to marry her.
Thus in any case the Lothario is apt to pay a severe penalty for his
faithlessness.

The man prosecuted by a woman, provided she cannot be persuaded
to withdraw the charge against him, is likely to get but cold
consideration for his side of the story and short shrift in the
jury-room. Turn about, if he can get a young and attractive woman to
swear to his alibi or good reputation, the honest masculine citizen
whom he has defrauded may very likely have to whistle for his revenge.
Many a scamp has gone free by producing some sweetly demure maiden who
faithfully swears that she knows him to be an honest man. A blush at
the psychological moment and a wink from the lawyer is quite enough to
lead the jury to believe that, if they acquit the defendant, they will
"make the young lady happy," whereas if he is convicted she will remain
for aye a heart-broken spinster. Like enough she may be only the merest
acquaintance.

The writer is not likely to forget a distinguished lawyer's
instructions to his client--who happened also to be a childhood
acquaintance--as she was about to go into court as the plaintiff in a
suit for damages:

"I would fold my hands in my lap, Gwendolyn--yes, like that--and
be calm, very calm. And, Gwendolyn, above all things, be _demure_,
Gwendolyn! Be _demure_!"

Gwendolyn was the demurest of the demure, letting her eyes fall beneath
their pendant black lashes at the conclusion of each answer, and won
her case without the slightest difficulty.

The unconscious or conscious influence of women upon the intellects
of jurymen has given rise to a very prevalent impression that it
is difficult if not impossible successfully to prosecute a woman
for crime. This feeling expresses itself in general statements to
the effect that as things stand to-day a woman may commit murder
with impunity. Experience, supplemented by the official records,
demonstrates, however, that, curious as it must seem, the same
sentiment aroused by a woman supposed to have been _wronged_ is not
inspired in a jury by a woman _accused_ of crime. It is, indeed, true
that juries are apt to be more lenient with women than with men, but
this leniency shows itself not in acquitting them of the crimes
charged against them, but of finding them guilty in lower degrees.

Of course flagrant miscarriages of justice frequently occur, which,
by reason of their widespread publicity in the press, would seem to
justify the almost universal opinion that women are immune from the
penalties for homicide. It is also true that such miscarriages of
justice are more likely when the defendant is a woman than if he be a
man.

One of these hysterical acquittals which give color to popular
impression, but which the writer believes to be an exception, was the
case of a young mother tried and acquitted for murder in the first
degree, December 22, 1904. This young woman, whose history was pathetic
in the extreme, was shown clearly by the evidence to have deliberately
taken the life of her child by giving it carbolic acid. The story was
a shocking one, yet the jury apparently never considered at all the
possibility of convicting her, but on retiring to the jury-room spent
their time in discussing how much money they should present her on her
acquittal.

No better actor ever played a part upon the court-room stage than old
"Bill" Howe. His every move and gesture was considered with reference
to its effect upon the jury, and the climax of his summing-up was
always accompanied by some dramatic exhibition calculated to arouse
sympathy for his client. Himself an adept at shedding tears at will, he
seemed able to induce them when needed in the lachrymal glands of the
most hardened culprit whom he happened to be defending.

Mr. Wellman tells the story of how he was once prosecuting a woman for
the murder of her lover, whom she had shot rather than allow him to
desert her. She was a parson's daughter who had gone wrong and there
seemed little to be said in her behalf. She sat at the bar the picture
of injured innocence, with a look of spirituality which she must have
conjured up from the storehouse of her memories of her father. Howe was
rather an exquisite so far as his personal habits were concerned, and
allowed his finger-nails to grow to an extraordinary length. He had
arranged that at the climax of his address to the jury he would turn
and, tearing away the slender hands of his client from her tear-stained
face, challenge the jury to find guilt written there. Wellman was
totally unprepared for this and a shiver ran down his spine when he
saw Howe, his face apparently surcharged with emotion, turn suddenly
towards his client and roughly thrust away her hands. As he did so
he embedded his finger-nails in her cheeks, and the girl uttered an
involuntary scream of nervous terror and pain that made the jury turn
cold.

"Look, gentlemen! Look in this poor creature's face! Does she look
like a guilty woman? No! A thousand times no! Those are the tears of
innocence and shame! Send her back to her aged father to comfort his
old age! Let him clasp her in his arms and press his trembling lips to
her hollow eyes! Let him wipe away her tears and bid her sin no more!"

The jury acquitted, and Wellman, aghast, followed them downstairs to
inquire how such a thing were possible. The jurors said that they had
agreed to disclose nothing of their deliberations.

"But," explained Wellman, "you see, in a way I am your attorney, and
I want to know how to do better next time. She had offered to plead
guilty if she could get off with twenty years!"

The abashed jury slunk downstairs in silence and the secret of their
deliberations remains as yet untold.

In spite of such cases, where guilty women have been acquitted through
maudlin sentiment or in response to popular clamor, nothing could be
more erroneous than the idea that few women who are brought to the
bar of justice are made to suffer for their offences. Thus, although
no woman has suffered the death penalty in New York County in twenty
years, _the average number of convictions for crime is practically the
same for women as for men in proportion to the number indicted_. The
last unreversed conviction of a woman for murder in the first degree
was that of Chiara Cignarale, in May, 1887. Her sentence was commuted
to life imprisonment. Since then thirty women have been actually tried
before juries for homicide with the following results:

 Convicted of murder in first degree          0
     "     "  murder in second degree         3
     "     "  manslaughter in first degree   10
     "     "  manslaughter in second degree  10
 Acquitted                                    7
                                             --
     Total                                   30

The percentage of convictions to acquittals is as follows:

 ----------+-------------+------------+-------------+-----------
           | Convictions | Acquittals | Convictions | Acquittals
           |             |            |  Per Cent   |  Per Cent
 ----------+-------------+------------+-------------+-----------
 1887-1907 |     23      |     7      |     77      |     23
 ----------+-------------+------------+-------------+-----------

It is distinctly interesting to compare this with the table showing
the results of all the homicide trials for the past eight years
irrespective of the sex of the defendants:

 --------+-------------+------------+-------------+-----------
         | Convictions | Acquittals | Convictions | Acquittals
         |             |            |  Per Cent   |  Per Cent
 --------+-------------+------------+-------------+-----------
 1900    |      5      |     12     |        29   |        71
 1901    |     17      |     17     |        50   |        50
 1902    |     15      |     11     |        58   |        42
 1903    |     24      |      8     |        75   |        25
 1904    |     19      |     14     |        58   |        42
 1905    |     18      |     13     |        58   |        42
 1906    |     21      |     22     |        49   |        51
 1907    |     16      |     10     |        62   |        38
 --------+-------------+------------+-------------+-----------
   Total |    135      |    107     |  Aver. 55   |  Aver. 45
 --------+-------------+------------+-------------+-----------

The reader will observe that the percentage of convictions to
acquittals of women defendants averages twenty-two per cent greater
than the percentage for both sexes. A more elaborate table would show
that where the defendants are men there are a greater proportionate
number of _acquittals_, but more verdicts in higher degrees. A verdict
of manslaughter in the second degree in the case of a man charged with
murder is infrequent, but convictions of murder in the second degree
are exceedingly common.

The reason for the higher percentage of convictions of women is that
fewer women who commit crime are prosecuted than men, and that they are
rarely indicted unless they are clearly guilty of the degree of crime
charged against them; while practically every man who is charged with
homicide and who, it seems, may be found guilty is indicted for murder
in the first degree.

The trial of women for crime invariably arouses keen public interest,
and the dethronement of a Czar, or the assassination of an Emperor,
pales to insignificance before the prosecution of a woman for murder.
Some of this interest is fictitious and stimulated merely by the
yellow press, but a great deal of it is genuine. The writer remembers
attending a dinner of gray-headed judges and counsellors during the
trial of Ann Eliza, alias "Nan," Patterson, where one would have
supposed that the lightest subject of conversation would be not less
weighty than the constitutionality of an income tax, and finding to his
astonishment that the only topic for which they showed any zest was
whether "Nan" would be found guilty.

One of the earliest, if not the earliest, record of a woman being held
for murder is that of Agnes Archer, indicted by twelve men on April 4,
1435, sworn before the mayor and coroner to inquire as to the death
of Alice Colynbourgh. The quaint old report begins in Latin, but "the
pleadings" are set forth in the language of the day, as follows:

"Agnes Archer, is that thy name? which answered, yes.... Thou art
endyted that thou ... feloney moderiste her with a knyff fyve tymes
in the throte stekyng, throwe the wheche stekyng the saide Alys is
deed.... I am not guilty of thoo dedys, ne noon of hem, God help me
so.... How wylte thou acquite the?... By God and by my neighbours of
this town."

The subsequent history of Agnes is lost in obscurity, but since she had
to procure but thirty-six compurgators who were prepared to swear that
they believed her innocent, and as she was at liberty to choose these
herself from her native village of Winchelsea, it is probable that she
escaped.[44]

Fortunately the sight of a woman, save of the very lowest class, at
the bar of justice is rare. The number of cases where women of good
environment appear as defendants in the criminal courts in the course
of a year may be numbered upon the fingers of a single hand, and,
although the number of female defendants may equal ten per cent of
the total number of males, not one-tenth of the women brought to the
bar of justice have had the benefit of an honest bringing up and good
surroundings.

FOOTNOTES:

[Footnote 44: Cf. Thayer, as cited, _supra_.]



CHAPTER XVI

TRICKS OF THE TRADE


"Tricks and treachery," said Benjamin Franklin, "are the practice
of fools that have not wit enough to be honest." Had the kindly
philosopher been familiar with all the exigencies of the criminal
law he might have added a qualification to this somewhat general,
if indisputably moral, maxim. Though it doubtless remains true as a
guiding principle of life that "Honesty is the best policy," it would
be an unwarrantable aspersion upon the intellectual qualities of the
members of the criminal bar to say that the tricks by virtue of which
they often get their clients off are "_the practice of fools_." On the
contrary, observation would seem to indicate that in many instances the
wiser, or at least the more successful, the practitioner of criminal
law becomes, the more numerous and ingenious become the "tricks" which
are his stock in trade. This must not be taken to mean that there are
not high-minded and conscientious practitioners of criminal law, many
of them financially successful, some filled with a noble humanitarian
purpose, and some drawn to their calling by a sincere enthusiasm for
the vocation of the advocate which, in these days of "business" law and
commercial methods, reaches perhaps its highest form in the criminal
courts.

There are no more "tricks" practised in these tribunals than in the
civil, but they are more ingenious in conception, more lawless in
character, bolder in execution and less shamefaced in detection.

Let us not be too hard upon our brethren of the criminal branch. Truly,
their business is to "get their clients off." It is unquestionably a
generally accepted principle that it is better that ninety-nine guilty
men should escape than that one innocent man should be convicted.
However much persons of argumentative or philosophic disposition may
care to quarrel with this doctrine, they must at least admit that it
would doubtless appear to them of vital truth were they defending
some trembling client concerning whose guilt or innocence they were
themselves somewhat in doubt. "Charity believeth all things," and the
prisoner is entitled to every reasonable doubt, even from his own
lawyer. It is the lawyer's business to create such a doubt if he can,
and we must not be too censorious if, in his eagerness to raise this in
the minds of the jury, he sometimes oversteps the bounds of propriety,
appeals to popular prejudices and emotions, makes illogical deductions
from the evidence, and impugns the motives of the prosecution. The
district attorney should be able to take care of himself, handle the
evidence in logical fashion, and tear away the flimsy curtain of
sentimentality hoisted by the defence. These are hardly "tricks" at
all, but sometimes under the name of advocacy a trick is "turned" which
deserves a much harsher name.

Not long ago a celebrated case of murder was moved for trial after the
defendant's lawyer had urged him in vain to offer a plea of murder in
the second degree. A jury was summoned and, as is the usual custom
in such cases, examined separately on the "_voir dire_" as to their
fitness to serve. The defendant was a German, and the prosecutor
succeeded in keeping all Germans off the jury until the eleventh seat
was to be filled, when he found his peremptory challenges exhausted.
Then the lawyer for the prisoner managed to slip in a stout old Teuton,
who replied, in answer to a question as to his place of nativity,
"Schleswig-Holstein." The lawyer made a note of it, and, the box
filled, the trial proceeded with unwonted expedition.

The defendant was charged with having murdered a woman with whom he
had been intimate, and his guilt of murder in the first degree was
demonstrated upon the evidence beyond peradventure. At the conclusion
of the case, the defendant not having dared to take the stand, the
lawyer arose to address the jury in behalf of what appeared a hopeless
cause. Even the old German in the back row seemed plunged in soporific
inattention. After a few introductory remarks the lawyer raised his
voice and in heart-rending tones began:

"In the beautiful county of _Schleswig-Holstein_ sits a woman old
and gray, waiting the message of your verdict from beyond the seas."
(Number 11 opened his eyes and looked at the lawyer as if not quite
sure of what he had heard.) "There she sits" (continued the attorney),
"in _Schleswig-Holstein_, by her cottage window, waiting, waiting to
learn whether her boy is to be returned to her outstretched arms."
(Number 11 sat up and rubbed his forehead.) "Had the woman, who so
unhappily met her death at the hands of my unfortunate client, been
_like those women of Schleswig-Holstein_--noble, sweet, pure, lovely
women of _Schleswig-Holstein_--I should have naught to say to you in
his behalf." (Number 11 leaned forward and gazed searchingly into the
lawyer's face.) "But alas, no! _Schleswig-Holstein_ produces a virtue,
a loveliness, a nobility of its own." (Number 11 sat up and proudly
expanded his chest.)

When, after about an hour or more of _Schleswig-Holstein_ the
defendant's counsel surrendered the floor to the district attorney,
the latter found it quite impossible to secure the slightest attention
from the eleventh juror, who seemed to be spending his time in casting
compassionate glances in the direction of the prisoner. In due course
the jury retired, but had no sooner reached their room and closed the
door than the old Teuton cried, "Dot man iss _not guilty_!" The other
eleven wrestled with him in vain. He remained impervious to argument
for seventeen hours, declining to discuss the evidence, and muttering
at intervals, "Dot man iss _not guilty_!" The other eleven stood
unanimously for murder in the first degree, which was the only logical
verdict that could possibly have been returned upon the evidence.

At last, worn out with their efforts, they finally induced the old
Teuton to compromise with them on a verdict of manslaughter. Wearily
they straggled in, the old native of Schleswig-Holstein bringing up the
rear, bursting with exultation and with victory in his eye.

"Gentlemen of the jury, have you agreed upon a verdict?" inquired the
clerk.

"We have," replied the foreman.

"How say you, do you find the defendant guilty or not guilty?"

"Guilty--of manslaughter," returned the foreman feebly.

The district attorney was aghast at such a miscarriage of justice, and
the judge showed plainly by his demeanor his opinion of such a verdict.
But the old inhabitant of Schleswig-Holstein cared for this not a whit.
The old mother in Schleswig-Holstein might still clasp her son in her
arms before she died! The defendant was arraigned at the bar. Then for
the first time, and to the surprise and disgust of No. 11, he admitted
in answer to the questions of the clerk that his parents were _both
dead_ and that he was born in _Hamburg_, a town for whose inhabitants
the old juryman had, like others of his compatriots, a constitutional
antipathy.

The "tricks" of the trade as practised by the astute and unscrupulous
criminal lawyer vary with the stage of the case and the character of
the crime charged. They are also adapted with careful attention to
the disposition, experience and capacity of the particular district
attorney who happens to be trying the case against the defendant. An
illustration of one of these occurred during the prosecution of a
bartender for selling "spirituous liquors" without a proper license.
He was defended by an old war-horse of the criminal bar famous for his
astuteness and ability to laugh a case out of court. The assistant
district attorney who appeared against him was a young man recently
appointed to office, and who was almost overcome at the idea of
trying a case against so well known a practitioner. He had personally
conducted but very few cases, had an excessive conception of his
own dignity, and dreaded nothing so much as to appear ridiculous.
Everything, except the evidence, favored the defendant, who, however,
was, beyond every doubt, guilty of the offence charged.

The young assistant put in his case, calling his witnesses one by one,
and examining them with the most feverish anxiety lest he should forget
something. The lawyer for the defence made no cross-examination and
contented himself with smiling blandly as each witness left the stand.
The youthful prosecutor became more and more nervous. He was sure
that something was wrong, but he couldn't just make out what. At the
conclusion of the People's case the lawyer inquired, with a broad grin,
"if that was all."

The young assistant replied that it was, and that, in his opinion, it
was "quite enough."

"Let that be noted by the stenographer," remarked the lawyer. "Now, if
your Honors please," he continued, addressing the three judges of the
Special Sessions, "you all know how interested I am to see these young
lawyers growing up. I like to help 'em along--give 'em a chance--teach
'em a thing or two. I trust it may not be out of place for me to say
that I like my young friend here and think he tried his case very well.
But he has a great deal to learn. I'm always glad, as I said, to give
the boys a chance--to give 'em a little experience. I shall not put my
client upon the stand. It is not necessary. _The fact is_," turning
suddenly to the unfortunate assistant district attorney--"my client
_has_ a license." He drew from his pocket a folded paper and handed it
to the paralyzed young attorney with the harsh demand: "What do you say
to that?"

The assistant took the paper in trembling fingers and perused it as
well as he could in his unnerved condition.

"Mr. District Attorney," remarked the presiding justice dryly (which
did not lessen the confusion of the young lawyer), "is this a fact? Has
the defendant a license?"

"Yes, your Honors," replied the assistant; "this paper seems to be a
license."

"Defendant discharged!" remarked the court briefly.

The prisoner stepped from the bar and rapidly disappeared through the
door of the court-room. After enough time had elapsed to give him a
good start and while another case was being called, the old lawyer
leaned over to the assistant and remarked with a chuckle:

"I am always glad to give the boys a chance--help 'em along--teach 'em
a little. That license was a _beer_ license!"


BEFORE TRIAL

To begin at the beginning, whenever a person has been arrested, charged
with crime, and has secured a criminal lawyer to defend him, the first
move of the latter is naturally to try and nip the case in the bud by
inducing the complaining witness to abandon the prosecution. In a vast
number of cases he is successful. He appeals to the charity of the
injured party, quotes a little of the Scriptures and the "Golden Rule,"
pictures the destitute condition of the defendant's family should
he be cast into prison, and the dragging of an honored name in the
gutter if he should be convicted. Few complainants have ever before
appeared in a police court, and are filled with repugnance at the
rough treatment of prisoners and the suffering which they observe upon
every side. After they have seen the prisoner emerge from the cells,
pale, hollow-eyed, bedraggled, and have beheld the tears of his wife
and children as they crowd around the husband and father, they begin
to realize the horrible consequences of a criminal prosecution and to
regret that they ever took the steps which have brought the wrong-doer
where he is. The district attorney has not yet taken up the case; the
prosecution up to this point is of a private character; there are loud
promises of "restitution" and future good behavior from the defendant,
and the occasion is ripe for the lawyer to urge the complainant to
"temper justice with mercy" and withdraw "before it be too late and the
poor man be ruined forever."

If the complainant is, however, bent on bringing the defendant to
justice and remains adamantine to the arguments of the lawyer and
the tears of the defendant's family connections, it remains for the
prisoner's attorney to endeavor to get the case adjourned "until
matters can be adjusted"--to wit, restitution made if money has been
stolen, or doctors' bills paid if a head has been cracked, with perhaps
another chance of "pulling off" the complainant and his witnesses.
Failing in an attempt to secure an adjournment, two courses remain
open: first, to persuade the court that the matter is a trivial one
arising out of petty spite, is all a mistake, or that at best it is a
case of "disorderly conduct" (and thus induce the judge to "turn the
case out" or inflict some trifling punishment in the shape of a fine);
or, second, if it be clear that a real crime has been committed, to
clamor for an immediate hearing in order, if it be secured, to subject
the prosecution's witnesses to a most exhaustive cross-examination,
and thus get a clear idea of just what evidence there is against the
accused.

At the conclusion of the complainant's case, if it appear reasonably
certain that the magistrate will "hold" the prisoner for the action of
a superior court, the lawyer will then "waive further examination," or,
in other words, put in no defence, preferring the certainty of having
to face a jury trial to affording the prosecution an opportunity to
discover exactly what defence will be put in and to secure evidence in
advance of the trial to rebut it. Thus it rarely happens in criminal
cases of importance that the district attorney knows what the defence
is to be until the defendant himself takes the stand, and, by "waiving
further examination" in the police court, the astute criminal attorney
may select at his leisure the defence best suited to fit in with and
render nugatory the prosecution's evidence.

The writer has frequently been told by the attorney for a defendant
_on trial_ for crime that "the defence has not yet been decided upon."
In fact, such statements are exceedingly common. In many courts the
attitude of all parties concerned seems to be that the defendant will
put up a perjured defence (so far as his own testimony is concerned, at
any rate) as a matter of course, and that this is hardly to be taken
against him.

On the other hand, if a guilty defendant has been so badly advised as
to give his own version of the case before the magistrate in the first
instance, it requires but slight assiduity on the part of the district
attorney to secure, in the interval between the hearing and the jury
trial, ample evidence to rebut it.

As illustrating merely the fertility and resourcefulness of some
defendants (or perhaps their counsel), the writer recalls a case
which he tried in the year 1902 where the defendant, a druggist, was
charged with manslaughter in having caused the death of an infant
by filling a doctor's prescription for calomel with morphine. It so
happened that two jars containing standard pills had been standing
side by side upon an adjacent shelf, and, a prescription for morphine
having come in at the same time as that for the calomel, the druggist
had carelessly filled the morphine prescription with calomel, and the
calomel prescription with morphine. The adult for whom the morphine had
been prescribed recovered immediately under the beneficent influence of
the calomel, but the baby for whom the calomel had been ordered died
from the effects of the first morphine pill administered. All this had
occurred in 1897--five years before. The remainder of the pills had
disappeared.

Upon the trial (no inconsistent contention having been entered in the
police court) the prisoner's counsel introduced six separate defences,
to wit: That the prescription had been _properly_ filled with calomel
and that the child had died from natural causes, the following being
suggested:

1. Acute gastritis.

2. Acute nephritis.

3. Cerebro-spinal meningitis.

4. Fulminating meningitis.

5. That the child had died of _apomorphine_, a totally distinct poison.

6. That it had received and taken calomel, but that, having eaten a
small piece of pickle shortly before, the conjunction of the vegetable
acid with the calomel had formed, in the child's stomach, a precipitate
of corrosive sublimate, from which it had died.

These were all argued with great learning. During the trial the box
containing the balance of the pills, which the defence contended were
calomel, unexpectedly turned up. It has always been one of the greatest
regrets of the writer's life that he did not then and there challenge
the defendant _to eat one of the pills_ and thus prove the good faith
of his defence.

This was one of the very rare cases where a chemical analysis has been
conducted in open court. The chemist first tested a standard trade
morphine pill with sulphuric acid, so that the jury could personally
observe the various color reactions for themselves. He then took one
of the contested pills and subjected it to the same test. The first
pill had at once turned to a brilliant rose, but the contested pill,
being antiquated, "hung fire," as it were, for some seconds. As nothing
occurred, dismay made itself evident on the face of the prosecutor, and
for a moment he felt that all was lost. Then the five-year-old pill
slowly turned to a faint brown, changed to a yellowish red, and finally
broke into an ardent rose. The jury settled back into their seats with
an audible "Ah!" and the defendant was convicted.

Let us return, however, to that point in the proceedings where the
defendant has been "held for trial" by the magistrate. The prisoner's
counsel now endeavors to convince the district attorney that "there
is nothing in the case," and continues unremittingly to work upon the
feelings of the complainant. If he finds that his labors are likely
to be fruitless in both directions, he may now seek an opportunity to
secure permission for his client to appear before the grand jury and
explain away, if possible, the charge against him.

We will assume, however, that, in spite of the assiduity of his
lawyer, the prisoner has at last been indicted and is awaiting
trial. What can be done about it? Of course, if the case could be
indefinitely adjourned, the complainant or his chief witness might
die or move away to some other jurisdiction, and if the indictment
could be "pigeon-holed" the case might die a natural death of itself.
Indictments, however, in New York County, whatever may be the case
elsewhere, are no longer "pigeon-holed," and they cannot be adequately
"lost," since certified copies are made of each. The next step,
therefore, is to secure as long a time as possible before trial.

Usually a prisoner has nothing to lose and everything to gain by
delay, and the excuses offered for adjournment are often ingenious in
the extreme. The writer knows one criminal attorney who, if driven
to the wall in the matter of excuses, will always serenely announce
the death of a near relative and the obligation devolving upon him to
attend the funeral. Another, as a last resort, regularly is attacked
in open court by severe cramps in the stomach. If the court insists
on the trial proceeding, he invariably recovers. Of course, there are
many legitimate reasons for adjourning cases which the prosecution is
powerless to combat.

The most effective method invoked to secure delay, and one which
it is practically useless for the district attorney to oppose, is
an application "to take testimony" upon commission in some distant
place. Here again it must be borne in mind that such applications are
often legitimate and proper and should be granted in simple justice
to the defendant. Although this right to take the testimony of absent
witnesses is confined in New York State to the defendant and does not
extend to the prosecution, and is undoubtedly often the subject of much
abuse, it not infrequently is the cause of saving an innocent man.

An example of this was the case of William H. Ellis, recently
brought into the public eye through his connection with the treaty
between the United States Government and King Menelik of Abyssinia.
Ellis was accused in 1901 by a young woman of apparently excellent
antecedents and character of a serious crime. Prior to his indictment
a colored man employed in his office (the alleged scene of the crime)
disappeared. When the case was moved for trial, Ellis, through his
attorneys, moved for a commission to take the testimony of this
absent, but clearly material, witness in one of the remote States of
Mexico--a proceeding which would require a journey of some two weeks
on muleback, beyond the railway terminus. The district attorney, in
view of the peculiarly opportune disappearance of this person from
the jurisdiction, strenuously opposed the application and hinted at
collusion between Ellis and the witness. The application, however, was
granted, and a delay of over a month ensued. During that time evidence
was procured by the counsel of the prisoner showing conclusively that
the complaining witness _was mentally unsound and had made similar
and groundless charges against others_. The indictment was at once
dismissed.

But such delays are not always so righteously employed. There is a
story told of a case where a notorious character was charged with
the unusual crime of "mayhem"--biting off another man's finger. The
defendant's counsel secured adjournment after adjournment--no one knew
why. At last the case was moved for trial and the prosecution put
in its evidence, clearly showing the guilt of the prisoner. At the
conclusion of the People's testimony, the lawyer for the defendant
arose and harshly stigmatized the story of the complainant as a "pack
of lies."

"I will prove to you in a moment, gentlemen," exclaimed he to the jury,
"how absurd is this charge against my innocent client. Take the stand!"

The prisoner arose and walked to the witness-chair.

"Open your mouth!" shouted the lawyer.

The defendant did so. He had not a tooth in his head. The delay had
been advantageously employed.

The importance of mere delay to a guilty defendant cannot well be
overestimated. "You never can tell what may happen to knock a case on
the head." For this reason a sufficiently paid and properly equipped
counsel will run the whole gamut of criminal procedure, and--

1. Demur to the indictment.

2. Move for an inspection of the minutes of the proceedings before the
grand jury.

3. Move to dismiss the indictment for lack of sufficient evidence
before that body.

4. Move for a commission to take testimony.

5. Move for a change of venue.

6. Secure, where possible, a writ of habeas corpus and a stay of
proceedings from some federal judge on the ground that his client is
confined without due process of law.

All these steps he will take _seriatim_, and some cases have been
delayed for as much as two years by merely invoking "legitimate" legal
processes. In point of fact it is quite possible for any defendant
absolutely to prevent an immediate trial provided he has the services
of vigilant counsel, for these are not the only proceedings of which he
can avail himself.

A totally distinct method is for the defendant to secure bail, and,
after securing as many adjournments as possible, simply flee the
jurisdiction. He will then remain away until the case is hopelessly
stale, or he no longer fears prosecution.

In default of all else he may go "insane" just before the case is
moved for trial. This habit of the criminal rich when brought to book
for their misdeeds is too well known to require comment. All that is
necessary is for a sufficient number of "expert" alienists to declare
it to be their opinion that the defendant is mentally incapable of
understanding the proceedings against him or of preparing his defence,
and he is shifted off to a "sanitarium" until some new sensation
occupies the public mind and his offences are partially forgotten.

In this way justice is often thwarted and the law cheated of its
victim, but unless fortune favors him, sooner or later the indicted
man must return for trial and submit the charge against him to a jury.
But if this happens, even if he be guilty, all hope need not be lost.
There are still "tricks of the trade" which may save him from the
clutches of the law.


AT THE TRIAL

What can be done when at last the prisoner who has fought persistently
for adjournment has been forced to face the witnesses against him and
submit the evidence to a jury of peers? Let us assume further that
he has been "out on bail," with plenty of opportunity to prepare his
defence and lay his plans for escape.

When the case is finally called and the defendant takes his seat at
the bar after a lapse of anywhere from six months to a year or more
after his arrest, the first question for the district attorney to
investigate is whether or no the person presenting himself for trial
be in point of fact the individual mentioned in the indictment. This
is often a difficult matter to determine. "Ringers"--particularly in
the magistrates' courts--are by no means unknown. Sometimes they appear
even in the higher courts. If the defendant be an ex-convict or a
well-known crook, his photograph and measurements will speedily remove
all doubt upon the subject, but if he be a foreigner (particularly a
Pole, Italian or a Chinaman), or even merely one of the homogeneous
inhabitants of the densely-populated East Side of New York, it is
sometimes a puzzling problem. "Mock Duck," the celebrated Highbinder
of Chinatown, who was set free after two lengthy trials for murder,
was charged not long ago with a second assassination. He was pointed
out to the police by various Chinamen, arrested and brought into the
Criminal Courts building for identification, but for a long time it
was a matter of uncertainty whether friends of his (masquerading as
enemies) had not surrendered a substitute. Luckily the assistant
district attorney who had prosecuted this wily and dangerous Celestial
in the first instance was able to identify him.

Many years ago, during the days of Fernando Wood, a connection of
his was reputed to be the power behind the "policy" business in New
York City--the predecessor of the notorious Al Adams. A "runner"
belonging to the system having been arrested and policy slips having
been found in his possession, the reigning Policy King retained a
lawyer of eminent respectability to see what could be done about it.
The defendant was a particularly valuable man in the business and
one for whom his employer desired to do everything in his power. The
lawyer advised the defendant to plead guilty, provided the judge
could be induced to let him off with a fine, which the Policy King
agreed to pay. Accordingly, the lawyer visited the judge in his
chambers and the latter practically promised to inflict only a fine in
case the defendant, whom we will call, out of consideration for his
memory, "Johnny Dough," should plead guilty. Unfortunately for this
very satisfactory arrangement, the judge, now long since deceased,
was afflicted with a serious mental trouble which occasionally
manifested itself in peculiar losses of memory. When "Johnny Dough,"
the Policy King's favorite, was arraigned at the bar and, in answer
to the clerk's interrogation, stated that he withdrew his plea of
"not guilty" and now stood ready to plead "guilty," the judge, to
the surprise and consternation of the lawyer, the defendant, and the
latter's assembled friends, turned upon him and exclaimed:

"Ha! So you plead guilty, do you? Well, I sentence you to the
penitentiary for one year, you miserable scoundrel!"

Utterly overwhelmed, "Johnny Dough" was led away, while his lawyer
and relatives retired to the corridor to express their opinion of the
court. About three months later the lawyer, who had heard nothing
further concerning the case, happened to be in the office of the
district attorney, when the latter looked up with a smile and inquired:

"Well, how's your client--Mr. Dough?"

"Safe on the Island, I suppose," replied the lawyer.

"Not a bit of it," returned the district attorney. "He never went
there."

"What do you mean?" inquired the lawyer. "I heard him sentenced to a
year myself!"

"I can't help that," said the district attorney. "The other day a
workingman went down to the Island to see his old friend 'Johnny
Dough.' There was only one 'Johnny Dough' on the lists, but when he was
produced the visitor exclaimed: '_That_ Johnny Dough! That ain't him
_at all_, at all!' The visitor departed in disgust. We instituted an
investigation and found that the man at the Island was a 'ringer.'"

"You don't say!" cried the lawyer.

"Yes," continued the district attorney. "But that is not the best part
of it. You see, the 'ringer' says he was to get two hundred dollars
per month for each month of Dough's sentence which he served. The
prison authorities have refused to keep him any longer, and _now he
is suing them for damages_, and is trying to get a writ of mandamus
to compel them to take him back and let him serve out the rest of the
sentence!"

Probably the most successful instance on record of making use of a
dummy occurred in the early stages of the now famous Morse-Dodge
divorce tangle. Dodge had been the first husband of Mrs. Morse,
and from him she had secured a divorce. A proceeding to effect the
annulment of her second marriage had been begun on the ground that
Dodge had never been legally served with the papers in the original
divorce case--in other words, to establish the fact that she was still,
in spite of her marriage to Morse, the wife of Dodge. Dodge appeared
in New York and swore that he had never been served with any papers.
A well-known and reputable lawyer, on the other hand, Mr. Sweetser,
was prepared to swear that he had served them personally upon Dodge
himself. The matter was sent by the court to a referee. At the hour set
for the hearing in the referee's office, Messrs. Hummel and Steinhardt
arrived early, in company with a third person, and took their seats
with their backs to a window on one side of the table, at the head of
which sat the referee, and opposite ex-Judge Fursman, attorney for Mrs.
Morse. Mr. Sweetser was late. Presently he appeared, entered the office
hurriedly, bowed to the referee, apologized for being tardy, greeted
Messrs. Steinhardt and Hummel, and then, turning to their companion,
exclaimed: "How do you do, Mr. Dodge?" It was not Dodge at all, but an
acquaintance of one of Howe & Hummel's office force who had been asked
to accommodate them. Nothing had been said, no representations had been
made, and Sweetser had voluntarily walked into a trap.

The attempt to induce witnesses to identify "dummies" is frequently
made by both sides in criminal cases, and under certain circumstances
is generally regarded as professional. Of course, in such instances no
false suggestions are made, the witness himself being relied upon to
"drop the fall." In case he does identify the wrong person, he has, of
course, invalidated his entire testimony.

Not in one case out of five hundred, however, is any attempt made
to substitute a "dummy" for the real defendant, the reason being,
presumably, the prejudice innocent people have against going to prison
even for a large reward. The question resolves itself, therefore,
into how to get the client off when he is actually on trial. First,
how can the sympathies of the jury be enlisted at the very start?
Weeping wives and wailing infants are a drug on the market. It is a
friendless man indeed, even if he be a bachelor, who cannot procure
for the purposes of his trial the services of a temporary wife and
miscellaneous collection of children. Not that he need swear that they
are his! They are merely lined up along a bench well to the front of
the court-room--the imagination of the juryman does the rest.

A defendant's counsel always endeavors to impress the jury with the
idea that all he wants is a fair, open trial--and that he has nothing
in the world to conceal. This usually takes the form of a loud
announcement that _he_ is willing "to take the first twelve men who
enter the box." Inasmuch as the defence needs only to secure the vote
of one juryman to procure a disagreement, this offer is a comparatively
safe one for the defendant to make, since the prosecutor, who must
secure unanimity on the part of the jury (at least in New York State),
can afford to take no chances of letting an incompetent or otherwise
unfit talesman slip into the box. Caution requires him to _examine_ the
jury in every important case, and frequently this ruse on the part of
the defendant makes it appear as if the State had less confidence in
its case than the defence. This trick was invariably used by the late
William F. Howe in all homicide cases where he appeared for the defence.

The next step is to slip some juryman into the box who is likely for
any one of a thousand reasons to lean towards the defence--as, for
example, one who is of the same religion, nationality or even name
as the defendant. The writer once tried a case where the defendant
was a Hebrew named Bauman, charged with perjury. Mr. Abraham Levy was
the counsel for the defendant. Having left an associate to select the
jury the writer returned to the court-room to find that his friend had
chosen for foreman a Hebrew named _Abraham Levy_. Needless to say, a
disagreement of the jury was the almost inevitable result. The same
lawyer not many years ago defended a _client_ named Abraham Levy. In
like manner he managed to get an Abraham Levy on the jury, and on that
occasion succeeded in getting his client off scot-free.

No method is too far-fetched to be made use of on the chance of
"catching" some stray talesman. In a case defended by Ambrose Hal.
Purdy, where the deceased had been wantonly stabbed to death by a
blood-thirsty Italian shortly after the assassination of President
McKinley, the defence was interposed that a quarrel had arisen between
the two men owing to the fact that the deceased had loudly proclaimed
anarchistic doctrines and openly gloried in the death of the President,
that the defendant had expostulated with him, whereupon the deceased
had violently attacked the prisoner, who had killed him in self-defence.

The whole thing was so thin as to deceive nobody, but Mr. Purdy, as
each talesman took the witness-chair to be examined on the _voir dire_,
solemnly asked each one:

"Pardon me for asking such a question at this time--it is only my
duty to my unfortunate client that impels me to it--but have you _any
sympathy with anarchy_ or with _assassination_?"

The talesman, of course, inevitably replied in the negative.

"Thank you, sir," Purdy would continue. "In _that event_ you are
_entirely acceptable_!"

Not long ago two shrewd Irish attorneys were engaged in defending a
client charged with an atrocious murder. The defendant had the most
Hebraic cast of countenance imaginable, and a beard that reached to
his waist. Practically the only question which these lawyers put to
the different talesmen during the selection of the jury was, "Have you
any prejudice against the defendant _on account of his race_?" In due
course they succeeded in getting several Hebrews upon the jury who
managed in the jury-room to argue the verdict down from murder to
manslaughter in the second degree. As the defendant was being taken
across the bridge to the Tombs he fell on his knees and offered up a
heartfelt prayer such as could only have emanated from the lips of a
devout Roman Catholic.

Lawyers frequently secure the good-will of jurors (which may last
throughout the trial and show itself in the verdict) by some happy
remark during the early stages of the case. During the Clancy murder
trial each side exhausted its thirty peremptory challenges and also
the entire panel of jurors in filling the box. At this stage of the
case the foreman became ill and had to be excused. No jurors were left
except one who had been excused by mutual consent for some trifling
reason, and who out of curiosity had remained in court. He rejoiced
in the name of Stone. Both sides then agreed to accept him as foreman
provided he was still willing to serve, and this proving to be the
case he triumphantly made his way towards the box. As he did so, the
defendant's counsel remarked: "The Stone which the builders refused is
become the head Stone of the corner." The good-will generated by this
meagre jest stood him later in excellent stead.

In default of any other defence, some criminal attorneys have been
known to seek to excite sympathy for their helpless clients by
appearing in court so intoxicated as to be manifestly unable to take
care of the defendant's interests, and prisoners have frequently been
acquitted simply by virtue of their lawyer's obvious incapacity. The
attitude of the jury in such cases seems to be that the defendant has
not had a "fair show" and so should be acquitted anyway. Of course,
this appeals to the juryman's sympathies and he overlooks the fact that
by his action the prosecution is given no "show" at all.

Generally speaking, the advice credited to Mr. Lincoln, as being given
by him to a young attorney who was about to defend a presumably guilty
client, is religiously followed by all criminal practitioners:

"Well, my boy, if you've got a good case, stick to the evidence; if
you've got a weak one, go for the People's witnesses; but--if you've
got no case at all, _hammer the district attorney_!"

As a rule, however, criminal lawyers are not in a position to "hammer"
the prosecuting officer, but endeavor instead to suggest by innuendo or
even open declaration his bias and unfairness.

"Be _fair_, Mr. ----!" is the continual cry. "Try to be _fair_!"

The defendant, whether he be an ex-convict or thirty-year-old
professional thief, is always "this poor boy," and, as he is not
compelled by law to testify, and as his failure to do so must not be
weighed against him by the jury, he frequently walks out of court a
free man, because the jury believe from the lawyer's remarks that he
is in fact a mere youthful offender of hitherto good reputation and
deserves another chance.

By all odds the greatest abuse in criminal trials lies in the
open disregard of professional ethics on the part of lawyers who
deliberately supply of themselves, in their opening and closing
addresses to the jury, what incompetent bits of evidence, true or
false, they have not been able to establish by their witnesses. There
is no complete cure for this, for even if the judge rebukes the
lawyer and directs the jury to disregard what he has said as "not
being in the evidence," the damage has been done, the statement still
lingering in the jury's mind without any opportunity on the part of the
prosecutor to disprove it. There is no antidote for such jury-poison.
A shyster lawyer need but to keep his client off the stand and he can
saturate the jury's mind with any facts concerning the defendant's
respectability and history which his imagination is powerful enough
to supply. On such occasions an ex-convict with no relatives may
become a "noble fellow, who, rather than have his family name tainted
by being connected with a criminal trial, is willing to risk even
conviction"--"a veteran of the glorious war which knocked the shackles
from the slave"--"the father of nine children"--"a man hounded by the
police." The district attorney may shout himself hoarse, the judge may
pound his gavel in righteous indignation, the lawyer may apologize
because in the zeal with which he feels inspired for his client's
cause he perhaps (which only makes matters worse) has _overstepped the
mark_--but some juryman may suppose that, after all, the prisoner _is_
a hero or nine times a father.

There is one notorious attorney who poses as a philanthropist and who
invariably promises the jury that if they acquit his client he will
personally give him employment. If he has kept half of his promises he
must by this time have several hundred clerks, gardeners, coachmen,
choremen and valets.

In like manner attorneys of this feather will deliberately state
to the jury that _if_ the defendant had taken the stand he _would
have_ testified thus and so; or that if certain witnesses who have
not appeared (and who perhaps in reality do not exist at all) _had_
testified they would have established various facts. Such lawyers
should be locked up or disbarred; courts are powerless to negative
entirely their dishonesty in individual cases.

Clever counsel, of course, habitually make use of all sorts of appeals
to sympathy and prejudice. In one case in New York in which James W.
Osborne appeared as prosecutor the defendant wore a G.A.R. button. His
lawyer managed to get a veteran on the jury. Mr. Osborne is a native
of North Carolina. The defendant's counsel, to use his own words,
"worked the war for all it was worth," and the defendant lived, bled
and died for his country over and over again. In summing up the case,
the attorney addressed himself particularly to the veteran on the back
row, and, after referring to numerous imaginary engagements, exclaimed:
"Why, gentlemen, my client was pouring out his life blood upon the
field of battle when the ancestors of Mr. Osborne were raising their
hands against the flag!" For once Mr. Osborne had no adequate words to
reply.

By far the most effective and dangerous "trick" employed by guilty
defendants is the deliberate shouldering of the entire blame by one of
two persons who are indicted together for a single offence. A common
example of this is where two men are caught at the same time bearing
away between them the spoil of their crime and are jointly indicted
for "criminally receiving stolen property." Both, probably, are "side
partners," equally guilty, and have burglarized some house or store in
each other's company. They may be old pals and often have served time
together. They agree to demand separate trials, and that whoever is
convicted first shall assume the entire responsibility. Accordingly, A.
is tried and, in spite of his asseveration that he is innocent and that
the "stuff" was given him by a strange man, who paid him a dollar to
transport it to a certain place, is properly convicted.[45] The bargain
holds. B.'s case is moved for trial and he claims never to have seen
A. in his life before the night in question, and that he volunteered
to help the latter carry a bundle which seemed to be too heavy for
him. He calls A., who testifies that this is so--that B., whom he did
not know from Adam, tendered his services and that he availed himself
of the offer. The jury are usually prone to acquit, as the weight of
evidence is clearly with the defendant.

Many changes are rung upon this device. There is said to have been a
case in which the defendant was convicted of murder in the first degree
and sentenced to be executed. It was one of circumstantial evidence and
the verdict was the result of hours of deliberation on the part of the
jury. The prisoner had stoutly denied knowing anything of the homicide.
Shortly before the date set for the execution, another man turned up
who admitted that he had committed the crime and made the fullest sort
of a confession. A new trial was thereupon granted by the Appellate
Court, and the convict, on the application of the prosecuting attorney,
was discharged and quickly made himself scarce. It then developed that
apart from the prisoner's own confession there was practically nothing
to connect him with the crime. Under a statute making such evidence
obligatory in order to render a confession sufficient for a conviction,
the prisoner had to be discharged.

In the case of Mabel Parker, a young woman of twenty, charged with
the forgery of a large number of checks, many of them for substantial
amounts, her husband made an almost successful attempt to procure her
acquittal by means of a new variation of the old game. Mrs. Parker,
after her husband had been arrested for _passing_ one of the bogus
checks, had been duped by a detective into believing that the latter
was a fellow criminal who was interested in securing Parker's release.
In due course she took this supposed friend into her confidence, made a
complete confession, and illustrated her skill by impromptu copies of
her forgeries from memory upon a sheet of pad paper. This the detective
secured and then arrested her. She was indicted for forging the name
_Alice Kauser_ to a check upon the Lincoln National Bank. On her trial
she denied having done so, and claimed that the detective had found
the sheet containing her supposed handwriting in her husband's desk,
and that she had written none of the alleged copies upon it. The door
of the court-room then opened, and James Parker was led to the bar and
_pleaded guilty_ to the forgery of the check in question. (For the
benefit of the layman it should be explained that as a rule indictments
for forgery also contain a count for "uttering.") He then took the
stand, admitted that he had not only uttered but had also written the
check, and swore that it was _his handwriting_ which appeared on the
pad.

The prosecutor was nonplussed. If he should ask the witness to prove
his capacity to forge such a check from memory on the witness-stand,
the latter, as he had had ample time to practise the signature while
in prison, would probably succeed in doing so. If, on the other hand,
he should not ask him to write the name, the defendant's counsel would
argue to the jury that he was _afraid_ to do so. The district attorney
therefore took the bull by the horns and challenged Parker to make
from memory a copy of the signature, and, much as he had suspected,
the witness produced a very good one. An acquittal seemed certain,
and the prosecutor was at his wit's end to devise a means to meet this
practical demonstration that the husband was in fact the forger. At
last it was suggested to him that it would be comparatively easy to
memorize such a signature, and acting on this hint he found that after
half an hour's practice he was able to make almost as good a forgery
as Parker. When therefore it came time for him to address the jury he
pointed out the fact that Parker's performance on the witness-stand
really established nothing at all--that any one could forge such a
signature from memory after but a few minutes' practice.

"To prove to you how easily this can be done," said he, "I will
volunteer to write a better Kauser signature than Parker did."

He thereupon seized a pen and began to demonstrate his ability to do
so. Mrs. Parker, seeing the force of this ocular demonstration, grasped
her counsel's arm and cried out: "For God's sake, don't let him do it!"
The lawyer objected, the objection was sustained, but the case was
saved. Why, the jury argued, should the lawyer object unless the making
of such a forgery were in fact an easy matter?

In desperate cases, desperate men will take desperate chances. The
traditional instance where the lawyer, defending a client charged with
causing the death of another by administering poisoned cake, met the
evidence of the prosecution's experts with the remark: "_This is my
answer to their testimony!_" and calmly ate the balance of the cake, is
too familiar to warrant detailed repetition. The jury retired to the
jury-room and the lawyer to his office, where a stomach pump quickly
put him out of danger. The jury is supposed to have acquitted.

Such are some of the tricks of the legal trade as practised in its
criminal branch. Most of them are unsuccessful and serve only to
relieve the gray monotony of the courts. When they achieve their object
they add to the interest of the profession and teach the prosecutor a
lesson by which, perhaps, he may profit in the future.

FOOTNOTES:

[Footnote 45: The defence that the accused innocently received the
stolen property into his possession was a familiar one even in 1697, as
appears by the following record taken from the Minutes of the Sessions.
It would seem that it was even then received with some incredulity.

  CITY & COUNTY OF NEW YORK: ss:

  Att a Meeting of the Justices of the Peace for the said City & County
  att the City Hall of the said City on Thursday the 10th day of June
  Anno Dom 1697.

 PRESENT.

 William Morrott   } Esquires
 James Graham      } quorum

 Jacobus Cortlandt } Esquires
 Grandt Schuylor   } Justices
 Leonard Lowie     } of the Peace

  Jacobus Cortlandt, Esq., one of his Majestys Justices of the peace
  for ye said City and County Informed the Kings Justices that a peace
  of Linnen Ticking was taken out of his Shop this Morning. That he was
  informed a Negro Slave Named Joe was seen to take the same whereupon
  the said Jacobus Van Cortlandt Pursued the said Joe and apprehended
  him and found the said piece of ticking in his custody and had the
  said Negro Joe penned in the cage, upon which the said Negro man
  being brought before the said Justices said he did not take the said
  ticking out of the Shop window but that a Boy gave itt to him, but
  upon Examination of Sundry other Evidence itt Manifestly Appeareth
  to the said Justices that the said Negro man Named Joe, did steal
  the said piece of linnen ticking out of the Shop Window of the said
  Jacobus Van Cortlandt and thereupon doe order the punishment of the
  said Negro as follows vigt. That the said Negro man Slave Named Joe
  shall be forthwith by the Common whipper of the City or some of the
  Sheriffs officers att the Cage be stripped Naked from the Middle
  upwards and then and there shall be tyed to the tayle of a Cart and
  being soe stripped and tyed shall be Drove Round the City and Receive
  upon his naked body att the Corner of each Street nine lashes until
  he return to the place from whence he sett out and that he afterwards
  Stand Committed to the Sheriffs custody till he pay his fees.]



CHAPTER XVII

WHAT FOSTERS CRIME


To lack of regard for law is mainly due the existence of crime, for
a perfect respect for law would involve entire obedience to it. Yet
crime continues and from time to time breaks forth to such an extent
as to give ground for a popular impression that it is increasing out
of proportion to our growth as a nation. Now, while it may be fairly
questioned whether there is any actual increase of crime in the United
States, and while, on the contrary, observation would seem to show
an actual decrease, not only in crimes of violence, but in all major
crimes, there nevertheless exists to-day a widespread contempt for the
criminal law which, if it has not already stimulated a general increase
of criminal activity, is likely to do so in the future. This contempt
for the law is founded not only upon actual conditions, but also upon
belief in conditions erroneously supposed to exist, which is fostered
by current literature and by the sensational press.

Thus, as has already been pointed out, while it is popularly believed
that women are almost never convicted of crime, and particularly of
homicide, the fact is, at least in New York County, that a much greater
proportion of women charged with murder are convicted than of men
charged with the same offence. To read the newspapers one would suppose
that the mere fact that the defendant was a female instantly paralyzed
the minds of the jury and reduced them to a state of imbecility. The
inevitable result of this must be to encourage lawlessness among the
lower orders of women and to lead them to look upon arrest as a mere
formality without ultimate significance. The writer recalls trying for
murder a negress who had shot her lover not long after the discharge of
a notorious female defendant in a recent spectacular trial in New York.
When asked why she had killed him she replied:

"Oh, Nan Patterson did it and got off."

This is not offered as a reflection upon the failure of the jury
to reach a verdict in the Patterson case, but as an illuminating
illustration of the concrete and immediate effect of all actual or
supposed failures of justice.

A belief that the course of criminal justice is slow and uncertain,
that the chances are all in favor of the defendant, and that he has but
to resort to technicalities to secure not only indefinite delay but
generally ultimate freedom, breeds an indifference amounting almost to
arrogance among law-breakers, powerful and otherwise, and a painful
yet hopeless conviction among honest men that nothing can prevent the
wicked from flourishing. Honesty seems no longer even a good policy,
and the young business man resorts to sharp practices to get ahead of
his unscrupulous competitor. In some localities the uncertainty and
delay attendant upon the execution of the law is the alleged, and maybe
the actual, cause of the community crime of lynching. Even where the
administration of justice is seen at its best many people who have been
wronged believe that there is so little likelihood that the offender
will after all be punished that the cheapest and easiest course is to
let the matter drop. All this gives aid and comfort to the powers of
darkness.

The widespread impression as to the uncertainty of the law is not
entirely a misapprehension. "We have long since passed the period when
it is possible to punish an innocent man. We are now struggling with
the problem whether it is any longer possible to punish the guilty."
It is a melancholy fact that at the present time "penal statutes and
procedure tend more to defeat and retard the ends of justice than to
protect the rights of the accused."

The subject of criminal-law reform is too extensive to be discussed
here even superficially, but historically the explanation of
existing conditions is simple enough. The present overgrown state
of the criminal law is the direct result of our exaggerated regard
for personal liberty, coupled with a wholesale adoption of the
technicalities of English law invented when only such technicalities
could stand between the minor offender and the barbarous punishments of
a bygone age. We forget that the community is composed of individuals,
and we tend to disregard its interests for those of any particular
individual who happens to be a prisoner at the bar. We revolted from
England and incidentally from her system of administering the criminal
law, by which the defendant could have no voice at his own trial,
where practically every crime was punishable with death, and where
only the Crown could produce and examine witnesses. Every one will
have to agree that the English system was very harsh and very unfair
indeed. To-day it is better than ours, simply because its errors have
been systematically and wisely corrected, without diminution in the
national respect for law. When we devised our own system we adopted
those humane expedients for evading the law which were only justified
by the existing penalties attached to convictions for crime,--and then
discarded the penalties. We were through with tyrants once and for all.
The Crown had always been opposed to the defendant and the Crown was a
tyrant. We naturally turned with sympathy towards the prisoner.

We gave him the right of appeal on all matters of law through all the
courts of our States, and even into the courts of the United States,
while we allowed the People no right of appeal at all. If the prisoner
was convicted he could go on and test the case all along the line,--if
he was acquitted the People had to rest satisfied. We stopped the
mouth of the judge and made it illegal for him to "sum up" the case or
discuss the facts to any extent. We clipped the wings of the prosecutor
and allowed him less latitude of expression than an English judge.
Then we gazed on the work of our intellects and said it was good. If
an ignorant jury acquitted a murderer under the eyes of a gagged and
helpless judge, we said that it was all right and that it was better
that ninety-nine guilty men should escape than that one innocent man
should be convicted. Yes,--better for whom? If another murderer, about
whose guilt the highest court in one of the States said there was no
possible doubt, secured three new trials and was finally acquitted on
the fourth, it merely demonstrated how perfectly we safeguarded the
rights of the individual.

The result is that we have unnecessarily fettered ourselves, have
furnished a multitude of technical avenues of escape to wrong-doers,
and have created a popular contempt for courts of justice, which shows
itself in the sentimental and careless verdicts of juries, in a lack
of public spirit, and in an indisposition to prosecute wrong-doers.
In addition, the impression sought to be conveyed by the yellow press
that our judiciary is corrupt and that money can buy anything--even
justice--leads the jury in many cases to feel that their presence is
merely a formal concession to an archaic procedure and that their oaths
have no real significance.

The community, the "People," have a sufficiently hard task to secure
justice at any criminal trial. On the one hand is the abstract
proposition that the law has been violated, on the other sits a human
being, ofttimes contrite, always an object of pity. He is presumed
innocent, he is to be given the benefit of every reasonable doubt. He
has the right to make his own powerful appeal to the jury and to have
the services of the best lawyer he can secure to sway their emotions
and their sympathies. If the prosecutor resorts to eloquence he is
stigmatized as "over-zealous" and as a "persecutor." If a plainly
guilty defendant be acquitted, not the trampled ideal of justice, but
the vision of a liberated prisoner rejoicing in his freedom hovers in
the talesman's dreams.

So far so good; we can afford to stand by a system which in the long
run has served us fairly well. But an occasional evil, an evil which
when it occurs is productive of great harm and serves to give color to
the popular opinion of criminal law, begins only when the lawyers have
had their opportunity for elocution. At the conclusion of the charge
the defendant's attorney proceeds to put the judge through what is
familiarly known as "a course of sprouts." He makes twenty or thirty
"requests to charge the jury" on the most abstract propositions of law
which his fertile mind can devise,--relevant or irrelevant, applicable
or inapplicable to the facts,--and the judge is compelled to decide
from the bench, without opportunity for reflection, questions which the
attorney has labored upon, perchance, for weeks. If he guesses wrong,
the lawyer "excepts" and the case may be reversed on appeal. This is
not a test of the defendant's guilt or innocence, but a test of the
abstract learning and quickness of the presiding judge.

It is generally believed that appellate courts are prone to reverse
criminal cases on purely technical grounds. Whether this belief be well
founded or ill, its wide acceptance as fact is fertile in bringing the
law into disrepute.[46] Justice to be effective must be not only sure
but swift. An "iron hand" cannot always compensate for a "leaden heel."

It is probably true that in some of the States such a tendency exists
and may result in making the administration of justice a laughing
stock, but it is far from being so in States of the character of New
York and Massachusetts. The Appellate Division, First Department,
and Court of Appeals in New York are distinctly opposed to reversing
criminal cases on technical grounds and are prone to disregard trivial
error where the guilt of the defendant is clear. The writer can recall
no recent criminal case where the district attorney's office has felt
aggrieved at the action of the higher courts, and on the contrary
believes that their action is generally based on broad principles of
public policy and common-sense.

During the year 1905 the district attorney of New York County defended
forty-seven appeals from convictions in criminal cases in the Appellate
Division. Of these convictions only _three_ were reversed. He defended
eighteen in the Court of Appeals, of which only _two_ were reversed.
One of the writer's associates computed that he had secured, during a
four years' term of office, twenty-nine convictions in which appeals
had been taken. Of these but two were reversed, one of them immediately
resulting in the defendant's re-conviction for the same crime. The
other is still pending and the defendant awaiting his trial. Certainly
there is little in the actual figures to give color to the impression
that the criminal profits by mere technicalities on appeal,--at least
in New York State.

In nine cases out of ten the reversal of a conviction in a criminal
case is due to the carelessness or inefficiency of the prosecuting
officer or trial judge and not to any inadequacy in our methods of
procedure. Yet the tenth case, the case where the criminal does beat
the law by a technicality, does more harm than can easily be estimated.
That is the one case everybody knows about,--the one the papers descant
upon, the one that cheers the heart of the grafter and every criminal
who can afford to pay a lawyer.

Yet the evil influence of the reversal of a conviction on appeal,
however much it is to be deprecated, is as nothing compared with a
deliberate acquittal of a guilty defendant by a reckless, sentimental,
or lawless jury. Few can appreciate as does a prosecutor the actual,
practical and immediate effect of such a spectacle upon those who
witness it.

Two men were seen to enter an empty dwelling-house in the dead of
night. The alarm was given by a watchman near by, and a young police
officer, who had been but seven months on the force, bravely entered
the black and deserted building, searched it from roof to cellar, and
found the marauders locked in one of the rooms. He called upon them to
open, received no reply, yet without hesitation and without knowing
what the consequences to himself might be, smashed in the door and
apprehended the two men. One was found with a large bundle of skeleton
keys in his pocket and several candles, while a partially consumed
candle lay upon the floor. In the police court they _pleaded guilty_ to
a charge of burglary, and were promptly indicted by the grand jury.

At the trial they claimed to have gone into the house _to sleep_,
said they had found the bunch of keys on the stairs, _denied_ having
the candles at all or that they were in a room on the top story, and
asserted that they were in the entrance hall when arrested.

The story told by the defendants was so utterly ridiculous that one of
the two could not control a grin while giving his version of it on the
witness-stand. The writer, who prosecuted the case, regarded the trial
as a mere formality and hardly felt that it was necessary to sum up the
evidence at all.

Imagine his surprise when an intelligent-looking jury _acquitted_ both
the defendants after practically no deliberation. Both had offered to
plead guilty to a slightly lower degree of crime before the case was
moved for trial.

These two defendants, who were neither insane nor degenerates,
consorted with others in Bowery hotels and saloons,--incubators of
crime. What effect could such a performance have upon them and their
friends save to inculcate a belief that they were licensed to commit as
many burglaries as they chose? They had a practical demonstration that
the law was "no good" and the system a failure. If they could beat a
case in which they had already pleaded _guilty_, what could they not do
where the evidence was less obvious? They were henceforth immune. Who
shall say how many embryonic law-breakers took courage at the story and
started upon an experimental attempt at crime?

The news of such an acquittal must instantly have been carried to the
Tombs, where every other guilty prisoner took heart and prepared anew
his defence. Those about to plead guilty and throw themselves upon the
mercy of the court, abandoned their honest purpose and devised some
perjury instead. Criminals almost persuaded that honesty was the best
policy changed their minds. The barometer of crime swung its needle
from "stormy" to "fair."

But, apart from the law-breakers, consider the effect of such a
miscarriage of justice upon a young, honest and zealous officer.
First, all his good work, his bravery, his conscientious effort at
safeguarding the sleeping public had been disregarded, tossed aside
with a sneer, and had gone for naught. The jury had stamped his story
as a lie and stigmatized him, by their action, as a perjurer. They had
chosen two professional criminals as better men. His whole conduct of
the case instead of being commended as meritorious had resulted in a
solemn public declaration that he was not worthy of credence and that
he had attempted wilfully to railroad to State's prison two innocent
men. In other words, that he ought to be there himself. What was the
use of trying to do good work any longer? He might just as well loiter
in an area on a barrel and smoke a furtive cigar when he ought to be
"on post." Perhaps he might better "stand in" with those who would
inevitably be preferred to him by a jury of their peers.

What must have been the effect on the court officers, the witnesses,
the defendants out on bail, the complainants, the spectators? That
the whole business was nonsense and rot! That the jury system was
ridiculous. That the jurymen were either crooks or fools. That the
only people who were not insulted and sneered at were the law-breakers
themselves. That if two such rogues were to be set free all the other
jailbirds might as well be let go. That an honest man could whistle for
his justice and might better straightway put on his hat and go home.
That the only way to punish a criminal was to punish him yourself--kill
him if you got the chance or get the crowd to lynch him. That if a
thief stole from you the shrewdest thing to do was to induce him as
a set-off to give you the proceeds of his next thieving. That it was
humiliating to live in a town where a self-confessed rascal could snap
his fingers at the law and go unwhipped of justice.

The jury's action must have been due either to a wilful disregard of
their oath or an entire misconception of it. Assuming that the jury
deliberately declined to obey the law, the whole twelve elected
to become, and thereby did become, law-breakers. They disqualified
themselves forever as talesmen. No prosecutor in his senses would move
a case before a jury which numbered any one of them. They had arraigned
themselves upon the side, and under the standard, of crime. They became
accessories after the fact. If on the other hand they misconceived
the purpose for which they were there the performance was a shocking
example of what is possible under present conditions.

Just as there are three general classes of wrongs, so there are three
general and varyingly effective forms of restraint against their
perpetration. First there is the moral control exerted by what is
ordinarily called conscience, secondly there is the restraint which
arises out of the apprehension that the commission of a tort will
be followed by a judgment for damages in a civil court, and lastly
there is the restraint imposed by the criminal law. All these play
their part, separately or in conjunction. For some men conscience
is a sufficient barrier to crime or to those acts which, while
equally reprehensible, are not technically criminal; for others the
possibility of pecuniary loss is enough to keep them in the straight
and narrow way; but for a large proportion of the community the fear of
criminal prosecution, with implied disgrace and ignominy, forfeiture
of citizenship, and confinement in a common jail is about the only
conclusive reason for doing unto others as they would the others should
do unto them. Were the criminal law done away with in our present
state of civilization, religion, ethics and civil procedure would be
absolutely inefficacious to prevent anarchy. It is as imperative to
the ordinary citizen to know that if he steals he will be locked up as
it is for the child to know that if he puts his hand into the fire it
will be burned. The acquittal of every thief breeds another, and the
unpunished murder is an incentive for a dozen similar homicides.

Crimes are either deliberate or the result of accident or impulse.
The last class may rise to a high degree of enormity,--such as
manslaughter, but these crimes are rarely possible of restraint. The
perpetrator does not stop to consider, even if he be sober enough to
think at all, whether his act be moral, whether it will entail any
civil liability, or what will be its consequences, if it be a crime.
So far as such acts are concerned those who commit them are hardly
criminals in the ordinary sense, and no influence in the world is able
to prevent them.

The question is how far these different kinds of restraint operate
upon the community as a whole in the prevention of _deliberate_ crime.
Clearly the fear of pecuniary loss through actions brought to judgment
in the civil courts is practically _nil_. Most persons who set out to
commit crime have no bank account, the absence of one being generally
what leads them into a criminal career.

The writer has no intention of attempting to discuss or estimate the
efficacy of religion or ethics as restraining influences. A certain
limited proportion of the community would not commit crime under any
circumstances. It is enough for them that the act is forbidden by the
State even if it be not really wrong from their own personal point of
view. Side by side with these very good people are a very large number
who wear just as fashionable clothing, have the same friends, attend
the same churches, but who would commit almost any crime so long as
they were sure of not being caught. If we had no criminal law we should
soon discover who were the hypocrites.

But for an overwhelming majority of the community something more
practical than either religion, ethics, or philosophy is necessary to
keep them in order. They must be convinced that the transgressor will
surely be punished,--not some time, not next year or the year after,
but _now_. Not, moreover, that his way will be merely hard, but that he
will be put in stripes and made to break stones.

Hence the necessity for a vigorous and adequate criminal law and
procedure which shall command the respect and loyalty of the community,
administered by a fearless judiciary who will hold jurors to a rigid
and conscientious obedience to their oath.

There is nothing sacred about an archaic criminal procedure which in
some respects is less devised for the protection of the community than
for the exculpation of the guilty. The portals of liberty would not
fall down or the framers of the constitution turn in their graves if
the peremptory challenges allowed to both sides in the selection of a
jury were reduced to a reasonable number, or if persons found guilty
of crime after due process of law were compelled to stay in jail until
their appeals were decided, instead of walking the streets free as air
under a certificate of "reasonable doubt" issued by some judge who
personally knew nothing of the actual trial of the case. As things
stand to-day, a thief caught in the very act of picking a pocket in
the night-time may challenge arbitrarily the twenty most intelligent
talesmen called to sit as jurors in his case. Does such a practice
make for justice? It is even possible that the sacred bird of liberty
would not scream if eleven jurors, instead of twelve, were permitted
to convict a defendant or set him free, while the question of how far
the right of appeal in criminal cases might properly be limited or,
in default of such limitation, how far under certain conditions it
might be correspondingly extended to the community, is by no means
purely academic.[47] It is also conceivable that some means might be
found to do away with the interminable technicalities which can now be
interposed on behalf of the accused to prevent trials or the infliction
of sentence after conviction.

Yet these considerations are of slight moment in contrast to that most
crying of all present abuses,--the domination of the court-room by
the press.[48] It is no fiction to say that in many cases the actual
trial is conducted in the columns of yellow journals and the defendant
acquitted or convicted purely in accordance with an "editorial policy."
Judges, jurors, and attorneys are caricatured and flouted. There is
no evidence, however incompetent, improper, or prejudicial to either
side, excluded by the judge in a court of criminal justice, that is
not deliberately thrust under the noses of the jury in flaring letters
of red or purple the moment they leave the court-room. The judge may
charge one way in accordance with the law of the land, while the
editor charges the same jury in double-leaded paragraphs with what
"unwritten" law may best suit the owner of his conscience and his pen.
"Contempt of court" in its original significance is something known
to-day only to the reader of text books.[49]

Each State has its own particular problem to face, but ultimately the
question is a national one. Lack of respect for law is characteristic
of the American people as a whole. Until we acquire a vastly increased
sense of civic duty we should not complain that crime is increasing
or the law ineffective. It would be a most excellent thing for an
association of our leading citizens to interest itself in criminal-law
reform and demand and secure the passage of new and effective
legislation, but it would accomplish little if its individual members
continued to evade jury service and left their most important duty to
those least qualified by education or experience to perform it.[50] It
would serve some of this class of reformers right, if one day, when
after a life-time of evasion, they perchance came to be tried by a
jury of their peers, they should find that among their twelve judges
there was not one who could read or write the English language with
accuracy and that all were ready to convict anybody because he lived in
a brown-stone front.

Merchants, who in return for a larger possible restitution habitually
compound felonies by tacitly agreeing not to prosecute those who
have defrauded them, have no right to complain because juries acquit
the offenders whom they finally decide it to be worth their while to
pursue. The voter who has not the courage to insist that hypocritical
laws should be wiped from the statute books should express no surprise
when juries refuse to convict those who violate them. The man who
perjures himself to escape his taxes has no right to expect that his
fellow citizens are going to place a higher value upon an oath than he.

FOOTNOTES:

[Footnote 46: Cf. "Criminal Law Reform," G.W. Alger, "The Outlook,"
June, 1907. Also article having same title in "Moral Overstrain," by
same author. See also, by Hon. C.F. Amidon, "The Quest for Error and
the doing of Justice," 40 American Law Rev. 681, and article on same
subject in "The Outlook" for June, 1906.]

[Footnote 47: "Limitation of the Right of Appeal in Criminal Cases," by
Nathan A. Smythe, 17 Harvard Law Rev. 317 (1905).]

[Footnote 48: Cf. "Sensational Journalism and the Law," in "Moral
Overstrain," by G.W. Alger.]

[Footnote 49: By the New York Penal Code § 143, an editor is only
guilty of contempt of court (a misdemeanor) if he publishes "a false
or grossly inaccurate report" of its proceedings. The most insidious,
dangerous, offensive and prejudicial matter spread broadcast by the
daily press does not relate to actual trials at all, but to matters
entirely outside the record, such as what certain witnesses of either
side could establish were they available, the "real" past and character
of the defendant, etc. The New York Courts, under the present statute,
are powerless to prevent this abuse. In Massachusetts half a dozen of
our principal editors and "special writers" would have been locked up
long ago to the betterment of the community and to the increase of
respect for our courts of justice.]

[Footnote 50: "The Citizen and the Jury," in "Moral Overstrain," by
G.W. Alger.]



CHAPTER XVIII

INSANITY AND THE LAW


Harry Kendall Thaw shot and killed Stanford White on the 25th day of
June, 1905. Although most of the Coroner's jury which first sat upon
the case considered him irrational, he was committed to the Tombs and,
having been indicted for murder, remained there over six months pending
his trial. During that time it was a matter of common knowledge that
his defence was to be that he was insane at the time of the shooting,
but as under the New York law it is not necessary specifically to
enter a plea of insanity to the indictment in order to take advantage
of that defence (which may be proven under the general plea of "not
guilty"), there was nothing officially on record to indicate this
purpose. Neither was it possible for the District Attorney to secure
any evidence of Thaw's mental condition, since he positively refused
either to talk to the prosecutor's medical representatives or to allow
himself to be examined by them. Mr. Jerome therefore was compelled to
enter upon an elaborate and expensive preparation of the case, not
only upon its merits, but upon the possible question of the criminal
irresponsibility of the defendant.

The case was moved in January, 1906, and the defence thereupon
proceeded to introduce a limited amount of testimony tending to show
that Thaw was insane when he did the shooting. While much of this
evidence commended itself but little to either the prosecutor or the
jury, it was sufficient to raise grave doubt as to whether the accused
was a fit subject for trial. The District Attorney's experts united
in the opinion that, while he knew that he was doing wrong when he
shot White, he was, nevertheless, the victim of a hopeless progressive
form of insanity called _dementia præcox_. In the midst of the trial,
therefore, Mr. Jerome moved for a commission to examine into the
question of how far Thaw was capable of understanding the nature of
the proceedings against him and consulting with counsel, and frankly
expressed his personal opinion in open court that Thaw was no more
a proper subject for trial than a baby. A commission was appointed
which reported the prisoner sane enough to be tried, and the case then
proceeded at great length with the surprising result that, in spite
of the District Attorney's earlier declaration that he believed Thaw
to be insane, the jury disagreed as to his criminal responsibility, a
substantial number voting for conviction. Of course, logically, they
would have been obliged either to acquit entirely on the ground of
insanity or convict of murder in the first degree, but several voted
for murder in the second degree.

A year now elapsed, during which equally elaborate preparations were
made for a second trial. The State had already spent some $25,000, and
yet its experts had never had the slightest opportunity to examine
or interrogate the defendant, for the latter had not taken the stand
at the first trial. The District Attorney still remained on record
as having declared Thaw to be insane, and his own experts were
committed to the same proposition, yet his official duty compelled him
to prosecute the defendant a second time. The first prosecution had
occupied months and delayed the trial of hundreds of other prisoners,
and the next bid fair to do the same. But at this second trial the
defence introduced enough testimony within two days to satisfy the
public at large of the unbalanced mental condition of the defendant
from boyhood.

After a comparatively short period of deliberation the jury acquitted
the prisoner "on the ground of insanity," which may have meant either
one of two things: (_a_) that they had a reasonable doubt in their
own minds that Thaw knew that he was doing wrong when he committed
the murder--something hard for the layman to believe, or (_b_) that,
realizing that he was undoubtedly the victim of mental disease, they
refused to follow the strict legal test.

Nearly two years had elapsed since the homicide; over a hundred
thousand dollars had been spent upon the case; every corner of the
community had been deluged with detailed accounts of unspeakable
filth and depravity; the moral tone of society had been depressed;
and the only element which had profited by this whole lamentable and
unnecessary proceeding had been the sensational press. Yet the sole
reason for it all was that the law of the land in respect to insane
persons accused of crime was hopelessly out of date.

The question of how far persons who are victims of diseased mind
shall be held criminally responsible for their acts has vexed judges,
jurors, doctors, and lawyers for the last hundred years. During that
time, in spite of the fact that the law has lagged far behind science
in the march of progress, we have blundered along expecting our juries
to reach substantial justice by dealing with each individual accused as
most appeals to their enlightened common sense.

And the fact that they have obeyed their common sense rather than the
law is the only reason why our present antiquated and unsatisfactory
test of who shall be and who shall not be held "responsible" in the
eye of the law remains untouched upon the statute-books. Because its
inadequacy is so apparent, and because no experienced person seriously
expects juries to apply it consistently, it fairly deserves first place
in any discussion of present problems.

Thanks to human sympathy, the law governing insanity has had
comparatively few victims, but the fact remains that more than one
irresponsible insane man has swung miserably from the scaffold. But
"hard cases" do more than "make bad law," they make lawlessness. A
statute systematically violated is worse than no statute at all, and
exactly in so far as we secure a sort of justice by evading the law as
it stands, we make a laughing-stock of our procedure.

The law is, simply, that any person is to be held criminally
responsible for a deed unless he was at the time laboring under such a
defect of reason as not to know the nature and quality of his act and
that it was wrong.

This doctrine first took concrete form in 1843, when, after a person
named McNaughten, who had shot and killed a certain Mr. Drummond
under an insane delusion that the latter was Sir Robert Peel, had been
acquitted, there was such popular uneasiness over the question of what
constituted criminal responsibility that the House of Lords submitted
four questions to the fifteen judges of England asking for an opinion
on the law governing responsibility for offences committed by persons
afflicted with _certain forms_ of insanity. It is unnecessary to set
forth at length these questions, but it is enough to say that the
judges formulated the fore-going rule as containing the issue which
should be submitted to the jury in such cases.[51]

Now, with that commendable reverence for judicial utterance which
is so characteristic of the English nation, and is so conspicuously
absent in our own country, it was assumed until recently that this
solemn pronunciamento was the last word on the question of criminal
responsibility and settled the matter once and forever. Barristers and
legislators did not trouble themselves particularly over the fact that
in 1843 the study of mental disease was in its infancy, and judges,
including those of England, probably knew even less about the subject
than they do now. In 1843 it was supposed that insanity, save of the
sort that was obviously maniacal, necessitated "delusions," and unless
a man had these delusions no one regarded him as insane. In the words
of a certain well-known judge:

  "The true criterion, the true test of the absence or presence of
  insanity, I take to be the absence or presence of what, used in
  a certain sense of it, is comprisable in a single term, namely,
  delusion.... In short, I look on delusion ... and insanity to be
  almost, if not altogether, convertible terms."[52]

This in a certain broad sense, probably not intended by the judge who
made the statement, is nearly true, but, unfortunately, is not entirely
so.

The dense ignorance surrounding mental disease and the barbarous
treatment of the insane within a century are facts familiar to
everybody. Lunatics were supposed to be afflicted with demons or devils
which took possession of them as retribution for their sins, and in
addition to the hopelessly or maniacally insane, medical science
recognized only a so-called "partial" or delusionary insanity. To-day
it would be regarded about as comprehensive to relate all mental
diseases to the old-fashioned "delusion" as to regard as insane only
those who frothed at the mouth.

But the particular individual out of whose case in 1843 arose the rule
that is in 1908 applied to all defendants indiscriminately was the
victim of a clearly defined insane delusion, and the four questions
answered by the judges of England relate only to persons who are
"_afflicted with insane delusions in respect to one or more particular
subjects or persons_." Nothing is said about insane persons _without_
delusions, or about persons with _general_ delusions, and the judges
limit their answers even further by making them apply "to those persons
who labor under such partial delusion only _and are not in other
respects insane_"--a medical impossibility.

Modern authorities agree that a man cannot have insane delusions and
not be in other respects insane, for it is mental derangement which is
the cause of the delusion.

In the first place, therefore, a fundamental conception of the judges
in answering the questions was probably fallacious, and in the second,
although the test they offered was distinctly limited to persons
"_afflicted with insane delusions_," it has ever since been applied to
all insane persons irrespective of their symptoms.

Finally, whether the judges knew anything about insanity or not, and
whether in their answers they weighed their words very carefully or
not, the test _as they laid it down_ is by no means clear from a
medical or even legal point of view.

Was the accused laboring under such a defect of reason as not to _know_
the nature and quality of the act he was doing, or not to _know_ that
it was wrong? What did these judges mean by _know_? What does the
reader mean by _know_? What does the ordinary juryman mean by it?

We are left in doubt as to whether the word should be given, as
Justice Stephens contended it should be, a very broad and liberal
interpretation such as "able to judge calmly and reasonably of the
moral or legal character of a proposed action,"[53] or a limited and
qualified one. There are all grades and degrees of "knowledge," and it
is more than probable that there is a state of mind which I have heard
an astute expert call upon the witness stand "an insane knowledge,"
and equally obvious that there may be "imperfect" or "incomplete
knowledge," where the victim sees "through a glass darkly." Certainly
it seems far from fair to interpret the test of responsibility to
cover a condition where the accused may have had a hazy or dream-like
realization that his act was technically contrary to the law, and even
more dangerous to make it exclude one who was simply unable to "judge
calmly and reasonably" of his proposed action, a doctrine which could
almost be invoked by any one who committed homicide in a state of anger.

Ordinarily the word is not defined at all and the befuddled juryman
is left to his own devices in determining what significance he shall
attach not only to this word but to the test as a whole.

An equally ambiguous term is the word "wrong." The judges made no
attempt to define it in 1843, and it has been variously interpreted
ever since. Now it may mean "contrary to the dictates of conscience"
_or_, as it is usually construed, "contrary to the law of the
land"--and exactly _what_ it means may make a great difference to
the accused on trial. If the defendant thinks that God has directed
him to kill a wicked man, he may know that such an act will not
only be contrary to law, but also in opposition to the moral sense
of the community as a whole, and yet he may believe that it is
his conscientious duty to take life. In the case of Hadfield, who
deliberately fired at George III in order to be hung, the defendant
believed himself to be the Lord Jesus Christ, and that only by so doing
could the world be saved. Applying the legal test and translating
the word "wrong" as contrary to the common morality of the community
wherein he resided or contrary to law, Hadfield ought to have achieved
his object and been given death upon the scaffold instead of being
clapped, as he was, into a lunatic asylum.

On the other hand, if the word "wrong" is judicially interpreted to
mean "contrary to the dictates of conscience," it would seem to be
given an elasticity which would invite inevitable confusion as well as
abuse.

Moreover, the test in question takes no cognizance of persons who have
no power of control. The law of New York and most of the states does
not recognize "irresistible impulses," but it should admit the medical
fact that there are persons who, through no fault of their own, are
born practically without any inhibitory capacity whatever, and that
there are others whose control has been so weakened, through accident
or disease, as to render them morally irresponsible,--the so-called
psychopathic inferiors.

Most of us are only too familiar with the state of a person just
falling under the influence of an anesthetic, when all the senses seem
supernaturally acute, the reasoning powers are active and unimpaired,
and the patient is convinced that he can do as he wills, whereas, in
reality, he says and does things which later on seem impossible in
their absurdity. Such a condition is equally possible to the victim
of mental disease, where the knowledge of right and wrong has no real
relevancy.

The test of irresponsibility as defined by law is hopelessly
inadequate, judged by present medical knowledge. There is no longer
any pretence that a perception of the nature and quality of an act or
that it is wrong or right is conclusive of the actual insanity of a
particular accused. In a recent murder case a distinguished alienist,
testifying for the prosecution, admitted that over seventy per cent. of
the patients under his treatment, all of whom he regarded as insane and
irresponsible, knew what they were doing and could distinguish right
from wrong.

Countless attempts have been made to reconcile this obvious
anachronism with justice and modern knowledge, but always without
success, and courts have wriggled hard in their efforts to make the
test adequate to the particular cases which they have been trying, but
only with the result of hopelessly confounding the decisions.

But, however it is construed, the test as laid down in 1843 is
insufficient in 1908. Medical science has marched on with giant
strides, while the law, so far as this subject is concerned, has
never progressed at all. It is no longer possible to determine mental
responsibility by any such artificial rule as that given by the judges
to the Lords in McNaughten's case, and which juries are supposed to
apply in the courts of to-day. I say "supposed," for juries do not
apply it, and the reason is simple enough--you cannot expect a juryman
of intelligence to follow a doctrine of law which he instinctively
feels to be crude and which he knows is arbitrarily applied.

No juryman believes himself capable of successfully analyzing a
prisoner's past mental condition, and he is apt to suspect that,
however sincere the experts on either side may appear, their opinions
may be even less definite than the terms in which they are expressed.
The spectacle of an equal number of intellectual-looking gentlemen, all
using good English and all wearing clean linen, reaching diametrically
opposite conclusions on precisely the same facts, is calculated to fill
the well-intentioned juror with distrust. Painful as it is to record
the fact, juries are sometimes almost as sceptical in regard to doctors
as they always are in regard to lawyers.

The usual effect of the expert testimony on one side is to neutralize
that on the other, for there is no practical way for the jury to
distinguish between experts, since the foolish ones generally look as
learned as the wise ones. The result is hopeless confusion on the part
of the juryman, an inclination to "throw it all out," and a resort to
other testimony to help him out of his difficulty. Of course he has
no individual way of telling whether the defendant "_knew_ right from
_wrong_," whatever that may mean, and so the ultimate test that he
applies is apt to be whether or not the defendant is really "queer,"
"nutty" or "bughouse," or some other equally intelligible equivalent
for "medically insane."

The unfortunate consequence is that there is so general and growing a
scepticism about the plea of insanity, entirely apart from its actual
merits, that it is difficult in ordinary cases, whatever the jurors may
think or say in regard to the matter, to secure twelve men who will
give the defence fair consideration at the outset.

This is manifest in frequent expressions from talesmen such as: "I
think the defence of insanity is played out," or "I believe everybody
is a little insane, anyhow" (very popular and regarded by jurymen as
witty), or "Well, I have an idea that when a fellow can't cook up any
other defence he claims to be insane."

The result is a rather paradoxical situation: The attitude of the
ordinary jury in a homicide case, where the defence of insanity is
interposed, is usually at the outset one of distrust, and their impulse
is to brush the claim aside. This tendency is strengthened by the
legal presumption, which the prosecutor invariably calls to their
attention, that the defendant is sane. Every expert who has testified
for the defence in the ordinary "knock down and drag out" homicide case
must have felt with the prisoner's attorneys, that it was "up to them"
not so much to create a _doubt_ of the defendant's sanity as to _prove_
that he was insane, if they expected consideration from the jury.

Now let us assume that the defence is meritorious and that the
prisoner's experts have created a favorable impression. Let us go even
further and assume that they have generated a reasonable doubt in the
mind of the jury as to the defendant's responsibility at the time
he committed the offence. What generally occurs? Not, as one would
suppose, an _acquittal_, but, in nine cases out of ten, a _conviction_
in a lower degree.

The only usual result of an honest claim of irresponsibility on the
ground of insanity is to lead the jury to reduce the grade of the
offence from murder in the first, entailing the death penalty, to
murder in the second degree. The jury have no intention of "taking the
chance" involved in turning the man loose on the community and their
minds are filled with the predominating fact that a human being has
been killed. They have an idea that it is as easy to get "sworn out"
of a lunatic asylum as they suppose it is to get "sworn into" one,
and they know that if the prisoner is found to be insane when sent to
State's prison he will be transferred elsewhere. They, therefore, as a
rule, waste little time upon the question of how far the defendant was
irresponsible within the legal definition when he committed the deed,
but convict him "on general principles," trusting the prison officials
to remedy any possible injustice. The jury in such cases ignore the law
and decline either to acquit _or_ to convict in accordance with the
test. Their action becomes rather that of a lay commission condemning
the prisoner to hard labor for life on the ground that he is medically
insane.

Assuming that the jury take the defence seriously, there is only one
class of cases where, in the writer's opinion, they follow the legal
test as laid down by the court--that is to say, in cases of extreme
brutality. Here they hold the prisoner to the letter of the law, and
the more abhorrent the crime (even where its nature might indicate to
a physician that the accused was the victim of some sort of mania) the
less likely they are to acquit. The writer has prosecuted perhaps a
dozen homicide and other cases where the defence was insanity. In his
own experience he has known of no acquittal. In several instances the
defendants were undoubtedly insane, but, strictly speaking, probably
vaguely knew the nature and quality of their acts and that they were
wrong. In a few of these the juries convicted of murder in the first
degree because the circumstances surrounding the homicides were so
brutal that the harshness of the technical doctrine they were required
to apply was overshadowed in their minds by their horror of the act
itself. In other cases, where either the accused appeared obviously
abnormal as he sat at the bar of justice, or the details of the crime
were less abhorrent, they convicted of murder in the second degree in
accordance with the reasoning set forth in the fore-going paragraph.
The writer seriously advances the suggestion that the more the
brutality of a homicide indicates mental derangement the less chance
the defendant has to secure an acquittal upon the plea of insanity.

And this leads us to that increasingly large body of cases where
the usual scepticism of the jury in regard to such defences is
counterbalanced by some real or imaginary element of sympathy. In
cities like New York, where the jury system is seen at its very
best, where the statistics show seventy per cent. of convictions by
verdict for the year 1907, and where the sentiment of the community
is against the invocation of any law supposedly higher than that of
the State, our talesmen are unwilling to condone homicide or to act
as self-constituted pardoning bodies, for they know that an obviously
lawless verdict will bring down upon them the censure of the public and
the press. This is perhaps demonstrated by the fact that in New York
County a higher percentage of women are convicted of homicide than of
men.

But the plea of insanity, with its vague test of responsibility, whose
terms the juryman may construe for himself (or which his fellow-jurors
may construe for him) offers an unlimited and fertile field for the
"reasonable" doubt and an easy excuse for the conscientious talesman
who wants to acquit if he can. Juries take little stock in irresistible
impulses and emotional or temporary insanity save as a cloak to cover
an unrighteous acquittal.

In no other class of cases does "luck" play so large a part in the
final disposition of the prisoner. A jury is quite as likely to send an
insane man to the electric chair as to acquit a defendant who is fully
responsible for his crime.

To recapitulate from the writer's experience:

(1) The ordinary juror tends to be sceptical as to the good faith of
the defence of insanity.

(2) When once this distrust is removed by honest evidence on the part
of the defence, he usually declines to follow the legal test as laid
down by the court on the general theory that any one but an idiot or a
maniac has some knowledge of what he is doing and whether it is right
or wrong.

(3) He applies the strict legal test only in cases of extreme brutality.

(4) In all other cases he follows the medical rather than the legal
test, but instead of acquitting the accused on account of his medical
irresponsibility, merely convicts in a lower degree.

The following deductions may also fairly be made from observation:

(1) That the present legal test for criminal responsibility is
admittedly vague and inadequate, affording great opportunity for
divergent expert testimony and a readily availed of excuse for the
arbitrary and sentimental actions of juries, to which is largely due
the distrust prevailing of the claim of insanity when interposed as a
defence to crime.

(2) That expert medical testimony in such cases is largely discounted
by the layman.

(3) That in no class of cases are the verdicts of jurors so apt to be
influenced solely by emotion and prejudice, or to be guided less by the
law as laid down by the court.

(4) That a new definition of criminal responsibility is necessary,
based upon present knowledge of mental disease and its causes.

(5) Lastly, that, as whatever definition may be adopted will inevitably
be difficult of application by an untutored lay jury, our procedure
should be so amended that they may be relieved wherever possible of a
task sufficiently difficult for even the most experienced and expert
alienists.

       *       *       *       *       *

A classification of the different forms of insanity, based upon its
causes to which the case of any particular accused might be relegated,
such as has recently been urged by a distinguished young neurologist,
would not, with a few exceptions, assist us in determining his
responsibility. It would be easy to say then, as now, that lunatics or
maniacs should not be held responsible for their acts, but we should
be left where we are at present in regard to all those shadowy cases
where the accused had insane, incomplete or imperfect knowledge of
what he was doing. It would be ridiculous, for example, to lay down a
general rule that no person suffering from hysterical insanity should
be punished for his acts. Yet, even so, such a classification would
instantly remedy that anachronism in our present law which refuses to
recognize as irresponsible those born without power to control their
emotions--the psychopathic inferiors of science, and the real victims
of _dementia præcox_.

Of course, if the insanity under which the defendant labors bears no
relation to or connection with the deed for which he is on trial, there
would logically be no reason why his insanity on other subjects should
be any defence to his crime. For example, there is the well-known
case of the Harvard professor who was apparently sane on all other
matters, yet believed himself to be possessed of glass legs. Had
this man in wanton anger struck and killed another, his "glass leg"
delusion could not logically have availed him. If, however, he had
struck and killed one who he believed was going to shatter his legs
it might have been important. The illustration is clear enough, but
its application probably involves a mistaken premise. If he thought
he had glass legs his mind was undoubtedly deranged--whether enough
or not enough to constitute him irresponsible or beyond the effect of
penal discipline might be a difficult question. The generally accepted
doctrine is, that if a man has a delusion concerning something, which
if _actually existing_ as he believed it to be would be _no excuse_
for his committing the criminal act, he is responsible and liable to
punishment; but, as Bishop well says:

  "This branch of the doctrine should be cautiously received; for
  delusion of any kind is strongly indicative of a generally diseased
  mind."

The new test to determine responsibility will recognize, as does the
law of Germany, that there can be no criminal act where the free
determination of the will is excluded by disease, and that the capacity
to distinguish between right and wrong is inconclusive. It may perhaps
have to take a general form, leaving it to a lay, expert, or a mixed
lay-and-expert jury to say merely whether the accused had a disease
of the mind of a type recognized by science, and whether the alleged
criminal act was of such a character as would naturally flow from that
type of insanity, in which case it would seem obviously just to regard
the defendant as partially irresponsible, and perhaps entirely so.
Possibly the practical needs of the moment might be met by permitting
such a jury to determine whether the defendant had _such_ a knowledge
of the wrongful nature and consequences of his act and such a control
over his will as to be a proper subject of punishment.[54] This would
require the jury to find that the defendant had some knowledge of right
and wrong and the power to choose between them. In any event, to render
the accused entirely irresponsible, his act should arise out of and be
caused solely by the diseased condition of his mind. The law, while
asserting the responsibility of many insane people, should recognize
"partial" responsibility as well.

The reader may feel that little after all would be gained, but he will
observe that at any rate such a test, however imperfect, would permit
juries to do lawfully that which they now do by violating their oaths.
The writer believes that the best concrete test yet formulated and
applied by any court is that laid down in Parsons _vs._ The State of
Alabama (81 Ala., 577):

  "1. Was the defendant at the time of the commission of the alleged
  crime, as matter of fact, afflicted with a disease of the mind, so as
  to be either idiotic, or otherwise insane?

  "2. If such be the case, did he know right from wrong as applied to
  the particular act in question? If he did not have such knowledge, he
  is not legally responsible.

  "3. If he did have such knowledge, he may nevertheless not be legally
  responsible if the two following conditions concur:

  "(1) If, by reason of the duress of such mental disease, he had so
  far lost the power to choose between the right and wrong, and to
  avoid doing the act in question, as that his free agency was at the
  time destroyed.

  "(2) And if, at the same time, the alleged crime was so connected
  with such mental disease, in the relation of cause and effect, as to
  have been the product of it solely."

But whatever modification in the present test of criminal
responsibility is adopted, there must come an equally, if not even more
important, reform in the procedure in insanity cases, which to-day is
as cumbersome and out of date as the law itself. As things stand now in
New York and most other jurisdictions there are no adequate means open
to the State to find out the actual present or past mental condition of
the defendant until the trial itself, and ofttimes not even then.

In New York, in cases like Thaw's, the accused, while fully intending
to interpose the defense of insanity (which he is now permitted to do
simply under the general plea of "not guilty") may not only conceal
the fact until the trial, but may likewise successfully block every
effort of the authorities to examine him and find out his present
mental condition. He may thus keep it out of the power of the District
Attorney to secure the facts upon which to move for a commission to
determine whether or not he ought to be in an insane asylum or is a fit
subject for trial, and at the same time prevent the prosecutor from
obtaining any evidence through direct medical observation by which to
meet the claim, which may be "sprung" suddenly upon him later at the
trial, that the defendant was irresponsible.

In order that this may be clearly understood by the reader he should
fully appreciate the distinction between (1) the claim on the part of
an accused that he is at present insane, and for that reason should
not be either tried or punished for his alleged offence, and (2) the
defence that he was (irrespective of his _present_ mental condition)
insane within the legal definition of irresponsibility at the time he
committed it. No person who is incapable of understanding the nature of
the proceedings against him or of consulting with counsel and preparing
his defence can be placed on trial at all, or, if already on trial, can
continue to be tried, and if a defendant "appears to the court to be
insane," the judge may appoint a commission to examine him and report
as to his present condition. This may be done upon the application
either of the State or of the accused through his counsel.

It was such a commission to determine the accused's present mental
condition that District Attorney Jerome, upon the basis of the evidence
introduced by the defence, applied for and secured during the first
trial of Harry K. Thaw. The commission reported that Thaw was sane
enough to be tried and the court then proceeded with the original case
for the purpose of allowing the jury to say whether he knew the nature
and quality of his act and that it was wrong when he shot and killed
White.

This was a totally distinct proceeding from the interposition of the
DEFENCE that the accused was irresponsible _when he committed the
crime_ charged against him and was not inconsistent with it.

Now supposing that the Commission had reported that Thaw _was_ insane
at the time of examination and not a fit subject for trial, but, on
the contrary, ought to be confined in an insane asylum, the District
Attorney would have spent some twenty odd thousand dollars and a
year's time of one or more of his assistants in fruitless preparation.
Yet, as the law stands on the books to-day in New York, there is no
adequate way for the prosecution to find out whether this enormous
expenditure of time or money is necessary or not, for it cannot compel
the defendant to submit either to a physical or mental examination. To
do so has been held to be a violation of his constitutional rights and
equivalent to compelling him to give evidence against himself.

Thus when Thaw came to the bar at his first trial the State had never
had any opportunity, through an examination by its physicians, to learn
what his present condition was or past mental condition had been. The
accused, on the other hand, had had over six months to prepare his
defence and had fully availed himself of the time to submit to the most
exhaustive examinations on the part of his own experts. The defendant's
physicians came to court brimming with facts to which they could
testify; while the State's experts had only the barren opportunity for
determining the defendant's condition afforded by observing him daily
in the court room and hearing what Thaw's own doctors claimed that they
had discovered. There was no chance to rebut anything which the latter
alleged that they had observed, and their testimony, save in so far as
it was inconsistent or contradictory in itself, remained irrefutable.

There is probably no procedure which would be held constitutional
whereby a compulsory examination of the accused could be had upon the
mere application of the prosecuting authorities; but as a commission
may generally be appointed at any time after an accused has been
indicted if he "appears" to the court to be "insane," and as it is
usually within the power of the District Attorney where such is the
case to bring sufficient evidence of it to the attention of the court
before the prisoner is brought to trial, little time is actually lost
and justice is rarely defeated except in those cases (such as Thaw's)
where an attempt is to be made to prove the accused insane _at the time
of the alleged crime_ although _sane_ at the time of trial. Even here
it would be the simplest thing in the world to remedy the difficulty
and the proper legal steps in all jurisdictions should be taken
immediately.

The two chief objects of such reforms should be, first, to relieve
the ordinary jury in as many cases as possible from the necessity of
passing upon the delicate issue of a defendant's mental condition at
a previous time, and second, where this may not be avoided, to make
their task as easy as possible by providing (_a_) a more scientific
and definite test of legal responsibility and (_b_) an opportunity for
adequate examination of defendants availing themselves of this defence.

This last and most practical reform can be easily secured by a slight
alteration in the New York Code of Criminal Procedure, which already
provides both for the entering of the specific plea of insanity and for
the introduction of the defence and the proof of insanity under the
general plea of "not guilty." At present the defendant has his choice
of openly announcing or of concealing until the trial his intention of
claiming that he was insane and so irresponsible for his crime. This is
an advantage the results of which were probably not fully contemplated
by the Legislature, and one to which an accused has no fair claim.

Fortunately, in the same section of the Code (658), which provides
that the court may appoint a Commission to inquire into the sanity of
a defendant at the time of his trial, there exists another provision,
hitherto little noticed, that

"When a defendant PLEADS INSANITY, as prescribed in Section 336, the
court in which the indictment is pending, instead of proceeding with
the trial of the indictment, may appoint a commission of not more than
three disinterested persons to examine him and report to the court as
to his insanity _at the time of the commission of the crime_."

If a defendant intends to prove himself irresponsible for his offence,
why should he not be compelled to enter a specific plea to that effect?
Once he has entered that plea, the law as it stands just quoted will
do the rest. No reason has been brought to the attention of the writer
why the admission of any evidence upon the defendant's trial tending to
show that he was mentally irresponsible at the time of committing the
crime should not be made contingent upon the defence of insanity having
been _specifically pleaded_ either at the time of his arraignment or
later by substitution for or in conjunction with the plea of "not
guilty." This would deprive him of no constitutional right whatever.
There is no legal necessity of permitting an accused to prove insanity
under a general answer of "not guilty." Then upon his own plea _that
he had been insane_ he could instantly be committed to some place
of observation where a permanent medical board of inquiry could be
given full opportunity to examine him and study his case with a view
to determining his present and past mental condition. He would still
have in prospect his regular jury trial, but if this board found him
at the present time insane, the court could immediately commit him to
an asylum pending recovery, precisely as under the present procedure,
while if they found him sane at the present time, but reported that,
in their opinion (whatever test, "medical" or "legal," they might have
applied), he was _irresponsible at the time he committed the crime_, it
is unlikely that any prosecutor would bring him to trial. If, however,
they reported _that he was not only sane, but had been sane_ at the
time of his crime, it is probable that any proposed defence of insanity
would be abandoned, while if it was still urged by the accused, the
opinion of such a board would carry far greater weight at the ultimate
trial of the case than the individual opinions of experts retained and
paid by either side for that particular occasion only, and having had
only a comparatively limited opportunity for examination. At any rate,
if the court called in the services of such a board of medical judges
to assist as _amici curiæ_ in determining the defendant's condition,
while their opinion would not be conclusive upon the jury, it would
at least do away with the present lamentable necessity of learned men
answering "yes" or "no" to a hypothetical question fifty thousand words
long, when the most superficial personal examination of the accused
would settle the matter definitely in their minds. Such a procedure
is in general use in Germany and other continental countries, and is
likewise substantially followed in Massachusetts, Maine, Vermont, and
New Hampshire.[55]

There is good reason to hope that we may soon see in all the states
adequate provision for preliminary examination upon the plea of
insanity, and a new test of criminal responsibility consistent with
humanity and modern medical knowledge. Even then, although murderers
who indulge in popular crime will probably be acquitted on the ground
of insanity, we shall at least be spared the melancholy spectacle
of juries arbitrarily committing feeble-minded persons charged with
homicide to imprisonment at hard labor for life, and in a large measure
do away with the present unedifying exhibition of two groups of hostile
experts, each interpreting an archaic and inadequate test of criminal
responsibility in his own particular way, and each conscientiously able
to reach a diametrically opposite conclusion upon precisely the same
facts.

FOOTNOTES:

[Footnote 51: The questions propounded to the judges and their answers
are here given:

_Question 1._--"What is the law respecting alleged crimes committed
by persons _afflicted with insane delusion in respect of one or more
particular subjects or persons_, as, for instance, where, at the time
of the commission of the alleged crime, the accused knew he was acting
contrary to law, but did the act complained of with a view, under the
influence of insane delusion, of redressing or revenging some supposed
grievance or injury, or of producing some supposed public benefit?

_Answer 1._--"Assuming that your lordships' inquiries are confined to
those persons who labor _under such partial delusions only, and are
not in other respects insane_, we are of opinion that, notwithstanding
the accused did the act complained of with a view, under the influence
of insane delusion, of redressing or revenging some supposed grievance
or injury, or of producing some public benefit, he is, nevertheless,
punishable, according to the nature of the crime committed, if he knew
at the time of committing such crime that he was acting contrary to
law, by which expression we understand your lordships to mean the law
of the land.

_Question 4._--"If a person under an insane delusion as to existing
facts commits an offence in consequence thereof, is he thereby excused?

_Answer 4._--"The answer must of course depend on the nature of the
delusion; but, making the same assumption as we did before, namely,
that he labors under such partial delusion only, and is not in other
respects insane, we think he must be considered in the same situation
as to responsibility as if the facts with respect to which the
delusions exist were real. For example, if under the influence of his
delusion he supposes another man to be in the act of attempting to take
away his life, and kills the man, as he supposes in self-defence, he
would be exempt from punishment. If his delusion was that the deceased
had inflicted a serious injury to his character and fortune, and he
killed him in revenge for such supposed injury, he would be liable to
punishment.

_Question 2._--"What are the proper questions to be submitted to the
jury when a person, afflicted with insane delusions respecting one or
more particular subjects or persons, is charged with the commission of
a crime (murder, for instance), and insanity is set up as a defence?

_Question 3._--"In what terms ought the question to be left to the jury
as to the prisoner's state of mind when the act was committed?

_Answers 2 and 3._--"As these two questions appear to us to be more
conveniently answered together, we submit our opinion to be that the
jurors ought to be told, in all cases, that every man is presumed to be
sane, and to possess a sufficient degree of reason to be responsible
for his crimes, until the contrary be proved to their satisfaction;
and that, to establish a defence on the ground of insanity it must be
clearly proved that at the time of committing the act the accused was
laboring under such a defect of reason, from disease of the mind, as
not to know the nature and quality of the act he was doing, or, if he
did know it, that he did not know he was doing what was wrong." (The
remainder of the answer goes on to discuss the usual way the question
is put to the jury.)]

[Footnote 52: Dew _vs._ Clark.]

[Footnote 53: "General View of the Criminal Law," p. 80.]

[Footnote 54: See State _vs._ Richards, 1873, Conn.]

[Footnote 55: Another equally efficacious means of dealing with the
matter would be to substitute, upon a defendant's plea of insanity, a
full jury of experts--like any "special" jury--for the ordinary petit
jury.]



INDEX


  Abatement, plea in, 96

  Acquittals, table of percentages of, 175, 176, 177
    of women, 299, 300
    danger of, by lawless jury, 340-344
    "on ground of insanity," meaning of, 352

  Adams, "Al," 319

  Alabama, test of criminal responsibility in, 368

  Alibi, use of perjured evidence to prove, 224, 225

  Ammon, Robert A., and "The Franklin Syndicate," 25, 26

  Appeal, from magistrate's decision, 47
    number of appeals so taken, 47
    no appeal by aggrieved person if magistrate discharges, 47
    few appeals from Special Sessions, 62
    unfortunate that prosecution cannot appeal on verdict of acquittal, 186,
    337
    defendant has right of, 337
    reversals on, 339, 340

  Archer, Agnes, case of, 301

  Arrest (see Chapter III), right of citizen to arrest, despite common
  belief, 33
    right to, ordinarily left to police, 33
    anyone may arrest for crime committed in his presence, 35
    no one may arrest for felony without his view, unless felony
    committed, 35
    difference in citizen's and officer's right to arrest, 35, 37
    police construe their right to arrest more broadly than law permits, 35
    example of above, 36
    right of police to arrest at night under New York Criminal Code, 36
    force permissible in making arrest, 38
    cases in which the power may be abused, 38

  Arrest, power to arrest to be exercised with discrimination, 40, 41
    the first step in procedure toward conviction, 42
    after arrest prisoner taken before magistrate, 42
    on bench warrant if indicted by Grand Jury, 42
    on suspicion illegal but necessary, 43
    number of arrests in New York County in 1907, 46
    table showing nativity of those arrested, 46

  Arrest of judgment, motion for, 269

  Assault, power of magistrate should be extended to punish simple
  assault, 49

  Autrefois Acquit. See Pleas.


  Bail, in case of misdemeanor may be assessed by sergeant on duty, 42
    right of accused to, except in case of murder, 85
    bail cases not tried in summer, 126
    forfeiture of, 127, 128
    recommendation for discharge of, 170
    "skipping" bail, 317

  Bauman, case of, 323

  Bench warrant, indicted and arrested under, 42

  Blindness, "An Act for the Prevention of," 15

  Branding, 266-268, 278

  Breach of peace, 49

  "Bridge of Sighs," 115


  Capital punishment, no woman has suffered here in two decades, 299
    cases of, comparatively rare, 246

  Challenges, number of peremptory in homicide cases, 215
    reduction to reasonable number desirable, 325, 346
    in larceny cases, 346

  Cherry, "Tom," 73, 74

  Cignarale Chiara, case of, 299

  Clancy murder case, 325

  Code. See Statutes and Criminal Law

  Cohalan, Daniel F., 216

  Commercial Crime. See Crime

  Commission, to take testimony without state, 123
    application for, to take testimony for purpose of delay, 315
    right to take such testimony confined to defendant, 315
    motion for, 317
    to determine present mental condition of an accused, 369-72
    to determine mental condition at time of offense, 369-76
    desirability of such being permanent and salaried, 373, 374

  Commutation, of sentence for good behavior, 273
    how determined, 273
    periods of, (note) 273
    distinguished from indeterminate sentence, 274

  Complaints, in Court of Special Sessions, 63
    or informations, ancient form of, 89

  Confession, not sufficient to convict without corroboration, 330

  Contempt of court, practical inability of New York courts to punish
  editorial contempts, 347
    defined in Penal Code, 348

  Convictions, proof of prior, admitted for what purpose, 148, 166
    table showing percentages of, 175, 176
    too few, 177
    of innocent men almost unknown, 247, 336
    of women indicted, in same proportion as men, 299, 300

  County clerk, grand jurors drawn by, 358

  "County Detectives," 87

  Court officers as plea getters, 173

  Cowing, Rufus B., Judge, 255

  Crime, What is Crime? Chapter I, definition of, 1
    relation of, to wrongs, 1, 2, 3
    artificial character of laws defining, 4
    _mala prohibita_ and _mala in se_, 6
    little significance in mere name of crimes, 6
    arbitrary nature of acts made crimes, 7
    relation of, to insanity, 22
    theory that crime is a disease overworked, 23
    criminal instinct in all, 23
    commercial crime favored by law, 24, 30, 223

  Crimes, definition of, limiting it to those who "make a living" thereby
  is inadequate, 28
    fundamental cause of, disrespect for law, 30, 334
    attitude of jury toward commercial crime, 210, 211
    What Fosters Crime? Chapter XVII
    not on increase in proportion to growth of population, 334
    fostered by idea that criminal justice is slow and uncertain, 335, 336
      by constitutional safeguards, 335, 336
      by defects in our criminal law and procedure, 338
      by attitude of "yellow" press, 338
      by belief that higher courts reverse on technical grounds, 339
      by acquittal of guilty by sentimental juries, 340-342
    restraints on, 344-346
    fear of present criminal prosecution and punishment greatest restraint
    on, 344-346
    may be deliberate or the result of accident or impulse, 345

  Criminal Courts Building, description of, 115

  Criminal law, adapted especially to punishment of crimes of violence, 16
    impression of ordinary citizen concerning, 149, 335
    at present tends to retard and defeat justice, 336
    present state of, result of exaggerated regard for personal liberty, 336
    English system of, better than ours, 336
    leaves many technical avenues of escape, 338

  Criminal responsibility (see Insanity and the Law, Chapter XVIII), 350
    test of, 353
    unchanged since case of McNaughten, 353
    questions propounded by House of Lords to the judges, with their
    answers, 354
    delusions in the law of insanity, significance of, 355, 356
    doubtful interpretation to be given to words "wrong" and "know," 357
    Hadfield's case, 358

  Criminal responsibility, present New York test does not recognize any
  lack of inhibitory capacity, 359
    test is imperfect, inadequate, and vague, 357, 359
    difficult of application, 357
    juries disregard it except in extreme cases, 360-366
    expert testimony in insanity cases discounted by jury, 360, 361
    requirements of proposed new tests, 366-368
    Alabama test, 368
    the "defense" of insanity often confused with claim of present
    insanity, 369
    present insanity determined by commission, 369-376
    mental condition at time of crime should be likewise determined, 369-376
    defendant may refuse to permit examination, 370
    present ineffectuality of law in New York, 370-376
      could be easily remedied, 372-374
    plea of insanity should be made compulsory, 373
      defendants so pleading should be remanded for observation by
      permanent, salaried, expert commission, as in Germany and
      elsewhere, 373, 374
    probable unconstitutionality of other suggested remedies, 374

  Criminals, not necessarily worse than other people, 5, 9
    not usually criminal in all directions, 5
    generally specialists, 5
    intentional, as distinguished from accidental or occasional, 9
    as distinguished from sinners, 17
    Who are the Real Criminals? Chapter II
    Charles D. Warner's definition of, 19
    traditional criminals few, 19
    the modern criminal, 20
    degenerate class of, exaggerated by continental writers, 21
    sentimentality concerning, over-done, 21, 23, 196
    majority of, not mentally defective, 22
    close relation between all, 22, 29
    why men are criminals, 24
    dishonest business men real criminals, 24, 25
    law at present favors business criminal, 25
  Criminals, professional criminals and degenerates form small proportion
  of law breakers, 29
    distinction between criminals and convicts, 42
    begin with petty infractions of law, 72
    professional criminals generally plead guilty, 148
    receive consideration for saving expense of trial, 148
    may obtain speedy trial if desired, 152
    weight given to prior conviction, 148

  Criminology, modern tendencies in, 17
    penological movements, first in direction of prison reform, 21
      and second in study of degeneracy, 22

  Cross-examination, use of, 231, 240
    impossible to cross-examine through interpreter, 239
    of women difficult, 291, 292


  Defendants, hostile attitude of courts to, in ancient times, 16
    present rights of, 16, 17
    presumed to be innocent, 44
    have right to counsel, 43
    sensations of, 45
    cannot be compelled to testify, 91, 326
    may move to dismiss indictment and thus retard trial, 91
    may easily obtain speedy trial, 152
    their own testimony generally convicts, 154
    rapid trial redounds to their benefit, 156
    if innocent need not fear to testify, 162
    majority of those failing to testify convicted, 163
    may defend themselves, 164
    often wise to rest on People's case, 164
    danger to, by perjury of one of their own witnesses, 164
    influenced to plead by result of prior cases, 174
    benefit by prosecutor's desire to dispose of case, 220
    favored by jury, 222
    description of, while waiting verdict, 241
    right to poll jury, 247
    when convicted rarely show emotion, 247, 248
    may present plea for clemency before sentence, 271
    latitude allowed, 337, 338
    (See Criminals.)

  Degrees of crime, arbitrary character of, 8

  Delays, The Law's, Chapter VII
    secured by motions based on irregularities before Grand Jury, 93
    delay the first, in the police court, 108
    delay the second, before the Grand Jury, 114
    delay the third, pleading, 119
    delay the fourth, in preparation of case for trial, 121
    delay the fifth, after case on calendar, before trial, 122
    delay the sixth, dilatory tactics of counsel for defense, 123
    delay the seventh, bail cases not tried in summer, 126
    delay the eighth, forfeiting recognizance, 126
    alienates support of citizens, 129
    defendant has everything to gain by delay, 314
    method of securing, 315, 316
    motions to secure, 316
    many penal statutes and procedure tend to retard and defeat justice, 336
    (See Red Tape, Chapter VIII, 129.)

  Delusions, significance of, in law of insanity, 355, 356

  _Dementia præcox_, 351

  Demurrer, 316

  Dinser, Gustav, case of, 289

  Disagreements, two equivalent to acquittal, 220
    large number of trials resulting in, 244

  Disorderly conduct, jurisdiction over, by magistrate, 49

  Dodge-Morse divorce case, 321, 322

  Donohue _v._ N.Y., N.H. & H.R.R., case of, 259

  Dummies, 318-322
    attempt to induce witness to identify, 321, 322
    most famous case of, 321

  District Attorney (see Prosecutor), power to act when magistrate
  discharges, 47, 48
    copies papers forwarded from magistrate and subpoenas witnesses for
    Grand Jury, 87
    prepares calendar for Grand Jury, 87
    draws indictments, 87
    preliminary examination of witnesses by, 117
    a quasi-judicial officer, 167, 168
    limitations placed upon, by laws of evidence and procedure, 165, 168

  District Attorney, should move defendant's discharge if convinced of
  innocence, 168
    has same latitude in summing up as defendant's attorney 168
    in presentation of case, People should have same rights as an
    individual, 168
    should win confidence of jury, 169
    function of, 304
    can rebut defense more easily where it has been exposed before
    magistrate, 312
    necessity of examination of jury by, 323


  Electric chair, jury send to, only in atrocious cases, 213

  Ellis, William H., case of, 315, 316

  Elmira, release from, 165
    sentence to, indeterminate, 165

  Evidence, character of defendant provable only when put in issue by
  himself, 161, 166
    defendant's right to give, himself, 161-162
    but no inference to be drawn from defendant's failure to testify,
    160, 162
    rule permitting defendant to testify practically forces him to do
    so, 163
    good character of complainant and witnesses only provable on attack, 167
    amount of strictly accurate testimony very small, 225
    "refreshing recollection," in practice absurd, 235
    method of refreshing recollection, 235
    (See Witnesses)

  Ex Parte, proceeding before Grand Jury is, 90, 99


  Felix, John, case of, 15

  Felonies, The Trial of, Chapter IX
    (See District Attorney, Prosecutor, Defendants, etc.)
    distinction between felonies and misdemeanors often without merit, 30
    number of persons arrested for, 85
    should be prosecuted by information, 100
    rapidity of trials for, 152, 154
    description of trials for, 150
    attempted suicide, 171
    compounding, by agreeing not to prosecute, 349

  Foster, Judge Warren W., 216

  "Franklin Syndicate, The," 26

  Fursman, Judge, 321


  General Sessions, Court of, appeal to, from magistrate's courts, 47
    procedure in, 119, 150, 151
    description of (see Felonies), 150

  Goff, Recorder, 86, 290


  Habeas Corpus, for prisoners held in police court, 43
    to test magistrate's jurisdiction, 47
    only remedy for illegal commitment, 49
    writ of, often secured for delay, 317

  Hackett, Orlando J., case of, 290

  Hadfield's Case, 358

  Harris, Carlyle W., case of, 263, 264

  Hawkins, Sir Henry, on want of uniformity in sentences, 189, 190

  Homicide, typical case of manslaughter, 8
    large proportion of defendants charged with, plead guilty to
    manslaughter, 174
    charge of court in cases of, 243
    verdicts in cases of, 246
    sentence in cases of murder fixed by law, 261
    larger proportion of women indicted convicted of, than men, 334

  Howe, "Bill," 297, 298, 323

  Howe & Hummel, 322

  Hummel, Abraham, 321, 322


  Imprisonment, pending appeal, advisability of, 346

  Impulse. See Irresistible.

  Indeterminate sentence, definition of, 273
    constitutionality of, upheld by courts, 274
    distinguished from commutation, 274

  Indictments, found by Grand Jury, 81
    "true bills," 82
    number of, found, 85
    drawn by District Attorney, 87
    form of, 87, 88
    for larceny, 88, 89
    invalid, when, 91
    defendant may move to dismiss, when, 91, 92
    ratio of women to men indicted, 292
    not "pigeon-holed" or "lost" in New York County, 314
    motion to dismiss, 317
    for forgery, 331

  Information, in Court of Special Sessions, 48, 49
  Information, of aggrieved party, old form, 89
    proceeding by, in different states, 100
    all felonies should be prosecuted by, 100

  Insanity, not true that majority of criminals are mentally defective, 22
    sentence cannot be pronounced on insane person, 269
    how those insane at sentence are dealt with, 269
    defendants unlikely to feign, at sentence, 270
    used as means of avoiding trial by rich, 317
    As a Defense to Crime, Chapter XVIII, 350
    (Also see Criminal Responsibility and Commissions)

  Inspection, of Grand Jury minutes, 122, 316

  Interpreters, usually very incompetent, 239
    difficulty of cross-examining through, 239

  Irresistible impulses not recognized by present New York test of
  responsibility, 359


  Johnson, Richard, words of, before sentence, 262

  Judge, The (Chapter X), functions of, 178
    most difficult function of, to impose sentence, 178, 179
    his conduct during trial, 179
    may "sum up" in England but not here, 179, 337
    his business practically to "even things up," 182
    should interrogate witnesses, 182
    difference between his theoretical and practical functions, 179, 182
    should not interfere with jury on questions of fact, 183
    able to convey opinion to jury despite the law to contrary, 184
    most judges too lenient, 187, 195, 196
    tendencies often well known, 187, 188
    want of uniformity in sentences, 189, 199
    interference with judges in sentences, 191
    matters presented to, in determination of sentence, 192, 193
    restitution considered by, in sentencing, 195
    reasons for leniency, 195, 196
    fear of reversal, 196

  Judge, impression that judge is easy-going or subject to influence
  conduces to lawlessness, 197
    judicial propriety desirable, 198
    sometimes gives benefit of reasonable doubt after conviction, 199, 200
    inequality in punishment, 200-202
    no place for weak judge, 204
    when a law-breaker, 210
    responsibility of, in sentencing, 261, 272

  Judgment, arrest of, 269

  Jury, Grand (Chapter VI)
    power to hold for, by magistrate, 47
    indict as matter of course, 56
    indictment must precede trial for felony, 81
    composition of, 81, 82
    finding true bill by, 82
    is archaic, 82
    procedure by information in states where there is no grand jury, 82
    first record of Grand Jury proceeding in New York, 82, 83
    number of persons held for, in last six years, 85
    how chosen, 86
    charged by judge, 87
    calendar of, prepared by district attorney, 87
    nature of proceedings before, 90
    may send for witnesses, 91
    relieves district attorney of responsibility for failure to
    prosecute, 91
    historical development of, (footnote) 92-95
    irregularities before, 93
    power as general inquisitorial body, 93, 94
    power of, vast, 94
    tendency to exceed powers, 95, 96
    presentment by (see Presentment), 96, 97
    why not abolish? 99
    original necessity for, has disappeared, 98, 99
    one purpose only for which it should be continued, 98, 101
    original advantage of, 99
    out of harmony with present institutions, 99
    few cases originate before, 100
    abolished in certain states, 100
    subpoenas to appear before 115
    description of proceeding before, 116-118
    delay before, 119
    indict for "murder" in most homicide cases, 174

  Jury, Petit (Chapter XI), trial before, after indictment, 56
    disinclination of, to convict, 57
    find it difficult not to be prejudiced by defendant's failure to
    testify, 160, 161
    improves with service, 169
    see little of professional criminals, 148, 169
    inclined to take law in its own hands in trivial cases, 171, 172
    inclined to convict on substantial evidence in serious cases, 172
    petty offender profits by lawlessness of, 172
    why efficient in criminal cases, 172
    when at its best, 173
    apt to acquit early in term, 173
    percentage of convictions to acquittals by, 175, 176
    function of, 205
    capacity of, 205
    apt to usurp functions of judge, 206
    English jury more satisfactory, 206
    have little regard for law here, 207, 208
    inaccuracy of verdicts by, 209
    reason for arbitrariness on part of, 209
    attitude of, toward different crimes, 211, 212
    have small regard for life, 209, 213
    time require to select, in homicide case, 215
    futility of wasting time in selection of, 215
    some examination of, imperative, 216
    method of escaping service on, 217
    often contains officious members, 219
    desirability of homogeneity in, 219, 220
    eleven jurors should find verdict, 221, 222
    favors defendant, 222
    practically successful, 223
    first member of, selected is foreman, 243
    take time before returning verdict, 253
    deliberations of secret, 254
    failure in duty by, 255
    the influence of one strong-minded member upon, 255, 256
    effect on, of women's evidence, 293
    effect of appeals to sympathy, 322
    disregard the law in applying test of criminal responsibility, 360-366

  Jury system, works best in criminal cases, 192
    a practical success, 223
    works "substantial justice," 223
    brought in contempt by sentimental or lawless acquittal, 343, 344

  Jurisdiction, of magistrate, 47
    of courts tested by habeas corpus, 43, 47


  Larceny, magistrate compelled to hold defendant for higher court in all
  cases of, 48
    summary jurisdiction of magistrate should be extended to petit
    larceny, 48
    now frequently treated in police courts as disorderly conduct, 49
    form of indictment for, 88
    grand, value necessary to constitute, 102

  Lawyers, retained to advise prospective criminals, 10
    seek to postpone rather than hasten trials, 152
    business of, to create reasonable doubt, 304
    (See Shysters)

  Legal Aid Society, 77

  "Legal" insanity, 354, 360-366

  Levy, Abraham, 323

  Lincoln, Abraham, advice of, 326

  Liquor Tax cases, the bane of Special Sessions, 69
    few convictions for violation of (see note), 210
    juries reluctant to convict in, 70, 209, 210

  Livingston, case of, 13


  Magistrates, broad power of, 43, 48
    committment by, 45
    how regarded by humble classes, 46
    number of cases disposed of yearly by, 46
    jurisdiction of, 46, 47, 48
    power to hold for higher court of, 47, 85
    jurisdiction of, should be extended over petit larceny and simple
    assault, 48, 49, 57
    jurisdiction of, over breach of peace, 49
    tendency of, to hold for higher courts rather than spend time for
    examination, 56
    power of, for good, 58
    close contact of, with police, 58
    appointment of, generally political, 59
    (See Police Courts)

  _Mala prohibita_, as distinguished from _mala in se_, 6
    illustrations of, 10

  Manhattan Bank, case of, 254

  Mayhem, crime of, 316

  McCord, People _vs._, case of, 12

  McNaughten's case, 353
    doctrine of, 354
    "Medical" insanity and "legal" insanity, 354, 365

  Miller and "The Franklin Syndicate," 26

  Misdemeanors (Chapter V), may be morally worse than felonies, 6
    illustrations of what are, in New York state, 10
    distinction between, and felony often without merit, 30
    tried in Special Sessions, 85
    (See Special Sessions)

  Mock Duck, case of, 218, 318, 319

  Moran, trial of, 216

  Morse-Dodge divorce case, 320, 322

  Motions, for delay in proceedings, 316, 317


  New trial, motion for, at sentence, 276

  "Not proven," inadvisability of a verdict of, 244, 245

  Nott, Charles C., "In the District Attorney's Office," 155
    cases cited by 162, 166
    quoted on defendant's failure to testify, 163


  Oath, in police court, 112
    before Grand Jury, 118

  Omissions, usually not crimes, 10
    illustrations of, 10

  Osborne, James W., 328


  Parker, Mabel, case of, 330

  Parole. See Suspended Sentence

  Patterson, Nan, case of, 299, 301, 335

  Pedigree, taking of, 155, 248, 252

  Perjury, crime of, 224, 225
    large amount of, among defendants' witnesses, 225
    false answer in taking pedigree is perjury, 251
    women more ready to commit, than men, 285
    in defendant's own testimony, 311

  Plea, in Court of Special Sessions, 63, 120
    in abatement, 92
    of "guilty," "not guilty," and "autrefois acquit," 92
    withdrawal of, 155
    benefit of clergy, 266-269
    of "insanity" should be compulsory, where defense is anticipated, 373

  Police Courts (Chapter IV). See Magistrates
    right of arrested to immediate hearing in, 43, 85
    right to counsel in, 43
    attitude in, toward defendants, 44
    description of, 44, 109
    harsh treatment in, 45
    proportion of cases there disposed of summarily, 45
    great importance of, 45
    a day's work in, 50, 56
    proceedings in, 110, 111
    delay in, 113

  Police headquarters, described, 32

  Police judge. See Magistrate

  Police officers, great awe of persons in general for, 31
    right to arrest (see Arrest)
    contact with magistrate, 58
    assault on, 70
    the police sergeant, 107

  Police station, proceeding in, 107

  "Policy," business of, 319
    (See Al. Adams)

  Polling, of jury, 247

  "Poor Man's Court of Appeals, The." See Police Courts.

  Prescott, quoted on integrity of judges among Aztecs, 198

  Presentments, by Grand Jury, 96
    often unnecessary and frivolous, 97, 98

  Press, sensational press fosters crime, 334, 338
    domination of court room by, 347
    trial by, 347, 348

  Property clerk, at police headquarters, 132, 134, 137, 138, 146, 147
    at district attorney's office, 134

  Prosecutor, effect of experience on, 4
    often protects accused from shysters, 78
    delicate position of, when informed of facts inadmissible in
    evidence, 166
    allowed small latitude, 337
    (See District Attorney)

  Punishment, unfair apportionment of, under the law, 26
    once a matter of private vengeance, 32
    now for protection of public safety, 32
    desire for punishment of accused still moving cause of most
    prosecutions, 32
    imposed by magistrate, 47
    inequality in, the exception, 200
    (See Sentences)

  Purdy, Ambrose H., 324


  Questions of House of Lords to English Judges after McNaughten's case, 354


  Reasonable doubt, definition of, 160
    giving benefit of, _after_ conviction, 199, 200
    difficulty in finding guilt beyond, 244, 245
    defendant entitled to benefit of, 304
    certificate of, 346

  Recognizance, form of (see Bail), 127

  Recommendation, cases dismissed on, of district attorney, without
  trial, 170
    ground of, 170, 171
    to mercy by jury, 245
    to mercy usually considered by jurors as part of verdict, 245
    to mercy, facilitates agreement, 246

  "Red Tape" (Chapter VIII), at police headquarters, 137, 138, 144, 147
    at district attorney's office, 140, 143
    (See Delays)

  Requests, to charge, 339

  Reversals of convictions, effect on community of, 198
    number of, on appeal, 339, 340
    rare on technical grounds in New York state, 339
    usually fault of trial judge, 340

  "Ringers," 318-320

  "Runners," methods of, 73, 75


  Scannell, John J., case of, 92

  Schorling, J. Holt, quoted, table of increase and decrease in specific
  crimes, 20

  Sentences (Chapter XIV), want of uniformity in, 189, 199
    judges too lenient in, 187, 195
    matters considered by judge in imposing, 192, 195
    impossible to secure equality in, 200, 202
    table showing sentences for different crimes, 201, 202
    might be imposed by judges _en banc_, 203
    for perjury, heavy, 224
    jury would be more severe in, than judge, 245
    for murder fixed by law, 261
    great responsibility of judge in matter of, 261
    to life imprisonment, 264
    of death in all felony cases, formerly, 265

  Sentences, motions to arrest judgment, 269, 270
    appeal for clemency before, 271, 272
    little mercy to old offenders in, 272
      (See Indeterminate Sentences)
    remarks of judge at time of, 274, 275
    lightness of, 275
    advantages of short sentences, 275

  "Shysters," methods of, 58, 74-80, 122, 327
    (See Tricks of the trade)

  "Sick engineers," 14, 170
    never plead guilty, 170

  Special panel, 173

  Special Sessions, Court of (see Misdemeanors), information in, 48
    power to try petit larceny cases, 48
    old court of, 62
    present composition of, 62
    number of cases disposed of in, 62, 63
    procedure in bringing cases before, 63
    speedy trial in, 63
    jurisdiction of, 64, 65
    rapidity of procedure in, 65, 66
    Liquor tax cases in, 69
    attitude of, toward assaults on police officers, 70
    practically final court of disposition for misdemeanor, 71
    important cases often tried therein, 71
    efficiency of, 62, 72
    lawyers in, 72, 73
    menace of "shysters" in Special Sessions and police courts, 79, 80

  Statutes, multiplicity of, undesirable 12
    "to prevent blindness," 15
    punishing contempt, 348

  Stay, of proceedings, 317

  Stolen property, recovery of, by owner. See Red Tape
    innocently receiving, 329

  Street walkers, 75, 76, 77

  Subpoenas, served by district attorney for Grand Jury, 87

  Summerfield, "Larry," 14, 26, 27

  Sweetser, William A., 321

  Supreme Court, Criminal Term, tries most of homicide cases, 174

  Suspended sentences, in large number of cases against first
  offenders, 195, 261


  Technicalities, reversal on technical grounds, 339, 340

  Technicalities, means to abolish, 347

  Test of criminal responsibility, 353
    proposed new tests, 360-368

  Thayer, J.B., on historical development of Grand Jury (footnote), 92, 95
    cited, 221, 301

  Thaw, case of H.K., 350, 370

  "Tombs," The, 115

  Tricks of the Trade (Chapter XVI), of the successful practitioner, 303
    bolder than in civil courts, 304
    inducing complainant to withdraw charge, 309, 310
    securing adjournments, 310
    persuading court that case is trivial, 310
    obtaining immediate hearing to find out People's evidence, 311
    waiving examination to conceal defendant's case, 311
    which are utilized after magistrate has held accused, 314
    securing permission for defendant to appear before Grand Jury, 314
    securing delay in trial, 314
    introducing "ringers" in place of real defendant, 318-320
    attempt to have witnesses identify dummies, 321, 322
    appeals to sympathy of jury, 305, 307, 322
    offer to "take first twelve" jurors, 323
    obtaining one favorable juror, 323
    getting members of same race as defendant on jury, 324
    gaining good will of jury by chance remark, 325
    defendant's counsel intentionally appearing intoxicated, 325
    supplying missing evidence in counsel's opening or closing, 326, 328
    getting one of two defendants to take entire blame, 328, 332
    most of them unsuccessful, 333

  True bill. See Indictment

  Twitchell, case of, 282, 283


  Verdicts (Chapter XIII), lack of accuracy in, 209
    arbitrariness of, 209
    form of, 243
    procedure in rendering, 244
    difficulty in reaching, 244, 245
    of murder in first degree rare, 246
    how received by defendants, 246, 247
    slowness in reaching, 253

  Verdicts, in Manhattan Bank case, 255
    by eleven jurors, advisability of, 347

  _Voir dire_, 305, 324


  Warren, Chas. D., definition of criminals by, 19, 24
    within the definition, 24

  "Watch, The," 109

  Wellman's "Art of Cross-Examination," 282, 287, 298, 299

  Wigmore, Professor John H. See Introduction

  "Wire tappers," wire tapping described, 14
    (See McCord and Livingston and Tompkins cases)

  Witnesses (Chapter XII). See Evidence.
    value of testimony of, 224
    original capacity of, for observing correctly, 225
    children make remarkable, 225, 226
    often honestly mistaken, 226
    present stronger testimony in court than upon preliminary
    examination, 228
    unconscious amplification by, 229, 230
    fallibility of the honest witnesses, 230
    recollect impossible details, 232
    who refresh recollection, 233
    ultimate test of value of testimony of, 236
    physical condition of important, 236
    to be convincing must be positive, 237
    the most effective witness with jury, 237
    measurement of time by, 238
    difficulty of finding language comprehensible to, 238, 239
    difficulty with foreign, 239

  Wood, Fernando, 319

  Women in the Courts (Chapter XV), sentences of, table, 202
    their evidence originally regarded with suspicion, 279-281
    men said to rely on power of 281

  Women in the Courts, reason, women on intuition, 281
    do not differ from men in original capacity to observe, 282
    confuse knowledge with imagination and belief, 282
    illustration, 283
    their habit of stating inference, 283
    more ready to swear testimony through than men, 284
    more ready to commit perjury than men, 285
    often make remarkable witnesses, 285
    frequently couple with answer statement damaging to defendant, 285
    silent cross-examination of, the most effective, 286
    old women simulating stupidity the most dangerous, 288
    more difficult to cross-examine than men, 291, 292
    testimony of, little different from men's, 292
    number of, indicted and tried, 292
    number of complaints by, 292
    tried by opposite sex, 293
    more likely to persuade jury than men 293, 295
    effect of beauty of, on jury, 295
    juries apt to be more lenient with, 296
    no woman has suffered death penalty in this country in twenty years, 299
    number of, convicted in proportion to those indicted compared with
    men, 299, 300
    number of, prosecuted, few, 300, 301
    earliest case on record of prosecution of woman for murder, 301
    larger proportion of, charged with murder, than men convicted, 334
    false popular impression that few women are convicted, 334

  Wrongs, relation of, to crime, 1, 2, 3
    huge number of, not crimes at all, 7



BY ARTHUR TRAIN

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